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2006 DIGILAW 759 (GAU)

Oinam Radhapyari Devi v. State of Manipur

2006-08-14

T.NANDA KUMAR SINGH

body2006
1. Heard Mr. Ch. Nickel Singh, learned counsel appearing on behalf of the petitioner as well as Mr. Th. Ibohal Singh, learned G.A. appearing for the respondents 1, 2 and 3. 2. It is fairly well settled that transfer is an incidence of service. Persons holding the post of transferable post has no right to continue at a particular posting. The circumstances under which the transfer order can be interfered with by the court by exercising its power for judicial exercise may be broadly summed up as follows:- (i) if the transfer and posting is made with mala fide and arbitrary; (ii) if the transfer order is punitive in nature and the person who issued the transfer order is not the competent authority under the law; (iii) if the transfer and posting is made on the instigation of the authority who are not the concerned with for the transfer and posting of the concerned employee; (iv) if the transfer is not effected in accordance with the prescribed procedure; (v) in the extreme circumstances, if there be repeated transfers on extraneous consideration for an oblique motive; (vi) transfer order affects the career prospect of employee; and (vii) transfer order amounts to demotion. 3. Here, in this case the learned counsel for the petitioner submits that by the impugned transfer and posting order dated 20.7.2006 (Annexure-A/2 to the present writ petition) the petitioner had been transferred from the C.I. College, Bishnupur to Moirang College, Moirang. It is also fairly admitted by the learned counsel of both the parties that the said colleges are within the radius of 15 Km. and within the same district. The learned G.A. appearing for the respondents, in order to bolster up his case, has referred to the decision of the Apex Court in Rajendra Roy -vrs - Union of India and Anr.: AIR 1993 SC 1236 wherein the Apex Court held that the order of transfer often causes a lot of difficulties and dislocation in the family set up of the concerned employees but on that score the order of transfer is not liable to be struck down. Para-7 of AIR in Rajendra Roy-vrs- Union of India & Anr.(Supra) reads as follows; “7. Para-7 of AIR in Rajendra Roy-vrs- Union of India & Anr.(Supra) reads as follows; “7. After considering the respective contentions of the parties, it appears to us that the appellant has not been able to substantiate that the impugned order of transfer was passed mala fide against him for an oblique purpose and/or for wrecking vengeance against him because the respondent no.2 was anxious to get rid of him and he seized the opportunity of transferring him from Delhi to Calcutta by transferring Shri Patra back to Orissa from Calcutta. It is true that the order of transfer often causes a lot of difficulties and dislocation in the family set up of the concerned employees but on that score the order of transfer is not liable to be struck down. Unless such order is passed mala fide or in violation of the rules of service and guidelines for transfer without any proper justification, the Court and the Tribunal should not interfere with the order of transfer. In a transferable post an order of transfer is a normal consequence and personal difficulties are matters for consideration of the department. We are in agreement wit the Central Administrative Tribunal that the appellant has not been able to lay any firm foundation to substantiate the case of malice or mala fide against the respondents in passing the impugned order of transfer. It does not appear to us that the appellant has been moved out just to get rid of him and the impugned order of transfer was passed mala fide by seizing an opportunity to transfer Shri Patra to Orissa from Calcutta. It may not be always possible to establish malice in fact in a straight-cut manner. In an appropriate case, it is possible to draw reasonable inference of mala fide action from the pleadings and antecedent facts and circumstances. But for such inference there must be firm foundation of facts pleaded and established. Such inference cannot be drawn on the basis of insinuation and vague suggestions. In this case, we are unable to draw any inference of mala fide action in transferring the appellant from the facts pleaded before the Tribunal. It appears that Shri Patra was transferred to Calcutta and after joining the post he had made representation on account of personal hardship. Such representation was considered and a decision was taken to transfer him back to Orissa region. It appears that Shri Patra was transferred to Calcutta and after joining the post he had made representation on account of personal hardship. Such representation was considered and a decision was taken to transfer him back to Orissa region. As a result, a necessity arose to transfer an employee to Calcutta to replace Shri Patra. It cannot be reasonably contended by the appellant that he should have been spared and some one else would have been transferred. The appellant has not made any representation about the personal hardship to the department. As such there was no occasion for the department to consider such representation. This appeal, therefore, fails and is dismissed but we make no order as to costs. It is, however, made clear that the appellant will be free to make representation to the concerned department about personal hardship, if any, being suffered by the appellant in view of the impugned order. It is reasonably expected that if such representation is made, the same should be considered by the department as expeditiously as practicable.” The Apex Court in E.P. Royappa -vrs - State of Tamil Nadu: (1974) 4 SCC 3 held that it is the authority to decide who is to be posted and where is to be posted and this is within the realm of the executive function to take decision for transfer and posting of its employee. 4. Having regards to the facts and circumstances of the case, this writ petition is devoid of merit and accordingly dismissed. However, dismissal of the writ petition would not bar the respondents to consider the representation of the petitioner dated 7.8.2006 (Annexure-A/6 to the present writ petition) with human touch.