Partly allowed

Tentu Chowdhury v. the State of Tripura and Ors.

Tripura HC13 Sept 2017WP(C)/1045/2017

Case brief

AI extract

What is this about?

Petitioner challenged frequent transfers via writ under Article 226. Court held postings in different offices at same location do not constitute frequent transfers. Directed respondent to reconsider representation via hearing and set interim order to keep petitioner at current posting.

What did the court decide?

Reconsideration of representation by respondent No. 2 within one month after hearing; petitioner not to be released from current posting pending disposal.

Tentu Chowdhury Vs the State of Tripura and… — Pension and Retirement Benefits | Tripura HC (2017)

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THE HIGH COURT OF TRIPURA AGARTALA

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WP(C) 1045 of 2017

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Sri Tentu Choudhury, S/o Late Binode Behari Choudhury, Vill & PO: Doulbari, P.S. Sabroom, District: South Tripura.

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………… Petitioner

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Vs –

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The State of Tripura, represented by the Secretary cum Commissioner to the Government of Tripura Revenue Department, , P.O. Kunjaban, P.S. New Capital Complex, District: West Tripura.

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The District Magistrate & Collector, South Tripura District, Government of Tripura, PO & PS – Sabroom, District- South Tripura.

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The Sub-Divisional Magistrate, Sabroom, Government of Tripura, PO & PS – Sabroom, District- South Tripura.

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The Sub-Divisional Magistrate, Belonia, Government of Tripura, PO & PS – Belonia, District- South Tripura.

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…….Respondents

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BEFORE

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THE HON’BLE MR. JUSTICE S. TALAPATRA

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For the petitioner : Mr. Arijit Bhowmik, Advocate For the respondents : Ms AS Lodh, Addl. GA. Date of hearing and delivery of judgment &order : 13.09.2017 Whether fit for reporting : No .

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JUDGMENT AND ORDER (ORAL)

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Heard Mr. A Bhowmik, learned counsel appearing for the

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petitioner as well as Ms AS Lodh, learned Addl. GA for the respondents.

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WP(C) 1045 of 2017

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Page 1 of 5

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2. By challenging the transfer order dated 08.08.2017 (Annexure5 to the writ petition), the petitioner has approached this Court by means of this petition under Article 226 of the Constitution. The petitioner has asserted that he has become victim of the frequent transfers as first he was transferred and posted to the Disaster Management Unit located in the Bijoypur Tehsil Office by the order dated 11.01.2017(Anenxure-3 to the writ petition). Thereafter, he was posted to the Revenue Section of the said office. Again on 16.05.2017 he was transferred to Srinagar Tehsil. From there he was brought to the office of the Sub-Divisional Magistrate at Sabroom. These facts are not disputed. From the office of the SubDivisional Magistrate at Sabroom, the petitioner was transferred by the impugned order to the office of the Sub-Divisional Magistrate, Belonia.

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3. The petitioner has filed one representation on 12.08.2017 to the District Magistrate and Collector, Belonia, South Tripura, the respondent No.2 herein, where he has asserted that aspect of frequent transfer as well as dislocation that his family would suffer if the transfer order is given effect to. It has been asserted in the said representation as follows:

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“In this regard it is highlighted that in the last 8/9 months I have been transferred thrice and the said amounts to frequent transfer and is illegal in the eye of the law. In this regard it is also highlighted that I have an old and ailing mother aged about 70 years approx who is undergoing psychiatric treatment. Further I am a married person and have a wife and minor girl child aged about 9 years. Without me there is none to look after my family. My child is studying in class III in the S.F.S School, Sabroom. Because of my frequent transfer my family has suffered a lot.”

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In such circumstances he has urged the respondent No.2 to

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cancel the said transfer order and let him continue in the place of posting, i.e. office of the Sub-Divisional Magistrate at Sabroom.

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WP(C) 1045 of 2017

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Page 2 of 5

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4. Mr. A Bhowmik, learned counsel appearing for the petitioner in support of the contention raised in the writ petition has referred to the celebrated decision of the Apex Court in B. Vardha Rao Vs. State of Karnataka and Ors, reported in (1986) 4 SCC 131 which decision has considered E.P.Royappa Vs. State of T.N. reported in (1974) 4 SCC 3. It has been observed in B Varda Rao (supra) as under:

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“5 .…….. If the power is exercised mala fide, then obviously the order of transfer is liable to be struck down. They relied on the observations made by this Court in E.P. Royappa v. State of Tamil Nadu and Anr. for the positivistic view that 'equality is antithetic to arbitrariness and held that the observations equally apply to the policy regarding the transfer of public servants. It was observed :

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“It is an accepted principle that in public service transfer is an incident of service. It is also an implied condition of service and appointing authority has a wide discretion in the matter. The Government is the best judge to decide how to distribute and utilise the services of its employees. However, this power must be exercised honestly, bona fide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power. Frequent transfers, without sufficient reasons to justify such; transfers, cannot, but be held as mala fide. A transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose, than is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration, that even administrative actions should be just and fair.”

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The observation that transfer is also an implied condition of service is just an observation in passing. It certainly cannot be relied upon in support of the contention that an order of transfer ipso facto varies to the disadvantage of a Government service, any of his conditions of service making the impugned order appealable under Rule 19(1)(a) of the Rules. 6. One cannot but deprecate that frequent, unscheduled and unreasonable transfers can uproot a family, cause irreparable harm to a Government servant and drive him to desperation. It disrupts the education of his children and leads to numerous other complications and problems and results in hardship and demoralisation. It therefore follows that the policy of transfer should be reasonable and fair and should apply to everybody equally. But, at the same time, it cannot be forgotten that so far as superior or more responsible posts are concerned, continued posting at one station or in one department of the Government is not conducive to good administration. It creates vested interest and therefore we find that even from the British times the general policy has been to restrict the period of posting for a definite period. We wish to add that the position of Class III and Class IV employees stand on a different footing. We

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WP(C) 1045 of 2017

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Page 3 of 5

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trust that the Government will keep these considerations in view while making an order of transfer.”

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[Emphasis added]

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5. Ms AS Lodh, learned Addl. GA appearing for the respondents has submitted that instances of transfers as cited by the petitioner were not transfers. These were posting in public exigencies in the same place but in the different offices. It was so done as the petitioner is considered as a competent employee of the administration and his services was utilized for public interest. There is no allegation of action in bad faith. Ms Lodh, learned Addl. GA has further pointed out that by the notice dated 28.08.2017, the petitioner was afforded an opportunity of hearing on the representation that he had filed. But before that, the petitioner has approached this Court and an interim order was passed by this Court directing the respondents to allow the petitioner to continue in the present place of posting i.e. the office of the Sub-Divisional Magistrate at Sabroom and accordingly the earlier release order was recalled by the respondents and the petitioner has been allowed to work in the previous place of the posting, meaning where the petitioner was working before the impugned transfer order was issued.

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6. Having regard to all these facts, this Court is of the view that these instances that have been referred by the petitioner cannot be considered as the incidence of frequent transfers for the simple reason that within the same location, the petitioner was posted to various offices. It might be so that those have created inconvenience for the petitioner. However, on perusal of the representation filed by the petitioner this Court is of the view, the said representation should be considered by the

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WP(C) 1045 of 2017

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Page 4 of 5

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respondent No. 2 having due regard to the observation made in B. Varda Rao (supra).

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7. On numerous occasions this Court has observed that the order of transfer cannot be challenged by a government employee except on two grounds, viz, (i) on the ground of mala fide; and (ii) on the ground of illegality. When the avenue to the judicial review is narrow it becomes a paramount duty of the employer to look into the difficulty or dislocation that a Group C or Group D employee would face if he is transferred. Before transferring one employee the employer should take care of those aspects.

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8. In terms of the above, the respondents are directed to dispose of the representation dated 12.08.2017 within a period of one month from today after affording the petitioner a chance of hearing. Till then the petitioner shall not be released from the present place of posting in terms of the order of transfer dated 08.08.2017. It is reiterated that while considering the representation of the petitioner the observations made by the apex court as reproduced above shall be considered in its letter and spirit.

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9. As corollary, this writ petition stands allowed to the extent as indicated above. No order as to costs.

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10. A copy of this order be furnished to Ms AS Lodh, learned Addl. GA for transmission.

JUDGE

lodh

WP(C) 1045 of 2017

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Tentu Chowdhury v. the State of Tripura and Ors.

Case brief

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Tentu Chowdhury v. the State of Tripura and Ors.

Case brief

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