WP(C) 1559/2008 BEFORE THE HON’BLE MR. JUSTICE RANJAN GOGOI JUDGMENT & ORDER (O R A L ) With the consent of the parties, the writ petition has been heard on merit. 2. Heard Sri P. Pathak, learned counsel for the petitioner, Sri AC Buragoh ain, learned Additional Advocate General, Assam, appearing for the State Respond ents and Sri AK Bhattacharyya, learned Senior Counsel appearing for the Responde nt No.5. 3. The challenge in this writ petition is in respect of an order dated 07.0 3.2008 by which the petitioner, who was working as the Executive Engineer, Gauha ti West Water Resources Division has been transferred and posted as the Deputy D irector, Planning in the Office of the Director, Planning, Water Resources Depar tment. The Respondent No.5, who was holding the said post, i.e., Deputy Director of Planning has been brought in place of the petitioner as the Executive Engine er, Gauhati West Water Resources Division by the very same impugned order dated 07.03.2008. 4. At the very outset it must be noticed that the inter se transfer of the petitioner and the Respondent No.5, impugned in the present writ petition, adm ittedly, does not change the headquarters of the incumbents which continues to r emain at Guwahati. The transfers, therefore, are from one office to another with in the City of Guwahati. The said fact, though will not work as an ouster of th e Court’s jurisdiction, will certainly have the effect of further circumscribi ng the already limited jurisdiction of the Court in matters relating to transfer s. Such a view has also been taken by the Court in another writ proceeding, i. e., WP(C) No.874 of 2008 decided on 27.03.2008. 5. The transfer and posting of Government Servants in the State of Assam ar e governed by several office memoranda that have been issued from time to time,. The relevant Office Memorandum that will be required to be noticed in this reg ard is the one dated 19.09.1992 which prescribes a normal tenure of three year s for a Government Servant in any one location. However, in the aforesaid Office Memorandum it had also been stipulated that in public interest an officer can b e transferred even before completion of three years provided appropriate justifi cation and grounds for exercise of such a power are recorded in writing and prio r approval of the Chief Minister for such a transfer is obtained. As the Office memorandum dated 19.09.1992 was being observed more in breach than in compliance thereof, in a pronouncement of this Court dated 16.08.2001 in WP(C) No.5216 of 2001, directions were issued to the Respondent State to ensure compliance with the norms that it had laid down for itself in the Office Memoranda dated 19.0 9.1992. Following the aforesaid judgment of this Court in WP(C) No.5216 of 2001, an Office Memoranda dated 04.02.2002 was issued reiterating the requirement of strict compliance with the terms of the earlier Memoranda dated 19.09.1992. This was followed by another Office Memorandum dated 04.10.2006 again laying down th e necessity of strict compliance with the laid down instructions with a further stipulation that any deviation therefrom would be seriously viewed. 6. The writ petitioner, in the present case, was posted as the Executive En gineer of Gauhati West Water Resources Division on 25.11.2005. He, therefore, ha d not completed three years of service in the said post on the date on which th e impugned order of transfer, i.e., 07.03.2008 was issued. Under the Office Memo randa referred to earlier there was certainly no bar for the transfer of the pe titioner provided there existed good and sufficient reasons, prompted by public interest, for such a transfer. To enable the Court to determine whether such go od and sufficient reasons had existed warranting the transfer of the petitioner in departure to the laid down norms, the Court had called for the relevant recor ds. 7. The records placed before the Court would seem to indicate that on 05.03 .2008, a note was addressed by the Departmental Minister to the Chief Minister o f the State requesting for the inter se transfer of the petitioner and the Respo ndent No.5. No reason of any kind was mentioned by the Departmental Minister i n his note to justify the proposal mooted by him. The said note was approved by the Chief Minister on 05.03.2008 pursuant whereto the impugned order dated 07.0 3.2008 was issued. Thereafter, it appears that one Uttara Kalita, Parliamentary Secretary, Panchayat and Rural Development Department, addressed another note d ated 02.04.2008 to the Chief Minister requesting for reconsideration of the tran sfer of the petitioner. It appears that the Chief Minister made an endorsement o n the body of the said note that the matter may be considered. This was on 02.04 .2008 itself. However, no such consideration was made. Thereafter, the Departmen tl Minister addressed another note to the Chief Minister on 07/05/08 stating tha t both the officers had joined in their respective stations on 03.04.2008 in ter ms of the transfer order dated 07.03.2008. On the said note of the Departmental Minister dated 07.05.2008, the Chief Minister directed that his earlier order da ted 05.03.2008 should be carried out. 8. Time and again, the judicial verdict has emphasized that in so far as Go vernment Servants are concerned, it is the employer State who is the best judge as to when a particular officer should be transferred and to which station he sh ould be posted. It is neither the province of the Court nor are the Courts arme d with the requisite know how to correctly decide on the necessity of a transfer order. Therefore , the endeavour of the Courts in matters relating to transfer has always been to ensure fairness in the decision making process and to check a rbitrary exercise of the power of transfer. This is the limited role that the C ourts have carved out for themselves. 9. The several Government Memoranda already referred to co-incidentally are an attempt on the part of the State itself to check arbitrary transfers by stip ulating a minimum period of tenure for an officer and the need of recording of reasons in writing and obtaining the prior approval of the Chief Minister if an officer is required to be transferred before completion of his normal tenure of three years. 10. In the present case the records placed before the Court, details of whi ch have been noticed, clearly and evidently point to only one direction. No rea sons or basis, whatsoever, have been indicated for the impugned transfer of the petitioner prior to completion of three years tenure in the post of Executive Engineer, Gauhati West Water Resources Division. The exercise carried out, ther efore, has to be understood to be contrary to the prevailing norm. The availab ility of the power though has to be conceded , the manner of the exercise thereo f cannot have the Court approval. 11. Two decisions have been cited by Sri AK Bhattacharjee, learned senior co unsel for the Respondent No.5 to satisfy the Court that the present will not be a fit case for interference. Relying on a Division Bench Judgment of this Court in the case of State of Assam and others -VS.- Dilip Kumar Das and another, repo rted in (2003) 2 GLR page 151, Sri AK Bhattacharjee, learned senior counsel, has contended that in the above case this Court had accepted the position that th e Departmental Minister is the best person to identify the particular officer who is most suitable for manning a particular post. This is precisely what had h appened in the present case, it is argued. 12. There can be no dispute on the proposition laid down in Dilip Kumar Das (supra) . However, what must be taken note of is that in the aforesaid case, the Court had scrutinized the records wherein it was clearly recorded by the Depart mental Minister that in his opinion the transfer(impugned in the case) was neces sary as the reliever proposed by the Minister was the most suitable officer to m an the post. The serving incumbent, therefore, had to be transferred. The afores aid fact situation does not exist in the present case. 13. The second judgment relied on by Sri AK Bhattacaryya is another Divisio n Bench Judgment in the case of NIRHANDRA THAOSEN -VS.- STATE OF ASSAM AND ANOTH ER, reported in 2007 (3) GLT 934. The contention advanced in support of the cha llenge made against the transfer order in the above case was two-fold. Firstly, that the transfer is violative of the Office Memorandum dated 19.09.1992 and 04 .02.2002 in so far as the requirement of prior approval of the Chief Minister is concerned. The second ground on which the transfer order was assailed is that i t was punitive. 14. The Division Bench answered first contention raised by holding the terms of the Office Memoranda with regard to prior approval to be in the nature of an administrative guideline, which does not confer any legally enforceable right. In so far as the second contention is concerned, the same was negated by referri ng to the facts of the case, which revealed that specific allegations were made against the petitioner of that case which needed to be enquired into without any possible interference from the side of the petitioner. 15. Propositions of law that can be understood to be absolute are few; the O ffice Memoranda in question, certainly, do not lay down any such absolute or inf lexible proposition of law knowing no exceptions. The Office Memorandum dated 19 .09.1992 is an attempt made by the Government itself to check arbitrary exercise of power. The Memoranda dated 04.02.2002 and 04.10.2006 merely spelt out the re quirement of due observance of the laid down norms. Ordinarily, reasons may not be required to be recorded for effecting a transfer. The necessity of transfer is largely a subjective satisfaction, which, however, has to be founded on obje ctive facts. The facts on which satisfaction has been reached must be disclosed to the Court, whenever so required. However, in a situation, where the employer himself chooses to impose the requirement of recording of reasons for effecting a transfer before completion of a tenure of three years by the employee, it is d ifficult to see how the employer can be allowed to depart from such a requiremen t at will. The view expressed by the Division Bench of this Court in Nirhandra T haosen (supra) to the effect that the memoranda dated 19.09.1992 and 04.02.2002, in so far as the requirement of prior approval of the Chief Minister is concern ed are mere administrative guidelines, have to be understood as not laying any b inding precedent, inasmuch as, in the above case the prior approval of the Chief Minister was, in fact, obtained and recorded in the file. The decision of the Apex Court in the State of U.P. and others -VS.- Gobardhan Lal, reported in (200 4) 11 SCC 402 relied upon by the Division Bench was rendered in facts different from those involved in the present case. 16. The above apart, the views expressed by of the Division Bench in Nirhan dra (supra) as regards the Office Memoranda dated 19.09.1992 and 04.02.2002 are in the context of the requirement of obtaining prior approval of the Chief Minis ter and not with regard to the recording of reasons. Both the aforesaid requirem ents spelt out by the Office Memoranda in question, cannot be understood to be a t par. In the context of the ever increasing complexities of the administrative process the need for observance of the requirement of recording of reasons so lo ng the Office Memoranda continue to hold the field must be perceived with greate r vigour. At the same time the enormities of the multifarious duties of the Chie f Executive of the State may lean towards a more tolerant judicial approach to t he requirement of prior approval. Interference merely on account of the absence of prior approval, may, at times, become a mechanical exercise of power. However , such interference for absence of any reasons, whatsoever, would be a wholesome exercise of power and promote good administration. 17. The net result of the above discussion leaves the Court satisfied that t he present is a fit case for interference even in the exercise of heavily circum scribed jurisdiction that the Courts have carved out for themselves in matters r elating to transfer. Consequently, the impugned order dated 07.03.2008 is set as ide and the writ petition is allowed.