Polly Koch Vs the State of Assam and 2 Ors.

2:THE SECRETARY TO THE GOVT. OF ASSAM LABOUR WELFARE DEPARTMENT DISPUR GUWAHATI-781006 ASSAM 3:BIDYUT KUMAR DAS REGISTRAR INDUSTRIAL TRIBUNAL DIBRUGARH DIST. DIBRUGARH ASSAM PIN- 786001

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Advocate for the Petitioner : MR. N DEKA, MR. M GOGOI

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Advocate for the Respondent : GA, ASSAM, MRS. R BORAH (R-3)

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Page No.# 2/14

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BEFORE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

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ORDER

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02.12.2025

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Heard Mr. M. K. Chowdhury, learned Senior Counsel, assisted by Mr. N. Deka, learned counsel of the petitioner. Also heard Mr. D. Bora, learned Government Advocate, Assam andMs. R. Borah, learned Counsel, for therespondent No. 3.

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The challenge in the present writ petition is to the impugned transfer order dated 20-06-2025 issued by the respondents no. 1 and 2by which the private respondent No. 3, was transferred from his post as Registrar, Industrial Tribunal, Dibrugarh, and posted as Registrar, Labour Court, Guwahati, with immediate effect and the petitioner, who was posted as Registrar, Labour Court, Guwahati is transferred and posted as Registrar, Industrial Tribunal, Dibrugarh, with immediate effect. The learned Senior Counsel for the petitioner submits that the impugned order of transfer is challenged only on the ground that it has been given the colour of “public interest” when this transfer is on the basis of the personal request made by the private respondent No.3. Learned Senior Counsel submits that when a transfer is made on a request, it should be a transfer effective on the request of the applicant and it will not be in the interest of public service, as has been sought to be shown in the impugned order dated

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Page No.# 3/14

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20-06-2025.

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This Court by order dated 25-06-2025 had permitted the Government Advocate to place the relevant record on the next week fixed, which was on 3006-2025, with an assurance that no coercive action will be taken against the writ petitionertill the next week of listing. This interim order was extended on the next date also.Subsequently, when the matter was listed again on 21-072025, the interim order was expanded to specifically providethat the transfer order dated 20-06-2025 shall not be given effect to till the next week fixed. This interim order was extended until it stood modified by the order dated 18-092025 in IA (Civil) No.2985/2025 filed by the private respondent No. 3. By order dated 18-09-2025 upon submissions before this Court that the private respondent had already joined in his new place of hosting, i.e. Labour Court Guwahati, the interim order was modified to the extent directing the status quo to be maintained as regards the post of Registrar, Labour Court, Guwahati until further orders.

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The parties have exchanged the pleadings. The respondents as well as the private respondent have disputed of the contentions raised by the petitioner.

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The learned Senior Counsel for the Petitioner submits before this Court that as per instructions, the records in this matter available with the Department will reveal that this is not a routine transfer.This transfer impugned transfer order

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dated 20-06-2025 was issued on the basis of an application made by the respondent No. 3. The petitioner has also made a request after the transfer order was issued giving reasons as to why she ought to have been transferred out of Guwahati.However, that representation was not complied with.

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The learned Senior Counsel for the petitioner has pressed into service the Judgement of the Apex Court rendered in Secretary to the Government Department of Health and Family Welfare and Another vs. K. C. Devaki reported in 2025 SCC OnLine SC 639. Pressing this judgment into service, the learned Senior Counsel for the petitioner submits that where an order is made at the request of an officer, the same does not partake the character of a transfer making in thepublic interest. He, therefore, submits that if it is made on the request of the private respondent no.3, then the corresponding hardships likely to be faced by the petitioner should also have been taken into consideration. He,therefore, submits that the respondent Authorities have only considered the hardships faced by the private respondent No. 3 overlooking the claims of the petitioner and therefore, the impugned order of transfer dated 20-06-2025 being colourable in nature ought to be interfered with and set aside by this Court.

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Mr. D. Bora, learned Government Advocate, submits that the order dated 20-06-2025 is indeed an order issued under public interest, inasmuch as, for

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administrative exigencies, transfer being an incident of service, the officers and personnel of the Department under the Labour Court are required to be transferred depending on the administrative requirements of the Department. He further submits that there is no illegality in the order. The records will reveal that the petitioner has continued in Guwahati for about 12 (twelve) years and therefore, under administrative exigencies of service, the transfer order was issued and the same was given effect to.

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Referring to the judgement referred by the learned Senior counsel for the petitioner, he has countered the same by placing reliance on an order passed by the Apex Court in Shilpi Bose v. State of Bihar and Others reported in 1991 Supp(2) SCC 659. Referring to this said order passed by the Apex Court, he submits that unless transfers are issued contrary to the rules or on grounds of malafide, High Courts are ordinarily not required to interfere with transfer orderswhile exercising judicial review of the same.

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Ms. R Borah, learned counsel representing the respondent No. 3, also submits that the respondent No. 3 has earlier filed a representation which was turned down and now, on account of personal hardship, which is reflected in the representation, he had approached this authority and they have considered the application and passed the impugned order dated 20-06-2025.While learned counsel for the respondent no.3 does not dispute that the impugned order was

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issued on the basis of an application by the respondent No. 3, she, however, disputes on the claim of the writ petitioner that this impugned order dated 2006-2025 was not issued in public interest.

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Learned counsel for the parties have been heard and pleadings available

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on record have been carefully perused. Judgments pressed into service have

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also been carefully noted.The records pertaining to the order of transfer upon being directed to be placed are also placed before the Court.

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Having perused the records, it is seen that the initiation of transfer was on the basis of a representation issued, submitted by the private respondent No.

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3, expressing personal hardships relating to his ailing mother and his child. His ailing mother is in Nagaon and, therefore, transfer to Guwahati will necessarily ameliorate his grievances. The petitioner, on the other hand, pursuant to the issuance of the transfer order also represented before the authorities praying for recall of the transfer order.

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A careful perusal of the extract of the records placed before the Court, including the note sheets, reflect that the representation of the respondent no.3 was examined in detail and was put up for necessary orders by the higher authorities. Subsequently, the higher authorities approved the order.It is shown to be digitally signed on 06-06-2025 at 08.04 pm by the Additional Chief Secretary. Subsequent endorsement, bearing the digital signature of the

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concerned Minister of the Department, was obtained on 13-06-2025 shown to

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be digitally signed at 06.03 pm. Thereafter, steps were taken to issue the transfer order and subsequently, on 20-06-2025, the transfer order was issued. 12. A perusal of the note sheets and the accompanying documents available in the extract of the records placed before the Court does not reflect any reasons from the authorities which will support the contention of the respondent Authorities that the transfer order dated 20-06-2025 was issued in exigencies of service or because of administrative reasons. The entire proposal was based on the request made by the private respondent no.3 which came to be approved and the transfer order was issued. The records also do not reflect any reference to any provision of the Rules or any office Memorandum or notification which lays down the parameters of transfer.

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On a query made by the Court as to the Rules which governs the services of the petitioner as well the private respondent no.3, the learned counsel for the parties submits that there is no specific Rule which is in place governing the service conditions of employees like the petitioner and the respondent no.3.

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While it is an accepted principle that transfer is an incident of service and the employees are required to be transferred depending on the administrative exigencies and need for efficient administration to be undertaken by the State,

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the fact remains that when a transfer order is effected on the basis of a

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personal application, the same cannot be stated to have been issued in public interest or in public service. In Geetha V.M vs. Rethnasenan K. reported in 2025 SCC OnLine 35the Apex Court was examining the claims of inter-se seniority between the original employees of the Director of Medical Education in the State of Kerala and the absorbed employees from Director of Health Service in the respective categories of Director of Medical Education, State of Kerala.The dispute was the employees who were absorbed under DME can claim seniority over and above the seniority of the original employees of DME. So, upon examining the entire facts and events of the same matter, the Apex Court held in the facts of that case that the transfer made by way of absorption on the basis of option and not on the basis of request. The same absorption was in furtherance to a policy decision of the Government to abolish the dual control system enhancing the efficiency of the administration of medical colleges and attached hospitals thereto.

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The Apex Court therefore concluded that the action taken in the public interest due to administrative exigencies even on option is different than action done on request and therefore, it was held that transfer by way of absorption in public interest cannot be equated with the transfer on request. In K. C. Devaki (supra) the Apex Court was examining the Rules governing the service of the respondent, namely, the Karnataka Civil Service (General) Recruitment

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Rules, 1977 and the Karnataka Government Servants Seniority Rules, 1957.

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Upon examining the facts of the case, the Apex Court held that the Rules contemplate transfers under two contingencies: the first where the transfer is made in public interest and the second is when the transfer is made in the request of the officer. The Apex Court held that the purpose and object of transfer in public interest is singular and straight forward that is to ensure effective and efficient administration, whereas a transfer is made at the request of an officer and if the government is satisfied with the genuineness of the request, it may accept the request and direct transfer. However, this kind of transfer effected at the request of an officer does not partake the character of a transfer made in public interest. The Apex Court held that if an officer is transferred at his own request such transferred employee will have to be accommodated in the transfer post subject to the claims and status of the other employees at the transfer place as their interests cannot be varied without there being any public interest in the transfer.The relevant paragraphs of the judgement are extracted below paragraph 15 to 19 of the judgement:

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The above rule contemplates transfers under two contingencies, the first is when the transfer is made in public interest and the second is when transfer is made at the request of the officer. The purpose of transfer, considerations that weigh, the consequences that follow a transfer made in public interest, as against a transfer made at the request of the officer, vary substantially.

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The purpose and object of transfer in public interest is singular and straightforward, i.e., to ensure effective and efficient administration. This is for the reason that administration and provisioning goods and services in a welfare State requires the government to deploy officers at different places and the exigencies of service take within its sweep the need to redeploy or transfer them from one place to another for myriad reasons, all intended to subserve the purpose of the State. All these decisions are transfers in public interest.

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On the other hand, where a transfer is sought at the request of the officer and if the government is satisfied with the genuineness of the request, it may accept the request and directtransfer. This is fairness in action as governmental power accommodates, as it must, human needs and vulnerabilities. However, this kind of transfer, effected at the request of the officer, does not partake the character of a transfer made in the public interest.

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Transfers characterised as in public interest are founded, sourced, and rooted in administrative exigencies and nothing else. Effecting or transferring employees at their behest is equally important but exercise of that power and discretion is to subserve a different cause or a value, which is distinct from transfer in public interest. It is necessary to draw a clear distinction between these two, as their purpose, procedure, and consequence are distinct. This distinction is in fact recognised and incorporated in the Rules.

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If a government employee holding a particular post is transferred on public interest, he carries with him his existing status including seniority to the transferred post. However, if an officer is transferred at his own request, such a transferred employee will have to be accommodated in the transferred post, subject to the claims and status of the other employees at the

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transferred place, as their interests cannot be varied without there being any public interest in the transfer. Subject to specific provision of the Rules governing the services, such transferees are generally placed at the bottom, below the junior-most employee in the category in the new cadre or department.”

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Coming to the facts of the present case The Apex Court held that the

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transfer made at the request of an officer, the records reveal that the authorities had given sympathetic consideration to the representation made by the respondent no.3. However, the impugned order dated 20-06-2025 which has been issued as a consequence thereof is an order which is shown to be issued in public interest. There are no reasons on record to indicate the administrativeconsiderations or exigencies thatwereavailable before the competent authorities in issuing the impugned transfer order in public service. 18. Under such conditions, it is quite clear that the impugned transfer order dated 20-06-2025 has been initiated only on the application made by the respondent no.3. There is no discussion as to whether the respondent no.3 could have been transferred to the Nagaon itself in equivalent post and/or such posts are available subject to such post given to. The records do not reveal that the cases of the petitioner, the respondent no.3 as well as other similarly situated persons have been given due consideration by the respondent authorities before issuing the impugned order dated 20-06-2025 in public service. While malice in fact to be specifically alleged against any persons/ officers, however, malice in law need not be specifically alleged. It may be inferred from actions or inactions of the authoritiesconcernedif they are found to have acted in a manner which is contrary to the established principles of service

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jurisprudence or if the actions taken by the authorities are not supported by adequate and germane reasons. Legal meaning of malice is “ill-willing or spite towards a party or any indirect or improper motive in taking an action”,. This is sometimes described as “malice in fact”. Legal malice or malice in law means something which is done without lawful excuse.

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In other words, it is an act done wrongfully or willfully without reasonable or probable cause and not necessarily an act done from ill-feeling and spite. It is a deliberate act in disregard of the rights of others.

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In Additional District Magistrate, Jabalpur v. Shivkant Shukla reported in (1976) 2 SCC 521, the dissenting view of the then Hon’ble Justice HR Khanna, J (now retired) is that reference in this case may be made to the judgement of the Apex Court rendered in State of Andhra Pradesh vs. Govardhanlal Pitti reported in (2003) 4 SCC 739. A person who inflicts an injury upon another person in contravention of law is not allowed to say that he did so with an innocent mind and that he is taken to know the law and he must act within the law. He

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may therefore be guilty of malice in law although so far as the state of his mind is concerned, he acts ignorantly and, in that sense, innocently.

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From the judgments referred above, it is clear that for malice in law to be attributed, it is not enough to show that the person acted ignorantly or

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innocently. So where any act is done in contravention of law or without sufficient reasons, in support of such actions, then such action can be treated to be malice in law and it need not be specifically alleged. It can be inferred by a Court from the facts and circumstances of the case.

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Under such circumstances, while this Court does not dispute with the proposition that transfer is an incident of service and ordinarily interference with transfer orders ought notto be encouraged in judicial review,the peculiar facts which have been placed before the Court reveal that the impugned transfer order dated 20-06-2025 is not a transfer order issued in public interest. Such interpretation cannot be given to a transfer order which was issued or initiated on the basis of a request made by the individual Officer. Ordinarily, when a transfer order is made on request, the seniority of the person concerned at the place of posting where the choice is indicated, if such a seniority list is maintained, is normally at the bottom of such seniority list although such is not case here. The facts remains that the reasons placed before the Court by the Department do not inspire confidence to return a finding that the impugned transfer order dated 20-06-2025 was issued in public interest/public service.

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