WP(C) 6260/2010 BEFORE THE HON’BLE MRS JUSTICE ANIMA HAZARIKA The subject matter of challenge in the present writ petition is the ord er dated 22.11.2010 by which the petitioner, who is an Executive Engineer, Nalb ari Division (Irrigation) has been transferred from Nalbari to the post of Depu ty Director Design, office of the Director Design (Irrigation), Guwahati. The r espondent No.3, who was working as Deputy Director Design (Irrigation) in the of fice of the Director Design (Irrigation), Guwahati has been transferred to Nalba ri Division (Irrigation) in place of the petitioner. 2. Considering the grievance raised in this petition and also as agreed to by the learned counsel appearing for the parties, this writ petition is being di sposed of at the motion stage itself. 3. Heard Mr. AM Mazumdar, learned Sr. counsel assisted by Mr. IH Saikia, le arned counsel appearing for the petitioner. Also heard Dr. B Ahmed, learned SC, Irrigation Deptt. appearing for respondent Nos.1 and 2 and Mr. AM Bujarbarua, le arned counsel appearing for respondent No.3. 4. The brief facts of challenge of transfer order dated 22.11.2010 is summa rized hereinbelow in order to determine as to whether the transfer order has bee n made in violation of statutory rules or guidelines or has been passed mala fid e and not in public interest requiring interference in exercise of power under A rticle 226 of the Constitution of India. The pleaded facts in the case would disclose that while the petitioner w as holding the post of Assistant Executive Engineer under Irrigation Department, Government of Assam, he was transferred and posted at Chhaygaon Sub-Division (I rrigation), Chhaygaon in the month of May 2007. Thereafter the petitioner was ag ain transferred and posted at Guwahati West Sub-Division (Irrigation) Guwahati i n the same capacity vice one Ramesh Chandra Bharali, A.E.E. transferred and post ed in his place and accordingly, the petitioner after handing over his charge of the Chhaygaon Sub-Division joined in the post so transferred vide Notification dated 23.05.2008. However, the charge was not handed over to him by the said Ram esh Chandra Bharali who had challenged the transfer order dated 23.05.2008 befor e this Court being WP (C) No. 2184 of 2008. Subsequently in pursuance of the ord er dated 2.6.2008 passed by this Court in WP(C) No.2184/2008, the Government Not ification dated 23.05.2008 was suspended vide Notification dated 04.06.2008 with effect from 03.06.2008 and accordingly, the petitioner joined in the earlier po st at Chhaygaon. 5. Thereafter vide Notification dated 06.06.2009 the petitioner alongwith o thers were transferred and posted at a place shown against their names wherein the petitioner was promoted temporarily to officiate as Executive Engineer and posted at Nalbari Division (Irrigation), Nalbari vice Shri Tarini Kumar Sarma, Executive Engineer proceeded on medical leave and accordingly he joined in the transferred post. The said order of transfer was made in the interest of public service. The petitioner has been serving in the said post till date. 6. The Government of Assam Irrigation Department issued another Notificati on dated 22.11.2010 whereby and whereunder the petitioner has been transferred f rom Nalbari Division (Irrigation), Nalbari and posted as deputy Director Design vice respondent No.3, Deputy Director Design transferred and posted in his place which is under challenge in this writ petition. The transfer order has been m ade in the public service. The said Tarini Kumar Sarma has been arrayed as party respondent No. 3 in the instant writ proceeding, whereas the Secretary and Depu ty Secretary to the Government of Assam Irrigation Department have been arrayed as party respondent Nos.1 and 2 respectively. 7. The ground of attack of the impugned transfer order dated 22.11.2010 as contended by Mr. Mazumdar, learned Senior counsel are as follows: a) The transfer order has been made to accommodate the respondent No. 3 at the b ehest of concerned Minister which cannot be termed as public interest and theref ore requires interference under Article 226 of the Constitution of India; b) The Office Memorandum dated 22.05.2002 which pertains to transfer and posting of Government officials speaks of transfer before the expiry of three years can be made in exceptional cases showing valid/cogent reasons which is absent and t hus suffers from malice in law and malice in fact and nothing but an exercise of power arbitrarily and it is a fit case for interference in the public interest. 8. On the other hand Dr. Ahmed, learned Standing Counsel appearing for the Irrigation Department, Government of Assam would contend that the records would show that in order to execute the various schemes under the Irrigation Departmen t, Nalbari, the transfer order has been necessitated to complete the schemes wit hin the time frame which has the approval of the Chief Minster. On the question of malice in law and malice in fact, Dr. Ahmed has submitted that the pleaded fa cts requires firm foundation of mala fide which is absent and hence the transfer order being incident of service do not require to be interfered with in the fac ts and circumstances of the case and accordingly produced the relevant record fo r perusal of the Court. 9. Mr. Bujarbarua, learned counsel appearing for the respondent No. 3 would contend that the initial order of transfer dated 06.06.2009 would show that the respondent No. 3 was proceeded on leave and the petitioner was posted in his pl ace. The petitioner has also admitted in his pleadings that respondent No.3 proc eeded on medical leave for treatment of cancer. Mr. Bujarbarua has further submi tted that the transfer is not only an incident of service but a condition of ser vice and is made in public interest and efficiency in public administration as i t would reveal from the record of the case and therefore urged that no interfere nce is called for keeping in mind the public interest. 10. The following decisions are referred by the petitioner in support of his case to substantiate that the case required interference- i) (1997) 6 SCC 167 (Arvind Dattatraya Dhande -vs- State of Maharashtra & Ot hers) ii) 1997 (3) GLR 1 (Auokuolhoulie Angami -vs- State of Nagaland & Other s); and iii) 2004 (1) GLT 347 (Jibeswar Thakuria & Others -vs- State of Assam & Others); iv) 2006 (1) GLJ 29 (Dilip Kumar Saikia -vs- State of Assam & Others); In Arvind (supra), the Apex Court interfered with the transfer order holding tha t transfer of an officer who is honest in performance of duties at the behest of aggrieved complainants carrying business in liquor is a case of victimization a nd hence transfer order was interfered with which is not the case in hand. The r ecords would speak otherwise and hence not applicable in the instant case. In the case of Auokuolhoulie (supra), the Court has held that the cancellation, modification or keeping in abeyance of transfer order passed in public interest must be supported with sufficient reasons necessitating for passing such order a nd thereby interfered with the order of transfer since there was no reason for i ssuance of such transfer order whereas in the instant case the record reveals th at cogent reasons has been assigned for transfer of the petitioner which in the opinion of the Court is made in public interest and efficiency in public admini stration. The case of Jibeswar Thakuria (supra), relates to transfer on personal consider ation and political consideration wherein the recommendations of MLAs and Minis ters in the matter of transfer including the violation of policy guidelines of transfer deplored and accordingly interfered with the transfer order which is n ot the case in hand. To implement the various schemes the Minister recommended the transfer of the petitioner in public interest which has the approval of the Chief Minister and there is no violations of the policy guidelines and hence not applicable in the instant case. The case of Dilip Kumar Saikia (supra) relates to violation of policy decision o f the Government prior to completion of 3 years. The Court has held that authori ty cannot ignore the guidelines though it is not mandatory but directory. In tha t case transfer order was made to accommodate another employee and the Court int erfered with the transfer order holding that the authority cannot ignore guideli nes without assigning any reason and acceded to the request of private responden ts without examining merit and demerits of such request and transfer. The case r eferred has no application since the approval was accorded by the Chief Minister considering the implementation of the various schemes under the Irrigation Depa rtment, Nalbari more particularly, the record would reveal otherwise and against the petitioner and the request for transfer has not been made by the respondent No. 3 herein as would reveal from the record and hence differed with the above citation. 11. Considered the arguments advanced by the parties alongwith the pleadings averred in the writ petition including the records produced by Dr. Ahmed, learn ed Standing Counsel, Irrigation Department Government. Admittedly the petitioner was promoted as Executive Engineer and posted in place of respondent No. 3 who had proceeded on leave vide Notification dated 06.06.2009. It is also an admitt ed fact that the petitioner has been transferred again on 22.11.2010 and posted as Deputy Director Design, Office of Director design (Irrigation), Guwuahati-3 v ice the respondent No. 3 after about 1 year 5 months, which, however, has been a pproved by the Chief Minster as would reveal from the records and therefore the transfer order fulfills the criteria of the Office Memorandum dated 22.05.2002 a nd the ground of attack of arbitrariness fails. 12. The other ground of attack relates to the transfer order being suffered from malice in fact to accommodate the respondent No. 3 lacks firm foundation of facts pleaded and established and not merely on insinuations and vague allegati ons and it is not possible to draw reasonable inference of mala fide action from the pleadings and attendant facts and circumstances as it would reveal from per usal of the records which speaks otherwise and against the petitioner and in abs ence of making the person by name as party respondents who had acted mala fide in the matter of transfer no interference is called for and the second groun d of attack fails. 13. Perusal of the records would reveal that the transfer order has been pas sed in order to execute the various schemes pending for completion within the ti me frame and the department thought it fit to transfer the petitioner from the e xisting place of posting in the public interest and efficiency in public adminis tration which has the approval of the Chief Minster. Transfer unless shown to be mala fide or in violation of statutory provisions is not open to interference b y court and therefore the question whether transfer was in the interest of publi c service or not do not require adjudication on the basis of lacking firm found ation of facts of mala fide and violation of any statutory provisions under the service Rules, more so, when the transfer is not only an incident of service but a condition of service too, this Court is not inclined to interfere with the order of transfer dated 22.11.2010. 14. In the result, the writ petition is dismissed for the reasons given abov e. The parties are left to bear their own costs.