Research › Search › Judgment

Gauhati High Court · body

2021 DIGILAW 168 (GAU)

Genya Sora v. Govt Of A P

2021-02-23

NELSON SAILO

body2021
JUDGMENT Nelson Sailo, J. - Heard Ms. E. Perme, learned counsel for the petitoner. Also heard Mr. D. Soki, learned State Counsel for the respondent Nos. 1, 2 & 5 as well as Mr. K. Lollen, learned counsel for the private respondent No. 4. 2. By filing this writ petition, the petitioner is assailing the impugned Transfer Order dated 10.09.2020 (Annexure-5), by which he has been transferred from Mechuka Hydro Power Division to Geku Hydro Power Division. According to the petitioner, vide order dated 04.08.2020, the Governor of Arunachal Pradesh accorded administrative approval for renaming Aalo Hydro Power Division-I as Mechuka Hydro Power Division to look after the works of Si Yomi District. Accordingly, the Assistant Surveyor of Works, Hydro Power Division, Aalo-I was to be shifted as Assistant Surveyor of Works, Mechuka Hydro Power Division with all existing staffs and function as Assistant Engineer (Civil), Mechuka as additional charge. The petitioner who was holding the post of Assistant Surveyor of Works accordingly was required to proceed to Mechuka to look after the new division. However, vide the impugned order dated 10.09.2020, within a period of little over one month, the petitioner has been transferred from Mechuka Hydro Power Division to Geku Hydro Power Division. The petitioner being aggrieved is before this Court. 3. Ms. E. Perme, learned counsel submits that it is a case of frequent transfer inasmuch as, the petitioner had just joined the new Hydro Power Division at Mechuka in the month of August, till the impugned order came to be issued on 10.09.2020. She submits that the petitioner upon having come to learn from a reliable source that the department concerned was processing his transfer and posting from Mechuka Hydro Power Division to other Division, he submit a representation on 02.09.2020 before the respondent No. 1. However, without considering his representation, the impugned transfer order was issued by the said authority. The petitioner also again approached the respondent No. 1 by submitting his second representation on 15.09.2020, which again was not considered by the said authority. The learned counsel submits that as per the standing guidelines followed by the State Government, the minimum period of posting in a particular place is for two (2) years. However, in violation of this guideline, the respondent authorities have issued the impugned transfer order. The learned counsel submits that as per the standing guidelines followed by the State Government, the minimum period of posting in a particular place is for two (2) years. However, in violation of this guideline, the respondent authorities have issued the impugned transfer order. As such, she submits that the same should be set aside and the interim order passed by this Court on 17.09.2020 should be made absolute. 4. Mr. D. Soki, learned State Counsel on the other hand submits that Mechuka Hydro Power Division initially was a Sub-Division under the Aalo Hydro Power Division and that the petitioner being under Aalo Hydro Power Division was posted in Mechuka Sub-Division since 09.11.2015. Therefore, it is not a case of frequent transfer and posting as alleged by the petitioner. To substantiate his submission, the learned State Counsel has drawn the attention of this Court to the Deployment List/Station Seniority of Assistant Engineers under Hydro Power Development as on 01.03.2019, which is annexed as 'Annexure-I' to the affidavit-inopposition filed by the respondent Nos. 1 & 2. He further submits that in respect of the respondent No. 4, he has been posted in Aalo Hydro Power Civil Sub-Division since 18.03.2016 and therefore considering the guidelines of the State Government, both the private respondent as well as the writ petitioner are more than due to be posted out from their respective station. Therefore, the transfer order dated 10.09.2020 is in order. The learned State Counsel also submits that in so far as the transfer and posting are concerned, it is for the executive to take a decision keeping in view the administrative needs and requirements and also the interest of the public. He submits that Courts normally do not interfere and that even in the instant case, the impugned order dated 10.09.2020 may not be interfered with. In support of his submission, the learned State Counsel relies upon the Apex Court decision in State of U.P and Others -vs- Gobardhan Lal, (2004) 11 SCC 402 . 5. Mr. K. Lollen, learned counsel for the private respondent No. 4 adopts the argument made by the learned State Counsel and submits that the petitioner has not indefeasible right to remain in Mechuka Hydro Power Division. He submits that the petitioner has in fact spent his tenure under the Aalo Hydro Power Division and was posted at Mechuka Hydro Power Sub-Division since 09.11.2015. He submits that the petitioner has in fact spent his tenure under the Aalo Hydro Power Division and was posted at Mechuka Hydro Power Sub-Division since 09.11.2015. Therefore, keeping in view the transfer guidelines of the State Government, the petitioner has become more than due to be transferred out. He therefore submits that the writ petition may be dismissed. 6. I have heard the learned counsels for the rival parties and I have also perused the materials available on record. As pointed out by the learned State Counsel, apparently the petitioner was posted at Aalo Hydro Power Division and at the relevant time, Mechuka was a Hydro Power Sub-Division under the Aalo Hydro Power Division. The petitioner has joined the Sub-Division at Mechuka on 09.11.2015 as can be seen from the Deployment List/Staion Seniority of Assistant Engineer under the Hydro Power Development. Therefore, it is not a case of frequent transfer as sought to be projected by the petitioner. It is further seen that by the impugned order dated 10.09.2020, besides the petitioner and the respondent No. 4, three (3) other Assistant Engineers (Civil), Department of Hydro Power Development has been posted to the respective station as indicated in the said order. It is in fact a chain transfer and that the Assistant Engineers at Serial Nos. 2 & 3 are required to move first. In view of the interim order passed by this Court on 17.09.2020, the chain posting apparently has been disturbed. The Apex Court in Gobardhan Lal (supra) has held that transfer of an employee is not only an incident inherent in terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Applying the ratio to the present case, I am of the considered view that the impugned order dated 10.09.2020 cannot be said to have been passed arbitrarily or with a mala fide intention. Applying the ratio to the present case, I am of the considered view that the impugned order dated 10.09.2020 cannot be said to have been passed arbitrarily or with a mala fide intention. Hence, I do not find any merit in the writ petition and accordingly, I dismis the same. The interim order dated 17.09.2020 shall stand merged with this Order. No Cost