Gauhati High Court
Mokshed Ali vs The State Of Assam And 3 Ors on 28 February, 2020
Equivalent citations: AIRONLINE 2020 GAU 33
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
Page No.# 1/8
GAHC010145382019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 4460/2019
1:MOKSHED ALI
S/O. LT. FARHAD ALI, R/O. V I P, BORJHAR, DEKA PARA, P.S. AZRA, DIST.
KAMRUP (M), ASSAM-781015.
VERSUS
1:THE STATE OF ASSAM AND 3 ORS.
REP. BY THE ADDL. CHIEF SECRETARY TO THE GOVT. OF ASSAM, EXCISE
DEPTT., ASSAM CIVIL SECRETARIAT, DISPUR, ASSAM-781006.
2:THE COMMISSIONER OF EXCISE
GOVT. OF ASSAM
HOUSEFED COMPLEX
DISPUR
GUWAHATI-781006.
3:THE ADDL. COMMISSIONER EXCISE
GOVT. OF ASSAM HOUSEFED COMPLEX DISPUR
GUWAHATI-781006.
4:THE SUPERINTENDENT OF EXCISE
NALBARI
DIST. NBALBARI
ASSAM
PIN-781335
Advocate for the Petitioner : MR K K MAHANTA
Advocate for the Respondent : MR. P N GOSWAMI(SC, EXCISE DEPTT.)
Page No.# 2/8
BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
ORDER
28-02-2020 Heard Mr. K. K. Mahanta, learned Senior counsel assisted by Mr. K. Singha, learned counsel for the petitioner and Mr. P. N. Goswami, learned Standing counsel, Excise Department, for all the respondent Nos. 1 to 4.
Issue involved in this writ petition is as to whether the impugned order of transfer and posting of the petitioner dated 04.03.2019 (Annexure-2) from the establishment of the Superintendent of Excise, Kamrup (M) to the establishment of the Superintendent of Excise, Nalbari without having any vacant post is valid or not.
The petitioner is an Excise Constable under the establishment of Superintendent of Excise, Kamrup (M), Guwahati and by the impugned order No.I-101/2012-13/162 dated 04.03.2019 passed by the Additional Commissioner of Excise, Assam transferred him from Guwahati Sadar, Zone-A and posted him at Nalbari district against a vacant post. The petitioner on 11.03.2019 (Annexure-3) submitted a representation before the Commissioner of Excise, Guwahati requesting the said authority to allow him either to work in the same place of posting or in the Pandu Circle or Sonapur Circle so that he can travel to his place of work as well as can look after his family.
Since his representation was not considered, the petitioner preferred a writ petition being WP(C) No. 1812/2019. As another writ petition being WP(C) No. 1752/2019, similar to that of the petitioner was earlier disposed of on 14.03.2019, on the prayer of the departmental counsel for the respondent Excise Department, the Court by order dated 18.03.2019 disposed of said WP(C) No. 1812/2019 preferred by the petitioner in similar way, wherein the Court observed that the petitioner will approach the authority who in turn will sympathetically consider the grievances of the petitioner and further observed that the petitioner may also apply to the authorities for granting him reasonable joining time while submitting representation which shall be considered sympathetically by the authorities, by Page No.# 3/8 issuing a speaking order in that regard (Annexure-4). The petitioner along with the said order of the Court dated 18.03.2019 submitted a representation before the Commissioner of Excise Department to re-consider his transfer and posting (Annexure-5).
After considering the matter and observing that the impugned order of transfer had to be made in extreme public interest so as to ensure the safety of the citizens and to prevent further occurring of the unfortunate liquor tragic incident, which took more than 165 lives in the State, the Additional Commissioner of Excise by an order under No.111-403/2016-17/99 dated 30.03.2019 intimated the petitioner that he had to be transferred though he had individual difficulties and inconvenience and accordingly rejected his representation, granted him 3 days to join in his respective place of posting (Annexure-6).
Pursuant to the same, the petitioner on 03.04.2019 reported before the Superintendent of Excise, Nalbari and joined his service at Nalbari (Annexure-7). As he did not receive salary inspite of his joining at Nalbari on 03.04.2019, the petitioner on 08.05.2019 submitted a representation before the Commissioner of Excise, Assam to take necessary action for releasing his salary as he is required to look after his family and to provide necessary expenses to his children who are studying at Cotton University (Annexure-8).
The Superintendent of Excise, Nalbari vide No. EX(N).10/2013/185 dated 15.05.2019 also informed the Commissioner of Excise, Assam that the salary bill of the petitioner could not be prepared in his office as there is no vacant post and by the said letter the Superintendent of Excise Nalbari requested the Commissioner to do the needful for payment of monthly salary bill of the petitioner (Annexure-9).
Since there is no vacant post at Nalbari under the respondent department to pay him monthly salary, therefore, the petitioner filed this writ petition placing before the Court that he had been transferred from Guwahati Sadar and posted at Nalbari without any vacant post and relying on the decision of the Hon'ble Supreme Court in the case of Union of India and others Vs. Muralidhara Menon and another, reported in (2009) 9 SCC 304 it is submitted that where there are no vacancy, order of transfer cannot be made. As such, the petitioner in this writ petition prayed for withdrawal of the impugned order of his transfer from Guwahati and posting at Nalbari dated 04.03.2019 being made against a non vacant post and also the order Page No.# 4/8 dated 30.03.2019 rejecting his representation by the respondents in the Excise Department. In the interim the petitioner prayed for a direction to the respondents to allow him to join the vacant post at Guwahati Sadar, Zone-A. It is also contended by the petitioner that though by the impugned order he was transferred from Guwahati and posted at Nalbari, but none was transferred to his post at Guwahati Sadar, Zone-A. The petitioner also stated that, the impugned order of his transfer from Guwahati to Nalbari cannot be said to have been issued in the exigencies of service and public interest, since there is no vacant post at Nalbari for the petitioner as has been clarified by the Superintendent of Excise, Nalbari in his communication dated 15.05.2019, noted above and therefore, he submitted that said order of his transfer dated 04.03.2019 needs to be set aside and quashed.
The Excise Department by filing its affidavit on 09.09.2019 submitted that till impugned transfer order dated 04.03.2019, the petitioner was continuously serving within Guwahati since 22.08.2002 and after 22.08.2002 he was posted at Borjhar Circle, Sonapur Circle, Boko Circle, Mirza Circle and again by order dated 30.08.2016 he was placed at Guwahati Sadar. The respondent Excise Department also stated that the distance between Nalbari and Guwahati is not much and that the petitioner can easily attend his office at Nalbari and can return to his home at Guwahati, if necessary daily, or weekly. It is also stated that the Commissioner of Excise being the authorised person under the provisions of Section 6(2)(c) of the Excise Act, 2000, he has the power to appoint, transfer, to grant leave, dismiss etc., and therefore, the Commissioner having such power can transfer the petitioner in Assam in the public interest. Respondents stated that the impugned order of transfer of the petitioner is solely on the basis of public interest and as the petitioner served for more than 18 years at Guwahati Zone, as such his demand to keep him at Guwahati is not tenable and that he was rightly transferred from Guwahati after 18 years and posted accordingly at Nalbari, one of the nearest place from Guwahati.
The respondent Excise Department also stated that at the time of issuance of the impugned transfer order dated 04.03.2019 there was a vacant post at Nalbari but due to delay in his joining, another constable on transfer joined in the said vacant post and that the Page No.# 5/8 petitioner has already been paid his salary against a post of Excise Constable that subsequently fell vacant at Nalbari district.
As per the direction of the Court the respondent also filed an additional affidavit on 23.09.2019 and clarified that on 04.03.2016 the Superintendent of Excise issued an order of transfer by which several Excise Constables including the petitioner were sought to be transferred. 22 numbers of Excise Constables including the petitioner challenged the said transfer order dated 04.03.2019, preferring a writ petition being WP(C) No.1878/2016 stating that when the Code of Conduct is in force the Superintendent of Excise could not transferred them by making inter district transfers. The said writ petition was disposed of on 22.03.2016 allowing the petitioners to submit representations before the Commissioner of Excise directing the said Commissioner to consider such representations after taking all relevant factors into consideration and in accordance with law. As it was found that as per the provisions of Rule 7 of the Assam Subordinate Excise Service Rules, it is the Commissioner of Excise who is the appropriate authority for issuance of inter district transfer of Excise Constables, therefore by order dated 04.07.2016 the said order of transfer dated 04.03.2016 was quashed.
On 19.11.2016 the Additional Commissioner of Excise in public interest transferred the petitioner to the office of the Superintendent of Excise, Nalbari and against the same the petitioner on 30.11.2016 submitted a representation before the Commissioner of Excise seeking modification of the said transfer order on account of ailment of his wife and also on account education of his children. Thereafter, the petitioner again approached this Court in a writ petition being WP(C) No.7729/2016 against the said order of his transfer dated 19.11.2016 primarily on the ground of ailment of his wife and for the mid academic Session of his children. While issuing notice to the respondents in said WP(C) No.7729/2016 by order dated 05.01.2016 in the interim suspended the operation of said transfer order of the petitioner dated 19.11.2016 with the observation that the pendency of said writ petition shall not constitute a bar to consider and dispose of said representation of the petitioner dated 30.11.2016. After considering the representation of the petitioner, by an order 20.01.2017 said representation of the petitioner was rejected and the said writ petition of the petitioner i.e. WP(C) No.7729/2016 was finally disposed of on 20.09.2017 allowing the petitioner to file a fresh representation before the Commissioner of Excise with the direction that the same Page No.# 6/8 shall be decided after hearing the petitioner.
Thereafter, the petitioner on 05.10.2017 filed a representation before the authorities in the Excise Department wherein he prayed to reconsider the order dated 20.01.2017 noted above as well as his order of transfer dated 19.11.2016 stating that his wife needs medical treatment as she is suffering from some ailments and since his daughter has been admitted in the 1st year B.Sc. in Cotton College, Guwahati, his presence is required at Guwahati and therefore, he should be allowed to continue in Guwahati for few months. After considering such prayer of the petitioner that his presence is required at Guwahati for treatment of his wife who is suffering from ailments and his daughter has just joined the 1st year B.Sc. in Cotton College Guwahati, the authorities in the Excise Department by order No. III-403/2016- 17/75 dated 15.11.2017 allowed the petitioner to continue in his present place of posting at Guwahati for a further period of one year and thereby cancelled his said transfer order dated 19.11.2016 transferring him from Guwahati to Nalbari.
It is submitted by the respondents in the Excise Department that the petitioner suppressed all these materials before the Court while preferring the present writ petition.
The petitioner refuted all the allegations made against him by the respondents and reiterated that the impugned order of his transfer to Nalbari is bad in law as it was made against a non-vacant post.
It is noticed that petitioner did not rebut the stand of the respondents that at the time of issuance of the impugned transfer order dated 04.03.2019 there was a vacant post at Nalbari and the petitioner joined at Nalbari on 03.04.2019 only and by that time another Excise Constable on transfer joined the said vacant post. It is also a fact that the petitioner has already been paid his salary against a post of Excise Constable subsequently fell vacant at Nalbari district and he is receiving regular salary at Nalbari.
Though petitioner in his reply affidavit relying on the decision of the Hon'ble Apex Court reported in (2009) 2SCC 592 took a stand that his transfer is punitive, which is bad in law but from the above, it can be seen that respondent Excise Department also considered his prayer, cancelled earlier order of his transfer to Nalbari and by order dated 15.11.2017 allowed the petitioner to continue at Guwahati for a further period of one year.
Page No.# 7/8 It is settled by the Hon'ble Apex Court that the Court should not interfere with an order of transfer which is made in public interest and for administrative reasons unless there are strong and pressing grounds like malafide, arbitrariness etc. rendering the transfer order illegal. A Government employee holding a transferable post has no vested right to remain posted at one place or the other and he is liable to be transferred from one place to other and transfer orders issued by the competent authority do not violate any of his legal right. If the Courts continue to interfere with day-to-day transfer orders issued by the Government and its subordinate authorities there will be complete chaos in the Administration, which would not be conducive to public interest [ Shilpi Bose Vs. State of Bihar, 1991 Supp (2) SCC 659].
In the case of Rajendra Roy Vs. Union of India reported in (1993) 1 SCC 148, the Hon'ble Supreme Court observed that - " It is true that the order of transfer often causes a lot of difficulties and dislocation in the family set-up of the concerned employees but on that score the order of transfer is not liable to be struck down. Unless such order is passed mala fide or in violation of the rules of service and guidelines for transfer without any proper justification, the Court and the Tribunal should not interfere with the order of transfer. In a transferable post an order of transfer is a normal consequence and personal difficulties are matters for consideration of the department."
It is an accepted principle that in the public service transfer is an incident of service and also implied condition of service. In the present case the petitioner has not been able to lay any firm foundation to substantiate the case of malice or mala fide against the respondents in passing the impugned order of transfer. The petitioner being a Government employee cannot remain in a particular place of posting or at a place of his choice for such a long period. The respondents have shown that the petitioner is at Guwahati and around Guwahati for 18 years continuously, which he did not rebut.
As noted above, the petitioner joined his post at Nalbari in April 2019 and the impugned order of his transfer was of 04.03.2019 and when he joined at Nalbari, the vacant post was already filled up and it cannot be said that petitioner was not transferred to a vacant post at Nalbari. As the petitioner is receiving his salary regularly, except for the initial stage and since the impugned order of transfer being not malafide or in violation of rules, therefore, Page No.# 8/8 the order of his transfer dated 04.03.2019 does not call for any interference by the Court in exercise of writ jurisdiction.
Accordingly, this writ petition stands dismissed.
JUDGE Comparing Assistant