ARUNENDU DEB Vs. STATE OF TRIPURA

JUDGEMENT

(1.) The Government Notifications/Orders dated 16th December, 1998 and)25th March, 1999 as in Annexure-6 and Annexure-14 to the writ petition pertaining to the transfer and posting of the present writ petitioner are the subject matters under challenge in this writ petition.

(2.) Supporting the case of the writ petitioner, Mr. A.K. Bhowmik, learned senior counsel assisted by Mr. S. Ghosh, learned counsel for the petitioner at the very outset contended that the impugned transfer orders are illegal, malafide and not in public interest inasmuch as the said transfer orders amount to a punitive action as against the present writ petitioner in as much as the authority concerned with oblique and malafide motive issued those orders thus affecting the service career of the writ petitioner; that the petitioner is a General Secretary of Tripura Nationalist Employees' Federation, a recognized Association by the Government of Tripura, hereinafter referred to as Federation and as such the petitioner cannot be transferred from his present place of posting at Agartala either to Kumarghat or at Kailashahar under the Sub- divisional Officer, Kailashahar, North Tripura by virtue of the related Govt. Office Memorandum/Poilcy and his case shall be exempted from the general transfer; that the petitioner is a heart patient who has been sufferint constantly from chronic cardiac problem since the year 1992 and has been under constant treatment of specialist physician and the Cardiologist at Agartala but there is no specialist physician and the Cardiologist either at Kumarghat or at Kailashahar and apart from it the ailment of the writ petitioner was duty examined by a standing Medical Board and on a careful medical examination the standing Medical Board had opined that he may be posted in a place where there is medical specialist such as District or sub-divisional Hospital in Tripura. The learned counsel for the petitioner also argued that there is no post of sub- divisional Controller (Food) at Kaliashahar. However, by virtue of the impugned order dated 25.3.99 as in Annexure-14 to the writ petition the petitioner has been transferred to Kailashahar by transferring a post of Sub- Divisional Controller (Food) created/ sanctioned under the Directorate of Food & Civil Supplies, Tripura to Sub-Divisional Headquarter at Kailashahar. North Tripura under the control and supervision of the Sub- Divisional officer, Kailashahar with immediate effect and until further orders, According to Mr. Bhowmik, learned senior counsel, the creation of a post or posts in a particular Sub- Divisional Headquarter at Kailashahar can be made only by the competent authority with the concurrence of Finance Department and in the instant case no post of Sub-Divisional Controller(Food) was/is even created for the Sub-Divisional Headquarter at Kailashahar, North Tripura and the transfer of a post of Sub-Divisional Controller (Food) meant and created rather sanctioned under the Directorate of Food & Civil Supplies at Agartala cannot be transferred to the Sub-Divisional Headquarter at Kailashahar with the official/ officer holding such post in the Directorate of Food & Civil Supplies, Tripura at Agartala. It is also contended by the learned counsel that such transfer of a post of Sub-Divisional Controller (Food) to Sub-Divisional Headquarter at Kailashahar was made without the concurrence of the Finance Department which is not permissible and the same is also not known under Service Jurisprudence. The learned counsel went on to argue that the authority concerned ought to have considered the case of the writ petitioner on the basis of the representations submitted by the petitioner and also in the light of the Medical Report or opinion submitted by the Medical Board thus giving his place of posting in or around Agartala as there are vacant posts of Sub- Divisional Controller (Food). (It is now 4.15 P.M. Judgment & Order will be continued tomorrow). The Judgment and order continued today (29.6.99). 29,6.99 The main contention raised by the learned counsel for the petitioner is that there is no existence of public interest in posting or transferring the petitioner either to Kumarghat or to Kailashahar; that the purported transfer of a post of Sub-Divisional Controller(Food) sanctioned and created in the Directorate to the Sub-Divisional Headquarter at Kailashahar under the impugned transfer order of 25th March, 1999 is absolutely void ab initio and a malalfide action. Supporting the plea of malafide so far taken by the writ petitioner, Mr. Bhowmik has drawn my attention to the statements made by the petitioner in Paragraphs 17 and 18 of the writ petition and also uelied on the judgment and order passed by a Division Bench of this Court on 14.2.1997 in Writ Appeal No. 29 of 1993 and contended inter alia, that the petitioner has been subjected to harassment by the respondents thus, transferring him once from the office of the Agartala Rationing Authority while he was serving as Chief Inspector to the office of the Sub-Divisional Officer, Chailengta, North Tripura where there is no post of Chief Inspector and, being aggrieved by such transfer order dated 1 Oth May, 1993, he filed a writ petition before this Court under Civil Rule: No. 162 of 1993 which was dismissed by the learned Single Judge of this Court but on appeal, the judgment and order passed by the learned Single Judge was set aside by the Division Bench of this Court under the related order of 14.2.1997 mentioned above. It is also submitted by Mr. Bhowmik that;by virtue of the opinion and report of the standing Medical Board dated 20.2.99 and also considering the health condition of the writ petitioner, the respondent/competent authority ought to have given his place of posting to a nearer station at Agartala or near about, not at Kailashahar so that, the petitioner could avail medical facilities. It is also argued by the learned senior counsel that discrimination has been meted out by the respondents to the petitioner in the matter of transfer and posting inasmuch as one Sri Kalyan Chowdhury, the present Divisional Controller (Food) in the office of the respondent No. 2 at Agartala has been posted at Agartala during his entire service career except for a brief period of about three years and as a case of extra favour, he has been detailed in the Department after his retirement for another period of one year but a little consideration has not been made by the respondents in the case of the petitioner. The impugned orders causing the transfer and posting of the writ petitioner at Kumarghat and subsequently at Kailashahar amounts to punishment and the same were issued by the competent authority with malafide, but not in public interest, Mr. Bhowmik contended. Supporting the plea of malafide Mr. Bhowmik has drawn my attention to a decision of Kerala High Court in a case between Dr. P. Damodaran Vs State of Kerala and others, reported in 1982(1) SLR 563 and submitted that the impugned transfer orders are bad as the same amounts to fraud on power and the power to transfer of the writ petitioner was exercised by the competent authority not in the interest of administration or in the interest of public and without due regard to the provisions of law or the requirements of justice. Over and above, the same was exercised for extraneous and irrelevant considerations and this amounts to punishment,

(3.) At the hearing Mr. U.B. Saha, learned senior Govt. Advocate assisted by Mr. T.D. Majumdar, learned counsel appearing for the State respondents submitted that the petitioner is not at all entitled for the prescribed exemption from general transfer under the related Govt. Policy inasmuch as the said Federation/Association of the petitioner is not recognised by the Government of Tripura inasmuch as the said Association/Federation does not find its place as a recognized association by the Government of Tripura under the related Memorandum dated 24.12.1997 as in Annexure-R.8 to the additional counter-affidavit and, apart from it, the present writ petitioner cannot be a member of any such recognized Employees' Association as the petitioner is now holding the post of Sub-divisional Controller (Food) which is a Group -B Gazetted Officer and as such he is not permissible to be a member of such Association and of course he may be a member of such Association when he was serving as a Chief Inspector under the respondents. It is also submitted by the learned Govt. Advocate that no statement is made either in the writ petition or in the reply affidavit by the writ petitioner to the effect that on his promotion in the month of December, 1997 to the post of Sub-Divisional Controller (Food), Kailashahar, he was elected as a member or General Secretary of any recognized Association and apart from this, the said Association or Federation is not a recognized Association by the Government of Tripura. According to Mr. Saha, the Government had duly considered and examined the case of the petitioner rather his representation dated 23.3.99 as in Annxure- 12 to the writ petition giving due weightage to the examination report of the Standing Medical Board thus modifying the earlier transfer order dated 16.12.1998 as in Annexure-6 to the writ petition and thus transferring the petitioner to the office of the Sub-Divisional Officer, Kailashahar, North Tripura in the post of Sub- Divisional Controller (Food) and also causing the transfer of a post of Sub-Divisional Controller(Food) earlier from the Directorate of Food & Civil Supplies to the Sub- Divisional Headquarter at Kailashahar, North Tripura and, in the public interest, the transfer and posting of one Shri Abhijit Malakar, Sub- Divisional Controller(Food) has also been cancelled by the competent authority under the related order or 25.3.99 and an officer, namely, Shri N. Das, Assistant Director from Kailashahar has been transferred to Ambass to meet the demand of Ambassa Sub-Division. It is also submitted by Mr. Saha that it is prerogative of the Government in the matter of transfer and posting of its employee/ employees for effective, expedient and smooth running of the administration and as such transfer of a post of Sub-Divisional Controller (Food) to Kailashahar and the transfer of the petitioner at Kailashahar were made in public interest and that no system can run with minimum effectiveness if authorities are to adjust with whims of the employee concerned who seeks suitable posting to suit him. Mr. Saha went on to contend that the petitioner while seeking leave for 30 day son medical ground w.e.f. 2.1.99 and, another leave of 28 days w.e.f. 1.2.99 to 28.2.99 on medical ground, he submitted those applications along with supporting medical certificates issued by the medical officer of Central Jail and one issued by Dr. Pranab Kr. Nandi, a Diploma holder in Homoeopathy and as such the petitioner treated those doctors as fit and capable doctors for his medical treatment and those medical certificates so far submitted by the petitioner show that he was never under treatment by any medical specialist in Cardiology at Agartala. Relying upon the judgment reported in AIR 1974 SC 555(E. P. Royappa, petitioner v. State of Tamil Nadu and another, respondents) Mr. Saha submitted that the burden of proof for establishing malafides lies on the shoulders of the petitioner who alleges it but in the instant case the petitioner could not make out a case of malla fide as there is no material on record. In thiis connection the learned Govt. Advocate has drawn my attention to paragraph 92 of the judgment wherein the Court held that the allegations of malafides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. Further, relying upon the decision of the Apex Court, reported in AIR 1995 SC 813 (Chief General Manager (Telecom), NE Telecom Circle and another, appellants v. Rajendra Ch. BhaKacharjee and others, respondents) the learned Govt, Advocate argued that the official cannot insist on being posted at a particular place of posting of his or her own choice. There is no infirmity or illegality or mala fide in the impugned transfer orders and the same were issued in the public interest and administrative expedient, Mr. Saha contended.