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Government can review their decision regarding promotion and transfer, backed up by reason and facts: Gauhati High Court

The transfer of any public officer or employee is decided upon by the authorities, and can only be challenged on grounds of Public Interest or due to exigency of service. Private Interest or Will cannot determine the place of posting nor can a review of a posting order by the Government be considered arbitrary until the facts or reason say otherwise.  This auspicious judgment was passed by the Gauhati High Court in the matter of Jagat Chandra Das V. Anupam Khargaria & Ors. [I.A.(Civil)/3/2021] by Honourable Justice Michael Zothankhuma.

The petition was filed against the withdrawal of promotion and subsequent transfer and promotion to another place by the PWD officials who accepted the request of the respondent for such posting. This was considered to be illegal and violative of Public Interest. 

The Court in response to the petition vis an order stayed this transfer and promotion and directed the officials to explain by way of an affidavit, as to why the promotion and transfer were altered and issued. The Petitioner alleged that the transfer order was issued under mala fide intention and hence was an illegal posting order, which is not in public interest, therefore, should be set aside.

The respondent on whose request the transfer was allegedly decided was contended to be suffering from Liver Cirrhosis and hence as per Government policy was allowed to remain in his last place of posting till his retirement. He relied on Narayan Chowdhury Vs. State of Tripura & Ors. for stopping the transfer, in response to which the court stated that, “The facts of the above case are not similar to the facts of this case, as the hometown of the petitioner is not the place of working. Thus, the case is not applicable. Further, there is no Government Policy to the effect that a Government servant should be allowed to remain in his last place of posting till his retirement, even though the Government servant has completed his normal tenure of posting of three years.” 

Additionally, the court observed that, “The alleged ailment of the respondent did not prevent him from doing his work. And the State respondents have taken a new ground to cancel his transfer order which was never an issue.”

The court relied on the case of State of U.P. Vs. Gobardhan Lal, (2011) 4 SCC 402, to assert that every transfer at the instance of an M.P. or MLA would not be considered to be vitiated since transfer is the prerogative of the authorities concerned and the court should not normally interfere except when the transfer order is shown to be vitiated.

The Court was of the view that here, “The cancellation of the transfer of the respondent does not seem to have been made in public interest or due to exigency of service, since the State respondents added a new ground, i.e., respondent was entrusted with lots of ongoing development works which would be effected” but “the petitioner does not have a right to be posted to a particular place. Further, there is nothing to show that any legal right of the petitioner has been violated by the respondents, by changing his place of posting.” 

Thus, the Court writ petition was accordingly dismissed with an order to the concerned authorities directing them to pay the pending arrear salary and entitlements within a period of 2 (two) weeks from the date of receipt of a copy of this order.

Click here to read the judgment

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