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2008 DIGILAW 153 (GAU)

Chau Trinam Manchey v. State of Arunachal Pradesh

2008-02-25

P.K.MUSAHARY

body2008
JUDGMENT P.K. Musahary, J. 1. Heard Mr. J. Hussain, learned Counsel for the Petitioner. Also heard Ms. G. Ete, learned Government Advocate, for the State-Respondent as well as Mr. P. Taffo, learned Counsel appearing for Respondent No. 2. 2. The writ-Petitioner has been working as Assistant Engineer, at Kamlang Nagar PWD Sub-Division, and transferred to Khonsa PWD Division, by order dated 15.09.2008, vice one Sri J.K. Deori, ASW. The said transfer order was subsequently modified vide order dated 16.10.2008 (Annexure-A1 to the writ-petition) whereby the said Petitioner was posted to Changlang PWD Division, vice one Sri Pohom Tangha, Assistant Engineer, transferred to Khonsa PWD Division. The Petitioner, by virtue of earlier transfer order dated 16.10.2008, joined at Changlang PWD Division on 22.10.2008, and took-over the charge from Respondent No. 2. Thereafter, another order dated 07.11.2008, was issued by the Commissioner, Government of Arunachal Pradesh, Itanagar, retaining the Respondent No. 2 at Changlang PWD Division and posting the Petitioner as A.S.W. in Khonsa PWD Division. 3. The Petitioner being aggrieved by the aforesaid order dated 07.11.2008, approached this Court, for cancellation and/or setting aside the same. This Court, vide order dated 17.11.2008, suspended the said impugned order dated 07.11.2008, with a direction to the Respondent authorities to allow the writ-Petitioner to function as Assistant Engineer at Changlang Sub-Division until further orders. The Respondent No. 2, filed Misc. Case No. 103(AP) 2008, praying for vacation/modification of interim orders dated 17.11.2008 and 24.11.2008, and after hearing the parties, this Court, vide order dated 02.12.2008, re-called the interim orders dated 17.11.2008 and 24.11.2008, passed by this Court, in the present writ petition being WP (C) 442 (AP) 2008. In the said order dated 02.12.2008, this Court provided that the applicant/Respondent No. 2, would be permitted to remain at Changlang Sub-Division undisturbed till April, 2009, so that the education of his children are not disturbed in the mid-academic session. It was also provided that the State Government may pass appropriate posting orders to accommodate the Petitioner, in view of the order granted to enable continuance of the applicant/Respondent No. 2, Sri Titlang Tangha, at Changlang till April 2009. 4. Aggrieved by the aforesaid order dated 02.12.2008 passed by this Court, the instant writ Petitioner filed Writ Appeal being W.A. 416 of 2008 before this Court at Guwahati. 4. Aggrieved by the aforesaid order dated 02.12.2008 passed by this Court, the instant writ Petitioner filed Writ Appeal being W.A. 416 of 2008 before this Court at Guwahati. The said Appeal was admitted by this Court, on 22.12.2008, providing interim suspension of the aforesaid order dated 02.12.2008. The said Appeal was then disposed of by the Division Bench, vide order dated 19.01.2009, with a direction to the Registry at Itanagar to list the present writ petition for hearing on 03.02.2009, before the appropriate Bench providing that the status-quo obtained as on 19.01.2009, shall continue until the hearing of the writ-petition. 5. Mr. J. Hussain, learned Counsel for the Petitioner, submits that the writ Petitioner is still serving at Changlang Sub-Division by virtue of the aforesaid order passed by the Division Bench of this Court. He further submits that in compliance to the earlier transfer order dated 16.10.2008, the writ-Petitioner has joined at Changlang on 22.10.2008 and the Respondent authorities have issued the modified transfer order dated 07.11.2008 after his joining at Changlang, which is not at all permissible under the law. 6. The learned Counsel for the Petitioner has further cited the case of Roukuolhoulie Angami vs. State of Nagaland and other as reported in (1997) 1 GLT 140 in which, it has been held that the transfer order passed for cancellation, modification or keeping in abeyance of transfer passed in the public interest must be supported with sufficient reasons necessitating for passing such order. According to Mr. Hussain, the impugned modified transfer order dated 07.11.2008 was passed at the behest of private Respondent No. 2, and has not been passed in public interest and as such, the same is liable to be set aside. 7. Mr. P. Taffo, learned Counsel appearing for Respondent No. 2, submits that as soon as the order dated 16.10.2008 transferring him to Khonsa PWD Division was received, he filed a representation dated 27.10.2008 before the Respondent Commissioner, PWD, Government of Arunachal Pradesh, Itanagar, requesting him to retain at Changlang Sub-Division till May, 2009, in order to enable his children to complete the Annual School Examinations. The Respondent Commissioner, according to the learned Counsel for the Respondent No. 2, acceded to such request and passed the aforesaid impugned transfer order dated 07.11.2008 and as such, the question of passing the aforesaid impugned order at the behest of Respondent No. 2 does not arise. 8. The Respondent Commissioner, according to the learned Counsel for the Respondent No. 2, acceded to such request and passed the aforesaid impugned transfer order dated 07.11.2008 and as such, the question of passing the aforesaid impugned order at the behest of Respondent No. 2 does not arise. 8. The State-Respondent has neither filed the affidavit-in-opposition nor produced the connected records before this Court to examine as to whether the impugned order dated 07.11.2008, was issued due to some extraneous consideration or under the influence of vested interests or at the behest of Respondent No. 2. 9. However, Ms. G. Ete, learned Government Advocate, upon instructions received from the concerned authorities, submits that the impugned transfer order dated 07.11.2008, was passed after due consideration of the representation dated 27.10.2008 so filed by the aforesaid Respondent and he was accordingly retained at Changlang Sub-Division vide the aforesaid modified order issued by the Respondent Commissioner. It is also submitted by the learned Government Advocate that the transfer & posting of an Officer is under the prerogative of the State Government and it can make such transfer order considering the exigency of work and in public interest. 10. The established principle of law is that an order of transfer of an employee is a part of the service condition and such order of transfer is not required to be interfered with by a Court of law in exercise of its discretionary jurisdiction unless the Court finds that the order is malafide and that the service rules prohibits such transfer or that the authorities who issued the order, did not have the competence to pass such order. The Apex Court held thus in the case of State Bank of India vs. Anjan Sanyal and other as reported in (2001) 5 SCC 508 . 11. In the present case, the impugned order dated 07.11.2008, was passed by none other than the Respondent Commissioner, PWD, Government of Arunachal Pradesh, Itanagar, and no fault like order being passed by incompetent authority can be found therein. Further, as there is no allegation of malafide action on the part of the Respondent authorities, I do not feel it necessary to go into this aspect of the matter. Further, as there is no allegation of malafide action on the part of the Respondent authorities, I do not feel it necessary to go into this aspect of the matter. This Court is also apprised during the hearing that both the Petitioner and Respondent No. 2 have completed 3 years of normal tenure of posting at their respective places of posting and as such, it can be held that the transfer & posting of the Petitioner as well as Respondent No. 2 have been done in the course of normal/routine transfer & posting of Officers. 12. Mr. P. Taffo, learned Counsel, submits that the Respondent No. 2 is willing to move to Khonsa as per the earlier transfer order dated 16.10.2008, soon after the Annual School Examinations of his children, by 15th April, 2009 and as such, the Respondent No. 2, may be allowed to stay at Changlang Sub-Division till 15th April, 2009. 13. Mr. J. Hussain, learned Counsel for the Petitioner, submits that such request can not be acceded to at this stage, because the writ-Petitioner has already joined and has been serving at his new place of posting at Changlang Sub-Division and it would naturally cause serious dislocation to him as he has already shifted his family to Changlang Sub-Division. The learned Counsel further submits that the writ-Petitioner may also be allowed to continue his service at Changlang Sub-Division as he has already joined thereat and a direction may be issued to the Respondent authorities to make necessary arrangement so that the Petitioner as well as Respondent No. 2 could be accommodated temporarily at Changlang, till 15th April, 2009. 14. It is stated at the Bar that both the Petitioner and Respondent No. 2 have been drawing their salaries since November, 2008, at Changlang. 15. I have considered the submissions made by the learned Counsel appearing for the parties. In view of the willingness expressed by the Respondent No. 2 to move out to Khonsa after 15th April, 2009, I am not inclined to set aside the impugned transfer order dated 07.11.2008, as a period of hardly one and a half months is left, by which the said Respondent No. 2 Sri Titlang Tangha would join at Khonsa PWD Division in compliance to earlier transfer order dated 16.10.2008. 16. 16. In view of the above and in the interest of both the Petitioner and Respondent No. 2, this writ-petition is disposed of providing that the earlier transfer order dated 16.10.2008, and the impugned modified transfer order dated 07.11.2008, be kept in abeyance till 15th April, 2009, and necessary arrangement be made by the Respondent authorities to accommodate the writ-Petitioner and the Respondent No. 2, as a temporary measure, at Changlang Sub-Division, and the Respondent No. 2, shall join at Khonsa, in compliance with the earlier transfer order dated 16.10.2008, immediately after 15th April, 2009. The Respondent Commissioner shall issue an appropriate order canceling the impugned order dated 07.11.2008 on or immediately after 15th April, 2009, restoring the order dated 16.10.2008. 17. With the above observations and directions, this writ petition stands disposed of. There shall be no order as to cost.