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2006 DIGILAW 106 (GAU)

Viyishe Sema and Anr. v. State of Nagaland and Ors.

2006-01-30

AFTAB H.SAIKIA

body2006
1. Heard Mr. T. Koja, learned counsel for the petitioners and Mrs. Y. Longkumar, learned State counsel as well as Ms. Z. Zimomi, learned counsel appearing for the respondent Nos. 4 and 5. 2. Taking into account the nature of controversy raised in this writ petition that relates to cross transfer of the two petitioners vis-a-vis respondent Nos. 4 and 5 and as agreed to by the learned counsel for the parties, this court proposes to dispose of this writ petition at the order stage. 3. The petitioners have challenged the order of cross transfer dated 13.5.2004 which was earlier kept in abeyance vide order dated 25.6.2004 and being renewed the same by order dated 25.1.2005 on the sole? ground that the same has been passed on behest of the political highups. 4. It is contended that this arbitrary exercise of power of cross transfer was initiated by the competent authority since 7.10.2003 when the first exactly similar cross transfer order was issued and tile same was kept in abeyance vide order dated 23.10.2003. Again by the impugned order dated 13.5.2004 the order of similar nature to the initial order dated 7.10.2003, was issued which was stayed as mentioned above. Now after almost one year, the impugned order dated 25.1.2005 has been passed in order to enforce the order dated 13.5.2004. 5. For the sake of convenience, the orders dated 13.5.2004, 25.6.2004 and 25.1.2005 are quoted as under as (a), (b), and (c) respectively : - (a) "Government of Nagaland Directorate of School Education Nagaland:: Kohima, Order Dated Kohima, the 13th May, 2004. NO.ED/EL/SIS/7/2000-01. In the interest of public Service and Govt. approval No. EDS(E)-1/90(A) dated 30.9.2003 the following graduate Teachers and SIS's under the establishment of the Deputy Inspector of Schools Zunheboto are hereby cross transferred with immediate effect. Name of Teacher with School Place of Posting 1. V.Shihoto B.A. B.Ed SIS. Satoi G/T GMS-Aghuto. 2. Viyishe SIS Satoi GMS Aghuto as G.T. 3. Bokaho B.A. B.Ed G/T SIS Satakha 4. Shikaho SIS Satakha GMS Xuivi as GAT SL No. 1 and 3 will move first. Sd/ A.S. Rengma Director NO.ED/EL/SIS/7/2000-01 Dated Kohima the 13th May, 2004. (b) Government of Nagaland Directorate of School Education Nagaland:: Kohima. Order Dated Kohima, the June, 2004. NO. ED/EL/SIS/7/2000-01 In the interest of public Service the-transferred order issued vide order NO.ED/EL/SIS/7/2000-01 dated 13.5.2004 is hereby kept in abeyance with immediate effect. Sd/ A.S. Rengma Director NO.ED/EL/SIS/7/2000-01 Dated Kohima the 13th May, 2004. (b) Government of Nagaland Directorate of School Education Nagaland:: Kohima. Order Dated Kohima, the June, 2004. NO. ED/EL/SIS/7/2000-01 In the interest of public Service the-transferred order issued vide order NO.ED/EL/SIS/7/2000-01 dated 13.5.2004 is hereby kept in abeyance with immediate effect. Sd/- (Khukiye Sema) Addl. Director. NO.ED/EL/SIS/7/2000-01 Dated Kohima, the 25th June, 2004." (c) Order Dated Kohima, the 25th Jan, 2005." NO.ED/EL/SIS/7/2000-01: In the interest of public service the transfer abeyance order No. NO.ED/EL/SIS/7/2000-01 Dated 13.5.2004 is hereby cancelled and the transfer order NO.ED/EL/SIS/7/2000-01 dated 13.5.2004 stands effective which has the approval of the Government vide No.EDS/ (E)-l/90 Dated 30.9.2003. The incumbents are directed to take over charge with immediate effect. Sd/ (Khukiye Sema) Addl. Director. NO.ED/EL/SIS/7/2000-01 Dated Kohima the 25th Jan, 2005." 6. Though no affidavit has been forthcoming on behalf of the State respondents countering those allegations made by the writ petitioner, respondent Nos. 4 and 5 have filed their common affidavit. However, Mrs. Longkumar, the learned State counsel, has placed the relevant records before this court for its perusal. 7. On close inspection of the records, it appears that the entire action of making the impugned cross transfer has been taken up at the behest of the respective Minister and MLA reflecting arbitrariness and nepotism therein. It also goes to show that there was no public interest involved as such in renewing the initial cross transfer order dated 13.5.2004 on 25.1.2005 after almost a gap of one year. 8. That apart, this court as the time of issuance of notice of motion on 4,8.2005 stayed the operation of the impugned orders dated 13.5.2004 and 25.1.2005 as mentioned above and the same is still in force. Be it noted that no application for vacation, alteration and/or modification on the said interim order has been preferred by the State Respondents though private respondent Nos. 4 and 5 have approached this court for such cancellation of the interim order. 9. Be it noted that no application for vacation, alteration and/or modification on the said interim order has been preferred by the State Respondents though private respondent Nos. 4 and 5 have approached this court for such cancellation of the interim order. 9. Upon hearing the learned counsel for the parties as well as on meticulous scanning of the materials available on records, this court is of the view that the impugned order has been passed being influenced by and under dictation of the Minister concerned and the respective MLA and that is being apparent on the face of record and as such those impugned orders are palpably illegal, irregular and bad in law and accordingly both the impugned orders are hereby set aside and quashed. 10. It is settled that transfer is an incident of service and is made in administrative exigencies. Normally it is not to be interfered with by the courts unless such transfer order is made mala fide or in a vindictive manner and/or under extraneous consideration or to serve certain private interest. In the case at hand, it is noticed that the impugned orders are purely made in the private interest. 11. Consequently, the instant petition stands allowed. No costs. 12. However, liberty is granted to the respondents particularly the official respondents to pass fresh transfer orders, if so advised, and if only public interest, in its true sense, demands. Petition stands allowed. No costs.