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2017 DIGILAW 1225 (GAU)

Nyakpu Yangfo v. State of Arunachal Pradesh

2017-09-04

AJIT SINGH, MANOJIT BHUYAN

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JUDGMENT : MANOJIT BHUYAN, J. 1. Heard Mr. K.N. Choudhury, learned senior counsel for the appellant/writ petitioner as well as Mr. S. Saikia, learned State Counsel for respondent nos. 1 and 2. Also heard Mr. D. Mozumder, learned senior counsel representing respondent no. 3. In view of the order that is being passed today, service of notice on respondent nos. 4 and 5 are not deemed necessary and the present appeal is taken up for final disposal at the admission stage. 2. At a time when the appellant Sri Nyakpu Yangfo was discharging duties as Executive Engineer on functional basis, he was issued with the transfer order dated 28.07.2017, transferring him from PWD Seppa Division, East Kameng District, to PWD Aalo Circle, West Siang District, in the same capacity. In his place the respondent no. 3 Sri Nich Tadar, who is an Executive Engineer in substantive capacity, was brought from Sagalee Circle. On the date when the transfer order was issued, the appellant had completed two year term of posting at PWD Seppa Division. 3. The transfer order dated 28.07.2017 was put to test by the appellant in WP(C) 602(AP)/2017 alleging malafide, in that, the said transfer order was issued at the behest of the respondent nos. 4 and 5, who are Parliamentary Secretaries looking after Tax & Excise and Tourism respectively under the Govt. of Arunachal Pradesh. Statement in this regard is made at paragraph 9 of the writ petition to the effect that the transfer order dated 28.07.2017 was passed on the basis of the U.O. Note dated 14.05.2017 issued by the said respondent nos. 4 and 5. Contention made is that the transfer order so issued at their behest was designed to harass the appellant as he refused to comply with their dictates to make payment to the contractors in respect of the construction of the approach road from Khade Nallah to Jawa (Weshi-II) Village. Statement is also made at paragraph 6 of the additional affidavit filed by the appellant in the writ proceedings wherein it is alleged that in respect of construction of the approach road, the appellant had physically inspected the work and found the entry in the Measurement Book to be inconsistent with the actual work done. Although payment was made on the basis of the actual work done, however, the respondent no. Although payment was made on the basis of the actual work done, however, the respondent no. 4 had directed the appellant to make full payment to the contractors as per the initial entry in the Measurement Book. The appellant not having succumbed to the pressure generated by the respondent no. 4, the resultant action was the issuance of the U.O. Note dated 14.05.2017. Further contention made is that although transfer is an incidence of service, the respondent State could not have acted upon the U.O. Note to bring in respondent no. 3 to PWD Seppa Division as it is not in the domain of respondent nos. 4 and 5 to suggest the name of any person for being posted at Seppa. 4. The learned Single Judge duly considered the plea on malafide as well as the legal aspect as to whether a transfer order would stand vitiated merely because the same was issued at the instance of an MP or MLA and in this context relied in the case of Mohd. Masood Ahmad Vs. State of U.P. & Ors., reported in (2007) 8 SCC 150 . In the absence of any element of malafide being established, even after going through the concerned Office File, the writ petition was dismissed by observing that the appellant/writ petitioner miserably failed to make out a prima facie case meriting intervention of the Court to the transfer order dated 28.07.2017. 5. We have heard the counsels for the parties and have carefully perused the materials on record. There is no dispute to the fact that power to transfer an employee lies within the province of the employer. Ordinarily, it is not for the Court to interfere unless the transfer order can be demonstrated to have been vitiated by arbitrariness, malafides or issued in violation of guidelines or rules. In the present case, the ground taken is that of malafide on the part of the respondent nos. 4 and 5 who, according to the appellant, are the alleged architects of the impugned transfer order dated 28.07.2017. The basis is shown to be the UO Note dated 14.05.2017, which reads as under: "Arunachal Pradesh Sub: Approval for posting of Er. NICH Tadar. as EE, PWD, SEPPA. 4 and 5 who, according to the appellant, are the alleged architects of the impugned transfer order dated 28.07.2017. The basis is shown to be the UO Note dated 14.05.2017, which reads as under: "Arunachal Pradesh Sub: Approval for posting of Er. NICH Tadar. as EE, PWD, SEPPA. With reference to the aforesaid subject, we the elected representatives of SEPPA (East) and Seppa (West) to apprise you that in absence of regular/experienced Executive Engineer at PWD Seppa Division, all the developmental projects both CSS and State funded, are awfully hampered and slowing down, causing great inconvenience to the people of entire East Kameng District. Without well equipped technical Head to lead the Department, it will further create a deadlock in all ongoing projects which the people of both areas will not compromise. In this regard, we would like to propose the name of Er. Nich Tadar, who is presently posted as EE, Planning, in the office of SE, PWD Sagalee Circle, Camp Papu Hill, Naharlagun, may kindly be considered for posting EE, PWD Seppa Division, at the earliest. In view of the above, we the elected representatives of East Kameng District would like to request Hon'ble Deputy Chief Minister to approve for posting of Er. Nich Tadar, as Executive Engineer, PWD Seppa Division, in the interest of public service, on top most priority. Sd/- (Mama Natung) Parliamentary Secretary (RD & PR & Printing) Sd/- (Tapuk Taku) Parliamentary Secretary (Tax & Excise, Sc. & Tech.) Hon’ble Dy. Chief Minister U.O. No. JN/RD/T&E/S&T/9/2017-18 Dated 14.05.2017." 6. A mere perusal of the aforesaid U.O. Note dated 14.05.2017 discloses only the views expressed by the Parliamentary Secretaries i.e. respondent nos. 4 and 5 as to the developmental projects being hampered in the absence of a regular/experienced Executive Engineer at PWD Seppa Division, which in its turn was causing great inconvenience to the people of East Kameng District. The said U.O. Note does not spell out even an iota of any malafide view expressed against the appellant. In other words, no malafide intention on the part of the respondent nos. 4 and 5 can be read into the U.O. Note dated 14.5.2017, as alleged by the appellant. Incidentally, there is no allegation of malafide against the authority issuing the transfer order dated 28.7.2017. 7. In other words, no malafide intention on the part of the respondent nos. 4 and 5 can be read into the U.O. Note dated 14.5.2017, as alleged by the appellant. Incidentally, there is no allegation of malafide against the authority issuing the transfer order dated 28.7.2017. 7. It is seen that while considering the allegation of malafide, the learned Single Judge had also looked into the relevant records and reached a finding that there was no material whatsoever in support of the allegation made by the appellant. In the absence of any contrary record produced by the appellant, we are of the view that there are no materials to disbelieve the finding of the learned Single Judge in this regard. The grounds of challenge to the transfer order as stated in paragraph 9 of the writ petition as well as in paragraph 6 of the additional affidavit filed by the appellant during the writ proceedings, we are afraid to accept the same at its face value as there is nothing on record to demonstrate that the transfer order had in anyway anything to do with the contentions advanced in the aforesaid paragraph 9 and paragraph 6 respectively. 8. The law as it stands today, a transfer order by itself would not stand vitiated merely because the same was passed at the instance of an MP or MLA. To invalidate a transfer order on this count would squarely depend on the facts and circumstances of an individual case. In the present context and as can be noticed from the U.O. Note dated 14.5.2017, it cannot be held that the transfer order is bad and vitiated merely because two Parliamentary Secretaries were involved in the process. 9. Far from establishing any element of malafide in the issuance of the transfer order, the appellant have also failed to demonstrate any element of arbitrariness, in that, when he had assumed duties at PWD Seppa Division on transfer from PWD Bameng Division, the two Parliamentary Secretaries i.e. respondent nos. 4 and 5 had also issued U.O. Note dated 26.04.2015, on the basis of which the appellant came to be posted at PWD Seppa Division. A beneficiary of a similar process is now questioning the legality and validity of a process initiated by the very same Parliamentary Secretaries, albeit now in favour of the respondent no. 3. 4 and 5 had also issued U.O. Note dated 26.04.2015, on the basis of which the appellant came to be posted at PWD Seppa Division. A beneficiary of a similar process is now questioning the legality and validity of a process initiated by the very same Parliamentary Secretaries, albeit now in favour of the respondent no. 3. It would not lie in the mouth of the appellant to allege arbitrariness on the part of the respondent nos. 4 and 5 and/or to allege any illegality in the transfer order dated 28.07.2017. 10. During the course of hearing of this appeal, it is brought to our notice that pursuant to the judgment of the learned Single Judge, the respondent no. 3 have assumed charge of the Office of the Executive Engineer, PWD Seppa Division on 29.08.2017. To this, the appellant does not dispute. 11. For all the reasons above, we find no infirmity in the judgment and order dated 25.08.2017 passed by the learned Single Judge in WP(C) 602(AP)/2017. As a necessary corollary, the present appeal fails and stands accordingly dismissed, however, without any order as to cost.