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2009 DIGILAW 578 (GAU)

Absi Yampansao v. State of Nagaland

2009-08-18

KETULHOU MERUNO

body2009
JUDGMENT K. Meruno, J. 1. Heard Mr. Taka Masa, Learned Counsel for the petitioners and Mr. P. Pius Lotha, learned Addl. Advocate General for the State respondents. 2. Mr. Taka Masa, the Learned Counsel for the petitioners submits that the petitioner Nos. 1 to 5 are ABSI and the petitioner Nos. 6 to 12 are Havildars under Nagaland Armed Police serving as Instructors at Nagaland Armed Police Training Centre (NAPTC), Chumukedima. The petitioners are collective aggrieved by the impugned transfer order dated 29.5.2009. The impugned transfer order was issued purportedly to revamp the NAPTC by infusing young and capable instructors. The petitioners are serving without any adverse records and no explanation calls ever served upon them. As such, the impugned transfer order dated 29.5.2009 was not a transfer simpliciter on public interest but a punishment for the petitioners without any inquiry and it causes stigmas upon the petitioners. The petitioners on inquiry it was found that the transfer order was issued on the basis of the letter dated 29.9.2008 written by the Commandant to the DGP, Nagaland where the length of service and other bio-data of the serving Instructors was mentioned. On careful verification, it was found that the letter dated 29.9.2008 was a clearly manipulated and factually incorrect letter with mala fide intentions with pick and choose policy and upon which the impugned transfer order was issued. It was found that unqualified person and person with poor disciplinary record were brought as Instructors. The DGP, Nagaland by an order dated 12.3.2007 had banned transfer of NAP(IR) Bn. Personnel to non-IRB Ns/DEF as per the directive of the Ministry of Home Affairs, Government of India. The impugned transfer order was issued in violations of the said order dated 12.3.2007. Also, the transfer order dated 29.5.2009 was issued in clear violations of the Rules of Executive Business without jurisdiction. The actions of the respondents was a clear case of mala fide, abuse of power and in violations of the standing order without jurisdiction. Hence, the present writ petition. 3. Mr. Taka Masa, the Learned Counsel for the petitioners further state and submits that the case of the petitioners more specifically is contained in Paras 6, 7, 8 and 9 of the writ petition. The transfer order of the petitioners was issued not in public interest but as a punishment and also not a transfer simpliciter but a transfer with stigma. Taka Masa, the Learned Counsel for the petitioners further state and submits that the case of the petitioners more specifically is contained in Paras 6, 7, 8 and 9 of the writ petition. The transfer order of the petitioners was issued not in public interest but as a punishment and also not a transfer simpliciter but a transfer with stigma. The transfer order has been issued on the basis of a letter dated 29.9,2008, which was submitted directly to the DGP bypassing the DGP, Training and the IGP, Training, which is in clear violation of the established procedure. The actions of the respondents were purely subjective ignoring merit and efficiency, a clear case of punishing the petitioners with pick and choose policy and to protect and favour their favorites with mala fide intentions and under extraneous considerations. The transfer order issued without approval of the Government and concerned Minister is in clear violation of the Rules of Executive Business. It has also been issued without jurisdiction. The petitioners have also moved a miscellaneous application praying for release of their salaries from June onwards on the grounds that vide order dated 30.6.2009, their transfer order dated 29.5.2009 was suspended and that they have not been released as their transfer order has been stayed moreover, they had not accepted their release order as they have submitted a representation to the authorities against their transfer order. In this, connection, Mr. Taka Masa, the Learned Counsel for the petitioners has submitted several documents to substantiate of this issue. Another point stressed by Mr. Taka Masa, Learned Counsel for the petitioner is that order dated 12.3.2007 has been passed not to entertain any proposal for transfer to non-IR Bn./DEF and in this view of the matter the transfer of respondent Nos. 4, 5 and 6 from IR Bn to NAPTC is in utter violation of the order dated 12.3.2007, which is still in force. Another instance is the case of one Havildar Mayangmeren Ao, impleaded as respondent No. 15 in this writ petition, was released from NAPTC vide an order dated 11.10.2007 on disciplinary grounds and has again been brought to the NAPTC vide the impugned order dated 29.5.2009. Mr. Another instance is the case of one Havildar Mayangmeren Ao, impleaded as respondent No. 15 in this writ petition, was released from NAPTC vide an order dated 11.10.2007 on disciplinary grounds and has again been brought to the NAPTC vide the impugned order dated 29.5.2009. Mr. Taka Masa, Learned Counsel for the petitioner has also cited the example that the respondent No. 12 is not a young and capable but a driver and he is presently driving NL-11-0702, School Bus at Chumukedima. The very first sentence, "To revamp the NAPTC by infusing young and capable Instructors and in public interest", the transfer has been made. No suitability or efficiency test has been conducted before issuance of the impugned transfer order. By the impugned order, the petitioners have now been condemned and stigma put on them as not young and capable Instructors. This itself smacks of arbitrariness, mala fide and no interest of public, as such, this Hon'ble court may be pleased to quash and set aside the impugned transfer order dated 29.5.2009. The Learned Counsel for the petitioners has relied upon the decision of the Apex Court (2003) 4 SCC 104 , in Para 37 of the said judgment. 4. Though no counter has been filed by the respondent Government, Mr. P. Pius Lotha, the learned Addl. Advocate General for the State of Nagaland, as directed by this Court has produced the records and on the basis of the records submits that 12 personnel of Nagaland Armed Police attached to NAPTC, whose names are listed as petitioner Nos. 1 to 12 were transferred out from the NAPTC vide Order No. PHQ(B-1)2/ABSI/05/3152, dated Kohima the 29th May, 2009 Flagged (A) to various Battalions of NAP. Of the 12 petitioners some were holding the rank of ABSI and some were holding the rank of Havildars. After the transfer of the 12 petitioners on 29th May, 2009, by another order No. NAPTC/RO-22/2009-10/226, dated Chumukedima, 4.6.2009, the 12 persons were released from NAPTC, Chumukedima, Flagged (B). Thereafter, the incoming NG Os to the NAPTC gave the joining report on several dates from. 15.6.2009 to 25.6.2009 Flagged (C1-12). After the arrival of the different NG Os from various Battalions of the State, the authority of the NAPTC vide letter No. NAPTC/RO-22/2009-10/347, dated Chumukedima the 26th June 2009 Flagged (D1-9) allotted regimental numbers to 9 persons whose names are given in the order. 15.6.2009 to 25.6.2009 Flagged (C1-12). After the arrival of the different NG Os from various Battalions of the State, the authority of the NAPTC vide letter No. NAPTC/RO-22/2009-10/347, dated Chumukedima the 26th June 2009 Flagged (D1-9) allotted regimental numbers to 9 persons whose names are given in the order. By letter No. NAPTC(RO-22) 09-10/407, dated Chumukedima 1st July, 2009 Flagged (E1-3) regimental numbers were given to 3 other persons whose names are given in the order. That having released the 12 NG Os from NAPTC to other Battalions, the incoming NG Os by different orders of the Battalion brought their last pay certificate and GPF passbook to the NAPTC on separate dates and since then they have been drawing their salaries from the NAPTC copy of LPC flagged (F). That the transfer of the NG Os was made considering their stint of stay for more than 8 to 10 years in a particular place as stated in the note sheet of the original file and in order to draw young and dynamic GO and NC Os to NAPTC as Instructors since age restricts mobility for elderly persons were unable to impart quality training to young RC. It is further stated that the transfer and posting of the Instructors were made in public interest without any favoritism and partiality and the process of the transfer order of the Instructors were carried out following all the office procedure which had started from Dealing Assistant (DA) to office Superintendent (OS-II) to AIG (Adm) to DIG (Hqr) then IGP (Hrq) to DGP. This may be seen from the noting in the office note sheet from page 25-29, (Flagged-G). It is also pertinent to state that the transfer order issued dated 29.5.2009 was carried out with the knowledge of IGP (NAP) IGP (Trg & Border) DIG (NAP), Kohima. This may be seen from the noting in the office note sheet from page 25-29, (Flagged-G). It is also pertinent to state that the transfer order issued dated 29.5.2009 was carried out with the knowledge of IGP (NAP) IGP (Trg & Border) DIG (NAP), Kohima. This may be seen from the transfer order of 29.5.2009, whose signatures are appended in the order copy of the original file and flagged H. As far as the transfer of Government servant is concerned, as per FRSR Rule 11 quote "unless in any case it be otherwise distinctly provided, the whole time of a Government servant is at the disposal of the Government which pays him, and he may be employed in any manner required by proper authority, without claim for additional remuneration, whether the services required of him are such as would ordinarily be remunerated from general revenues, from a local fund the funds of a body incorporated or not, which is wholly or substantially owned or controlled by the Government" unquote. To support this rules by an authority reference may be made to this Hon'ble court order in (2008) 5 GLR 682 in WP(C) No. 138(K) of 2008 relevant at Paras 9, 10, 12, that transfer is a matter for the appropriate authority to decide.... It has further cited that other relevant case laws like (2007) 1 GLR 462 of Division Bench of the same court considering the decision of the Apex Court which held that the burden of establishing mala fide is very high on the person who alleges it and it been a very serious allegation against the person it demands prove of a higher order of credibility and must be supported by the foundational facts.... It is also settled by this time that where there is No. question of mala fide, an employee cannot resist a transfer order merely on the ground that it will cause hardship or inconvenience...hardship simply sitter. By another decision of the court in (2007) 8 SCC 150 head note: An order of transfer is as a part of service condition of an employee which should not be interfered with ordinarily by a court of law...no infirmity in impugned order...appeal dismissed relevant interpretation are Paras 4, 7 and 8. Photo copy of the citations submitted to the Hon'ble court. Photo copy of the citations submitted to the Hon'ble court. It may be stated that the case law referred by the learned petitioners Counsel of (2003) 4 SCC 124has no reference to the present case since there is no vindictiveness apparent in the transfer of the petitioners in the instant case. The submissions of the grounds of the Learned Counsel in the petition are irrelevant since the crux of the present case is regard to transfer of petitioners and their disobedience to comply to the order. The transfer formalities including the pay slips and allotment of regimental numbers completed by 26th of June, 2009 as illustrated in the foregoing paras and the writ petition was filed at the belated stage and stay order obtained only on 30th June, 2009 has no relevance to the transfer order since formalities were completed by then. It is further submitted that the petitioner by another Miscellaneous Case No. 94/2009 has approached the Hon'ble court for release of their salaries. However, in reply to the learned petitioners' counsel, it may be submitted that copy of the release order at Flagged (B) may be stated that the petitioners have been released from NAPTC by order dated 4th June, 2009 and the NG Os have given their joining report from different battalions between 15.6.2009 to 26.6.2009 and allotment of regimental numbers issued on 26.6.2009. As such since the petitioners names have been struck off from the list of NAPTC, the battalion is not in a position to pay salaries to the petitioners who are no more members of the battalion of NAPTC. The department has taken a lenient view in not taking disciplinary action on humanitarian ground. Being a discipline force the petitioners are duty bound to obey the rules and directions. Even at this juncture the petitioners are at liberty to draw their salaries from their respective new units. It is further submitted that the grounds taken by the petitioners of their transfer as mala fide does not hold any truth. Further more the allegation of bypassing of certain officials in the processing of the transfer order of the petitioners is strongly denied. It is further submitted that the grounds taken by the petitioners of their transfer as mala fide does not hold any truth. Further more the allegation of bypassing of certain officials in the processing of the transfer order of the petitioners is strongly denied. In this regards to demonstrate the clarity and fairness of the transfer order the original file of the department pertaining to the present transfer issue has been exhibited before the court seen at flagged G. That the petitioners in the instant case had demonstrated their disobedience to the orders of their superiors and willfully stayed back at Chumukedima and as such there is no any reasonable ground to consider the demand of the petitioners. Accordingly, their representation was turned down after verifying the admissibility of the grounds they stated. Therefore, on the aforesaid grounds stated above there is no locus standi for maintainability of this petition and is liable to be dismissed. 5. At the submissions of the Learned Counsels appearing for the respective parties that since as per the directions of this Court, the learned Addl. Advocate General has produced the official records, this writ petition may be disposed of at order stage, in this view, this writ petition is being heard and disposed at order stage. 6. I have heard the Learned Counsel appearing for the respective parties at length, perused the writ petition and its annexures appended thereto. I have also perused the official records in detail and minutely observed the noting in the official records. Considering the well settled law on the subject of "Transfer Order" as laid down by this Court as well as the Apex Court and the latest law in a recent judgment reported in the case of Samesh Tiwari v. Union of India (2009) 2SCC 592 wherein it has held "Transfer is an administrative exigencies ought not to be interfered with by courts." There are catena of judgments of this Court as well as the Apex Court on the matter of transfer and which judgments or decisions, I would not like to discuss and narrate the judgments to burden this judgment, since law on this matter is well settled. This Court is also bound by the decisions of this Court as well as the Apex Court. This Court is also bound by the decisions of this Court as well as the Apex Court. However, to reject and dismiss this writ petition on the laid down law on this subject, in my considered opinion, it would not be fair and in the interest of justice to simply and out rightly reject the writ petition without discussing the merit and demerit of the instant writ petition. 7. In the instant writ, the writ petitioners are aggrieved by the issuance of the impugned order dated 29.5.2009, which they termed as mala fide, punishment, vindictive, favoritism, illegal, without jurisdiction, stigmatic and violation of principle of natural justice. All transfer orders are challenged on the above stated grounds, which has become the standard and fashion for challenging any transfer order. Transfer order can be classified under two categories, i.e., (a) Transfer of an individual person, (b) Transfer of collective individuals. Both categories of transfer orders are on distinct and separate circumstances. In the case of an individual transfer, the allegation of mala fide, punishment and so on, etc., as noted above, concerns and pertains to the only individual person and in the second category, the allegation of mala fide, punishment, etc., as noted above, pertains to the collective individuals. It is also to be noted and kept in mind that each transfer order, whether single or collective has its own peculiar circumstances and nature. The transfer order of an individual and collective individual has to be looked into in its own separate perspective. 8. The imputation of the allegation of mala fide, punishment, vindictive, etc., as noted above, pertaining to the category of individual category, has to be judged individually, according to the individual concern. However, in the case of the second category, it has to be judged according to the collective individual in the collective perspective. Therefore, both the categories are to be considered on different footings, since both the categories are on clear, distinct and different footing. In the instant case, being a case of collective individuals, their case cannot be considered in the perspective of an individual person but has to be considered in perspective of collective individuals. It is in this backdrop that the case of the petitioners are being considered. 9. With regard to the decision of the Supreme Court, in the case of Public Service Tribunal fear Association v. State of U.P. and Anr. It is in this backdrop that the case of the petitioners are being considered. 9. With regard to the decision of the Supreme Court, in the case of Public Service Tribunal fear Association v. State of U.P. and Anr. (2003) 4 SCC 104 , relied upon by Mr. Taka Masa, strong reliance has been made on Para 37 of the said judgment, which is herebelow quoted, for better understanding: 37. Transfer is an incident of service and is made in administrative exigencies. Normally it is not to be interfered with by the courts. This Court consistently has been taking a view that orders of transfer should not be interfered with except in rare cases where the transfer has been made in vindictive manner. From the above, it is only in a rare case, where the transfer has been made in a vindictive manner, this Court can look into the matter. From the instant case, this Court has not come to any instances or appears that the transfer order, has been visited by any ground of vindictive manner of the collective individuals and as such hold that the transfer order is not made in a vindictive manner. 10. As it is well settled law with regards to interference of courts in the matter, it is also well settled law that, it is very easy to make allegation of mala fide, punishment, vindictive, so and so, etc., as noted above, than to prove, but at the same time, it may not always be possible to demonstrate malice in fact with full and elaborate particulars and in appropriate cases, it may be permissible to draw reasonable inference of mala fide, punishment, vindictive so and so, etc., as noted above from the facts pleaded and established. In the instant case, since this Court is dealing with the case of the petitioners in the category of collective individuals, the same has to be considered collectively and not individually. The question now arises as to how the imputation of mala fide, punishment, vindictive so and so, etc., as noted above, has visited the collective individual (petitioners), not individually but collectively. In the preceding paragraphs, I have distinguished the two categories of transfer order. The question now arises as to how the imputation of mala fide, punishment, vindictive so and so, etc., as noted above, has visited the collective individual (petitioners), not individually but collectively. In the preceding paragraphs, I have distinguished the two categories of transfer order. Since the case of the petitioners have not been filed in individual capacity but collective individuals against a single order of transfer order dated 29.5.2009, wherein all the names of the petitioners are included and also as collective individuals, the imputation of the allegations of mala fide, punishment, vindictive so and so on, etc., as noted above, has to be looked into in the collective manner and not in the manner as that of category (1) individual transfer. The instances of the case of the respondent Nos. 4, 5, 6 and 15 cited by Mr. Taka Masa could have been considered if the person so effected had filed the case in his individual capacity, the court may have considered the cases in the individual capacity. However, since the petitioners have filed the instant writ petition in collective individual capacity, this Court is to consider and not as the capacity of individual person. The classification which has been explained in the preceding paragraphs. Moreover, the impugned transfer order dated 29.5.2009 has been issued in a collective capacity and not individual capacity, so the impugned transfer order has to be looked into in the collective perspective and not in the individual perspective. 11. Now, coming to the official records which has been minutely perused by the court. This Court appreciates the tremendous effort taken by Mr. P. Pius Lotha, learned Addl. Advocate General for the State of Nagaland for assisting the court, in meticulously arranging the file and flagging the relevant and important noting in the file, to enable this Court to be completely seized of the matter and the transparency of the actions of the Department, in dealing with the matter. No irregularities has been committed in processing the transfer matter of the petitioners. The file has been processed at different levels of the Department and no illegalities or favoritism or biasness is revealed from scrutiny of the official files. From the noting and orders in the official files, no case of punishment or vindictiveness or stigma on the petitioners is revealed or appearing. The file has been processed at different levels of the Department and no illegalities or favoritism or biasness is revealed from scrutiny of the official files. From the noting and orders in the official files, no case of punishment or vindictiveness or stigma on the petitioners is revealed or appearing. Rather, from the scrutiny of the official file, this Court is of the firm consideration that the due process of law in processing, passing and issuance of the impugned Transfer Order dated 29.5.2009 has been done following all the official rules and procedure in necessitating and issuance of the impugned transfer order dated 29.5.2009. The allegation that the transfer order has been issued on the basis of a letter dated 29.9.2009, that it was submitted directly to the DGP, bypassing the DGP, Training and IGP, Training in clear violation of the established procedure, does not hold good and in view of the fact as already stated above, that the file has not been processed at different levels of the Department and also the transfer order has not been issued in public interest or in the exigencies of service, this submission cannot be accepted, in view of what has been stated in this regards in the preceding paragraphs. 12. Now, with regards to the salary of the petitioners, whether they are transferred, released or not released, this Court will not go into this disputed question fact, as it is not within the jurisdiction or powers of writ court to go into the disputed question. Rather, regardless of whether the petitioners have been released or not released is not the moot question but since the petitioners are in active service and not dismissed, they are entitled to their pay and allowances, as the department or the State has not been vested with unfettered powers to with held the hard earned, monthly salaries of the petitioners. The respondents are forthwith directed to release the salaries of the petitioners w.e.f. the month of June 2009, till date. 13. Under the facts and circumstances as stated above, the petitioners have not made out a case for the interference of this Court under the inherent powers of provision of Article 226 of the Constitution of India. Accordingly, this writ petition stands rejected. No order as to costs is also made. 13. Under the facts and circumstances as stated above, the petitioners have not made out a case for the interference of this Court under the inherent powers of provision of Article 226 of the Constitution of India. Accordingly, this writ petition stands rejected. No order as to costs is also made. The interim stay order dated 30.6.2009 and status quo order dated 14.7.2009, stands vacated arid merged with this judgment. The miscellaneous case also stand disposed of in view of this judgment. 14. Official records produced by Mr. P. Pius Lotha, the learned Addl. Advocate General be returned to him after obtaining acknowledgement of receipt of the same. Petition dismissed.