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2009 DIGILAW 358 (GAU)

Chengaseng Kath v. State of Nagaland

2009-05-28

ASHOK POTSANGBAM

body2009
ORDER Asok Potsangbam, J. 1. Heard Mr. K. Sema, learned Counsel for the Petitioner, Mr. L.S. Jamir, learned Addl. Advocate General, Nagaland appearing on behalf of Respondent Nos. 1, 2, 3 and 4 and Mr. C.T. Jamir, learned Counsel appearing for the Respondent No. 7. 2. The challenge in this writ petition is against the order dated 27.6.2008 (Annexure-13) issued by the Director of School Education, Nagaland, transferring the Petitioner from the post of Sub-Inspector of Schools, Tsogin Range to the post of a Govt. Teacher, Tseminyu and posting of the Respondent No. 5 in his place. By an interim order dated 1.8.2008, this Court, while issuing notice, passed a status quo order and on the strength of the said interim order, the Petitioner claims to be continuing as Sub-Inspector of Schools, Tsogin Range till today. 3. The case of the Petitioner is that a Demi Official letter dated 20th March, 2008 was written by the Respondent No. 7, who is the Parliamentary Secretary, Horticulture and Cooperation, Nagaland Government addressed to Minister, School Education, alleging therein that the Petitioner has indulged him self and worked more than a political party worker in favour of the Congress candidate in the last Assembly Election held sometime in the month of February, 2008 and as such, the Petitioner has violated the Model Code of Conduct. Second part of the aforesaid DO letter, is a request to the Hon'ble Minister, School Education, to transfer the Petitioner at a place called Rumesinyu as and Assistant Teacher as a deterrent step and in his place, one Shri Kenyushue Kemp be posted as Sub-Inspector of Schools. The first part of the allegation should have been directed to the Election Commissioner which conducted the last Assembly Election as the Election Commission of India is the only authority to take action for violation of model code of conduct. Using this misdirected allegation, Respondent No. 7 requested the Education Minister of State for transferring the Petitioner, as disused above. But before any action could be taken on the basis of the DO letter dated 20.3.2008 of the Respondent No. 7, a joint application dated 25.4.2008 was filed by the Petitioner and Shri Kenyushwe, who is sought to be transferred in place of the Petitioner, requesting the Director of School Education, Nagaland to reject the proposed cross transfer, as the proposed arrangement was unjust and unacceptable to the parties. 4. 4. The pursuit did not end there. The Respondent No. 7 wrote another DO letter dated 7.5.2008 requesting the Education Minister to transfer the Petitioner from the post of Sub-Inspector of Schools under the Director of School Education, Tseminyu and also for posting the Respondent No. 5 in place of the Petitioner. Pursuant to the aforesaid DO letter 7.5.2008, the Minister, School Education, Nagaland, directed the Director of School Education to issue transfer order as proposed by the Respondent No. 7. Acting on the aforesaid direction, the impugned order dated 27.6.2008 was issued by the Director of School Education. The contents of the DO letter dated 7.5.2008 is extracted hereinbelow. Date: 7.5.2008 Referring to my previous note, Shri Chegaseng Kath, SIS, DIS Tseminyu has been transferred to Primary School Rumesinyu as Graduate Teacher but it was told that the transfer order has been cancelled due to representation submitted by above 2 (two). Now, I would request Hon'ble Minister School Education to direct the Director School Education to revert back Shri Chegaseng Kath to G.M.S. Tsosinyu and transfer Shri Aja Kent. G/T at G.M.S. Tseminyu to the post of SIS vacated by Shri Chengaseng Kath with immediate effect on grounds stated in my earlier note. Sd/R. Khing 5. The power of the Government to issue transfer order to its employees and to determine how best their services can be utilized by posting in appropriate place, is derived from FR 11 and 15 of FRSR. While exercising the power under the aforesaid FRSR, the Government is obligated to take into consideration various factors, such as, exigencies of service, posting of an employee from one place to another after serving for a specified period in a particular place of posting and initiation for transfer is to originate from the Departments itself which has the records, data's and material facts of its employees. The only exception to the aforesaid established norms is transfer on complaint or inefficiency in a particular posting. No other ground can be comprehended for effecting transfer of a Govt. employee beyond the established norms/grounds discussed above while exercising power under FR 11 and 15 of FRSR. 6. Admittedly, in the instant case, the transfer of the Petitioner has been actuated at the instance of Respondent No. 7, who is the Parliamentary Secretary, Govt. No other ground can be comprehended for effecting transfer of a Govt. employee beyond the established norms/grounds discussed above while exercising power under FR 11 and 15 of FRSR. 6. Admittedly, in the instant case, the transfer of the Petitioner has been actuated at the instance of Respondent No. 7, who is the Parliamentary Secretary, Govt. of Nagaland and the Education Minister, who also belongs to the ruling party, simply obliged the request of the Parliamentary Secretary without assigning any reason. From a reading of the two DO letters dated 20.3.2008 and 7.5.2008, written by the Respondent No. 7 to the Education Minister, it is manifestly clear that, under any circumstances, the Petitioner should not only be transferred out from the post of Sub-Inspector of Schools but also to accommodate a candidate of the choice of the Respondent No. 7 in place of the Petitioner. In the circumstances; I have no hesitation to hold that the impugned order dated 27.6.2008 transferring the Petitioner from the post of Sub Inspector of School, Tsogin Range to Tsosinue as Govt. Teacher is not a normal transfer but the one dictated upon by the Respondent No. 7 through his DO letters dated 20.3.2008 and 7.5.2008, by abusing his official position. 7. Interestingly, despite the elapse of about 9 months from the date of filing of the writ petition, no affidavit has been filed by the Government justifying the impugned transfer order nor has the Government produced the relevant records for perusal of the Court. It is true that normally a writ Court does not interfere with the transfer order of an employee as it is within the domain of the Govt. to decide where and how its employees are to be posted and their services are best utilized. However, it must not be understood that such exercise of powers should be allowed to be interfered with by an authority or person not authorized by law, as in the instant case. As such, the Court is of the opinion that the impugned transfer order dated 27.6.2008 is liable to be quashed for the reasons discussed above and accordingly, the impugned transfer order dated 27.6.2008 is set aside and quashed. 8. With the above observations and directions the writ petition is allowed. 9. The interim order dated 1.8.2008 passed by this Court in CMC 156 (K)/2008 stands merged with this order.