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2016 DIGILAW 52 (MEG)

State of Meghalaya v. Welferson G. Momin

2016-11-10

DINESH MAHESHWARI, VED PRAKASH VAISH

body2016
JUDGMENT : DINESH MAHESHWARI, J. 1. Though served, none has appeared on behalf of the respondent No.2. Looking to the short point involved, we have heard the learned counsel for the appellant and the learned counsel for the respondent No.1 finally at this stage itself. 2. This intra-court appeal is directed against the order dated 08.09.2016 as passed in WP(C) No. 258 of 2016 whereby, the learned Single Judge of this Court has disposed of the writ petition filed by the respondent No. 1 of this appeal against the order of his transfer from Resubelpara, North Garo Hills District to Dadenggiri, West Garo Hills District. 3. By the impugned order dated 08.09.2016, the learned Single Judge of this Court has proceeded to dispose of the writ petition on the very first date of listing with directions to the present appellant to allow the writ petitioner to continue at the present place of posting until 31.12.2016 with the observations that thereafter, he could be transferred but shall be allowed one month's time to shift to the new place of posting, after taking note of the submissions of the writ petitioner that he had made a representation stating personal difficulties and also with reference to the assurance of the writ petitioner that he was ready to move to the place of transfer after 31.12.2016. However, while concluding, the learned Single Judge has also set aside the impugned order of transfer. 4. Shorn of unnecessary details, the relevant background aspects of the matter are that the respondent No.1 (writ petitioner), holding the post of Sub-Inspector of School and posted at Resubelpara, North Garo Hills District, was ordered to be transferred, by the order dated 29.07.2016, to Dadenggiri, West Garo Hills District. The case of the petitioner had been that he made a representation against the transfer order on the ground of ailment of his wife as also his other family requirements including those related with two school going minor children. While stating the grievance that his representation was not considered by the authorities, the respondent No.1 approached this Court by way of writ petition [WP(C) No.258 of 2016] on 06.09.2016. The writ petition was placed before the learned Single Judge on 08.09.2016 and was finally disposed of on that day itself. 5. While stating the grievance that his representation was not considered by the authorities, the respondent No.1 approached this Court by way of writ petition [WP(C) No.258 of 2016] on 06.09.2016. The writ petition was placed before the learned Single Judge on 08.09.2016 and was finally disposed of on that day itself. 5. It was, inter alia, submitted on behalf of the respondent No. 1 (writ petitioner) before the learned Single Judge that he was ready to join at the new place of posting after 31.12.2016. On the other hand, it was submitted on behalf of the appellant that the officer posted in place of the writ petitioner had "already come to join and take over the charge". The learned Single Judge took note of the representation that had been made by the writ petitioner and also took note of the assurance made on his behalf and, thereafter, proceeded to dispose of the writ petition with the following observations and directions:- "6. On perusal of the said representation, I am of the opinion that the petitioner has a ground to make such representation and the authority is bound to re-consider the grounds raised by the petitioner. Besides that, learned counsel for the petitioner assured this Court that the petitioner is ready to move to the new place of posting after 31st December, 2016. If it is so, I am of the view that the petitioner made out a case for consideration and the same can be disposed of with the following direction: Director of School Education & Literacy, Meghalaya, Shillong is hereby directed to allow the petitioner to continue his service in the present place of posting i.e. Resubelpara, North Garo Hills District till 31st December, 2016 and thereafter he may be transferred allowing him one month's time to shift to the new place of posting." 7. Accordingly, the order dated 29th July, 2016 is hereby set aside. Writ petition is allowed and stands disposed of with the above direction." 6. Aggrieved by the order aforesaid, the State of Meghalaya has preferred this intra court appeal. Accordingly, the order dated 29th July, 2016 is hereby set aside. Writ petition is allowed and stands disposed of with the above direction." 6. Aggrieved by the order aforesaid, the State of Meghalaya has preferred this intra court appeal. When this appeal was initially considered on 30.09.2016, we enquired about the correct state of affairs as regards joining of the officer posted in place of the respondent No. 1 to which, it was submitted on behalf of the appellant that the said other officer, though had come to join, but the respondent No. 1 did not relinquish the charge. It was also noticed that the appellant did not get the opportunity to file the counter affidavit before the Writ Court because the writ petition was decided on the very first day of listing. Looking to the overall circumstances, the appellant was permitted to submit the counter to the writ petition in the form of additional affidavit in this appeal; and notices were ordered to be issued to the unrepresented respondent i.e., the respondent No.2. Having regard to the circumstances of the case, it was also left open for the Director of School Education and Literacy, Meghalaya to take an objective and dispassionate decision on the representation made by the respondent No.1, while assuming that the said representation was pending. 7. It has now been alleged in the additional affidavit filed on behalf of the appellant that the respondent No. 1 made a rather misleading statement before the learned Single Judge as if his representation had not been considered though, in fact, his representation had already been considered and rejected; and the Office Order to that effect had indeed been issued on 30.08.2016; and the respondent No. 1 was aware of consideration and rejection of his representation. It has also been submitted that the respondent No. 1 had only made uncertain allegations without any basis and there was no reason for setting aside the order of transfer, issued in administrative exigencies. 8. Having heard the learned counsel for the parties and having perused the material placed on record, though we find it difficult to endorse the impugned order as passed in the writ petition but, in the peculiar circumstances of the case and in the balance of equities, deem it proper not to interfere with a part thereof, as indicated infra. 9. Having heard the learned counsel for the parties and having perused the material placed on record, though we find it difficult to endorse the impugned order as passed in the writ petition but, in the peculiar circumstances of the case and in the balance of equities, deem it proper not to interfere with a part thereof, as indicated infra. 9. It remains trite that transfer is a normal incident of service and a government servant holding a transferable post has no vested right to remain posted at one place or the other. Ordinarily, the Courts do not interfere in an order of transfer unless the same is shown suffering from mala fide or violation of any mandatory statutory rule. In the present case, though some suggestions were made in the writ petition against the local MLA in relation to the order of transfer of the respondent No. 1 but, neither the said MLA was arrayed as a party to the writ petition nor any specific case of mala fide was urged before the Court. Secondly, it had not been the case of the respondent No. 1 that the transfer order was in violation of any mandatory statutory requirement. That being the position, there were hardly any scope for interference by the Writ Court in the order of transfer. 10. So far making of a representation is concerned, in that regard too, it remains settled that ordinarily, the person concerned is supposed to join at the place of transfer and then to make a representation for the consideration of authority concerned; and in any case, an employee holding a transferable post cannot avoid his order of transfer merely in the name of a representation. 11. Thus, in an overall comprehension of the matter, we are unable to find any legal ground for the respondent No. 1 to maintain a challenge to the order of his transfer. However, it appears that the learned Single Judge considered it to be a case worth granting some relief to the present respondent No. 1 merely for an assurance stated on his behalf that he would move to the new place of posting after 31.12.2016. However, it appears that the learned Single Judge considered it to be a case worth granting some relief to the present respondent No. 1 merely for an assurance stated on his behalf that he would move to the new place of posting after 31.12.2016. Although strictly speaking, such a proposition on behalf of the respondent No. 1 was hardly of any legal right but in any case, there was no reason or ground at all on which the transfer order dated 29.07.2016 could have been set aside altogether. On the contrary, the very proposition made by the respondent No. 1 himself, to move to the new place of posting while asking for some breathing time to make arrangements for himself and his family, ruled out any scope for setting aside the order of his transfer. Therefore, the writ issued by the learned Single Judge for setting aside the transfer order cannot be endorsed. 12. Apart from the above, the directions, as issued in the last part of paragraph 6 of the order impugned that even after 31.12.2016, the writ petitioner/respondent No. 1 could be transferred but further one months' time shall be allowed to him to join the new place of posting does not appear compatible with what was suggested on his behalf that he was ready to move after 31.12.2016. In view of the submissions made by the respondent No. 1 himself, we find no reason that he be given yet further one month's time even after 31.12.2016. 13. Coming to the other aspect of the matter where the respondent No. 1 has been allowed to remain at the present place of posting until 31.12.2016, though, strictly speaking there was no vested legal right of the respondent No. 1 to seek such a relief from the Court and though learned counsel for the appellant submits that as per his instructions the respondent No.2 was ready to join but then, we find that even until the date of passing of the order by the learned Single Judge on 08.09.2016, the said respondent No.2 had not joined and the respondent No. 1 had not been relieved. The same status of the parties has hitherto continued as such when this appeal is taken up for disposal today in the second week of November 2016. The same status of the parties has hitherto continued as such when this appeal is taken up for disposal today in the second week of November 2016. Thus, in the totality of circumstances and in the balance of equities, we are of the view that the writ petitioner/respondent No.1 may be permitted to remain at the present place of posting until 31.12.2016 but not beyond and without creating any precedent. 14. For what has been discussed herein above, this appeal is partly allowed to the extent and in the manner that the impugned order dated 08.09.2016 shall stand modified; the order setting aside the transfer order dated 29.07.2016 shall stand annulled and the directions for allowing further one month's time after 31.12.2016 to the respondent No. 1 shall also stand annulled. However, the writ petitioner/respondent No.1 shall be permitted to continue at the present place of posting until 31.12.2016 and to that extent, the transfer order dated 29.07.2016 shall be treated to be in abeyance until that date i.e., 31.12.2016. The transfer order dated 29.07.2016 shall, however, become operative from 01.01.2017; and it shall be required of the petitioner to join at the new place of posting accordingly. 15. Having regard to the circumstances of the case, even at the cost of repetition, we make it clear that such relaxation to the respondent No. 1, to remain at the present place of posting until 31.12.2016, has not been interfered with in this appeal only in the peculiar circumstances of this case as noticed above and else, the order permitting him to remain at the present place of posting until a particular date shall not be treated to be a precedent. 16. This writ appeal stands disposed of accordingly. No costs.