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2018 DIGILAW 38 (MAN)

L. Gokulchandra Singh v. State of Manipur

2018-08-16

K.H.NOBIN SINGH

body2018
JUDGMENT : 1. Heard Shri N. Jotendro, learned Senior Advocate appearing for the petitioner; Shri A. Mohendro, learned Advocate appearing for the private respondent; Shri H. Debendra, learned Government Advocate appearing for the State respondents and Shri R.K. Deepak, learned Advocate appearing for Respondent No. 2 (Chief Engineer, PHED). 2. The validity and correctness of the order dated 30/6/2018 issued by the Under Secretary (PHED), Government of Manipur, in respect of the petitioner, is under challenge in this writ petition. 3.1. The facts and circumstances as narrated in the writ petition, are that the petitioner is a Master Degree Holder in Civil Engineering from IIT Roorkee who joined his service as Section Officer Grade-I in the year, 1985 in the Public Health Engineering Department (hereinafter referred to as “the PHED”). Although he became eligible for promotion to the post of Assistant Engineer on 9/12/1998 as per the relevant Recruitment Rules, no promotion was given to the petitioner as the respondents failed to take appropriate steps for filling up vacancies in time. On the contrary, in order to extract the work of the Assistant Engineer from the petitioner, the State Government issued an order dated 28/5/1998 transferring and posting the petitioner to function as in-charge Assistant Engineer and in that capacity, the petitioner continued till when he was promoted to the post of Assistant Engineer on regular basis vide order dated 29/12/2015 issued by the Under Secretary (PHED), Government of Manipur and while the petitioner was serving as in-charge Assistant Engineer, the petitioner was awarded many appreciation letters in recognition of his excellent work performance. Thereafter, the petitioner was allowed to look after the work of the Executive Engineer, Bishnupur, PHE Division vide order dated 14/9/2016 issued by the Under Secretary (PHED), Government of Manipur. In the meantime, the petitioner along with six others filed a writ petition being WP(C) No.122 of 2016 praying for grant of seniority with retrospective effect. 3.2. A final seniority list of the Assistant Engineers, the PHED as on 22/4/2017 was issued by the Under Secretary (PHED), Government of Manipur and being aggrieved by it, the petitioner along with 6 (six) others filed a writ petition being WP(C) No. 407 of 2017 questioning it wherein this Court was pleased to pass an order dated 9/6/2017 directing that the petitioners therein might not be disturbed from their present places of posting. On 28/7/2017, the Under Secretary (PHED), Government of Manipur issued an order promoting as many as 10 (ten) Assistant Engineers, to the post of Executive Engineer, who were placed at serial Nos. 1 to 10 in the said final seniority list. 3.3. On 23/2/2018, the Under Secretary (PHED), Government of Manipur issued an order appointing the private respondent to the post of Assistant Engineer. Hardly two months later and to the utter surprise of the petitioner, the private respondent whose name was not even included in the said seniority list of the Assistant Engineers, was appointed as in-charge Executive Engineer surpassing many of his seniors vide order 28/4/2018 issued by the Under Secretary (PHED), Government of Manipur. However, the said order 28/4/2018 came to be challenged by way of a writ petition being WP(C) No.386 of 2018 filed by Assistant Engineers who are senior to the private respondent wherein this Court, while issuing notice to the respondents, was pleased to pass an interim order dated 9/5/2018 suspending the order dated 28/4/2018. During the pendency of the said writ petition being WP(C) No.386 of 2018, the Under Secretary (PHED), Government of Manipur issued the impugned order dated 30/6/2018 by which the private respondent was transferred and posted again as in-charge Executive Engineer, Bishnupur, PHE, Division while the petitioner was transferred and posted as OSD to Additional Chief Engineer which is non-cadre post. Soon after the said impugned order dated 30/6/2018 having been issued by the Under Secretary (PHED), Government of Manipur, the private respondent immediately took self-charge of the said post on the same day of his appointment without the approval of the higher authority when the petitioner was on leave and hence, the petitioner was compelled to file the instant writ petition. 4. The stand of the State Government as indicated in the affidavit-in-opposition filed by the Joint Secretary (PHED), Government, is that the appointment to a post, transfer and posting of employees are policy matter of the Government. Both the petitioner and the private respondent are the Assistant Engineers of the Department and when they are allowed to work as in-charge Executive Engineers, there is no question of inter-change of posting. The transfer and posting being a policy matter, there is no question of violation of rules and regulations when the posting arrangement is done and therefore, there is no illegality while issuing the impugned order. The transfer and posting being a policy matter, there is no question of violation of rules and regulations when the posting arrangement is done and therefore, there is no illegality while issuing the impugned order. An affidavit-in-opposition has been filed by the private respondent wherein it has been admitted that since he was appointed as the Assistant Engineer only on 23/2/2018, his name was not included in the seniority list dated 22//4/2017. However, it has been stated by him that OSD is not inferior to the in-charge Executive Engineer but rather, superior with special duties being assigned relating to the administrative works of PHED and as such, the State Government, keeping in mind the seniority and qualification, might have transferred the petitioner as OSD and therefore, there is no question of superseding seniors by the private respondent. When the transfer and posting order dated 30/6/2018 was issued, the private respondent in compliance with it, took self charge, while the petitioner was on leave. 5. It has been submitted by Shri N. Jotendro, Senior Advocate appearing for the petitioner that the impugned order dated 30/6/2018 was illegal; that the same had been issued in violation of the principles of seniority rules and that the private respondent, whose name was not included and reflected in the seniority list of Assistant Engineers, had been appointed completely ignoring and without considering the cases of the Assistant Engineers who are senior to him. In order to support his contention, he has relied upon the decision rendered on 7/4/2017 by this court in H.Surodhani Devi Vs. State of Manipur, WP(C) No.696 of 2016 where this court has held that the appointment of an employee on in-charge basis is within the domain and jurisdiction of the State Government and in other words, it is a matter of discretionary power of the State Government but it is well settled that such discretionary power shall be exercised by the State Government in accordance with certain principles of law on the touchstone of fairness and reasonableness. Further, he has placed reliance on the decision rendered on 13/3/2008 by the Hon’ble Gauhati High Court in Takhelmayum Thoiba Singh Vs. Further, he has placed reliance on the decision rendered on 13/3/2008 by the Hon’ble Gauhati High Court in Takhelmayum Thoiba Singh Vs. State of Manipur & ors., WP(C) No.896 of 2007 wherein the contention of the State Government was that the transfer being within the power of the State Government in terms of FR 11 and 15, the petitioner therein could not question the impugned order by which he was transferred as OSD to the Directorate of Higher Education. Rejecting the contention of the State Government, the Hon’ble Court held that as the post of OSD is not transferable one with the post held by the petitioner, save and except with the prior consent of the petitioner and consent having not been obtained, the transfer order could not be sustained. The decision rendered by the Hon’ble Supreme Court in Government of Andhra Pradesh & anr. Vs. A.V Venugopala Rao, (1995) 1 SCC 179 has also been relied upon by him wherein the Hon’ble Supreme Court upheld the interim arrangement made by the State Government to keep the senior most in the provisional list of the respective divisions who are eligible for promotion to the posts of Executive Engineer as in-charge so as to avoid heart burning among the officers. On the other hand, Shri H. Debendra, the learned Government Advocate has submitted that the question of insubordination did not arise, when the private respondent was transferred and posted as the in-charge Executive Engineer. Shri A. Mohendro, the learned counsel appearing for the private respondent has submitted that the courts should not interfere with the transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on ground of malafide, for which he has relied upon the decision rendered by the Hon’ble Supreme Court in Shilpi Bode (Mrs.) & ors. Vs. State of Bihar & ors., 1991 Suppl. (2) SCC 659, para 4 of which is as under: “4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. State of Bihar & ors., 1991 Suppl. (2) SCC 659, para 4 of which is as under: “4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day-to-day transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders.” In N.K. Singh Vs. Union of India & ors., (1994) 6 SCC 98 , the Hon’ble Supreme Court held: “9. Transfer of a public servant from a significant post can be prejudicial to public interest only if the transfer was avoidable and the successor is not suitable for the post. Suitability is a matter for objective assessment by the hierarchical superiors in administration. To introduce and rely on the element of prejudice to public interest as a vitiating factor of the transfer of a public servant, it must be first pleaded and proved that the replacement was by a person not suitable for the important post and the transfer was avoidable. Unless this is pleaded and proved at the threshold, no further inquiry into this aspect is necessary and its absence is sufficient to exclude this factor from consideration as a vitiating element in the impugned transfer. Accordingly, this aspect requires consideration at the outset.” 6. Unless this is pleaded and proved at the threshold, no further inquiry into this aspect is necessary and its absence is sufficient to exclude this factor from consideration as a vitiating element in the impugned transfer. Accordingly, this aspect requires consideration at the outset.” 6. Over and above, there are many decisions of the Hon’ble Supreme Court with respect to transfer and posting and there is point of referring to all but suffice it to say that a Government servant has no vested right to remain posted at a place of his choice and that he is liable to the transferred to other places also. An order of transfer cannot be lightly interfered with by the court unless the order of transfer is shown to be an outcome of malafide exercise of power or violative of any statutory provision or passed by an authority not competent to do so. In the present case, the short question that arises for consideration by this Court, is as to whether the impugned order has been issued by the State Government with malafide intention as alleged in the writ petition. A malafide intention is something which cannot be seen with the naked eyes and is to be inferred from the facts and circumstances of a particular case. The State Government being an institution, has no its heart and soul and is manned by the public servants including the elected representatives of the people. A malafide intention is a matter relating to mental state of affairs of persons who are involved in taking the decision. The direction at which the State Government will have to go, depends upon the will, thinking and the policy decision taken by them. The administrative decisions are taken by them within the four walls of the State Government, to which public has no access except through the provisions of the Right to Information Act. The direction at which the State Government will have to go, depends upon the will, thinking and the policy decision taken by them. The administrative decisions are taken by them within the four walls of the State Government, to which public has no access except through the provisions of the Right to Information Act. The circumstances which are relevant for the purpose of deciding the issue involved here, are as under: (a) The State Government has not brought to the notice of this court any guideline or instruction or rule by which an Assistant Engineer can be given the charge of an Executive Engineer and transferred and posted as In-charge Executive Engineer; (b) On the recommendation of a DPC, the petitioner along with 20 others were appointed as the Assistant Engineers vide order dated 29/12/2015 but since his appointments was not given retrospective effect from the day i.e., 28//5/1998 on which the petitioner was transferred and posted as the In-charge Assistant Engineer, the petitioner along with 6 Assistant Engineers filed a writ petition being WP(C) No.122 of 2016 praying for grant of retrospective effect wherein this Court vide order dated 9/6/2017 had directed that the petitioners might not be disturbed from their present places of posting; (c) The seniority list of the Assistant Engineer as on 22/4/2017 which consists of 52 Assistant Engineers, was published vide order dated 22/4/2017 issued by the Under Secretary (PHE), Government of Manipur and by then, the private respondent was not yet born in the cadre; (d) The private respondent was appointed as the Assistant Engineer vide order dated 23/2/2018 and hardly, three months later vide order dated 28/4/2018, the private respondent was transferred and posted as In-charge Executive Engineer, although he was not eligible for appointment on promotion to the post of Executive Engineer and no reason for his being transferred and posted as in-charge Executive Engineer was assigned by the State Government; (e) The order dated 28/4/2018 by which the private respondent was transferred and posted as in-charge Executive Engineer, came to be challenged by the Assistant Engineers who are senior to the private respondent by way of a writ petition being WP(C) No.386 of 2018 and this Court while issuing notice to the respondents vide order dated 9/5/2018, suspended the order dated 28/4/2018; (f) It may be noted that in Takhelmayum Thoiba Singh Vs. State of Manipur & ors., WP(C No.896 of 2007 wherein the contention of the State Government was that the transfer being within the power of the State Government in terms of FR 11 and 15, the petitioner therein could not question the impugned order by which he was transferred as OSD to the Directorate of Higher Education, the Hon’ble High Court vide order dated 13/3/2008, rejecting the contention of the State Government, held that as the post of OSD is not transferrable one with the post held by the petitioner, save and except with the prior consent of the petitioner and consent having not been obtained, the transfer order could not be sustained. (g) Despite two court’s orders dated 9/6/2017 by which this court directed that the petitioners might not be disturbed from their present places of posting and 9/5/2018 by which the government order dated 28/5/2018 was suspended, being passed by this Court, the State Government deliberately issued the impugned order completely throwing the said court’s orders in the wind. The fact that the State Government issued the impugned order, without any botheration thereof, which appears to have been issued only to help the private respondent causing heart burning to his senior Assistant Engineers; (h) The State Government is governed by rule of law and is not above the Constitution of India. It is well settled that a discretionary power shall be exercised by the State Government in accordance with certain principles of law on the touchstone of fairness and reasonableness. Article 14 of the Constitution of India is anathema to arbitrariness and strikes at the root of the arbitrary action of the State or its instrumentalists. The impugned order appears to have been issued by the State Government without following any rule because it has failed to bring to the notice of this court any rule regulating the transfer and posting of Assistant Engineers on in-charge basis as Executive Engineers completely ignoring the seniority list which is one of the incidents of service. 7. From the aforesaid circumstances, it is clearly seen that the issuance of the impugned order is highly unreasonable, arbitrary and malafide. 7. From the aforesaid circumstances, it is clearly seen that the issuance of the impugned order is highly unreasonable, arbitrary and malafide. It is nothing but an endeavour to help the private respondent, at any costs, who is one of the junior most Assistant Engineers without showing due respect to the said court’s orders and the seniority list and that too, in the absence of any rule regulating the appointment and transferred and posting of Assistant Engineers as in-charge Executive Engineers. 8. In view of the above and for the reasons stated hereinabove, the instant writ petition is allowed and consequently, the impugned order dated 30/6/2018 in respect of the petitioner is quashed and set aside with no order as to costs.