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2011 DIGILAW 644 (GAU)

I. Moatemjen v. State of Nagaland

2011-08-01

A.K.GOSWAMI

body2011
JUDGMENT A.K. Goswami, J. 1. Heard Mr. A. Zhimomi, learned Counsel for the Petitioner. Also heard Mr. C.T. Jamir, learned senior counsel appearing for Respondent No. 5 and Mrs. Lucy, learned Government Advocate appearing for the Respondents No. 1 to 4. 2. The writ Petitioner entered into Government service on contract basis on 5.5.1989 and he was initially appointed for a period of 1 (one) year and posted at Tuensang Civil Hospital. The service of the Petitioner was extended by order dated 21.9.1990 and he was transferred from Tuensang Civil Hospital to Shri Nagesh Dispensary at Tuensang Village. Subsequent to selection made by the Nagaland Public Service Commission, the Petitioner was appointed on 24.7.1991 on regular basis and was retained in the earlier place of posting, namely, Shri Nagesh Dispensary. Subsequently, he was transferred from the said Dispensary by an order dated 11.4.2004 and was posted as District Tuberculosis Officer, Tuensang. He was promoted by an order dated 25.9.2006 to the post of Assistant Surgeon, Grade-I and once again posted in Shri Nagesh Dispensary. Later on, by another order dated 6.10.2008, he was transferred and posted as District Tuberculosis Officer, Tuensang. According to the Petitioner, Tuensang District is one of the most interior districts in the State of Nagaland and he has been all along posted in such a remote district during his service period spanning over 22 years. 3. According to the Petitioner, the Petitioner's wife had suffered from a condition known as Spinal Arteriovenous Malformation (AVM) in the year 2009 and was operated upon at AIIMS, Delhi, but she is yet to recover. The Petitioner had submitted representation on 4.2.2011 to the authorities with a request to post him at Dimapur, to enable him to take care of his invalid and bed-ridden wife. The Respondent No. 5, according to the Petitioner, had been posted at Dimapur for almost the entire period of his service career, except for a brief period of about 2(two) years, when he was transferred on promotion as District Immunization Officer with posting at Tuensang. 4. By order dated 12.4.2011, issued by Commissioner & Secretary to the Government of Nagaland, Department of Health & Family Welfare, Government of Nagaland, 20 Officers, in the interest of Public service, were transferred and posted to the places as indicated in the said order. 4. By order dated 12.4.2011, issued by Commissioner & Secretary to the Government of Nagaland, Department of Health & Family Welfare, Government of Nagaland, 20 Officers, in the interest of Public service, were transferred and posted to the places as indicated in the said order. In the said order dated 12.4.2011, the name of the Petitioner figured at Serial No. 8 and that of Respondent No. 5 at Serial No. 9. The Petitioner was transferred as District Malaria Officer, vice Dr. Imchameren, the Respondent No. 5, transferred as Deputy Chief Medical Officer, Zunheboto, to the post earlier held by one Dr. Hokishe, who had since been promoted. The Officers indicated at Serial Nos. 3, 5, 6, 7, 8 and 18 in the said order dated 12.4.2011 were directed to move first with further direction that handing and taking over of charge should be completed by 30.4.2011. Subsequently, in pursuance of an order dated 3.6.2011 modifying the order dated 12.4.2011, the Petitioner, who was transferred as District Malaria Officer, Dimapur, vide order dated 12.4.2011, was now transferred as Deputy Chief Medical Officer, Zunheboto, and the Respondent No. 5, who was, by earlier order dated 12.4.2011 was transferred as Deputy Chief Medical Officer, Zunheboto, was retained as District Malaria Officer/District Programme Officer at Dimapur. 5. The Petitioner, having come to learn from a reliable source that the Respondent authorities had decided to transfer the Petitioner once again, had represented on 6.6.2011 to the Principal Director, Department of Health & Family Welfare, Nagaland. However, as it transpired later on that the Respondents had already issued an order dated 3.6.2011, modifying the transfer order dated 12.4.2011, the Petitioner has approached this Court by filing this present application. 6. This Court, while issuing notice on 6.6.2011, on the submission of the learned Counsel for the Petitioner that the Petitioner had taken over charge as District Malaria Officer, Dimapur on 2.5.2011 in presence of Chief Medical Officer (CMO), Dimapur, and from that day had been functioning as District Malaria Officer, Dimapur, had stayed the operation of the order dated 3.6.2011. 7. Subsequently, the Respondent No. 5 had filed an application for vacating the interim order dated 6.6.2011 which was registered as CMC No. 88 (K) 2011. The learned Government Advocate had also produced relevant records when the aforesaid CMC No. 88 (K) 2011 was considered. 7. Subsequently, the Respondent No. 5 had filed an application for vacating the interim order dated 6.6.2011 which was registered as CMC No. 88 (K) 2011. The learned Government Advocate had also produced relevant records when the aforesaid CMC No. 88 (K) 2011 was considered. On consideration of the materials on record including the records produced by the learned Government, this Court had found that the Petitioner was working as District Malaria Officer, Dimapur, and accordingly, the said Misc. case was rejected. 8. The Respondents 1 to 4 had filed affidavit seeking to justify the order dated 3.6.2011. The Respondent No. 5, in his affidavit, had stated that though he had not filed representation, he had approached the authorities for cancellation and modification of the said order dated 12.4.2011 with a request to retain him at Dimapur. It has been pleaded in the said affidavit that Respondent No. 5's father was a paralytic patient, aged about 80 years, and the Respondent No. 5 also has a brother, who is a mental patient and had suffered a stroke in the year 2009 and, therefore, his presence at Dimapur is also necessary for greater interest of his family members. It was stated that he had taken leave on 28.4.2011 up to 25.7.2011 on medical ground, and subsequently, he had submitted an application dated 13.6.2011 indicating that he would like to avail leave only up to 15.6.2011. It has also been stated that the writ Petitioner never approached him prior to 30.4.2011 for handing over and taking over of charge. 9. Mr. A. Zhimomi, learned Counsel for the Petitioner had submitted that the order dated 12.4.2011 involving transfer of 20 Officers was passed in the interest of public service and that the order dated 3.6.2011 was passed by the Respondent authorities only to accommodate the Respondent No. 5, without assigning any reason and justification. He has submitted that the order dated 3.6.2011 having not been issued in the exigency of public service, the said order cannot be sustained. The learned Counsel has submitted that when transfer orders are sought to be modified and cancelled, it must be supported by sufficient and valid reasons. To buttress his submission, he has relied upon a decision which was rendered in the case of Zakir Hussain v. State of Assam and ors, reported in 2001 (3) GLT 67. The learned Counsel has submitted that when transfer orders are sought to be modified and cancelled, it must be supported by sufficient and valid reasons. To buttress his submission, he has relied upon a decision which was rendered in the case of Zakir Hussain v. State of Assam and ors, reported in 2001 (3) GLT 67. The learned Counsel further submits that the Respondent No. 5 having not handed over charge, he had taken over charge as District Malaria Officer/District Programme Officer in presence of the Chief Medical Officer, Dimapur on 2.5.2011 and the Certificate of Transfer of charge was forwarded to the Accountant General, Nagaland on 2.5.2011 by the Chief Medical Officer, Dimapur, Nagaland, who had signed as Controlling Officer in the said Certificate of Transfer of charge. 10. Mr. C.T. Jamir, learned senior counsel, appearing for the Respondent No. 5 submits that, though the Respondent No. 5 had not submitted representation against the order of transfer on 12.4.2011, he had approached the authorities of the Government, and, accordingly, the order dated 3.6.2011 had been issued to redress the grievances of the Respondent No. 5. The learned senior counsel submits that the order dated 3.6.2011, though not reflected in the said order, was also issued in public interest, and therefore, this Court should not interfere with the order dated 3.6.2011. The learned senior counsel submits that it is entirely the prerogative of the administrative authority to transfer and post its employees. It is also his submission that even assuming that the case of the Respondent No. 5 was espoused by any political personality, the same cannot be a vitiating factor because the representatives of the people do have a say in matters of transfer and posting. He also submits that in absence of any plea of mala fide and violation of statutory rules, the writ Petitioner has miserably failed to make out any case for interference with the order dated 3.6.2011. The learned senior counsel has placed reliance on the following judgments: (I). (2004) 11 SCC 402 - (State of U.P and Ors. v. Gobardhan Lal), (II). (2007) 8 SCC 15 - (Mohd Masood Ahmad v. State of U.P. and Ors.), (III). 2011 (2) GLT 186 - (Pojom Padu v. State of Arunachal Pradesh & Ors.), (IV). (2010) 13 SCC 306 - (State of Haryana and Ors. v. Kashmir Singh and Anr.). 11. Mrs. v. Gobardhan Lal), (II). (2007) 8 SCC 15 - (Mohd Masood Ahmad v. State of U.P. and Ors.), (III). 2011 (2) GLT 186 - (Pojom Padu v. State of Arunachal Pradesh & Ors.), (IV). (2010) 13 SCC 306 - (State of Haryana and Ors. v. Kashmir Singh and Anr.). 11. Mrs. Lucy, learned Government Advocate, in reiteration of the stand taken in the affidavit, has submitted that the Respondent authorities acted justly and fairly in passing the order dated 3.6.2011, and therefore, No. interference is called for. The learned Government Advocate has also produced the file in which processing for modification of transfer order dated 12.4.2011 was made. 12. I have heard the learned Counsel appearing for the parties and also perused the materials on record. The file produced by Mrs. Lucy has also been gone through by me. 13. The scope of interference with an order of transfer is the subject matter of a large number of decisions. Transfer of an employee is not only an incident in terms of appointment but also implicit as an essential condition of service in absence of any specific stipulation to the contrary. It is well recognised that unless the order of transfer is shown to be the outcome of mala fide exercise of power or violative of any statutory provision or passed by an authority not competent to do so, the same is not liable to be interfered with. It is also laid down by the Apex Court that order of transfer, even if made in transgression of administrative guidelines, cannot also be interfered with, in as much as the same does not confer any legally enforceable rights. 14. In Gobardhanlal (Supra), Kashmir Singh (Supra) as also in Mohd. Masood Ahmad (Supra), the Apex Court has laid down the scope of judicial review of transfer under Article 226 of Constitution of India. In para 7 of Mohd. Masood Ahmad, the Supreme Court had held that: 7. The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in Rajendra Roy v. Union of India, National Hydroelectric Power Corpn. Ltd. v. Shri Bhagwan, State Bank of India v. Anjan Sanyal. Following the aforesaid principles laid down by the Supreme Court, the Allahabad High Court in Vijay Pal Singh v. State of U.P. and Onkar Nath Tiwari v. Chief Engineer, Minor Irrigation Deptt. Ltd. v. Shri Bhagwan, State Bank of India v. Anjan Sanyal. Following the aforesaid principles laid down by the Supreme Court, the Allahabad High Court in Vijay Pal Singh v. State of U.P. and Onkar Nath Tiwari v. Chief Engineer, Minor Irrigation Deptt. has held that the principle of law laid down in the aforesaid decisions is that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a court of law in exercise of its discretionary jurisdiction under Article 226 W.P (C) No. 142 (K) 2011 Page 7/12 unless the court finds that either the order is mala fide or that the service rules prohibit such transfer, or that the authorities who issued the orders, were not competent to pass the orders. 15. In Mohd. Masood Ahmad (Supra), the Supreme Court had also laid down that the transfer effected on the recommendation of an MLA, per se, would not vitiate the order of transfer. It was stated thus: 8. Learned Counsel for the Appellant submitted that the impugned transfer order of the Appellant from Muzaffarnagar to Mawana, District Meerut was made at the instance of an MLA. On the other hand, it has been stated in the counter-affidavit filed on behalf of Respondents 1 and 2 that the Appellant has been transferred due to complaints against him. In our opinion, 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. After all, it is the duty of the representatives 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. There can be No. hard and fast rule that every transfer at the instance of an MP or MLA would be vitiated. It all depends on the facts and circumstances of an individual case. In the present case, we see No. infirmity in the impugned transfer order. 16. Pojom Padu (Supra), on which the learned senior counsel for the Respondent No. 5 has placed reliance, is also on the scope of interference by Court with an order of transfer. 17. In the instant case, it is not the order of transfer which is under challenge. 16. Pojom Padu (Supra), on which the learned senior counsel for the Respondent No. 5 has placed reliance, is also on the scope of interference by Court with an order of transfer. 17. In the instant case, it is not the order of transfer which is under challenge. What is under challenge is the order dated 3.6.2011 by which the order of transfer dated 12.4.2011 qua the Petitioner and the Respondent No. 5 was partially modified. There is No. dispute that the order dated 12.4.2011 was issued in the interest of public service. The said order dated 12.4.2011 was not challenged by the Respondent No. 5. A perusal of the order dated 3.6.2011 would go to show that the order does not indicate that it has been issued in the exigency of public service or in public interest. It is also noticeable that the said order dated 3.6.2011 is issued only with regard to the Petitioner and the Respondent No. 5, and the said order dated 3.6.2011 was passed almost 2(two) months of the order dated 12.4.2011. Significantly, the Petitioner, pursuant to the order dated 12.4.2011, had taken over charge though the Respondent No. 5 did not hand over charge on the plea that he was on leave from 28.4.2011. 18. Perusal of the records produced by Mrs. Lucy would indicate that apparently the process for modification of the order dated 12.4.2011 was initiated on the basis of a letter issued by the Minister, Home, Government of Nagaland to the Departmental Minister. The Commissioner and Secretary (H&FW) to the Government of Nagaland, with reference to the aforesaid letter of the Minister, Home, had put up a note dated 13.5.2011 in the file to the Departmental Minister indicating that the Home Minister had requested for retention of Respondent No. 5 at Dimapur. In the said note dated 13.5.2011, the Commissioner & Secretary (H&FW) Government of Nagaland, had also indicated that ever since joining the service, Dr. Imchameren, the Respondent No. 5, had served in Dimapur except for a short period at Tuensang, and, therefore, they should stick to the order dated 12.4.2011 and the Departmental Minister also approved the said note on 13.5.2011 itself. Imchameren, the Respondent No. 5, had served in Dimapur except for a short period at Tuensang, and, therefore, they should stick to the order dated 12.4.2011 and the Departmental Minister also approved the said note on 13.5.2011 itself. The file was again put up to the Departmental Minister on 19.5.2011 with the following note: As verbally intimated over phone, the decision of pre-page is once again submitted for consideration with special reference to retention of Dr. Imchameren, DMO Dimapur. If this request is to be considered, the only decision would be for Dr. I. Moatemjen, DTO Tuensang, to be posted to Zunheboto as Dy. Chief Medical Officer. Matter is submitted for orders please. 19. This time, the Departmental Minister, by an order in the file dated 31.5.2011 approved the course of action proposed by the Commissioner and Secretary (H&FW) on 19.5.2011, directing that the Respondent No. 5 be retained at Dimapur as District Malaria Officer (DMO) and the Petitioner be posted to Zunheboto as Deputy Chief Medical Officer. Consequently, the order dated 3.6.2011 was issued in terms of the above. 20. It is No. doubt true, as has been held by the Apex Court in Mohd. Masood Ahmad that, merely because of the recommendation of an MLA or a Minister, an order of transfer does not become invalid. However, where an order of transfer is issued in public interest, and if the said order of transfer is sought to be modified, it has to be only on the ground of public interest and in the exigency of public service. For good and sufficient reasons and in the public interest, certainly the Respondent authority would be entitled to consider modification of the order of transfer. The record does not reveal that there was any other consideration apart from the letter of the Minister, Home, requesting retention of the Respondent No. 5 as DMO, Dimapur. It is also to be borne in mind that No. reason was assigned in the said letter as to why the Respondent No. 5 is to be retained at Dimapur. By the order dated 12.4.2011, the writ Petitioner who was at Serial No. 8 the said list of 20 Officers transferred, was directed to move first. It is also to be borne in mind that No. reason was assigned in the said letter as to why the Respondent No. 5 is to be retained at Dimapur. By the order dated 12.4.2011, the writ Petitioner who was at Serial No. 8 the said list of 20 Officers transferred, was directed to move first. He complied with the order dated 12.4.2011 after relinquishing charge of his earlier posting as District Tuberculosis Officer, Tuensang, and thus, as far as the writ Petitioner was concerned, the order of transfer stood implemented. 21. This Court in Zakir Hussain (Supra) had laid down that once an order of transfer is made in public interest, subsequent orders cancelling, modifying and superseding such order must be supported with sufficient reasons. This Court also held that if any such order is passed in cryptic manner without assigning any reasons the same would seem to be not in public interest. In the instant case, as noted earlier, the order dated 3.6.2011 does not indicate that the said order was issued in public interest. It does not appear to be an order issued in public interest and/or in the exigency of public service. The records also does not portray any ground justifying modification of the order of transfer which was earlier issued in public interest. In fact, the Department had initially taken a decision not to entertain the request of the Minister, Home. However, only because of renewed requests by the Minister, Home, to accommodate his wishes and requests, the transfer order dated 12-4-2011 was modified. 22. On the basis of the materials on record, I am of the considered opinion that the writ Petitioner has made out a case for interference with the aforesaid order dated 3.6.2011 issued by the Commissioner & Secretary (H&FW), Government of Nagaland. Accordingly, the same is set aside and quashed. 23. The writ petition is allowed. However, there shall be No. order as to cost. 24. At this stage, Mr. C.T. Jamir, learned Senior counsel for the Respondent No. 5, submits that the Respondent authorities may be directed to consider posting of the Respondent No. 5 at Dimapur without disturbing the writ Petitioner. 25. 23. The writ petition is allowed. However, there shall be No. order as to cost. 24. At this stage, Mr. C.T. Jamir, learned Senior counsel for the Respondent No. 5, submits that the Respondent authorities may be directed to consider posting of the Respondent No. 5 at Dimapur without disturbing the writ Petitioner. 25. Considering the facts and circumstances of the case, it is provided that though the order dated 3.6.2011 has been interfered with, the Respondent authorities are at liberty to consider the posting of the Respondent No. 5 in an appropriate post at Dimapur, without disturbing the writ Petitioner. Petition Allowed.