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1999 Supreme(Gau) 332
GAUHATI HIGH COURT
M.L.Singhal, J.
Manik Saha Dr -Appellant
Versus
State of Tripura -Respondent
Writ Petition (Civil) No. 308 of 1999
Decided On : 04-10-1999
U.B.Saha, S.Talapatra, R.Deb Nath, J.Majumdar, K.N.Bhattacharjee
Transfer of a Government servant is an incident of service and the authorities are the sole judges about the necessity or desirability of such transfer. The court will not interfere with the transfer unless it is malafide or in contravention of statutory rules or norms of transfer.
Headnote:
TRANSFER OF GOVERNMENT SERVANT - TRIPURA DENTAL SERVICES RULES, 1995 - RULE 11 - TRANSFER INCIDENT OF SERVICE - MALAFIDE TRANSFER - PUBLIC INTEREST - COURT'S INTERFERENCE.
Fact of the Case:
The petitioner, a Dental Surgeon in Tripura Dental Service, challenged his transfer order from Dr. BR Ambedkar Medical Hospital, Hapania Agartala to Tripura Sundari Hospital, Udaipur. He claimed that he was the only person holding a Degree in Oral and Maxillo Facial Surgery, and his transfer would neglect the unit set up on his initiation and efforts in Dr. BRAM Hospital.
Finding of the Court:
The court held that transfer is an incident of service and the authorities are the sole judges about the necessity or desirability of such transfer. The court found no malafide in the transfer as it was not made for extraneous considerations or oblique motives. The court also held that the petitioner's transfer was not in contravention of any statutory rules or norms of transfer.
Issues: 1. Whether the transfer of the petitioner was malafide? 2. Whether the transfer was in contravention of any statutory rules or norms of transfer?
Ratio Decidendi: 1. The court held that the transfer was not malafide as it was not made for extraneous considerations or oblique motives. The court relied on the decision in Narayan Bhattacharjee vs. State of Tripura, (1988) 2 GLR 247, which summarized the principles relating to transfer. 2. The court held that the transfer was not in contravention of any statutory rules or norms of transfer. The court relied on Rule 11 of the Tripura Dental Services Rules, 1995, which provides that officers appointed to the service shall be liable to serve anywhere in Tripura.
Final Decision: The court dismissed the writ petition, holding that the transfer of the petitioner was not malafide and was not in contravention of any statutory rules or norms of transfer.
2. I have heard Mr. KN Bhattacharjee, learned senior counsel appearing for the petitioner, Mr. UB Saha, learned Govt Advocate for the respondent Nos 1 and 2, and Mr. S. Talapatra, learned counsel for the respondent No.3. By the consent of the parties the writ petition in finally disposed of.
3. The petitioner Dr. Manik Saha joined Tripura Dental Service at some time in the year 1987. During the course of service he applied for Degree course under the Central Pool MDS Seats Scheme, was selected and obtained Degree in Oral and Maxillo Facial Surgery. After obtaining the Degree on his initiation and efforts a unit known as Oral and Maxillo Facial Surgery was set up in Dr. BR Ambedkar Medical Hospital, Hapania Agartala (properly known as Dr. B RAM Hospital). He was made In-charge of the said unit. By impugned order dated 24.2.99 he has been transferred from the said Hospital to Tripura Sundari Hospital, Udaipur vice Dr. Asis Khan, respondent No. 3.
4. The grievance of the petitioner is that he is in the only person holding Degree in Oral and Maxillo Facial Surgery, on his initiation and efforts the aforesaid unit was setup in the Dr. BRAM Hospital, Dr. Asis Khan who has replaced him a simple-BDS cannot discharge duties in the aforesaid unit. He has been transferred to-accommodate Dr. Asis Khan and so the transfer is malafide. After his transfer the aforesaid unit in Dr. BRAM Hospital will remain neglected, on the other hand, at the transferee hospital Udaipur there is no such Oral and Maxillo Facial Surgery unit and, as such, his talent will remain unutilised, therefore, the transfer is not in public interest. Apart from the allegation that the petitioner's transfer has been made to accommodate Dr. Asis Khan, there is no other allegation of malafide.
5. Learned counsel for the petitioner relied upon the decisions of this Court in Ramzan Ali Ahmed, vs. Taiyab AH Ahmed & others, 1998 (2) GLT 242 (1998 (1) GLJ 508) and in Dr. Pranabjyoti Deka vs. State of Assam & others, 1998 (2) GLT 378 (1998 (2) GLJ 177).
6. The transfer is an incident of service, so part of the petitioner's career.
Rule 11 of the Tripura Dental Services Rules, 1995 to which the petitioner belongs
clearly provides that officers appointed to the service shall be liable to serve
anywhere in Tripura. It is settled law that the Courts are very reluctant to and
seldom interfere in transfer matter, unless the transfer is malafide in contravention
of the statutory rules, norms of transfer or aggrieved person is the victim of
transfer in some way. A Division Bench of this Court earlier in Narayan
Bhattacharjee vs. State of Tripura, (1988) 2 GLR 247 (1988 (2) GLJ NOC
1) admirably has summarised the principles relating to transfer as follows :
"(a) The Govt or its functionaries have power to transfer its employees employed in a transferable post as transfer is an incident of service to meet the exigencies of the administration. No right is conferred on a Government servant for being posted at a specified place.
(b) The authorities in-charge of an employee are the sole judges about the necessity or desirability of such transfer as they have to decide how to distribute and utilise the service of their employees. The provision of transfer is intended to check creation of vested interest, nepotism and corruption.
(c) This power of transfer, however, should be exercised only bonafide and
reasonably and in public interest. If any transfer of an employee is made on extraneous
consideration or for achieving an alien purpose or an oblique motive it would amount
to malafide and colourable exercise of power. A transfer is malafide when it is made
not for professed purpose, such as in normal course or in public or administrative
interest or in exigencies of service.
(d) In case a transfer order is malafide or oblique moti
