WP(C) 901/2010 BEFORE HON’BLE MRS JUSTICE ANIMA HAZARIKA › Invoking power under Article 226 of the Constitution of India the ins tant writ petition has been filed by the petitioner challenging the legality and validity of the order dated 7.1.10 passed by the respondent No.3 transferring t he petitioner to Integrated Infrastructure Development Project (’IID’ for short ), Dalgaon on promotion as Sr. Office Assistant. 2. Heard Mr. T.J. Mahanta, learned counsel appearing for the petitioner. Al so heard Mr. P.C. Deka, learned Senior counsel assisted by Mr N. Deka, Advocate appearing for Assam Industrial Development Corporation Limited (’AIDC’ for short )/respondent Nos.2, 3 & 4 and Mr. B.J. Ghosh, learned State Counsel appearing fo r respondent No.1. 3. The petitioner was appointed as Typist in AIDC vide order-dated 25.4.91. Accordingly he joined on 30.4.91 as Typist. The post of Typist was later on re- designated as Junior Office Assistant and since his date of joining the petition er has been rendering service in that post. Vide order dated 7.1.2010 the petiti oner was promoted to the post of Senior Office Assistant and transferred to IID, Dalgaon, however, he was asked to work as Project Supervisor with direction to stay in the head Quarter at IID, Dalgaon. The petitioner’s case is that the peti tioner has been suffering from serious health problem since 2005. Considering th e disease he is suffering from, State authority referred him to Apollo Hospital, Chennai for proper treatment. Since 2007 till date petitioner had to be admitt ed at Apollo Hospital for about five times after obtaining prior approval from the Director of Health Services, Government of Assam. At present he is under con stant treatment of doctors of Apollo Hospital, Chennai as well as Neurology Depa rtment of Gauhati Medical College & Hospital (’GMCH’ for short). The details of medical treatment of the petitioner in the Apollo Hospital, Chennai, which were approved by the Director of Health Services, Government of Assam, as well as Superintendent, GMCH, mentioned at para 8 of the writ petition are quoted hereinbelow:- 1) 25.7.07: Director of Health Service, Govt. of Assam, accorded approval to the petitioner for his treatment at Apollo Hospital vide letter No.HSG/MR/245/ 07/9632-34 dt. 25.7.07 for the first time. 2) 23.11.2001: Director of Health Service, Govt. of Assam accorded approval to the petitioner for his treatment at Apollo Hospital Chennai vide letter No.HSG/M R/42/06/14860-42 dtd. 23.11.07 for second time. 3) 2.7.2008: Director of Health Service, Govt. of Assam accorded approval to the petitioner for his treatment at Apollo Hospital Chennai vide letter No.HSG/M R/317/07/12,409-11dated. 2.7.08 for the 3rd time. 4) 3.12.08: Director of Health Service, Govt. of Assam accorded approval to the petitioner for his treatment at Apollo Hospital Chennai vide letter No.HSG/M R/198/07/17329-31 dated. 3.12.08 for the 4th time. 5) 18.6.2009: Superintendent of Gauhati Medical College, wrote a letter to the Medical Superintendent, Apollo Hospital Chennai, vide Memo No.MCH/15/ 75/Pt-12/1160-A dtd. 18.6.2009 informing him the decision of Referal Medical Boa rd GMCH allowing the petitioner to go to Apollo Hospital Chennai for his better treatment. 4. Hence, after receipt of the transfer order the petitioner submitted a re presentation before the authority on 11.1.10 stating about his ailment in detail and praying for changing his place of posting on medical ground. However, vide order dated 16.1.10, the petitioner was intimated by the authority regarding non -consideration of the prayer of the petitioner by the competent authority. The p etitioner again submitted another representation on 19.1.10 praying therein for reviewing his transfer order reiterating about his health condition and further expressing his desire to forgo his promotion as Sr. Office Assistant, if it is m andatory to transfer on promotion. However, the same have evoked no response and vide communication dated 1.2.10 the petitioner was directed to join at IID, Dal gaon within seven days from the date of issue of the said communication, further informing therein regarding initiation of disciplinary action against him if he failed to report for duty at IID, Dalgaon. Thus finding no other alternative, t he petitioner has approached this Court by way of filing the instant writ petiti on praying for quashing the impugned transfer order dated 7.1.10 on the ground o f his health problem. 5. Mr. Mahanta, learned counsel appearing for the petitioner has submitted that in the year, 2005, the petitioner suffered Neurological problem for which he had to undertake treatment under Dr. Ashok Kayal, Professor and Head of the Department, Neurosurgery, GMCH and since then he is under constant treatment of Dr. Kayal. He has been advised to avoid forward bending as well as heavy lifting and Dr. Kayal further referred him to the Apollo Hospital, Chennai. Accordingly , he went to Chennai in the year 2006 and consulted with Dr. Deepak Arjun Das, d epartment of Neurology, Apollo Hospital Chennai on 9.8.06. The petitioner has to be admitted for five times in the Apollo Hospital for his treatment with the pr ior approval of Director of Health Services, Government of Assam and till date h e is under constant supervision of Apollo Hospital. The details of the medical t reatment of the petitioner in the Apollo Hospital has been narrated at para-8 of the writ petition. Mr. Mahanta has further submitted that on earlier occasion v ide order dated 13.5.09 the petitioner was transferred to IID, Dalgaon as Projec t Supervisor. After receipt of the aforesaid order dated 13.5.09 the petitioner approached the respondent authority by submitting a representation on 15.5.09 pr aying for staying the aforesaid transfer order narrating therein his health cond ition. Accordingly considering the health problem of the petitioner, his posting at IID, Dalgaon as Project Supervisor was kept in abeyance by the authority unt il further order. In the meanwhile, the health condition of the petitioner deter iorated and he had to go to Apollo Hospital, Chennai with prior approval of refe rral Board, GMCH. In his last visit to Apollo Hospital, Chennai, when he was und er treatment of different doctors from 8.9.2009 to 14.9.2009, the Doctor opined as follows: I examined Mr. Talukdar with left L5-S1 disc prolapse with chronic root compres sion. MRI shows displacement of the root. If the symptoms are progressive and di sabling he will need surgery. X-ray lumbo sacral spine lateral view in standing position may kindly be taken to exclude any instability. 6. When the matter rested as thus transfer order dated 7.1.10 was passed b y the authority whereby the petitioner was transferred again to IID, Dalgaon on promotion as Senior Office Assistant, w.e.f. the date of reporting for duty at the Project site at IID, Dalgoan. Though he was transferred to IID on promot ion as Senior Office Assistant but he was asked to work as Project Supervisor an d also to stay at Project Headquarter at IID, Dalgaon. Immediately, thereafter, on receipt of the order dated 7.1.10 the petitioner submitted a representation d ated 11.1.10 before the authority praying for staying the transfer order on medi cal ground, which, however, was not considered by the authority. Therefore, the petitioner had submitted another representation thereby expressing his desire to forgo his promotion as Senior Office Assistant. However, the prayer has bee n rejected. Referring to the prayer of the petitioner made in the second represe ntation, whereby the petitioner has even expressed his desire to forgo the promo tion, Mr. Mahanta has submitted that promotion is one of the primary incentives for any employee, yet he is willing to give up his promotion, if such promotion involves transfer to another place solely due to his ill health. This in itse lf makes it clearly evident that the petitioner is not at all healthy enough to be transferred to any other place, more so, as he is continuously undergoing tre atment and it will not be proper to disrupt his continuous treatment at GMCH, wh ich is one of the premier Medical Institution of Assam. Further more, the facili ties available in GMCH, Neurosurgery Department may not be available at Dalgaon or its nearby places. Mr. Mahanta has further submitted that the petitioner is a family man and his family is based in Guwahati. Therefore, it is obvious that h e will have to keep on moving between Dalgaon and Guwahati to maintain his fam ily life and take care of his family including minor children. Considering that the very nature of his disease is such that it gets aggravated whenever he trav els. Therefore, it becomes all the more necessary for him to stay at Guwahati an d avoid such travel. 7. Mr. P.C. Deka, learned Senior counsel appearing for respondent Nos.2, 3 and 4, i.e. AIDC has submitted that a detailed affidavit-in-opposition has been filed on behalf of the respondents AIDC refuting the averments made in the writ petition. Referring to Para 7 of the affidavit, Mr Deka has submitted that the r espondent Corporation has been entrusted to undertake construction of infrastruc ture project in various district of the State which have been funded by Central Government and State Government. At the present, Respondent Corporation is under taking about 12 such infrastructure projects. Therefore in order to decide as to who should be posted at project site of the aforesaid projects in the best inte rest of the corporation, a committee was constituted consisting of two General M anagers, Consultants and Project -in-Charge to find out the best suited person to be posted at the various projects sites. In the meeting held on 6.5.09, the a foresaid Committee recommended the transfer of Technical Executives, 2 Senior Of fice Assistants and 1 Junior Office Assistant i.e. the petitioner for positing t hem at various projects sites and on the basis of the aforesaid recommendations, the order dated 13.5.09 transferring about 13 officers were issued. So far the petitioner is concerned his transfer order was kept in abeyance until further or der considering the representation submitted by the petitioner. Thereafter the p etitioner was promoted to the post of Senior Office Assistant vide order dated 7 .1.10 and he was asked to work as Project Supervisor at the IID, Dalgaon and a ccordingly, vide order dated 11.1.10 the petitioner was released from the post a t Guwahati to enable him to report at Dalgaon. Vide the aforesaid order dated 7. 1.10 the petitioner was asked to join at his place of posting at Dalgaon. It is the case of the respondent authority that in the post where the petitioner has b een transferred, he does not require to do any hard and physical labour like lif ting of weights etc. as alleged. In fact his work is primarily in the office. Th e other difficulties cited by the petitioner in his representation cannot be a g round for not transferring an employee as it is settled law that personal conven ience and inconvenience of an employee cannot be a ground for not transferring t hat particular employee. 8. Mr. Deka has further submitted that the representation submitted by the petitioner earlier was considered by the authority and his transfer order was ke pt in abeyance but vide order dated 7.1.2010 the petitioner has been promoted to the post of Senior Office Assistant, prior to which, the petitioner was upgrade d to the next higher scale of pay under Service Linked Advancement Scheme for t he Employees of AIDC Ltd. which makes it clear that transfer of the petitioner to IID, Dalgaon has been made in the interest of Corporation. Thus, in the facts and circumstances of the case, this Court may not interfere with the transfer o rder passed by the authority submitted Mr. Deka. In support of his submission, Mr. Deka has placed reliance on the following deci sions: i. (1993) 4 SCC 357 Union of India and Others Vs. S.L. Abbas ii. (2006) 9 SCC 583 S.C. Saxena Vs. Union of India and others iii.(2007) 8 SCC 150 Mohd. Masood Ahmad Vs. State of U.P. and Others iv.1998 (2) GLT 453 Kumsong Pangging Vs State of Arunachal Pradesh and ors. 9. In SL Abbas (supra), the Apex Court held that who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory prov isions, the court cannot interfere with it. 10. In SC Saxena (supra), the Apex Court held that a Government servant cann ot disobey the transfer order by not reporting at the place of posting and then go to a court to ventilate his grievances. It is his duty to first report for wo rk where he is transferred and make a representation as to what may be his perso nal problems. 11. In Mohd. Masood Ahmad (supra), in a similar matter, the Apex Court held that an order of transfer is a part of the service conditions of an employee whi ch should not be interfered with ordinarily by a court of law in exercise of its discretionary jurisdiction under Article 226 unless the court finds that either the order is malafide or that the service rule prohibit such transfer, or that the authorities who issued the orders, were not competent to pass the orders. 12. In Kumsong Pangging(supra) this court at para 8 held as thus: The Government employee has no legal right to insist for being posted at any particular place unless it is provided his service condition, he has no choice in the matter of posting. In a transferable post an order of transfer is a normal consequence and personal difficulties are matters for consideration of the department. After all, the Government must look to the welfare of the empl oyees and when making an order of transfer, the Govt should usually bear in mind that aspect of the matter but at the same time the Government must strike a b alance between the public need and the need of the officer and it is for the on ly to strike that balance. The Court usually does not apply the measuring rod or scale to find it out. 13. I have considered the submissions made by the learned counsel appearing for the parties. Also perused the decisions relied upon by the learned Sr. couns el. However, there is no doubt that the person aggrieved by the transfer order i s not debarred from submitting a representation against the transfer order stati ng his difficulties and grievances. When such representation is submitted, it is also obligatory on the part of the competent authority to process the represent ation and pass necessary order keeping in view of the public interest and the di fficulties faced by the Govt. Servant. As held in Kumsong Pangging(supra), the a uthorities must strike the balance between the public need and the need of the o fficer and it is for the authority only to strike that balance. 14. In view of the above discussion and the decisions of the Hon’ble Apex Co urt as well as of this Court, the transfer order issued by the authority is not interfered with by this Court. 15. the petitioner shall submit a representation before the respondent autho rity annexing therein all the documents issued by the Apollo Hospital as well as the report of the doctor of GMCH within a period of 10 (ten) days from today an d the authority shall dispose of the same as expeditiously as possible. Till dis posal of the representation, the petitioner shall be allowed to continue to serv e at Guwahati.