Gauhati High Court
Jibeswar Thakuria vs State Of Assam And Ors. on 13 February, 2003
Equivalent citations: (2004)3GLR146
JUDGMENT B.K. Sharma, J.
1. All the aforesaid three writ petitions have been filed by the respective writ petitioners assailing the legality and validity of the orders of transfer transferring them from one place of another. It is their case that such orders of transfer are not founded on bona fide exercise of power, but have been issued illegally and arbitrarily and not in any public interest. According to them the orders have been issued due to extraneous consideration and out of sheer favouritism. Considering the allegations made in all three writ petitions towards assailing the orders of transfer I have decided to dispose of all the three writ petitions by this common Judgment.
BRIEF FACTS LEADING TO FILING OF THE THREE WRIT PETITIONS W.P.(C) NO. 8921/03
2. The petitioner has been serving as Assistant Professor of Medicine in Guwahati Medical College and Hospital to which post he was promoted on 5.6.2002. He has been transferred to Silchar Medical College, Silchar by the impugned order dated 21.10.2003. When his representation dated 23.10.2003 against the said order of transfer has not yielded any result, he has approached his Court by filing this writ petition. According to the petitioner there are many senior persons who have been enjoying their posting in Guwahati Medical College and Hospital for many years. He asserts that the said order of transfer has been issued not in ; any public interest but on political pressure to satisfy and to accommodate the respondent No. 4 who was earlier posted in Silchar Medical College, Silchar by a notification dated 14.2.2003. The respondent No. 4 did not carry out the said order of transfer and he was attached to the Guwahati Medical College and Hospital. It is the case of the petitioner that the transfer order has been issued just to accommodate the respondent No. 4 in Guwahati Medical College and Hospital and the same has been issued on extraneous consideration upon political pressure. According to the petitioner the respondent No. 4 has been continuing in Guwahati for several years. As per the averments made in the writ petition, the respondent No. 4 could get his order of transfer to Silchar cancelled and in his place one Dr. Dhiraj Das was sought to be transferred by an order dated 14.10.2003. However, said Dr. Dhiraj Das could also get the order of transfer cancelled using the political pressure and a notification dated 15.10.2003 cancelling the earlier order of his transfer dated 14.10.2003 was issued. By the said notification dated 14.10.2003, the respondent No. 4 who was shown as Assistant Professor of Medicine, Silchar Medical College, has been transferred in the same capacity and posted in Guwhati Medical College and Hospital, Guwahati. According to the petitioner there has been violation of the adopted policies of the Govt. in the matter of transfer of Govt. Servants. He has also referred to a decision of this Court passed in W.P.(C) No. 5216/01 (Shri Dayal Das v. State of Assam and Ors.) by which this Court emphasized the need to check the arbitrary transfer of Govt. Officials. In pursuance to the said Judgment of this Court the Govt. of Assam in the Department of Personnel issued an Office Memorandum on 4.2.2002 followed by yet another Office Memorandum dated 22.5.2002 laying down the policies on transfer. For a ready reference the aforesaid Office Memorandum dated 22.5.2002 is quoted below :
"No. ABP. 116/10/7 Dated Dispur, the 22nd May, 2002 OFFICE MEMORANDUM Subject : TRANFER AND POSTING OF GOVERNMENT OFFICIALS.
Government Office Memorandum Nos. ABP 40/91/117 dated 19.4.1992 and ABP. 116/01/04 dated 4.2.2002 clearly lay down the policy for transfer and posting of Government Officials. Frequent transfer and posting not only leads to avoidable expenditure on TA/DA etc., but also demoralizes Government Officials. In order to streamline the system, the following further instructions are issued.
(1) Provisions contained in Government office Memorandum No. ABP. 116/01/4 dated 4.2.2002 are to be strictly complied with by all Departments/ Offices. No exceptions is to be made under any circumstances. The aforesaid office Memorandum is equally applicable for all officers/staff under various Directorates of Government Department.
(2) It is further noticed that, some Departments frequently change the transfer orders without any justification. This practice is to be stopped forthwith. Henceforth modification of any transfer order, once issued, would require the approval of Hon'ble Chief Minister, Assam and the modification must be made only on justifiable ground.
(3) Henceforth, the concept of transfer season is introduced in consideration of some inevitabilities. The months of December and January would constitute the transfer season. The Departments/ Directorates would be competent to effect transfers and postings of Government officials having completed three years only during the transfer season. Any transfer outside the transfer season would require the approval of Hon'ble Chief Minister, Assam. However, this shall not be applicable to officials being posted on promotion against vacant post as well as an official having completed three years being moved to fill up a vacancy caused due to death, retirement etc. or an officer being moved out on disciplinary grounds.
(4) All Administrative Departments are to formulate and promulgate a comprehensive transfer and posting policy within three months, Personnel (B) Department will act as nodal Department for the purpose.
Commissioner &. Secretary to the Govt.
of Assam, Personnel Department."
3. It will be seen from the aforesaid Office Memorandum that in case of any modification of the earlier order of transfer the same would require the approval of the Chief Minister and that the modification must be made only on justifiable ground. In the instant case the respondent No. 4 was posted at Silchar Medical College by order dated 14.2.2003, but his services were attached to the Guwahati , Medical College and Hospital, Guwahati. Thus, although he was promoted as Assistant Professor of Medicine at Silchar Medical College by the said notification dated 14.2.2003, his service was attached to Guwahati Medical College and Hospital, Guwahati and he did not have to go to Silchar. By the impugned notification dated 21.10.2003 the respondent No. 4 was shown transferred from Silchar Medical College and posted in Guwahati Medical College and Hospital as Assistant Professor in place of the petitioner, who by the same notification was transferred to Silchar. Such transfer order was stated to be in the public interest. This was preceded by issuance of a notification dated 14.10.2003 by which said Dr. Dhiraj Das, Assistant Professor of Medicine, Guwhati Medical College and Hospital was transferred to Silchar Medical College and the said notification was cancelled by another notification dated 15.10.2003. It is the notification dated 21.10.2003 which is under challenged in this writ petition and the whole grievance of the petitioner is that he has been transferred to Silchar only to accommodate the respondent No. 4 and there is no public interest in transferring the petitioner to Silchar. It is his case that the respondent No. 4 has been staying in Guwahati due to favour shown to him and the petitioner has been made a victim of mala fide and colourable exercise of power.
W.P.(O) NO. 9417/034. In this case the petitioner who has been working as Pharmacist under the Health Department, has assailed the legality and validity of the order of transfer dated 28.10.2003 by which he has been transferred from Chenga Public Health Centre in the District of Borpeta purportedly in the public interest and posted to Alopathichar P.H.C. in the same District. Earlier the petitioner was working as Pharmacist at Alopathichar P.H.C. and on completion of three years of service there, he was transferred to Pamuapathar S.H.C. in the District of Nalbari by an order dated 6.8.2003. Upon a representation made by the petitioner, the order was modified by another other dated 25.8.2003 posting the petitioner to his present place of posting, i.e., Chenga P.H.C. He joined at Chenga on 1.9.2003 and has been working there.
5. The respondent No. 5 in this proceeding who had been serving as Pharmacist at Chenga P.H.C. for the last 15 years, was sought to be transferred to Pamuapathar S.H.C. by an order dated 25.8.2003. By an another order dated 27.8.2003 the respondent No. 5 was shown transferred to Amrikhowa S.H.C. in the District of Borpeta. However, he was attached to Chenga P.H.C. against the post of Amrikhowa S.H.C. Thus, in spite of issuance of orders of transfer dated 25.8.2003 and 27.8.2003, he did not go to the place of transfer and remained posted at Chenga. By the impugned order dated 28.10.2003, the petitioner has been transferred from Chenga to Alopatichar P.H.C. and the respondent No. 5 has been allowed to continue at Chenga in place of the petitioner. Thus, the legality and validity of the said order dated 28.10.2003 is under challenge in this Writ proceeding.
W.P.(C) NO. 803/046. The petitioner who was a member of Assam Civil Services was transferred and his service were placed at a disposal of Election Department for posting as Election Officer at Dhemaji. This was done while he was serving as Extra Asstt. Commissioner (E.A.C) at Dhemaji by a notification dated 20.10.2003. Thereafter, by another notification dated 1.11.2003, the petitioner was appointed as Election Officer at Dhemaji w.e.f. from the date of taking over charge. By the impugned notification dated 14.1.2004 in reference to an earlier notification dated 5.01.2004 the respondent No. 5 was appointed as Election Officer at Dhemaji. It is the case of the petitioner that such a course of action during the existence of an earlier order of posting in favour of the petitioner as Election Officer is illegal and arbitrary. However, the respondent No. 5 who has entered appearance in this case has produced a copy of the notification dated 5.1.2004 by which the respondent No. 5 was transferred and her services were placed at the disposal of the Election Department for posting as Election Officer. By the said notification dated 20.10.2003 transfer of the petitioner to Election Department was cancelled. It is the legality and validity of such an action which is under challenge in this writ proceeding.
STAND OF THE RESPONDENTS
7. In all the three cases the official as well as the private respondents have entered appearance and have supported the impugned orders of transfer. In W.P.(C) No. 8921/03, the respondent No. 2, i.e., Deputy Secy. Health & Family Welfare, Govt. of Assam has filed an affidavit in opposition supporting the impugned order of transfer. As per the said affidavit, the impugned order of transfer was issued in conformity with policies framed by the Govt. and keeping in view the academic interest of the Medical Colleges. As regards the posting and attachment in favour of the respondent No. 4 in Guwahati, it has been stated that the same was done in the public interest. The respondent No. 4 although has not filed any affidavit, he has filed an application registered and numbered as Misc. Case No. 2258/03 making a prayer to vacate the interim order passed by this Court in favour of the petitioner. The said, miscellaneous application has been pressed as affidavit in opposition on behalf of the respondent No. 4. According to the respondent No. 4 also the impugned order of transfer has been issued in the public interest and the petitioner is not entitled to any relief.
8. In W.P.(C) No. 9417/03 although no affidavit in opposition has been filed, the learned Govt. Advocate appearing for the respondents has supported the impugned action on the part of the official respondents.
9. In W.P.(C) No. 803/04 also no affidavit in opposition has been filed on behalf of the respondents, but the learned Govt. Advocate has supported the impugned order of transfer.
10. I have heard the learned counsel appearing for the parties. While the learned counsel for the petitioners strenuously argued that the impugned orders were issued due to extraneous consideration and not in public interest, the learned counsel appearing for the official as well as for the private respondents argued that the transfer being an incident of service, the petitioners are bound to carry out the orders of transfer. The official respondents have produced the relevant records. While there is no denial of the general proposition relating to the transfer of a Govt. Officer, those principles will have to be applied and understood in the background of each case. In the instant writ proceedings, since records have been produced for perusal of the Court, the justification and otherwise of the impugned orders of transfer will naturally depend upon the revelation which will be made by the said records. The records will bear the testimony or otherwise of the assertions made on behalf of the respondents and recited in the impugned orders of transfer that the same have been issued in public interest. I have perused the records in all the three cases as produced by the learned Govt. Advocates namely. File No. HLB 199/95 of the Health & Family Welfare Deptt. ; File No. HSE/38/Pharma/Pt.-II of the Director of Health Services, Establishment Branch, Health Deptt. and File No. AAA 36/2002 of Assam Sectt. Personnel Deptt. respectively and deal with the same as follows :
RECORDS IN W.P.(C) NO. 8921/03
11. In this case the respondent No. 4 although was transferred to Silchar Medical College by a notification dated 14.2.2003 but in fact/his service was attached to Guwahati Medical College & Hospital and thus, he did not have to go to Silchar and remained posted in Guwahati. By the impugned order dated 21.10.2003, he was shown transferred from Silchar to Guwahati and in his place the petitioner was transferred. Records revealed that such a course of action was preceded by a letter from the Minister, P.W.D., Assam dated 19.9.2003 addressed to the Minister of Health and Family Welfare which is quoted below :
"No. MPW. 3/03/113 Dt. 19.9.2003 Minister Health & F.W. The transfer order of Dr. Dipen Kr. Bhattacharjee, Asstt, Prof, of Medicine & Dy. D.M.E., Assam may kindly be cancelled. He is my personal physician and as I am not keeping in good health, his service are required almost daily. Further he is doing good job in both the post he is now holding. Hence this case may be treated as a special case.
Minister P.W.D., Assam."
12. In the body of the said letter the Minister, Health and Family Welfare, gave an endorsement to the Commissioner and Secretary, Govt. of Assam to put up a file for sending some other person in place of the respondent No. 4. This was followed by yet another letter by the P.W.D. Minister under number M.P.W. 3/03/121 dated 17.10.2003 addressed to the Minister of Health and Family Welfare which reads as follows :
"No. MPW.3/03/121 Dt. 17.10.2003 Minister, Health F.W. Dr. Dwipen Kumar Bhattacharyya, Assistant Professor of Medicine and Dy, DME. Assam who is under order of transfer my kindly be regularly posted in a post of Assistant Prof. of Medicine at Gauhati Medical College. This has reference to my earlier note on the subject. Matter may kindly be treated as most urgent, Minister P.W.D., Assam"
13. On the body of the said letter the Minister of Health and Family Welfare, Assam gave an endorsement on the same very date to the Commissioner & Secretary, Health, which reads as follows :
"Commr. & Secy., Health Dr. Dwipen Kr. Bhattacharjee may be accommodated vice Dr. Jibeswar Thakuria, Asstt. Professor, Medicine, GMC. Minister, Health & F.W., Assam."
14. It was pursuant to the aforesaid note, the impugned notification dated 21.10.2003 has been issued in partial modification of the earlier notification dated 14.10.2003.
15. The records containing the official notes also revealed that the matter relating to transfer of the petitioner and the respondent No. 4 was processed on the basis of the aforesaid letter of the Minister, P.W.D. and the endorsement given by the Minster of Health & Family Welfare. The records clearly revealed that at least two medical Officers are in Guwahati for longer periods than the petitioner. Dr. Dhiraj Das, Assistant Professor of Medicine who has been in Guwahati since 1996, was sought to be transferred to accommodate the respondent No. 4. However, his transfer was cancelled as noticed above. Thereafter, it was the turn of the petitioner who was transferred to Silchar only to accommodate the respondent No. 4. Thus, it is clear from the records that no public interest is involved in transferring the petitioner from Guwahati to Silchar. It is the private interest of the Minister, P.W.D. on whose request the Minister of Health and Family Welfare, ordered the transfer of the petitioner without mentioning anything as to what was the public interest. The only revelation which could be gathered from the records is that the petitioner was transferred to Silchar only to accommodate the respondent No. 4 and that too as per the request of the Minister, P.W.D. IN W.P.(C) NO. 9417/03
16. The records of this case as have been produced by the Official respondents lead to shocking revelation. Almost all the transfer orders initiated in the file are on the basis of request and recommendations made by the Members of Legislative/Assembly without mentioning anything about public interest. Such request and recommendation have been easily acceded to by the Minister of Health and Family Welfare without assigning any reason. Moreover, the respective Department also readily agreed to the request and recommendation made by the Ministers and MLAs. The very concept of public interest in the matter of transfer has been transformed to the whims and caprices of the Members of Legislative Assembly and only ground for initiation of proposal, etc., towards transfer of the Officers is the request and recommendation made by them and the Officers in the helm of affairs also processed the file only on the basis of such request and recommendation totally oblivious of the element of public interest. The case of the respondent No. 5 was espoused by the Minister of State, P.H.E. and Urban Development by writing a letter to the Minister of Health & Family Welfare making a request for stay of his order of transfer and to allow him to continue at Chenga. The letter issued under No. MS/PHE/UD. 11/2003 dated 1.9.2003 reads as follows :
"Minister of State PHE & Urban DEVELOPMENT Govt. of Assam Dispur, Guwahati- 781006 MS/PHE/DU. 11/2003, Dtd. 1.9.2003 Hon'ble Minister, Health & F.W., Assam Md. Abdul Mannaf, Pharmacist has been transferred from Chenga P.H.C, to Parnuapathar, S.H.C. in the district of Nalbari vide D.H. Ss. Order No. HSE/38/Pharma (PT.II) 8091 dated 25.8.2003. I understand that Mr. Mannaf at present facing immense domestic problems. He has to take care of his old ailing mother and his three college going children. He is the only male member of the family. So, it would be a great problem for the family, if he has to join at Pamuapathar S.H.C. in Nalbari district at this stage. In view of the above, may I request you to kindly pass necessary orders for staying his transfer order above and he may kindly be allowed to continue in Chenga P.H.C. as Pharmacist considering the problems stated above. Minister."
17. Like the previous case, the Minister of Health & Family Welfare readily agreed to the request giving an endorsement on the body of the letter directing the Director of Health Services, Assam to retain the respondent No. 5 in any place nearer to Chenga unmindful of the fact as to what would happen to the Health Centre to which he was transferred. The file was processed on that basis and a note was given to the effect that although the petitioner has already joined at Chenga P.H.C. the Minister of Health & Family Welfare may be obliged by making an arrangement for attachment of the respondent No. 5 at Chenga. Such are the foundations towards issuance of the impugned order and there is no whisper as to what is the public interest and naturally so when the Bureaucrats at the helm of affairs simply acted as per the whims and likings of the Members of the State Legislative Assembly and Ministers having no nexus with the Health Department. Likewise, the Minister, Health and Family Welfare also easily succumbed to the request and recommendation made by them. This is really a sorry state of affair and that too in the Department like Health and Family Welfare.
IN W.P.(C) NO. 803/0418. The records of this case revealed that the transfer and posting of the petitioner to the Election Department as Election Officer, Dhemaji was interferred with by the impugned notifications dated 5.1.2004 and 14.1.2004 by which the respondent No. 5 was allowed to replace the petitioner. Such a course of action was adopted as per the request made to the Chief Minister by the Minister of Parliamentary Affairs, W.P.T. and BC etc. by his letter No. MFPAC/3/03/858 dated 13.11.2003. The letter reads as follows :
"No. MFPAWC. 3/2003/858 Date : 13th November, 2003 Hon'ble Chief Minister, Assam I would like to request you kindly to modify the transfer order of Shri Bipul Kr. Das, ACS/EAC, Dhemaji vide No. AAA.10.2003/6-B, dated 20.10.2003 and in his place Smt. Ditimoni Pegu, ACS, E.A.C./Dhemaji may please be placed at the disposal of Election Deptt. for posting as Election Officer, Dhemaji. Minister Parliamentary Affair, WPT & BC etc., Assam."
19. The Chief Minister in turn gave an endorsement dated 21.11.2003 on the body of the said letter to the P.P.S. to Chief Minister's Sectt. who in turn addressed a letter dated 4.12.2003 to Commr. & Secy. Personnel Deptt. which reads as follows :
"GOVERNMENT OF ASSAM CHIEF MINISTER'S SECTT. DISPUR No. CMS.7/2002/242 Dated Dispur, the 4th December, 2003 From : P.P.S. to Chief Minister, Assam To : The Commr. & Secy. To the Govt. of Assam Personnel Department, Dispur Sir, I am directed to forward herewith a copy of the letter bearing No. Dy. No. 17814 dated 18.11.2003 (in original) from Minister, Parliamentary Affairs, W.P.T. & B.C. etc., Assam Dispur addressed to Hon'ble Chief Minister, Assam for favour of information & necessary action from your end. Yours faithfully, P.P.S. to Chief Minister, Assam."
20. It was on that basis the impugned order was issued. There is nothing on record to show as to what was the necessity to cancel the order of posting of the petitioner and the necessity to replace him by the respondent No. 5. The only reason assigned in the file is the request made by the Minister of Parliamentary Affairs etc. No element of public interest is discernible from the records. The records further revealed that although the petitioner was posted in the Election Department as Election Officer, he was not released by the Deputy Commissioner, Dhemaji enabling him to join the new assignment and eventually the impugned order was issued primarily on the request of the said Minister.
DECISION
21. With the above revelation from the records relating to the grounds of transfer of the petitioners vis-a-vis the private respondents in all the cases, it is now to be decided as to whether the impugned orders in all the three writ petitions are sustainable or not. It is an accepted principle that in public service transfer is an incident of service. The appointing authority has a wide discretion in the matter. The Govt. is the best Judge to decide how to distribute and utilize the services of the employees. However, the power must be exercised honestly, bona fide and reasonably. It must be exercised in public interest. If the exercise of power is based on extraneous consideration or for achievement of alien purpose or/and motive, it would amount to mala fide and colourable exercise of power. The transfer may be termed to be founded on mala fide and colourable exercise of power when it is not for the professed purpose like normal course, public or administrative interest or in the exigency of service, but for other purpose like accommodating another person at the behest of the political bosses having no nexus with the Department concerned.
22. The responsibility for good administration is that of the Government. The maintenance of efficient, honest and experienced administration is a must for due discharge of that responsibility. When the transfer is not administered on the established principles of exigency, but for other purpose and on extraneous consideration, the same is illegal and liable to be set aside. One of the elementary principles of administrative law is that the authority which has to exercise the power should apply its mind before such exercise. It cannot abdicate its application to do so and act on the instances of the another authority which is not authorized to exercise the power.
23. In the instant cases, the records revealed that the impugned orders relating to transfer and posting of the petitioners vis-a-vis the private respondents were not routine affair or usual transfer orders passed by the head of the department, but the same were issued at the behest of the recommendation made by Ministers having no nexus with the department concerned. In the said process the petitioners have been victimized by resorting to transfer. The orders were issued in illegal, unjust and unfair manner- Their intensity will have to be judged in its severity due to the interference by the Ministers in exercise of their power unreasonably imposing the same on the Ministers of the concerned Departments who readily acceded to such unjust and unreasonable exercise of power, of course, impliedly expressing the solidarity to the Cabinet colleagues. In the instant cases all the impugned orders have been made on political consideration and not in any public interest on any administrative ground such as exigency of service etc. The Minister of Health and Family Welfare in first two cases simply acceded to the request made by his Cabinet colleagues having no nexus with Health Department. In the first case it is the private interest of the Minister of P.W.D. which prevailed over the public interest and it was on that basis the impugned order was issued transferring the petitioner to Silchar and accommodating the respondent No. 4 in Gauhati Medical College. Likewise, in the second case also the respondent No. 5 was accommodated at Chenga on the basis of the request made by the Minister of another department to which the Minister of Health and Family Welfare readily agreed. In both the cases only personal requests have been assigned without there being any public interest and the Minister of Health and Family Welfare also acted on the personal requests without any independent application of mind and without assigning any reason. If the departments of the Govt. like that of Health and Family Welfare run in this fashion, I am afraid, God alone can save the citizens, more particularly, the poor citizens living in the villages.
24. The Supreme Court had the occasion to consider the effect of the irrelevant consideration influencing the administrative decisions or relevant factors being overlooked by administrative authorities in S. R. Venkataraman v. Union of India, 1979 (1) SLR 130 (SC) in the following words :
"It is however not necessary to examine the question of malice in law in this case, for it is trite law that if a discretionary power has been exercised for an unauthorized purpose, it is generally immaterial whether its repository, was action in good faith or in bad faith. As was stated by Lord Goddard, C.J., in Pilling v. Abergele Urban District Council (1950) (1) K.B. 636 where a duty to determine a question is conferred on an authority which state that reasons for the decision and the reasons which they state show that they have taken into account matters which they ought not to have taken into account, or that they have failed to take matters into account which they ought to have taken into account, the court to which an appeal lies can and ought is an adjudicate on the matter."
25. Needless to say that transferability is an incident of service and if an Officer is transferred in administrative exigency, Court will not interfere with such orders of transfer. But in the present cases the records clearly revealed that the power of transfer has been exercised and used for collateral purposes and on extraneous considerations. The authorities who exercise the power of transfer are bound to act it in a reasonable manner. The power of transfer should be exercised reasonably and fairly and it should be applied to everybody equally. In the present cases there is no element of public interest towards issuance of the impugned orders. It was due to weight of persons that determined the fate of the parties. The only consideration towards issuance of the impugned orders was the personal requests of the Ministers unconnected with the concerned departments espousing the cause of the private respondents. Thus there has been misrepresentation of facts and traversity of truth in the affidavit-in-opposition filed by the respondent No. 2 in W.P.(C) No. 8921/03 statements of which have been sworn in to be based on records justifying the impugned action/orders on the ground of public interest and academic interest without there being any. There is also no whisper about the real state of affairs as revealed from the records and thus he has deliberately tried to misled the Court. This is how he obliged the dictates of the Ministers and cause of the respondent No. 4 unmindful of his position as a responsible Govt. Officer.
26. In the third case in hand, the Minister of Parliamentary Affairs etc. gave a note requesting to accommodate the private respondent in place of the petitioner and the Chief Minister of the State endorsed the same to the PPS of the Chief Minister's Sectt. without assigning any reason who in turn addressed the above quoted letter to the concerned Commissioner & Secy, and eventually the impugned order came into being. It is in this context, the case of Dayal Das as referred to above and reported in 2002 (2) GLT 109 comes into operation. It was pursuant to the said decision, the Govt. of Assam in the Department of Personnel issued an Office Memorandum dated 4.2.2002 laying down the policy guidelines relating to transfer of its officers. This was followed by the above quoted Office Memorandum dated 22.5.2002 laying down the emphasis for strict compliance of the policy guidelines relating to transfer with the stipulation that no exception should be made under any circumstances. In the said policy guidelines issued under Office Memorandum dated 22.5.2002 noticing the action of some departments in resorting to frequent changes of transfer orders without any justification, it was emphasized that such a practice should be stopped forthwith and any modification of any transfer order once issued would require the approval of the Chief Minister and that such modification must be made only on justifiable grounds. In the instant cases, such policy decision relating to transfer of Officers has been violated with impunity against- the guidelines formulated in the said Office Memorandum. Transfer orders have been frequently modified and that too without assigning any valid reasons and without taking the approval of the Chief Minister. The only reason assigned is the personal requests made by the Ministers of other departments to which the Minister of the concerned department readily agreed to. In the third case, i.e., in W.P.(C) No. 803/04 as already noticed above, the respondent No. 5 was ordered for posting in place of the petitioner on the request of the Minister of Parliamentary Affairs, etc. On his above quoted letter dated 13.11.2003, the Chief Minister gave an endorsement to PPS who in turn wrote the above quoted letter dated 4.12.2003 to the Commr. & Secy./Personnel Deptt. and it was on that basis the impugned order was issued. This was done at the cost of the petitioner. The aforesaid Office Memorandum requires assignment of reasons and that too on the justifiable grounds along with the approval of the Chief Minister for modification of earlier transfer orders. But in this case also without assigning any reason, the earlier order of posting in favour of the petitioner was modified in favour of the respondent No. 5 on the basis of the request made by the Minister, Parliamentary Affairs. No other reasons are discernible from the records.
27. In all the three cases by taking the name of "public interest", the private interest of the recommending authorities, i.e., the Minister of other departments having no nexus with the departments in question, has been given preference and the private respondents have been accommodated as per their choice. The records of all the three cases lead to the irresistible conclusion that the authorities at the helm of affairs have totally misused their power towards issuance of the impugned orders in the name of "public interest" and the concept of "public interest" so well cherished in the matter of transfer has been put to oblivion with the use of its form and not the contents. There has been all round abuse of powers. In the process, the Officers occupying key positions gave way to the commands of the Ministers without any valid sanction behind the same. To say the least, what has been done in the all the cases is not what is expected of responsible Officers including the Officers belonging to All India Services and Assam Civil Services. I am tempted to quote the observations of the Apex Court in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. as reported in (2001) 6 SCC 260 as follows :
"In the system of Indian democratic governance as contemplated the Constitution, senior officers occupying key positions such as Secretaries are not supposed to mortgage their own discretion, violation and decision making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The Conduct Rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a government servant. No government servant shall in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior. In Anirudhusinhji Jadeja this Court has held that a statutory authority vested with jurisdiction must exercise it according to its own discretion; discretion exercised under the direction or instruction of some higher authority is, failure to exercise discretion altogether. Observations of this Court in Purtabpore Co. Ltd. are instructive and apposite. Executive Officers may in exercise of their statutory discretions take into account consideration of public policy and in some context, policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy but they are not absolved from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for instructions by a superior to bind them."
28. For the foregoing reasons, I have no hesitation to set aside the impugned orders in all the three cases and the writ petitions are allowed imposing the cost of Rs. 5000 (Rupees five thousand) only in each case.