JUDGMENT
Mutum B.K. Singh, J.
1. The judgment dated 29.5.2003 passed by the learned Single Judge in W.P. (C) No. 2883 of 2002 dismissing the petitioner’s prayer to quash the Government order of stay of transfer order dated 17.4.2002 and allow him to take over the charge of Senior Medical Officer of Kalain C.H.C., Cachar District as per orders dated 7.1.2002 and 19.3.2002, is impugned in this appeal.
2. The facts in brief, for the disposal of this appeal are that the appellant and the private respondent No. 5, Shri Badal Das, are Senior Medical Officers of the Government of Assam, Health and Family Welfare Department. The appellant, after serving at different places, was posted at Kalain C.H.C., Cachar District as Senior Medical Officer vide Government order dated 7.1.2002. The said order was later on partially modified before his joining at that place, by a subsequent order dated 19.3.2002 thereby transferring the private respondent No. 5 at Nilambazar P.H.C., Karimganj from Kalain C.H.C., Cachar District. In view of the another Government order dated 20.3.2002, the appellant was to move first for taking over the charge of senior Medical Officer, Kalain C.H.C., Cachar District from the private respondent No. 5. On 23.3.2002 the appellant reported to the Superintendent in-charge, Kalain C.H.C. for taking over the charge but the same could not be effected as the private respondent No. 5 was on Casual Leave from 21.3.2002 to 25.3.2002 with station leaving permission. On 21.3.2002 the private respondent No. 5 submitted a representation to the State Government for cancellation of the subsequent modified transfer order dated 19.3.2002 on the ground of illness. The situation being as such, the appellant could not take over the charge of senior Medical Officer of Kalain C.H.C. On the other hand, the private respondent No. 5 challenged the said transfer order dated 19.3.2002 before the High Court in W.P. (C) No. 2079 of 2002 and the same was disposed of on 27.3.2002 directing the State-respondents to dispose of the representation submitted by the private respondent No. 5 within a period of two weeks and till then the private respondent No. 5 was allowed to serve at his place of posting. The Government, as directed by the Court, considered the representation of the private respondent No. 5 and decided to stay the transfer of the private respondent No. 5 and accordingly the modified transfer order relating to the transfer of private respondent No. 5 was stayed vide order dated 17.4.2002. The said order of stay dated 17.4.2002 was the main subject matter challenged by the appellant in W.P. (C) No. 2883 of 2002.
3. The learned Single Judge vide interim order dated 8.5.2002 ordered that the transfer order of the appellant dated 19.3.2002 shall not be disturbed and he shall be allowed to continue his service as senior Medical Officer at Kalain until further orders of the Court. The interim order was extended from time to time. Finally, the learned Single Judge, after hearing both the parties and taking into consideration of the documents produced, dismissed the writ petition by leaving the transfer matter of the appellant at the discretion of the State Government directing to pass appropriate orders within two months, vide judgment dated 29.5.2003. Hence, this appeal.
4. We have heard Mr. A.K. Purkayastha, learned Counsel appearing for the appellant and Mr. B.C. Choudhury, learned Govt. Advocate, Assam for the State-respondents.
The main contention of the learned Counsel appearing for the appellant is that the impugned order is tainted with malafide and perversity and being passed on a misconception both of facts and law and without considering the documents on record is, unsustainable in law. According to the learned Counsel, the order of the State Government dated 17.4.2002, bearing No. HLA.740/2000/Pt/33-A, ought to have been quashed as the State Government issued it not in the interest of the public and also without considering its effect and consequences. The learned Single Judge erred in holding that the subsequent transfer order dated 19.3.2002 is a composite order consisting of two co-related orders under separate Memo Nos. and the same has the effect of inter-transfer of the appellant and the private respondent No. 5 vice-versa, he urged. By the order dated 17.4.2002, the second part of the said order which relates to the transfer of the private respondent No. 5 from Kalain C.H.C., Cachar District to Nilambazar P.H.C. has been stayed. In the result, the first part of the transfer order dated 19.3.2002 transferring the appellant from Nilambazar P.H.C. to Kalain C.H.C., Cachar District remain unchanged. Under no circumstances, these two orders, i.e. orders dated 19.3.2002 and 17.4.2002 can exist together and the appellant has been suffering for no fault on his part. Had these aspects been considered by the learned Single Judge, the order dated 17.4.2002 would have vanished in thin air but the learned Single Judge failed to do so on erroneous consideration of facts on record thereby rendering the impugned judgment unsustainable in law.
5. The learned Counsel for the appellant further advanced his argument that as per interim order dated 8.5.2002 passed in W.P. (C) No. 2883 of 2002, the appellant continued to serve as Senior Medical Officer at Kalain P.H.C. till the disposal of the writ petition but the appellant has not been paid his pay and allowances till date. According to the learned Counsel, the learned Single Judge completely over looked this aspect while passing the impugned order. The learned Counsel, however, frankly admits that the appellant is still at Kalain C.H.C. in view of the order dated 19.3.2002 but not work has been assigned to him.
6. On the other hand, the learned Counsel appearing for the State respondents fairly submits that he has nothing to controvert to the second leg of submission of the learned Counsel appearing for the appellant. Supporting the impugned judgment, the learned Counsel for the state-respondents has pleaded that the learned Single Judge rightly passed the impugned order and there is no infirmity in it and thus, interference of the impugned Judgment is not called for.
7. Upon hearing the submissions of both sides and on perusal of the documents on record, we do not find any infirmity or illegality in the judgment dated 29.5.2003 passed by the learned Single Judge. The learned Single Judge was of the view that the matter of transfer of the appellant should be decided by the State Government and thus left the same at the discretion of the State Government for passing appropriate order within two weeks.
8. Transfer, posting etc. are the policy matters of the administrative side of the State Government and it is a well settled law that the writ court is always slow to interfere in the matter relating to administrative function unless the decision is tainted by any patent illegality. However, it is also true that the administrative action of the State Government is subject to judicial review of the court if the process is illegal, irrational and tainted with impropriety. In other words, the Writ court can examine as to whether there is any infirmity in the decision making process for judicial review. In view of the above proposition of law, it is crystal clear that the Writ court is always slow in interfering with the matters relating to transfer, posting etc. of the employees 6f’the State Government.
9. In the instant case, we do not find any infirmity and illegality in the process of passing the order dated 17.4.2002 rather it was issued after considering the representation of the respondent No. 5 as directed by the High Court. Hence, we are of the view that no interference of the impugned order is called for. The learned Counsel appearing for the State-respondents has failed to submit updated information regarding the posting of the appellant which ought to have been arranged long back in view of the direction contained in the order dated 29.5.2003 passed by the learned Single Judge in W.P. (C) 2883 of 2002.
10. Considering the above facts and circumstances and in the public interest the State-respondents are directed to make necessary transfer and posting arrangement of the appellant, if not done earlier, within a period of two weeks from the date of receipt of the copy of the order. The State respondents are further directed to release the pay and allowances of the appellant for the period from 8.5.2002 to 29.3.2006 as the appellant was at Kalain C.H.C. in view of the interim order passed by the learned Single Judge. The State-respondents shall release the same within a period of one month from the date of receipt of this order. The non-compliance of above directions shall be viewed seriously.
11. Subject to the above directions, we decline to interfere with the impugned Judgment dated 29.5.2003 passed by the learned Single Judge. In the result, the appeal stands disposed in the above terms. No costs.