SHRI PINKU MAZUMDAR Vs. STATE OF ASSAM

JUDGEMENT

(1.) THE petitioner by the present petition has challenged the order of transfer dated 22.05.2013 passed by the Secretary to the Govt. of Assam, Water Resources Department, transferring him from Nalbari W.R. Sub-Division to Lala W.R. Sub-Division, in the same capacity as Asstt. Executive Engineer, in place of the respondent No.3, who has been transferred from Lala to Nalbari.

(2.) THE grounds on which the said order of transfer is put to challenge are that the transfer is in the nature of colourable exercise of powers in the name of public interest and administrative exigencies and it amounts to malafide transfer, since the proposal for transfer was initiated not at the instance of the departmental Minister, but at the instance of the Minister of another department, who has nothing to do with W.R. Department. Another ground on which the transfer order has been put to challenge is that the approval of the Chief Minister has not been obtained before passing the transfer order as is required by the guidelines formulated by the State, as the petitioner has not completed his normal tenure of posting of 3(three) years at Nalbari.

(3.) MR . Borbora, learned Sr. counsel submits that though the scope of judicial review of an order of transfer, in exercise of the power under Article 226 of the Constitution of India, is very limited, such transfer order, however, can be interfered with if passed in malafide and colourable exercise of the powers and also on the ground of violation of the transfer policy formulated by the State. In the instant case, according to the learned Sr. counsel, since the transfer order was passed at the instance of a Minister other than the departmental Minister, such transfer order is malafide and has been passed in colourable exercise of the powers conferred. The learned Sr. counsel further submits that before passing the transfer order the Chief Minister's approval has not been taken, though required under the transfer policy formulated by the State, as the petitioner has not completed his normal tenure of posting of 3(three) years at a particular station. The learned Sr. counsel, therefore, submits that the transfer order is required to be set aside.