WP(C) 6141/2010 BEFORE HON’BLE MR. JUSTICE B. K.SHARMA 1. The petitioner working as Deputy General Manager, Finance under the respondent Corporation is aggrieved by Annexure G/1 office order No. 193/201 0 by which he has been transferred from Nagaon Paper Mill to Cachar Paper Mill. According to the petitioner, the order so issued is illegal and arbitrary for wa nt of any reasonable basis and also violative of the transfer policy formulated in 1992. It will be appropriate to refer to the particular clauses of the transf er policy on which the petitioner has placed reliance. Transfer System: i) Service of executives are transferable in the exigencies of work in the overall interest of the Company. ii) An executive on transfer shall be entitled to all transfer benefits as per rules of the Corporation. iii) Service rendered by an executive in a post/scale in the previous Un it/Office shall be reckoned for the purpose of computing his eligibility period for promotion to the next higher post/ scale. iv) Executive who have completed 3 years of continuous service in a Unit /Office/Subsidiary shall normally be considered for transfer. However, in the ex igencies of work an executive will be liable to be transferred to any Unit/Offic e/Subsidiary at any time. In case there are more than one executive in the same post in the same discipline who have completed more than three years of continuo us service in a Unit/Office/Subsidiary the executive who has put in more years i n the Unit shall be considered to transfer. v) An executive on promotion to next higher post shall normally be trans ferred and placed in another Unit/Subsidiary/Office. vi) An executive could be considered for transfer to a Unit/Office/Subsi diary, at his request subject to administrative convenience and organizational r equirement. However, an executive shall normally be place dint he Unit/Mill/Offi ce of his choice two years before this retirement from service. vii) Normally, transfer of an employee could be considered at the beginn ing of academic session as far as practicable. However, when in exigencies of wo rk, an employee is transferred in the middle of the academic session, he will be allowed to kept his family in his previous place of posting till completion of the academic session. In case of persons on transfer to North Eastern Region, th ey shall be allowed to kept their family in the previous place of posting or at the home town for a maximum period of three years. 2. By Annexure -C order dated 05.02.2008 the petitioner was transferred fro m Cachar Paper Mill, Panchgram to Nagaon Paper Mill, Jagiroad. Thus, by the time the impugned transfer order dated 02.11.2010 was issued, the petitioner had com pleted about three years of service at Nagaon Paper Mill. 3. The petitioner has challenged the impugned order primarily on the follow ing grounds: (i) He having left with less than 2 years of service, the authority ought not h ave transferred him at the fag end of his service career. The order is also viol ative of aforementioned transfer policy. (ii) The transfer order has been issued not in any public interest or in the exi gencies of service. (iii) Minor son and wife of the petitioner are suffering from various ailments a nd as such, the authority of the Corporation ought to have considered that aspec t of the matter before transferring the petitioner. (iv) The wife of the petitioner being posted at Jagiroad as Lecturer in a colleg e which is also the place of posting of the petitioner and the old mother of the petitioner also having stayed with him, the petitioner has to look after them n ecessitating his stay alongwith them. (v) Although the respondent Corporation is vested with the power, jurisdiction a nd competency to transfer its employees, but the same cannot be exercised with a bsolute or unfettered discretion. (vi) The petitioner has also contended about the working conditions in both the mills which according to him will not justify his transfer to Cachar Paper Mill. 4. While entertaining the writ petition by order dated 22.11.2010, an inter im order was passed staying the operation of the impugned order dated 02.11.2010 . The respondent Corporation has filed Misc. Case No. 3750/2010 praying for vaca tion of the stay order. Learned counsel for the respondent Corporation has press ed the said Misc. case as the counter affidavit of the respondent Corporation as any adjudication on interim prayer will virtually lead to final adjudication o f the writ petition. As agreed to by the learned counsel for the parties, the wr it petition itself was taken up for hearing. 5. I have heard Mr. P.C. Deka alongwith Mr. P. Pathak, learned Sr. counsel appearing for petitioner as well as Mr. A.K. Phukan, learned Sr. counsel assist ed by Mr. J. Roy, learned counsel appearing for the respondent Corporation. Both the counsel made their elaborate submissions. While Mr. Deka has placed relianc e on the decision of the Apex Court reported in AIR 1975 SC 984 (Dr. Amarjit Sin gh Ahluwalia Vs. State of Punjab); 2007 (4) GLT 712 (Andrew Banrilang Umdor Vs. State of Meghalaya & ors.); 2002 (2) GLT 109 (Dayal Das vs. State Assam), Mr. Ph ukan, learned Sr. counsel has placed reliance on the decisions reported in: (1) (2004) 11 SCC 402 (State Uttar Pradesh vs. Gobordhan Lal) (2) 2006 (3) GLT 624 (Kalyan Kr. Sarkar vs. Alok Kanti Pal Choudhury) 6. I have considered the submissions made by the learned counsel for the pa rties and have perused the records produced by the respondent Corporation. The d ecision in Dr. Amarjit Singh Ahluwalia (supra), has been pressed into service to emphasize that although the transfer policy does not have any statutory force b ut in absence of any statutory rule, the said transfer policy in the form of exe cutive/administrative instruction will govern the service conditions of the empl oyees of the Corporation and the respondent Corporation cannot deviate from the said transfer guidelines on the plea of same being only directory and not mandat ory. In Dayal Das (supra) also, it has been observed that although the transfer guidelines may not have statutory force, but they check arbitrary transfer. In t he said case direction was issued to record the reasons justifying the transfer. 7. The decisions on which the learned counsel appearing for the respondent Corporation has placed reliance have been noted above. In Gobardhan Lal (supra), dealing with the scope of interference by the Court, it was held that transfer is prerogative of the authorities concerned and the Court should not normally in terfere therewith except when- (i) transfer order shown to be initiated by mala fides or (ii) in violation of any statutory provisions, or (iii) having been pas sed by an authority not competent to pass such order. It was also observed that allegations of mala fides must be based on concrete material and must inspire th e confidence of the Court. Dealing with the facts involved in the said case, it was held that the writ petition challenging the order of transfer having raised disputed questions of fact, the High Court committed an error in making sweeping observations on the basis of own assessment and laying down the general guideli nes relating transfers. 8. In Kalyan Kr. Sarkar (supra), the Division Bench of this Court reiterati ng the principles to be borne in mind dealing with transfer matter and also deal ing with similar transfer policy requiring to normally retain an employee at a p lace of posting for a period of three years, held that the particular office mem orandum being merely guidelines, is not enforceable in law and no right can be c laimed on the basis of such transfer guidelines. 9. The grounds for judicial review of a transfer and the limits thereof are all now well settled and not in dispute. Transfer of an employee in a transfera ble service is a necessary incident of the service career. Assessment of quality of men is to be made by the superiors taking into account several factors inclu ding the suitability of the person for a particular post and exigencies of admi nistration. Several imponderables requiring formation of a subjective opinion in that sphere may be involved, at times. 10. As has been observed by the Apex Court in N.K. Singh vs. Union of India and ors. reported in (1994) 6 SCC 98, the only realistic approach is to leave it to the wisdom of that hierarchical superiors to make that decision. Unless the decision is vitiated by mala fides or infraction of any professed norm or princi ple governing the transfer, which alone can be scrutinized judicially, there are no judicially manageable standards for scrutinizing all transfers and the court s lack the necessary expertise for personnel management of all establishments. T his must be left, in public interest, to the departmental heads subject to the l imited judicial scrutiny. 11. In the instant case, the records have revealed that the reasons for tran sfer of the petitioner from Nagaon Paper Mill to Cachar Paper Mill is because of the need to place the senior level executive at Cachar Paper Mill to head the F inance Department immediately. The reason for transferring the petitioner from N agaon Paper Mill to Cachar Paper Mill has been disclosed in the note dated 01.11 .2010 endorsed by the competent authority a copy of which has been annexed as An enxure-7 to the Misc. Case. No. 3750/2010. Same is reproduced below: HINDUSTAN PAPER CORPORATION LIMITED Corporate Headquarters 75 C, Park Street, Kolkata November 01, 2010 Sub: Requirement of Head of Department (HoD) of Finance Department at CPM The Finance Department of CPM, is presently headed by Shri Bimal Chandra Handiqu e Senior Manager (Finance), a senior executive at E-5 level. In addition to that , there are two Managers at E-4 level, assisting Shri Handique at CPM. The HoD f unction presently being handled by Shri Handique will fall vacant consequent upo n superannuation of Shri Handique from the services of the Corporation on 31.01. 2011. Further, out of two Managers, one Manger Shri Tapash Bhattacharjee has already r esigned from the service of HPC on 26.10.2010 and requested to release him from CPM on 21.01.2011. The other Manager Shri Soumitra Dey is going to be transferre d due to immediate requirement of one manager level executive exclusively to loo k after accounting in ERP system at CHQ. It is therefore, essential to place a senior level executive at CPM to head the Finance Department immediately. Accordingly, it is proposed that Shri T.K. Daspu rkayastha, who is presently heading Finance Department of NPM as DGM (Finance), may be transferred to CPM with immediate effect keeping in view the present fina ncial and procurement crisis being faced at CPM. Shri Daspurkaystha, being an ex perienced senior executive in finance and having experience of working at CPM, w hould be the most suited person to effectively handle the financial activities o f the mill, keeping in mind the overall interest of the Corporation. (A.S. Upadhyaya) AGM (HR&ES) 12. The transfer policy referred to above itself envisages that the human re sources available with the Corporation is to be utilized to meet the requiremen t of the mills and the offices keeping in view the interest of the organization as well as the individual employees concerned as far as practicable through a re alistic transfer policy. As disclosed in the Misc. case as well as by the record s, the Central Headquarter, Kolkata of the respondent Corporation took a decisio n to re-organize the staffing position at mills and the offices of the Corporati on amongst available resources at senior level. Therefore, some priority decisio ns were taken in the senior executive level officers which are indicated in the Misc. case. Thus, it cannot be said that the petitioner alone was picked up for transfer by way of differential treatment. 13. On perusal of the records, nothing is discernible that the petitioner ha s been transferred from Nagaon Paper Mill to Cachar Paper Mill with any mala fid e intention. The records rather reveal that the petitioner having earlier worke d at Cachar Paper Mill and being an expert hand, has been transferred to Cachar Paper Mill as a senior level executive. The decision was taken keeping in view o ver all interest of the Coproration and to overcome the situation at Cacher Pape r Mill with due approval of the competent authority, more particularly as there will be no managerial person at Cachar Paper Mill after January, 2011. 14. The grounds of inconvenience which the petitioner is likely to face in the domestic front in view of transfer to Cachar Paper Mill, needless to say, ca nnot justify interference with the impugned transfer order. Transfer being an in cident of service and the petitioner having entered into the services of the Cor poration in acceptance of such condition of service, cannot fall back on his all eged inconvenience in the event of being moved out from Nagaon Paper Mill, Jagir oad, i.e. his present place of posting. If such things are given consideration f or judicial interference, no executive can take recourse to transfer of its empl oyees even in the exigencies of service and public interest. Such inconvenience are not an exception to the petitioner alone, but are experienced by all most al l the employees. 15. Going to the core issue of the alleged violation of the transfer guideli nes, suffice it to say that the said guidelines will have to be read together an d cannot read in isolation to one another. Clause-I of the transfer system provi des that services of the executives are transferable in the exigencies of servic e in the overall interest of the company. Clause- 4 provides that the executives who have completed three years of continuous service in a unit/office/ subsidia ry shall normally be considered for transfer. However, in the exigencies of work an executive will be liable to be transferred at any time. Although the said cl ause also provides that in case there are more than one executive in the same po st in the same discipline but have completed more than three years of continuous service in a unit/office/subsidiary, the executive who has more years of servic e shall be considered for transfer . In the instant case as has been disclosed by the learned counsel for the petitioner himself, there is no other executive o ther than the petitioner in the same post in the same discipline with longer yea rs of service who could be transferred in lieu of the petitioner. 16. Clause -6 of the transfer policy while providing for consideration for t ransfer at the request of an executive subject to administrative convenience and organizational requirement also provides that an executive shall normally be pl aced in unit/mill/ office of his choice two years before his retirement from ser vice. Heavy reliance has been placed on this clause so as to contend that the pe titioner having left with only about two years of service (due to retire on 31.0 7.2012), the authority ought to have asked him for his choice of posting. Thus, provision will have to be considered keeping in mind the administrative convenie nce and organizational requirement. As to what is the administrative convenience and organizational requirement, has been indicated in Annexure-7 note dated 01. 11.2010. On perusal of the entire records, there is absolutely no material to su ggest that the petitioner has been picked up for differential treatment and/or t he impugned order has been issued in colourable exercise of power. The impugned order is the fall out of the priority decision taken in the senior executive lev el offices. The respondent Corporation has given the instances of transferring o ther executives who have left with less then two years of service. 17. For all the aforesaid reasons, I do not find any merit in the writ petit ion to interfere with the impugned order dated 02.11.2011. Irrespective of such non-interference, the respondent Corporation may consider the fact that the peti tioner is left with less than two years to retire from service on attaining the age of superannuation on 31.07.2012. Clause-6 of the transfer policy as noted ab ove , provides that an executive shall normally be placed in the unit/mill/offic e of his choice two years before his retirement from service. The decision makin g process towards issuance of the impugned transfer order does not disclose abou t taking into account that aspect of the matter. It is another thing to say that the said clause will not outweigh the organizational requirement and administra tive exigencies requiring an employee to be transferred from one unit to another , but a consideration, irrespective of the result thereof, may not be said to be out of context. 18. In view of the above, while not interfering with the impugned transferre d order it is hereby provided that the authority of the respondent Corporation m ay consider the above aspect of the matter keeping in mind the fact that the pet itioner is going to retire from service on attaining the age of superannuation w .e.f. 31.07.2012 and thus he is left with less than two years of service. Requir ed consideration be made as expeditiously as possible, but at any rate, not late r than 31.01.2011. Depending on the outcome of such consideration, the joining o f the petitioner at Cachar Paper Mill pursuant to the impugned transfer will be governed. 19. The writ petition stands disposed of. However, there shall be no order a s to costs.