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2010 DIGILAW 756 (GAU)

Pojom Padu v. State of Arunachal Pradesh

2010-09-24

P.K.MUSAHARY

body2010
JUDGMENT P.K. Musahary, J. 1. Heard Mr. Tony Pertin, learned Counsel for the Petitioner, Mr. N. Lowang, learned Addl. Senior Government Advocate for Respondent Nos. 1 and 2 and Mr. K. Jini, learned Counsel appearing for the private Respondent No. 3. None appears for the Respondent No. 4 in spite of notice being served upon him. 2. The Petitioner has challenged the order dated 15.6.2009 (Annexure-P/3) issued by the Secretary (PHE B WSD), Government of Arunachal Pradesh whereby he has been transferred from Mariyang PHED Sub-Division to Aalo PHED Sub-Division and also the order dated 10.5.2010 (Annexure-P/18) whereby he was subsequently transferred from ASW, Along Division to Deomali as Assistant Engineer, Deomali Sub-Division vice one Shri S.K. Mukharjee. The Petitioner's case is that he was posted as Assistant Engineer at Namsai Sub-Division and from the said Sub-Division, he was transferred to Mariyang vide order dated 26.6.2008 and accordingly, he joined at Mariyang Sub-Division on 4.8.2008. Thereafter, within a period of 10 months, he was again transferred from Mariyang Sub-Division to Aalo Sub-Division vide order dated 15.6.2009 (Annexure-P/3). In compliance to the said transfer order, the Petitioner joined at Aalo PHE Sub-Division on 23.6.2009 vice one Shri Itum Naso, Assistant Engineer, but in-spite of order from the Executive Engineer, Aalo, the said Itum Naso did not hand over the charge to the Petitioner and in the meantime, the Respondent-Secretary vide his order dated 23.7.2009 (Annexure-P/8) allowed Shri Itum Naso, Assistant Engineer to continue as Assistant Engineer PHE Sub-Division, Aalo till October, 2009. In the same order, the Petitioner was allowed temporarily to assume the charges of ASW of Aalo PHE division with a direction to Shri Itum Naso to hand over charges of Assistant Engineer, PHE Sub-Division, Aalo to the Petitioner latest by 31.10.2009. 3. By virtue of this modified order, the Petitioner submitted joining report to the Executive Engineer, PHE & WS Division, Aalo; on 26.10.2009 (Anneuxre-P/9) as Assistant Engineer, PHE a WS Sub-Division, Aalo but the Under Secretary (PHE), Government of Arunachal Pradesh vide his letter dated 29.10.2009 asked the Executive Engineer, PHE Division Aalo not to release Shri Itum Naso, AE PHE Sub-Division, Aalo till formation of Government and until further intimation in due course of time. The Superintending Engineer, PHE & WS Circle, Bene vide his letter dated 29.10.2009 also directed Shri Itum Naso to hand over the full charges of PHE & WS Sub-Division, Aalo to Petitioner with immediate effect. Accordingly, the Petitioner assumed the charges of PHE & WS Sub-Division, Aalo on 4.11.2009 (Annexure-P/11). In the meantime, a local MLA from 31-Aalo East Assembly Constituency addressed a note to the Minister (PHED) on 10.11.2009 requesting him to retain Shri Itum Naso at Aalo PHE Sub-Division by cancelling the earlier transfer order for some more time to complete the ongoing important schemes in the larger interest of public service as a special case. On such request of the local MLA, the Respondent-Secretary issued an order dated 14.12.2009 allowing Shri Itum Naso, Assistant Engineer to continue at Aalo PHE Sub-Division till 30.4.2010 and allowing the Petitioner to hold the charge of ASW, Aalo PHE Division till 30.4.2010 after which he will take over the charge of Aalo PHE Sub-Division. The Petitioner, in compliance to the said order, submitted joining report on 20.4.2010 to the Executive Engineer, PHE & WS, Aalo Division. The Executive Engineer, Aalo PHE &'WS Division vide his order dated 28.4.2010 directed the aforesaid Itum Naso, Assistant Engineer to hand over the full charges of PHE & WS Sub-Division to the Petitioner. At that time, the local MLA, Respondent No. 4 again addressed a note to the Minister (PHE & WS) requesting him to transfer Shri Bomi Nyorak, private Respondent No. 3 from the office of the Chief Engineer (EZ), PHED, Itanagar to Aalo PHE & WS Sub-Division as an Assistant Engineer in place of Shri Itum Naso, Assistant Engineer, as a very special case. Thereafter, the Respondent-Secretary issued an impugned order 10.5.2010 whereby transfer and posting of 13 Assistant Engineers was made. In the aforesaid transfer order, Itum Naso was transferred and posted as Assistant Engineer, Mebo Sub-Division and in his place the private Respondent No. 3, Shri Bomi Nyorak was posted. The Petitioner was transferred from ASW, Aalo Division to Assistant Engineer, Deomali Sub-Division vice Shri S K Mukharjee. Following this order, the private Respondent No. 3 was released by the Chief Engineer from his establishment with effect from 12.5.2010 to enable him to join at PHE Sub-Division, Aalo. Accordingly, the private Respondent No. 3 joined his duty on 13.5.2010 at Aalo PHE Sub-Division. Following this order, the private Respondent No. 3 was released by the Chief Engineer from his establishment with effect from 12.5.2010 to enable him to join at PHE Sub-Division, Aalo. Accordingly, the private Respondent No. 3 joined his duty on 13.5.2010 at Aalo PHE Sub-Division. The handing over and taking over of charges between Itum Naso and Respondent No. 3 took place on 15.5.2010. Thereafter, the Executive Engineer, PHE & WS Division, Alao asked the Petitioner to hand over the charge of ASW to Respondent No. 3 who would look after the charges of ASW till the joining of regular ASW. The handing over and taking over charge between the Petitioner and the Respondent No. 3 took place on 2.6.2010. 4. Mr. Pertin, learned Counsel referring to the aforesaid facts submits that the Petitioner has been transferred four times within a period of less than two years since he was posted from Namsai in June/July 2008, which amounts to frequent transfer besides being victim of mala fide, arbitrary and unfair action actuated by extraneous consideration at the behest of Respondent No. 4, a local MLA to serve his/her vested and political interest. There is, as submitted by Mr. Pertin, no public interest or exigency of service in transferring the Petitioner frequently from one place to another on four occasions within two years. Referring to the aforesaid notes addressed to the Minister concerned, it has been submitted by Mr. Pertin that the impugned transfer orders were actuated at the instance of the Respondent No. 4, who is a Parliamentary Secretary to accommodate the private Respondent No. 3 and place him at Aalo to serve her political purposes and vested interest in the name of public interest. Such transfer order is liable to interference by this Court. In this regard, he cities several decisions as mentioned hereunder: - (i) Chengaseng Kath v. State of Nagaland and Ors. 2009 (4) GLT 801. (ii) Tohelisumi v. State of Nagaland and Ors. 2009 (2) GLT 956. On the question of transfer on public interest, he cities the cases of- (1) Abuk Mize v. State of Arunachal Pradesh of Ors. 2009 (4) GLT 820. (2) Sunit Kr. Bordoloi v. State of Assam and Ors. 2010 (2) GLT 786. (3) Zakir Hussain v. State of Assam and Ors. 2001 (3) GLT 67. (4) The State of Punjab and Anr. v. Gurdial Singh and Ors. 2009 (4) GLT 820. (2) Sunit Kr. Bordoloi v. State of Assam and Ors. 2010 (2) GLT 786. (3) Zakir Hussain v. State of Assam and Ors. 2001 (3) GLT 67. (4) The State of Punjab and Anr. v. Gurdial Singh and Ors. AIR 1980 SC 319 . 5. Besides, it is submitted that the administrative authority is bound to follow the norms, standards and procedures laid down by it for others and if it fails to do so it can be termed as arbitrary action as has been held in Ramana Dayaram Shetty v. Airport of India and Ors. 1979 (3) SCC 489 . The Petitioner has been subjected to frequent transfer actuated by arbitrary action at the instance of the Respondent No. 4 who was determined to avenge his personal grudge against the Petitioner as one of the clan members of the Petitioner contested the last general assembly election held in 2009 against the Respondent No. 4 and if the Petitioner is posted at Aalo as Assistant Engineer, he would not act in terms of the wishes of the political leaders. In this regard, the learned Counsel refers to averments made in para 23 of the writ petition. In the aforesaid facts and circumstances, it has been urged upon that the impugned transfer and posting orders in respect of the Petitioner are liable to be interfered with and set aside. 6. Opposing the submissions to the learned Counsel for the Petitioner, Mr. Jini, learned Counsel appearing for the Respondent No. 3 contended that there is no basis of alleging mala fide and arbitrary action or extraneous consideration in passing the impugned transfer orders and the allegations made by the Petitioner are not at all acceptable and sustainable under the law. There is no material whatsoever to substantiate the allegations that the Respondent No. 4, in order to avenge grudge initiated action for transferring the Petitioner as one of his clan members contested the general assembly election. The request made by the Respondent No. 4 by endorsing notes to the Minister concerned for retention of a particular officer for a short period for completing the on going schemes/projects can not be faulted as the same was done only in the interest of public. The Respondent No. 3 never approached the local MLA, Respondent No. 4, for transfer and posting at a particular place. The Respondent No. 3 never approached the local MLA, Respondent No. 4, for transfer and posting at a particular place. The written note was not addressed to the Minister concerned at the request of the Petitioner. In this regard, specific statements were made in para 18 in his counter affidavit. These averments have not been controverted by the Petitioner in his rejoinder and the same must be accepted as correct. 7. Referring to impugned order dated 10.5.2010, it is submitted that it is a mass transfer order involving as many as 13 officers and as such, it cannot be said that it was passed with mala fide and vested interest to serve the interest of Respondent No. 4. The Petitioner did not file any representation before the authorities concerned which he was supposed to do if he was really aggrieved by the same. It is further submitted that the impugned transfer and posting order was, in fact, initiated at the instance of the Petitioner and he is interested only to remain at Aalo. The Petitioner has no such right to demand place of posting at his own choice. The Respondent-authorities have effected the aforesaid transfer order in the interest of public and exigency of service and no Government employee can question such transfer unless it is shown that the transfer order is in violation of statutory law or rules or acted with mala fide intention and extraneous consideration. Those grounds are absent in the present case and as such, the learned Counsel for the Respondent No. 3 submits that the present petition is without any merit and the same is liable to be dismissed with costs. In support of his above submissions, Mr. Jini refers to the following: - (i) Chau Tirnam Manchey v. State of Arunachal Pradesh and Anr. 2009(5) GLT 529. (ii) Yodhan Prasad Singh v. State of Arunachal Pradesh and Ors. 2009 (5) GLT 270. (iii) State Bank of India v. Anjan Sanyal (2001) 5 SCC 508 . (iv) Gujarat Electricity Board and Anr. v. Atmaram Sungomal Poshani (1989)(2)602. (v) Md. Masood Ahmed v. State of U.P. Ors. (2007) 8 SCC 150 . (vi) Union of India and Ors. v. D. Mohan and Ors. (1995) 3 SCC 115 . 8. The instant writ petition is to be disposed of on the basis of the established service law particularly, law regarding transfer of employees. v. Atmaram Sungomal Poshani (1989)(2)602. (v) Md. Masood Ahmed v. State of U.P. Ors. (2007) 8 SCC 150 . (vi) Union of India and Ors. v. D. Mohan and Ors. (1995) 3 SCC 115 . 8. The instant writ petition is to be disposed of on the basis of the established service law particularly, law regarding transfer of employees. It is not necessary to elaborate or reiterate that Government servant has no vested right to remain posted at a place of his choice, nor can he insist that he must be posted at one place or to other because no Government can function in such manner and the Government servant is liable to be transferred in public interest and administrative exigency from one place to other. The latest ruling by the Apex Court in Rajendra Singh and Ors. v. State of U.P. and Ors. (2009) 15 SCC 178 would be enough to illustrate the law wherein it is held amongst other that transfer of an employee is not only an incident inherent in terms of appointment but also implicit as an essential, condition of service in absence of any specific indication to the contrary. The court is not required to give a finding or conclusion whether the Petitioner's transfer before the normal term of posting of 2 years, as laid down by the Government could be said as illegal, unjustified and arbitrary. The court is concerned only with mala fide action and violation of statutory rules in passing the impugned transfer orders. The extent and manner in which the court should exercise judicial review in the matter of transfer of employees has been laid down in a large number of cases. It is felt unnecessary to refer all those cases. However, In Rajendra Singh case (supra), it is held therein that at what place the employee should be posted is an exclusive prerogative of the State Government keeping in view administrative exigencies and the High Court would commit serious error if it decides the competence of the Respondent-authorities in exercising its power in ordering transfer and posting, for, it is not within the domain of the High Court. It would be uncalled for if the High Court issues any direction to post some one else in place of some employee and the court should be reluctant to interfere with transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides. 9. Now, I have to examine whether transfer of the Petitioner and the private Respondent No. 3, on the recommendation of local ML As, is vitiated on the above counts. In Md. Masood Ahmed's case (supra), it is held that even if the allegation of the Appellant is correct that he was transferred on the recommendation of an MLA, that by itself would not vitiate the transfer order because it is the duty of the representative of the people in the Legislature to express the grievances of the people and if there is any complaint against an official, the State Government is certainly within its jurisdiction to transfer such an employee. It is also held that there can be no hard and fast rule that any transfer at the instance of MP or MLA would be vitiated. It all depends on the facts and circumstances of an individual case. In the present case, it is an accepted position that Respondent No. 4, as a local MLA addressed written note to the Minister concerned recommending transfer and posting of private Respondent No. 3 mainly for execution of ongoing schemes/projects in the interest of public. The relevant note written by Respondent No. 4 in the capacity of MLA and Parliamentary Secretary dated 20.3.2010 reads as under - Arunachal Pradesh Er. Bomi Nyorak presently posted at C.E. Office (EZ), PHE & WSD Itanagar as an Assistant Engineer (P&D) has got vast experience of the office functioning at the Department Headquarter. Meanwhile, it is also learnt that the incumbent of Assistant Engineer Aalo PHE Sub-Division who has completed his normal tenure is under transfer and going to be filled up soon. Hence, Hon'ble Minister (PHED) Government of Arunachal Pradesh may kindly transfer/posting Er. Bomi Nyorak from C.E. Office (ES), PHED, Itanagar to Aalo PHE & WS Sub-Division as an A.E. in place of Er. lturn Naso, AE on top most priority as a very special case. HM(PHE&WSD) Government of A.P. (Gadam Ete) MLA U.O. No. Parl. Secy/CA/AP/02/Parliamentary Secretary (CA)" Dated 20th March, 2010 Government of AP, Itanagar. 10. Bomi Nyorak from C.E. Office (ES), PHED, Itanagar to Aalo PHE & WS Sub-Division as an A.E. in place of Er. lturn Naso, AE on top most priority as a very special case. HM(PHE&WSD) Government of A.P. (Gadam Ete) MLA U.O. No. Parl. Secy/CA/AP/02/Parliamentary Secretary (CA)" Dated 20th March, 2010 Government of AP, Itanagar. 10. I have gone through the relevant office file [PHE/Sectt-41/96 (Pt.1)] as produced by the learned Addl. Senior Government Advocate. The aforesaid note of Respondent No. 4 has been processed through the departmental minister and the impugned transfer order was passed. There are some more notes from other ministers, MLA and public representatives for transfer and posting of other officers. All those requests and notes were taken into account and considered before issuing the impugned transfer order dated 10.5.2010 involving as many as 13 officers, including the present Petitioner, which has been reflected in the order of the Minister concerned. The impugned transfer order involving 13 officers found to be mostly based on the recommendations and desires of the public representatives. It cannot be said that the said transfer order was issued only to serve the interest of the Respondent No. 4. It may also be noted that the impugned transfer order was processed and passed after a new Government was formed in the State after the General Assembly Election held in October 2009. With the change of Government in the State and change of guards, it is always expected that reshuffle takes place in the executive to implement the election promises held out in the manifesto of the party in power. There is nothing wrong if the ML As or public representatives show their anxiety or endeavour to implement the ongoing project/schemes either by retaining the present staff or by replacing them by new ones the pursuit of the newly elected public representatives to expedite development activities in their respective areas does not smack mala fide and arbitrary action on extraneous consideration. 11. There is no denial of the fact or allegation of the Respondent No. 3 that the Petitioner did not file representation before the appropriate authority against the impugned transfer order dated 10.5.2010. Admittedly without doing so, he rushed to this Court and filed the present petition on 17.5.2010 and that too without first joining at the place of posting on transfer. Admittedly without doing so, he rushed to this Court and filed the present petition on 17.5.2010 and that too without first joining at the place of posting on transfer. There is no bar to approaching the court demanding justice but it is always expected from the Government servant to be obedient and loyal to the Government. The Apex Court in S.C. Sexena v. Union of India (2006) SCC 583 observed that government servant cannot disobey transfer order by not reporting at the place of posting and then go to a court to ventilate his grievance because it is his duty to first report for work where he is transferred and then make representation as to what may be his personal problem. Such tendency of not reporting by the Government servant at the place of posting and indulging in litigation has been deprecated and emphasis has been put on the need for curving the same. I have seen a similar tendency in the case of the present Petitioner. It is, however, found from the counter affidavit of the Respondent No. 3 that the Petitioner after having failed to obtain an interim order from this Court, ultimately joined at Deomali on 7.6.2010 in compliance to impugned transfer order. His joining report is found at annexure-6 to the counter affidavit of the Respondent No. 3. Before his joining, Petitioner handed over charge from the Respondent No. 3 on 2nd June, 2010 which is also available at annexure-5 (series), page 19 of the said counter affidavit. The Petitioner by filing an additional affidavit on 30.7.2010 brought on records that he filed a representation dated 30.6.2010 addressed to the Respondent-Secretary. I have thoroughly gone through the above office records but failed to find out such representation. Annexure-1 is copy of the aforesaid representation claimed to have been submitted by the Petitioner but it is found that it was filed through his counsel and it was not filed by the Petitioner himself through proper channel. Even if this accepted that he filed the representation on 30.6.2010 through his counsel, fact remains that the Petitioner first filed the writ petition and having not been able to obtain any interim order, he joined only on 7.6.2010 at his new place of posting at Deomali PHE Sub-Division, which is depreciable as per the ruling of the Apex Court in S.C. Sexena's case (supra). Moreover, the Petitioner filed no rejoinder to the affidavit-in-opposition filed by the Respondent No. 3 denying the allegation that he obtained transfer orders on various occasions at his own initiative and got places of posting of his choice, particularly at Aalo. 12. The impugned transfer order dated 10.5.2010 has been complied with insofar as the Petitioner and the private Respondent No. 3 are concerned I inasmuch as they have already joined at their respective place of posting by handing and taking over charges as per the existing procedures. From the above facts and circumstances of the case, discussions and observations of the case laws, as referred to above, and of the considered view that the Petitioner could not succeed in establishing a case for interference with the impugned transfer orders dated 15.6.2009 and 10.5.2010 and impelling me to set aside the same. This writ petition is accordingly liable to be dismissed. It is so dismissed. There shall be no order as to costs.