BHABENDRA SHARMA Vs. STATE OF ASSAM

JUDGEMENT

(1.) THE contours of the writ power to examine the validity of a transfer order of a Government servant is the question that has surfaced once again in the present case. Specifically, the challenge is in respect of the transfer order dated 8.7.2003 transferring the writ petitioner Shri Bhabendra Sharma from the office of the Deputy Inspector of Schools at Mangaldoi to the office of the Block Elementary Education Officer at Udalgiri. By the same order, the Respondent No. 4 has been transferred to the post in which the petitioner was earlier working. Both the writ petitioner and the Respondent No. 4 are holding the post of Statistical Assistant. It must be noted, at this stage, that prior to the order dated 8.7.2003, the petitioner had been working at Mangaldoi since the month of January, 2003 pursuant to an order dated 30.12.2002 transferring the petitioner from Kalaigaon to the office of the Deputy Inspector of Schools at Mangaldoi. It must also be noticed that at the said point of time, the Respondent No. 4, though posted at Sipajhar, was temporarily attached to the office of the Deputy Inspector of Schools at Mangaldoi.

(2.) MR . R.K. Bora, learned Government Advocate appearing for the official respondents, has placed before the Court the relevant file in original indicating the manner in which the transfer of the aforesaid two incumbents was processed and finalized. Counsels for the parties had been given an opportunity to inspect the records so as to render effective assistance to the Court in resolving the controversy. The records have been duly inspected by the learned counsels and pursuant thereto, an additional affidavit has been filed on behalf of the Respondent No. 4 yesterday, i.e., 19.11.2003.

(3.) THE arguments advanced on behalf of the petitioner have met with stiff resistance from the learned counsel appearing for the Respondent No. 4. Mr. M.A. Choudhury, learned counsel for the said respondent, has argued that the Office Memorandum dated 22.5.2002 would not apply to the facts of the present case as by a subsequent notification dated 2.7.2003, it has been clarified that the memorandum dated 22.5.2002 would apply only to the Gazetted Government servants. Learned counsel has further submitted that the records produced would go to reveal that the impugned transfer has been made so as to facilitate medical attention and treatment which the Respondent No. 4 presently requires. It is the further submission of the learned counsel for the Respondent No. 4 that as the Respondent No. 4 is ailing and as there is a Civil Hospital at Mangaldoi, the transfer has been made to enable him to avail of medical facilities. Placing reliance on the judgment of the Apex Court in the case of Shipi Bose (Mrs.) and Ors. v. State of Bihar and Ors., reported in 1991 Supp (2) SCC 659, learned counsel has argued that a transfer made at the request of the incumbent in order to enable such incumbent to tide over certain difficulties, would still be a transfer in the exigencies of the administration and such transfer would not be amendable to interference under Article 226 of the Constitution. Learned counsel for the respondent, has further argued, by relying on the two decisions of the Apex Court in the case of N.K. Singh v. Union of India and Ors., reported in 1994 (6) SCC 98 and in the case of State Bank of India v. Anjan Sanyal and Ors., reported in (2001) 5 SCC 508, to contend that the power of the writ Court to interfere with a transfer order is seriously circumscribed and the facts of the present case would not call for exercise of the limited power available. Mr. Choudhury, learned counsel for the respondent, has also argued that though interference of the writ Court can be made in case a transfer order is proved to be mala fide, mala fide must be pleaded and proved and in the present case, the writ petitioner not having done so, on the ratio of law laid down by Division Bench of this Court in the case of Shri Nurul Amin v. State of Assam and Ors., reported in 1992 (2) GLJ 207, the present writ petition would not call for any interference at the hands of this Court.