WA 136/2008 BEFORE HON’BLE THE CHIEF JUSTICE MR. J. CHELAMESWAR HON’BLE MR. JUSTICE HRISHIKESH ROY Aggrieved by the judgment and order dated 8.5.08 allowing the Writ Petition No.1 559/08, the State has filed Writ Appeal No.137/08 and Shri Khagendra Deka, respo ndent No.5 in the writ petition, has filed the Writ appeal No.136/08 . The Writ Petition was filed by Ranjit Chandra Barman, arrayed in the Writ Appeals as a re spondent, to challenge the transfer order dated 7.3.08 by which the writ petitio ner, who was working as the Executive Engineer, Guwahati West Water Resources Dv n. has been transferred and posted as the Deputy Director, Planning in the Offic e of the Director, Planning Water Resources Deptt. and the appellant Khagendra D eka, holding the post of Deputy Director has been posted as the Executive Engi neer of the Guwahati West Dvn. It is not in dispute that by the said transfer or der dated 7.3.08 neither the writ petitioner nor the appellant were being posted out of Guwahati and the transfer order results in shifting the incumbents from one office to another, in the same city under the same department. 2. The writ petitioner challenged his transfer primarily on the ground that as his transfer was effected before completion of the normal tenure of three ye ars in the post of Executive Engineer, Gauhati West Water Resources Dvn., the sa id transfer could only have been ordered by the Govt. by following the norms pre scribed by the Govt. itself through O.M. dated 4.2.02 and 4.10.06 (Annexure-4 an d 5) for making a transfer prior to completion of the normal tenure of three yea rs. There is no disagreement at the Bar that the norms prescribed by the Govt. r equire that proper justifications are to be recorded for effecting a transfer be fore completion of a normal tenure of three years at one place by an employee an d such transfer can be effected only with prior approval of the Chief Minister. 3. The learned Single Judge having considered the norms set up by the Govt. which have been noted to be in force to check arbitrary exercise of power, foun d on examination of the concerned records that although prior approval of the Ch ief Minister was taken for transferring the writ petitioner before completion of his normal tenure of three years, no justification was, however, recorded for e ffecting the said transfer. The learned Single Judge found that the need for obs ervance of the norms of recording appropriate justification, as long as the conc erned office memorandums are in force. Accordingly, it was held that even in the circumscribed jurisdiction of the Court in matters relating to transfer, the Co urts must ensure that norms set up by the Govt. are followed as the norms are pr escribed to check arbitrary transfers. As in the instant case reasons were not r ecorded before the impugned transfer order dated 7.3.08 was issued, the writ pet ition was allowed by setting aside the transfer order issued to the petitioner. 4. Appearing for the appellant State, Mr. K.N. Choudhury, the learned Addl. Advocate General and Mr. A.M. Mazumdar, learned senior counsel appearing for ap pellant Khagendra Deka in W.A. No. 136/08 submit that this was not a case of tr ansfer of the writ petitioner from Guwahati to any post outside of the Guwahati and it was a transfer within the same station but to another post. Accordingly, it is argued that since the Govt. Memorandums have been notified to prevent arbi trary exercise of power of transfer before the normal tenure of an incumbent who has spent less than three years in one station, the departure from the norms, i n the context of non-recording of justification for effecting such transfer can’ t be held to be fatal for the transfer order. Accordingly, submissions have been made to sustain the order of transfer by interferring with the impugned order p assed by the learned Single Judge. 5. Mr. P. Pathak, learned senior counsel representing the respondent/writ p etitioner, on the other hand, argues that when the Govt. has notified norms to b e followed by the Govt. in matters of early transfer, the Court would be perfect ly justified to interfere with a transfer order when it is seen that important norms such as recording of justification for ordering transfer prior to complet ion of normal tenure of three years at one place, are not followed by the employ er. The learned counsel further submits that in pursuant to the impugned ord er of the learned Single Judge dated 8.5.08, the Govt. has cancelled the transfe r order dated 7.3.08 and accordingly nothing survives for adjudication in the pr esent writ appeal for even in the event of the Division Bench interferring with the impugned order of the learned Single Judge, the transfer order dated 7.3.08 impugned before the learned Single Judge is no more in existence. 6. Clarifying the 2nd submissions of Mr. Pathak, the learned Addl. Advocate General submits that cancellation order dated 14.5.08 is only to give effect to the learned Single Judge’s order interferring with the transfer order dated 7.3 .08 and obviously the Govt. would abide by any decision which might be given in the appellate proceeding. 7. Mr. K.N. Choudhury, learned Addl. Advocate General has also referred to t he following decision to submit that there is no obligation for an employer to j ustify through reasons an order of transfer by adducing reason and interference by the Court for absence of reasons would clearly be unjustified. [(1993) 4 SCC 357, Union of India vs. S.L. Abbas]. The learned counsel has also referred to the Supreme Court decision repo rted in (2004) 4 SCC 245 (Union of India vs. Janardhan Debanath) to submit that while adjudicating the question as to whether a transfer order is in public int erest or not would require determination of factual matters and would invariably depend upon the facts and circumstances of a given case and accordingly such ma tters should be best left for the employer to consider and decide upon and it is not for the Court to interfere one way or the other. The learned counsel has also referred to this Court’s decision reported in 2003 (2) GLR151 (State of Assam vs. Dilip Kr.Das) to submit that Court ought not to sit over the judgment of the employer to post a particular officer in a p articular post and Court must be extremely slow in interfering with the discreti on exercised by the employer who is supposed to be a better Judge in matters of transfer and posting. By referring to the aforesaid decisions, it is argued on behalf of the a ppellants that interference made by the learned Single Judge for not recording o f justification while transferring the writ petitioner before completing three y ears in his post by ordering setting aside the impugned transfer order, was not at all justified. 9. In the instant case what is of significance that the writ petitioner, al though was ordered to be transferred before completion of three years tenure in the post in question, the said transfer was not to another place or station but to another office in the same place. Requirement of recording justification for transferring staff before competition of three years at one place as prescribed by the notified norms cannot be understood to apply to a transfer, where the tra nsfer does not involve movement to a new place or station. When the transfer is to another office in the same place or station, judicial intervention may not be justified to such transfer order, for alleged breach of the prescribed norm of recording justification. 10. Normally an employer is not under an obligation to demonstrate the justi fication for ordering transfer and interference by Court is circumscribed, as it is difficult for the Court to assess whether the transfer is in the interest of public service. The instant transfer order is not being challenged on the grou nd of mala fide exercise of power or on the ground of violation of statutory pro vision but only on the limited ground of not recording justification, which is p rescribed to be complied, when transfer is made before completion of three years tenure at one place or station. The concerned memorandums do not prescribe reco rding of justification when transfer is from one office to another and is at the same place and station. Therefore, we are of the opinion that the rigours of re cording justification specified in the Office Memorandum dated 19.9.92 and subse quently reiterated in Office Memorandum dated 4.2.02 and Office Memorandum dated 4.10.06, would not apply to a case where the transfer is not from one place to a new place or is not from one station to another . Accordingly, it is held tha t judicial interference in such cases would not be justified. 11. Accordingly, these Writ Appeals are allowed, the impugned judgment and o rder dated 8.5.08 is set aside and the transfer order dated 7.3.08 is upheld. Go vernment may pass consequential orders. No cost.