WP(C) 3528/2011 BEFORE HON’BLE MR JUSTICE AMITAVA ROY HON’BLE MR JUSTICE B D AGARWAL The State is in appeal against the order dated 09.08.2011 passed by a l earned Single Judge of this Court in WP (C) No. 3528 of 2011. 2. By the aforesaid impugned order, the learned Single Judge has stayed the implementation of the order dated 11.07.2011 passed by the Secretary to the Gov ernment of Assam, Water Resource Department, transferring the writ petitioner (r espondent No.1) from the office of Guwahati East, Water Resource Department to the office of Superintendent Engineer, Monitoring Evaluation Cell, Guwahati. 3. In view of the urgency of the matter and as agreed by the learned counse l for both the sides, the writ appeal is being disposed of at the admission stag e itself. Since the arguments were addressed on merit of the cases, this judgmen t will also dispose of the writ petition. 4. The gist of the case is that the writ petitioner/ respondent No.1 is t he Executive Engineer in the Water Resource Department. In the recent past, in t he month of October, 2008 the writ petitioner was posted as Executive Engineer i n the Office of the Superintendent Engineer, Monitoring Evaluation Cell. Thereaf ter, in the month of February, 2009, i.e. within a period of five months he was transferred to Nagaon Division. Vide order dated 25.01.2011, i.e. within a perio d of less than two years, the writ petitioner was again brought from Nagaon Divi sion to Guwahati East Division. While the writ petitioner/ respondent No.1 was w orking as Executive Engineer in Guwahati East, Water Resource Department, he has again been shifted to Monitoring and Evaluation Cell, Guwahati, where he was se rving in the year 2008. Being aggrieved with the order of transfer within a peri od of six months, the respondent No.1 has filed the writ petition. Upon hearing the learned counsel for both the sides, the learned Single Judge has stayed the operation of the transfer order, giving rise to the filing of this writ appeal b y the State. 5. We have heard Sri KN Choudhury, learned Additional Advocate General for the appellant and Sri MK Choudhury, learned Senior Counsel for the respondent No .1/ writ petitioner. The transferee officer (respondent No.4) has been represent ed by Sri S Shyam, learned counsel. We were also taken to the pleadings of the p arties and various authorities by the learned counsel for both the sides. The le arned Additional Advocate General had also produced the relevant file during the course of hearing. 6. Since, we are also disposing of the writ petition; we would first addres s the contentions and submissions of the learned counsel for the writ petitioner . Sri MK Choudhury, learned counsel for the writ petitioner submitted that the transfer of the writ petitioner is illegal, arbitrary and malafide in as much as the transferring authorities have not assigned any reason to transfer the writ petitioner from one office to another within a period of six months. According t o the learned counsel, as per the government policy, laid down under Office Memo randum dated 04.02.2002, the normal tenure of the government officer at a partic ular station is three years and if a transfer is effected earlier to the normal tenure, there should be proper justification and the ground should be recorded a nd assigned in the order. Learned counsel for the writ petitioner also prayed to interfere in the impugned transfer order on the ground that the same has been i ssued at the behest of a minister and not in public interest. 7 Sri MK Choudhury, learned senior counsel for the writ petitioner further urged that the concerned Minister of State (respondent No. 3) himself had issue d an order on 20.06.2011 prohibiting transfer of officers with a view that the i mplementation of the ongoing projects may not be hampered in the flood season. H owever, within a month of the said Order, the respondent No.3 himself deviated f rom the above dictate and recommended the writ petitioner’s premature transfer. 8. Per contra, the learned Addl. Advocate General submitted that recording of reasons is not mandatory if an officer is transferred and accommodated in ano ther office at the same station. In support of this submission, the learned Addl . Advocate General referred to the Judgment of this Court rendered in the case o f State of Assam-Vs- Ranjit Chandra Barman, reported in 2008 (2) GLT 786. The learned State counsel also submitted that there is no illegality if a transfer i s effected at the instance of a minister, who is in-charge of the concerned depa rtment and to re-inforce this submission, learned State counsel cited the author ity of this court rendered in the case of State of Assam-Vs- Dilip Kumar Das, 20 03 (1) GLT 530. The learned Addl. Advocate General also contended that the trans fer was necessary to bring a more efficient officer in the Water Resource Depart ment to handle the problems of artificial flood in the Guwahati city during rain y season and there was no malafide in effecting transfers. The learned State cou nsel also argued that if a transfer order is issued at the intervention and on t he basis of suggestion of a concerned minister, it would, ipso facto, cannot be termed as a malafide action. 8.1 With regard to the Minister’s order dated 20.06.2011, prohibiting transf er of officers in his department, the learned Addl. AG submitted that the afores aid Order was a general advisory which cannot subservient to the needs of the ad ministration. The learned Addl. AG further contended that the order dated 20.06. 2011 had no application in the present case in as much as the respondent No.4 wa s not directly connected with execution of any flood related project and instead he was attached to a technical branch. The learned Addl. AG also submitted that since the impugned transfer order was issued after obtaining due approval from the Hon’ble Chief Minister, it should be construed as superseding the Minister’s advisory dated 20.06.2011. 9. While adopting the submission of learned Addl.AG, Sri Shyam , learned co unsel for respondent No.4 submitted that the writ petitioner has not alleged any malafide against the official respondents nor any such allegation was made in t he representation submitted by the writ petitioner to the appellant on 12.07.201 1. Sri Shyam also reiterated that since the transfer order was approved by the h ighest authority of the State there can neither be any malice in law nor malice on facts. The learned counsel also submitted that the Minister’s order dated 20. 06.2011 cannot be interpreted as a total ban to effect transfers in public inter est and also in public exigency. Sri Shyam further made a statement that before the interim stay order of the High Court, the respondent No.4 had already taken charge in the transferred office. In fact, the file noting also indicate that t he respondent No.4 had joined the post of Executive Engineer, Guwahati East, Wat er Resource Development on 15.07.2011. 9.1. At this stage, it may be put on record that Hon’ble State Minister of Wa ter Resource Department has also been impleaded in the writ proceeding as respon dent No.3 and as a proforma respondent in the writ appeal. As per the order dat ed 03.08.2011 of the learned Single Judge, the Hon’ble minister has also filed a n individual affidavit justifying the transfer and for vacating the stay order. 10. To appreciate the rival contentions, it would be apposite to reproduce s ome of the averments made in the writ petition relating to legality of the impug ned order, which runs as below: & & &..The petitioner being surprised by serving with the impugned notification f transfer dated 11.07.2011 started to make enquiry regarding such an impugned a ction adopted by the respondents behind his back. The petitioner was shocked to find out that the respondent No.3 who is the concerned Minister of Water Resour ces Department recorded an impugned noting in File No.WR (E) 184/ 2007 to the ef fect that the petitioner should be transferred from his present place of posting and same was send for approval of the Chief Minister. The said impugned noting of the respondent No.3 was not supported with any valid and cogent reason. The p etitioner could not manage to lay his hands on the impugned noting recorded by t he respondent No.3. Therefore, the petitioner prays before this Hon’ble Court to direct the respondents to produce the relevant file at the time of hearing of t he instant case. The Chief Minister without assigning any reasonable justificati on approved the impugned noting recorded by the respondent No.3. The respondent No.1 in turn by mortgaging his own discretion and decision making authority at t he behest of respondent No.3 which has no sanctity in the eyes of law issued the impugned notification dated 11.07.2011 transferring the petitioner to the offic e of respondent No.2 in Monitoring and Evaluation Cell. However, the said impugn ed notification has not been given effect to till date and the petitioner is pre sently serving as Executive Engineer, Guwahati East Water Resources Department. It is an admitted fact that although the posts are same and equivalent, however, the duties and responsibilities of the new post is much less than the post the petitioner is presently holding. & &The respondents even do not bother to consider the contents of the OM dated 0 4.02.2002 which laying down policies of transfer of government officials. In the said OM it has categorically laid down that if any government official has to b e transferred from his present place of posting even before completion of three years, proper justification and ground may be recorded in writing & & & &. & & &.Moreover, it is a well established principle that a statutory authority v sted with jurisdiction must exercise it according to its own discretion and such discretion exercised under the instruction of some higher authority which does not have any sanctity in the eyes of law is amounting to failure to exercise dis cretion all together. 11. The admitted fact is that though the writ petitioner has been transferre d from one office to another within a short period of six months but at the same time there is no change of station. Both the offices are situated in the Guwaha ti city. Besides this, the writ petitioner has further admitted the fact that bo th the posts, which he was occupying prior to the transfer and the transferred p ost are equivalent, except the nature of the duties and responsibility. The othe r admitted fact is that when the writ petitioner was transferred from Nagaon to Guwahati within a period of five months, no eye-brows were raised by the writ pe titioner. In other words, the writ petitioner readily accepted his transfer to a prime posting at Guwahati. On the basis of this conduct of the writ petitioner, the learned Addl. AG contended that the writ petitioner cannot be allowed to ap probate and reprobate simultaneously. 12. It is the settled position of law that an order of transfer of a governm ent officer is no doubt justiciable but such transfer order(s) can be interfered /interdicted in writ jurisdiction in rare and exceptional cases. Broadly, a tran sfer order can be interfered with - (i) if such order has been issued by an auth ority not competent to do so; (ii) if there is violation of any statutory rule; (iii) if there is gross discrimination between the writ petitioner vis-à-vis sim ilarly situated officers/employees and (iv) if the transfer order is actuated by any malafide. 13. In the case before us, neither is there any challenge to the competency of the appellant to issue the transfer order nor is there any allegation of viol ation of statutory rule. There is also no allegation of discrimination between t he petitioner and similarly placed officers. Precisely, the impugned transfer or der has been assailed only on the ground of non-adherence to the O.M. dated 04.0 2.2002, which stipulates 3 years as the normal tenure of an officer/employee at a particular station. It has also been pleaded by the writ petitioner that no re ason has been assigned to transfer the writ petitioner from one office to anothe r within a short period of six months. The other ground to challenge the transfe r order is that the same has been issued at the behest of respondent No. 3(Minis ter of the department) and as such, it amounts to malafide action. 14. An identical issue of transfer of an officer from one office to another in the same station at Guwahati and that too before the normal tenure of three years came up for consideration before this Court in the case of Ranjit Chandra Barman (Supra). In the said judgment, a Division Bench of this Court has held th at when the transfer is to another office in the same place or station, judicia l intervention may not be justified to such transfer order for alleged breach of the prescribed norms of recording justification . In this judgment, the Divisio n Bench had also taken into consideration the observations made by the Hon’ble A pex Court in the case of Union of India -Vs- S.L. Abbas; reported in (1993) 4 SC C 357 that there is no obligation for an employer to justify through reasons an order of transfer and interference of the Court in the transfer order on the gro und of lack of assigning reasons would be unjustified. In this case also, the Ho n’ble Supreme Court was considering the transfer of an officer in violation of g overnment guidelines, which provided posting of husband and wife at the same pla ce as far as possible. Their Lordships observed that while ordering a transfer, there is no doubt, the authority must keep in mind the guidelines issued by the government on the subject. However, the guidelines do not confer upon the govern ment employees a legal enforceable right. 15. The learned counsel for the writ petitioner/respondent No.1 failed to ov errule the ratio laid down in the case of Ranjit Ch. Barman (Supra) by any other authority. However, the learned counsel for the writ petitioner submitted that in the aforesaid authority, there was no challenge to the transfer order on the ground of malafide, which has been raised in the present case. We make it clear that the aforesaid authority is being relied upon by us only to answer the quest ion of necessity of supplying reasons in an order of a transfer in the same stat ion. 16. In the case of State of UP -vs- Govardhan Lal the Hon’ble Supreme Court; reported in (2004)11 SCC 402: AIR 2004 SC 2165, the Hon’ble Supreme Court was c onfronted to examine a transfer order de-hors to the government’s Order laying d own norms and principles for regulating transfers and observed as below: 7. It is too late in the day for any Government Servant to contend that once ap pointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra in the law governing or conditions of service. Unless the order of transfer is show n to be an outcome of a malafide exercise of power or violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or ro utine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their high er authorities for redress but cannot have the consequence of depriving or denyi ng the competent authority to transfer a particular officer/ servant to any plac e in public interest and as is found necessitated by exigencies of service as lo ng as the official status is not affected adversely and there is no infraction o f any career prospects such as seniority, scale of pay and secured emoluments. T his Court has often reiterated that the order of transfer made even in transgres sion of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vi tiated by mala fides or is made in violation of any statutory provision 8. A challenge to an order of transfer should normally be eschewed and should n ot be countenanced by the Courts or Tribunals as though they are Appellate Autho rities over such orders, which could assess the niceties of the administrative n eeds and requirements of the situation concerned. This is for the reason that Co urts or Tribunals cannot substitute their own decisions in the matter of transfe r for that of competent authorities of the State and even allegations of malafid es when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or o n consideration borne out of conjectures or surmises and except for strong and c onvincing reasons, no interference could ordinarily be made with an order of tra nsfer. 17. With regard to the judicial review of the impugned transfer order on the ground of malafide, we find that no specific malice has been attributed against any State respondents. It has been pleaded in the writ petition that since the order has been issued at the instance of a minister, the transfer order is in th e nature of colourable exercise of powers in the name of public interest and it amounts to malafide transfer. 18. As noted earlier, the respondent No.3 is the Minister of State of Water Resource Department etc and as such he is not a person who can not be said to ha ve no concern to interfere in the functioning of the petitioner’s department. In the case of Mohd. Masood Ahmad -Vs- State of U.P.; reported in (2007) 8 SCC 150 , the Hon’ble Supreme Court has held that if an officer is transferred at the i nstance of an MLA that by itself would not vitiate the transfer order. The limit ed scope of interference in such transfer order under writ jurisdiction was stat ed by the Apex Court in the following words: 7. The scope of judicial review of transfer under Article 226 of the Constituti on of India has been settled by the Supreme Court in Rajendra Roy v. Union of In dia, Natinal Hydroelectric Power Corpn, Ltd.v.Shri Bhagwan, State Bank of India V. Anjan Sanyal. Following the aforesaid principles laid down by the Supreme Cou rt, the Allahabad High Court in Vijay Pal Singh v. State of U.P. and Onkar Nath Tiwari v. Chief Engineer, Minor Irrigation Deptt. has held that the principle of law laid down in the aforesaid decisions is that an order of transfer is a part of the service conditions of an employee which should not be interfered with or dinarily by a court of law in exercise of its discretionary jurisdiction under A rticle 226 unless the court finds that either the order is malafide or that the service rules prohibit such transfer, or that the authorities who issued the ord ers, were not competent to pass the orders. 8. Learned counsel for the appellant submitted that the impugned transfer order of the appellant from Muzaffarnagar to Mawana, District Meerut was made at the instance of an MLA. On the other hand, it has been stated in the counter-affidav it filed on behalf of Respondents No.1 and 2 that the appellant has been transfe rred due to complaints against him. In our opinion, even if the allegation of th e appellant is correct that he was transferred on the recommendation of an MLA, that by itself would not vitiate the transfer order. After all, it is the duty o f the representatives of the people in the legislature to express the grievances of the people and if there is any complaint against an official the State Gover nment is certainly within its jurisdiction to transfer such an employee. There c an be no hard-and-fast rule that every transfer at the instance of an MP or MLA would be vitiated. It all depends on the facts and circumstances of an individua l case. In the present case, we see no infirmity in the impugned transfer order. 19. In a series of judicial pronouncements, it has been held that transfer i s an incident of service and the scope of judicial review of transfer order unde r Article 226 of the Constitution of India is very limited. In the case State of Haryana v. Kashmir Singh,(2010) 13 SCC 306, the apex court has observed that tr ansfer ordinarily is an incidence of service, and the courts should be very relu ctant to interfere in transfer orders as long as they are not clearly illegal. T heir Lordships further held that administrative exigency can not be judged by ju dicial authorities in the following words: 14. In our opinion, the High Court has taken a totally impractical view of the matter. If the view of the High Court is to prevail, great difficulties will be created for the State administration since it will not be able to transfer/deplo y its police force from one place where there may be relative peace to another d istrict or region/range in the State where there may be disturbed law and order situation and hence requirement of more police. Courts should not, in our opinio n, interfere with purely administrative matters except where absolutely necessar y on account of violation of any fundamental or other legal right of the citizen . After all, the State administration cannot function with its hands tied by jud iciary behind its back. As Holmes, J. of the US Supreme Court pointed out, there must be some free play of the joints provided to the executive authorities. 20. The judgment of Gauhati High Court given in the case of Toheli Sumi-Vs-S tate of Nagaland: 2009(2) GLT 956 relied upon by the learned counsel for the wri t petitioner is distinguishable of facts. In the said case a transfer was effect ed at the behest of the Parliamentary Secretary, Industries and Commerce Departm ent, who was unconnected with the Education Department, wherein the transfers we re effected. 21. Coming to the impugned stay order of the learned Single Judge, we find t hat implementation of the transfer order has been stayed by the learned Single J udge basically on the ground that the reply of the respondent No.3 with regard t o non-recording of the justification for transfer in terms of the O.M. dated 04. 02.2002 is not on oath but based on information. In our considered opinion, thou gh it would have been proper for the State respondent to assert on oath that the transfer was effected in larger public interest and also about the objective fo r bringing the respondent No. 4 to the post of writ petitioner because of his ef ficiency to handle flood and drainage management projects and supplement it from certain materials on record, the deficiency in the affidavit of respondent Nos. 1, 2 and 3 militates in the backdrop of absence of any evidence of malafide and also in view of non-requirement of assigning any reason