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2017 DIGILAW 1224 (GAU)

Gumnong Singpho v. State of Arunachal Pradesh

2017-09-04

SONGKHUPCHUNG SERTO

body2017
JUDGMENT : 1. Heard Mr. Ajin Apang, learned senior counsel, assisted by Ms. Nani Anju, learned counsel, appearing on behalf of the writ petitioner. Also heard Mr. Duge Soki, learned additional senior Government advocate, appearing on behalf of State respondent Nos. 1 to 3, as well as Mr. Rintu Saikia, learned counsel, appearing on behalf of private respondent No. 4. 2. This is a petition under article 226 of the Constitution of India, praying for quashing and setting aside the impugned transfer, dated 16.3.2017, issued by the Secretary, Food and Civil Supplies, Government of Arunachal Pradesh, transferring the petitioner who is Sub-Divisional Food & Civil Supplies Officer (SDFCSO), from Bordumsa to Jairampur under the District Food and Civil Supplies Officer (DFCSO), Changlang, with immediate effect and the subsequent release order dated 17.3.2017 issued by the Additional Deputy Commissioner, Bordumsa, releasing the petitioner from his place of posting to enable him to join at his new place of posting w.e.f. 20.3.2017. 3. The case of the petitioner, as submitted by Mr. Apang, learned senior counsel, is that, while he was posted at Changlang district, Sri Phosum Khimhun, Parliamentary Secretary (Hydropower), Government of Arunachal Pradesh, wrote an U.O. Note, dated 9.6.2016, asking for transfer of one Sri Noblem Songtheng from Bordumsa to Changlang in place of the petitioner. And following the Parliamentary Secretary's Note, the petitioner was transferred from Changlang to Bordumsa vide transfer order, dated 29.6.2016. However, as there was an acute shortage of staff in the office of the DFCSO at Changlang, he was retained temporarily in the said office till 31.10.2016 (F/N) vide order dated 10.8.2016, issued by the DFCSO, Changlang. The order retaining him, was made subject to the condition that he would be released from Changlang on 31.10.2016 (A/N). While he was still continuing in the said office at Changlang, the respondent No. 4 who is also the local MLA, wrote an U.O. Note, on 31.10.2016, addressed to the Minister, Food and Civil Supplies, Government of Arunachal Pradesh, requesting him for cancellation of the earlier transfer order, dated 29.6.2016, which shows that the petitioner is not wanted at Bordumsa at all for political reasons. Despite the U.O. Note of the MLA, stated above, order transferring the petitioner from Changlang to Bordumsa was not modified or cancelled, therefore, he joined his new place of posting at Bordumsa on 2.11.2016. Despite the U.O. Note of the MLA, stated above, order transferring the petitioner from Changlang to Bordumsa was not modified or cancelled, therefore, he joined his new place of posting at Bordumsa on 2.11.2016. Unrelented, the said MLA wrote another U.O. Note, dated 7.3.2017, addressed to the Minister, Food and Civil Supplies, Government of Arunachal Pradesh, requesting him, once again, to cancel the transfer and posting order of the petitioner to Bordumsa and to post him to any other place other than Bordumsa. Under the pressure of the MLA, the impugned transfer order, dated 16.3.2017, was issued wherein and whereby the petitioner was transferred from Bordumsa to Jairampur within 4½ months from the date of his joining at Bordumsa. On the very next day, the second impugned order, dated 17.3.2017, was issued, releasing him from his place of posting, i.e., Bordumsa to join at his new place of posting, i.e. Jairampur. All these transfer orders have been issued under the pressure mounted by the local MLA who is arrayed here as respondent No. 4, with mala fide intention to bring in one Sri Jawan Thinra, ASIFCS, who happens to be his close supporter, for gaining political mileage and benefits. It is alleged that the power of transfer has not been used for bona fide reasons but for mala-fide intention and political reasons under the pressure exerted by the respondent No. 4, therefore, the same cannot stand the test of law and, hence, deserves to be quashed and set aside. 4. Learned senior counsel further submitted that transfer order should be in the public interest but in case of the petitioner, the facts and circumstances under which, he has been transferred, shows that it was not in the public interest but for political reasons. Learned senior counsel also submitted that the authorities concerned have wielded their power of transfer arbitrarily and for no cogent reasons, therefore, the same deserves to be set aside and quashed. Lastly, learned senior counsel, submitted that under the guidelines for transfer issued by the Department of Personnel, Government of Arunachal Pradesh, dated 19.12.2008, an officer should not be transferred till he completes 2 years in his place of posting. However, in case of the petitioner, this Guideline has been violated so blatantly. Lastly, learned senior counsel, submitted that under the guidelines for transfer issued by the Department of Personnel, Government of Arunachal Pradesh, dated 19.12.2008, an officer should not be transferred till he completes 2 years in his place of posting. However, in case of the petitioner, this Guideline has been violated so blatantly. Being aggrieved, the petitioner has submitted representation to the Secretary, Food and Civil Supplies, Government of Arunachal Pradesh, on 23.3.2017, requesting him to cancel the transfer order impugned therein. However, the petitioner has not received any response till date, hence, this writ petition. 5. Learned senior counsel, Mr. Apang, submitted that Guidelines of transfer issued by the Department of Personnel, Government of Arunachal Pradesh, though it is not a rule under a statute, it must be followed, unless transfer of the officer, in question, is required before his term is over in the exigency of service or in public interest. But, in the instant case, there is nothing, from which, it can be gathered that the transfer of the petitioner is made in the exigency of the service or in the public interest. Rather, what can only be made-out is that, the transfer order was issued under the pressure exerted by the MLA for extraneous and mala fide reasons. Therefore, the same ought to be set aside and quashed. 6. Mr. Saikia, learned counsel appearing on behalf of respondent No. 4, i.e. Shri Nikh Kamin, MLA-49th Bordumsa-Diyun AC, Arunachal Pradesh, submitted that there is nothing wrong in the Notes initiated by the said respondent as it is his duty, as a public leader, to point-out to the authorities concerned, to bring people to such post in the interest of public. Learned counsel also submitted that principle of law has been settled by the Apex Court in the case of Mohd. Masood Ahmad vs. State of U.P. (2007) 8 SCC 150 . The learned counsel referred to paragraph Nos. 4 and 7 of the said judgment. He also submitted that the same principle of law has been followed by this court in the case of Pojum Padu vs. State of Arunachal Pradesh, 2012 (2) GLT 186 at paragraph Nos. 9 and 11. The relevant paragraphs of the two judgments, as referred by Mr. Saikia, learned counsel, are reproduced herein-below, for ready reference: (i) Mohd. Masood Ahmad (supra). “4. 9 and 11. The relevant paragraphs of the two judgments, as referred by Mr. Saikia, learned counsel, are reproduced herein-below, for ready reference: (i) Mohd. Masood Ahmad (supra). “4. The petitioner-appellant, who was an Executive Officer, Nagar Paiika Parishad Muzaffamagar, had in his writ petition challenged his transfer by the State Government by order dated 21.6.2005 as Executive Officer, Nagar Palika Parishad Mawan a, District Meerut. Since the petitioner was on a transferable post, in our opinion, the High Court has rightly dismissed the writ petition since transfer is an exigency of service and is an administrative decision. Interference by the courts with transfer orders should only be in very rare cases. As repeatedly held in several decisions, transfer is an exigency of service vide B. Varadha Rao vs. State of Karnataka, AIR 1986 SC 1955 , Shilpi Bose vs. State of Bihar, AIR 1991 SC 532 , Union of India vs. N.P. Thomas, AIR 1993 SC 1605 , Union of India vs. S.L. Abbas, AIR 1993 SC 2444 . 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 vs. Union of India, (1993) 1 SCC 148 : AIR 1939 SC 1236, National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan, (2001) 8 SCC 574 : AIR 2001 SC 3309 , State Bank of India vs. Anjan Sanyal, (2001) 5 SCC 508 : AIR 2001 SC 1748 . Following the aforesaid principles laid down by the Supreme Court, the Allahabad High Court in Vijay Pal Singh vs. State of U.P. (1997) 3 ESC 1668 : (1998) All LJ 70 and Onkarnath Tiwari vs. The Chief Engineer, Minor Irrigation Department, U.P. Lucknow, (1997) 3 ESC 1866 : 1998 All LJ 245, 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 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.” (ii) Pojum Padu vs. State of Arunachal Pradesh, 2012 (2) GLT 186. “9. “9. Now, I have to examine whether the transfer of the petitioner and the private respondent No. 3, on the recommendation of local ML As, is vitiated on the above courts. 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 CE Officer (EZ), PHE & WSD Itanagar as an Assistant Engineer (P&D) has got vast experience of the office functioning at the Departmental 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. Itum Naso, AE on top most priority as a very special case. HM (PHE & WSD) Govt, of A.P. U.O. No. Pari. Secy/CA/AP/02/ Dated 2&h March, 2010. (Gadam Ete) MLA Parliamentary Secretary (CA) Government of AP, Itanagar.” 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. HM (PHE & WSD) Govt, of A.P. U.O. No. Pari. Secy/CA/AP/02/ Dated 2&h March, 2010. (Gadam Ete) MLA Parliamentary Secretary (CA) Government of AP, Itanagar.” 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. 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 vs. Union of India, (2006) 9 SCC 583 observes 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 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 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 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. I have thoroughly gone through the above office records but failed to find out such representation. Annexure 1 is copy of the 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 it is 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. Saxena'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.” 7. Mr. Apang, learned senior counsel, in reply to the submissions of the learned counsel for respondent No. 4, submitted that the complaints referred to by the said respondent was concocted just to substantiate the claim of the respondent No. 4 that he initiated the Note in the public interest on the basis of the complaints submitted by the public. The learned senior counsel by referring to the memorandum purportedly submitted to the respondent No. 4, viz. MLA, 49th Bordumsa-Diyun (G) Constituency, by 17 individuals, claiming to be representing the interest of the people of that area, pointed out to the signature of the individual at SI. No. 8 and submitted that the date given under the signature of the said individual is 16.4.2017 whereas the memorandum was submitted on 5.2.2017. According to him, this shows that this memorandum was concocted only to support the plea of respondent No. 4 that he had written the Note proposing transfer of the petitioner on the wish of the people. Learned senior counsel also referred to the Letter of Ultimatum given by 36 individuals to the Additional Deputy Commissioner, Bordumsa, to issue NFSA Ration Cards and to transfer the petitioner, which is dated 7.4.2017. By referring to the same, the learned counsel submitted that by then, the respondent No. 4 had already written the U.O. Note proposing transfer of the petitioner. By referring to the same, the learned counsel submitted that by then, the respondent No. 4 had already written the U.O. Note proposing transfer of the petitioner. This also goes to show that the plea of respondent No. 4 is baseless because by then, as submitted above, the impugned transfer order, dated 16.3.2017, has already been issued by the authority concerned. 8. Mr. Soki, learned additional senior Government advocate, submitted that the place of posting of the petitioner and the place to which he is transferred, are under the same District and they are very near to each other. Therefore, there is nothing which should make the petitioner feel that it is a punishment transfer and posting. He further submitted that the transfer order, though, was issued before the end of the term of 2 years, the same was issued in the public interest, therefore, this court may not interfere with the same. 9. After having heard the learned counsels and also having perused the documents, I am of the view that the initiation of the Notes by the respondent No. 4 was not prompted by public interest as portrayed because the very basis on which the said respondent submitted that he had written the same, appears to be a little intriguing. Because the memorandum which he claims to have been submitted to him, by the public, is, dated 5.2.2017, but, one of the signatories, namely, Rapsam Songtheng, at serial No. 8, put his signature only on 16.4.2017. If the same memorandum was submitted to respondent No. 4, on 5.2.2017, this signatory could not have put his signature only on 16.4.2017. Again, let us assume that though the memorandum is dated 5.2.2017, it was submitted to him on or after 16.4.2017, i.e., when signatory at serial No. 8 put his signature but, that is also not plausible because, by then, the impugned transfer order had already been issued. This, in my opinion, clearly shows that the local MLA's Note, dated 7.3.2017, requesting for transfer of the petitioner, was not based on the memorandum submitted by the public, therefore, was not likely to have been initiated in the public interest, as claimed. Parties in dispute before the courts, should come with clean hands if they want justice to be delivered. Parties in dispute before the courts, should come with clean hands if they want justice to be delivered. From what has been stated above, it appears that there has been a deliberate attempt to mislead the court which is unfortunate. Though power to transfer is under the domain of the executive or those who are given the authority to exercise the same, it must be done in the public interest or in the exigency of service. 10. Government servants are also human beings and they do have similar problems which are faced by other human beings. Therefore, issuing of frequent transfer orders for other reasons than in the public interest or in the exigency of service, would necessarily lead to certain inconvenience or inconveniences due to frequent dislocations. Therefore, frequent transfer should be avoided as far as possible. 11. Another fact in the instant case, which is intriguing, is, if it is a fact that the people of the area under which the petitioner has been serving, are genuinely suffering due to his act of omissions or commissions, the authorities concerned should have acted as per the law but not merely transferring him out from the present place of posting, to another place. But, this has not been done. This also shows that the Department under which the petitioner has been serving, has no adverse report against him. As often said, transfer is an incident of service, therefore, officers should be ready to go anywhere anytime but they should be moved in the interest of public or in the exigency of service. The power to transfer should not be wielded for any other purpose except for the purpose, stated above. 12. In view of the above, the transfer order, dated 16.3.2017, transferring the petitioner from Bordumsa to Jairampur, does not appear to have been issued in the public interest or in the exigency of service, therefore, this court has no other option left but to quash and set aside the same, The impugned transfer order, dated 16.3.2017, as well as the subsequent release order, dated 17.3.2017, are accordingly hereby quashed and set aside. However, I must quickly add here that this order does not provide an embargo for the petitioner not to be transferred-out from his present place of posting. However, I must quickly add here that this order does not provide an embargo for the petitioner not to be transferred-out from his present place of posting. If the authorities concerned are of the opinion that in the public interest or in the exigency of service, he has to be transferred-out to another place, they are free to do so. 13. With the above directions and observations, the instant writ petition stands disposed of. 14. This writ petition having been allowed; the connected Interlocutory Application, viz. IA (WP) No. 70 (AP) of 2017, preferred by the respondent no. 4, seeking vacation/ modification/alteration of this court's interim order, dated 29.3.2017, has become infructuous and accordingly, the same stands dismissed. 15. Registry shall return the relevant file to the learned additional senior Government advocate, forthwith.