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2022 DIGILAW 211 (MAN)

Mayengbam Sanahal Meetei v. State of Manipur

2022-11-02

M.V.MURALIDARAN

body2022
JUDGMENT 1. This writ petition has been filed by the petitioner to quash the order dated 8.8.2022 passed by the second respondent and to direct the respondents to consider and dispose of the representation of the petitioner dated 9.8.2022 by issuing a reasoned speaking order. 2. The case of the petitioner is that he was initially appointed as Section Officer under Rural Development and Panchayat Raj Department, Manipur on contract basis on 30.12.2009 and thereafter, he was posted at Khengjoy T.D. Block on 30.12.2009. On 31.12.2016, the second respondent regularised the services of 89 employees, including the petitioner. Thereafter, the petitioner was transferred from Kakching to Tengnoupal T.D. Block. Then from Tengnoupal T.D. Block to Kakching C.D. Block and the same was cancelled on 1.7.2019. 3. Further case of the petitioner is that on 16.6.2022, the second respondent issued transfer order transferring the petitioner and posted at Tousem T.D. Block and just after 20 days of the transfer order dated 16.6.2022, the second respondent issued another transfer order dated 8.7.2022 thereby transferring the petitioner and posted at Kakching C.D. Block without any reason. While so, to his utter shock and surprise, by the impugned order dated 8.8.2022, the second respondent arbitrarily and in total violation of the guidelines regulating the transfer and posting of Government employees under the State Government stayed and retained the petitioner in his original place of posting with immediate effect and until further orders. Aggrieved by the order dated 8.8.2022, the petitioner submitted a representation on 9.8.2022 praying to review/cancel the impugned order dated 8.8.2022 and the said representation has not been considered till date. 4. The official respondents 1 and 2 have not filed affidavit-inopposition to the writ petition. 5. The third respondent filed affidavit-in-opposition, inter alia, stating that considering the long posting of the third respondent for about 3 years in another District and also after considering the other aspects of posting of the petitioner for about 3 years, the petitioner has been retained at Tousem T.D. Block and he was retained at Kakching C.D. Block by the impugned order and there are no valid ground to set aside the impugned order. Further, the representation of the petitioner has no merit to be disposed of or passed any order in favour of him. Further, the representation of the petitioner has no merit to be disposed of or passed any order in favour of him. It is stated that the petitioner is trying to take full advantage causing himself to be posted at his home place/home District, whereas the third respondent has not been posted in his home District till now or he has not been posted for more than 3 years in Kakching C.D. Block. 6. Assailing the impugned order dated 8.8.2022, the learned senior counsel for the petitioner submitted that the impugned order does not mention any plausible and adequate reason for staying the order dated 8.7.2022 and therefore, the same is highly unreasonable, illegal, arbitrary and non-application of mind. In fact, the impugned order was issued under the heavy pressure of the Minister/MLA under the undue pressure of the third respondent. 7. The learned senior counsel further submitted that the petitioner has been frequently transferred from one place of posting to another like shuttle cock by the authorities without any cogent reason, conceivable and justifiable reason and with the mere intention to cause harassment to him with malafide intention. The impugned order was issued by the second respondent just after 29 days of order dated 8.7.2022, which is in total violation of the Office Memorandum issued by the Department of P&AR, Government of Manipur and also in violation of the transfer policy. 8. The learned senior counsel urged that aggrieved by the impugned order, the petitioner has submitted a representation on 9.8.2022 praying to review the impugned order. Despite receipt of the said representation, the same has not been considered till date and therefore, a direction may be issued to the second respondent to consider the representation of the petitioner within a stipulated time. 9. Drawing this Court's attention to the orders passed in W.P.(C) No.312 of 2020 dated 25.6.2020 and W.P.(C) No.17 of 2022 dated 6.6.2022, the learned senior counsel submitted that in these cases this Court set aside the transfer order which have been issued in violation of transfer policy and guidelines and that the decision of this Court in the aforesaid writ petitions squarely applies to the case of the petitioner. Thus, a prayer is made to set aside the impugned order dated 8.8.2022 and to direct the respondents to consider the representation of the petitioner dated 9.8.2022 and pass a reasoned order on it. 10. Thus, a prayer is made to set aside the impugned order dated 8.8.2022 and to direct the respondents to consider the representation of the petitioner dated 9.8.2022 and pass a reasoned order on it. 10. Per contra, Mr. H. Samarjit, the learned Government Advocate appearing for the official respondents submitted that transfer and posting is a condition of service and that the impugned order has been issued without any bias or pressure from any corner. Taking note of the factual aspects, the impugned order came to be issued by the second respondent and there is no malafide in it. Thus, a prayer is made to dismiss the writ petition. 11. The learned counsel appearing for the third respondent submitted that the impugned order does not violate any statutory rules of the State Government relating to transfer and posting of the State Government employee. He would submit that the impugned order whereby the petitioner's posting at Tousem T.D. Block was retained as ordered in the order dated 16.6.2022 can never be claimed to be a case of frequent transfer of the petitioner, as the petitioner has been enjoying the posting at Kakching C.D. Block for more than 3 years and which is located within 1 km of the petitioner's house. In fact, only the petitioner has been with an ulterior motive and excuses, using political pressure and undue influence to remain posted at Kakching C.D. Block by using all unfair means. 12. The learned counsel further submitted that the decisions relied upon the petitioner in W.P.(C) Nos.312 of 2020 and 17 of 2022 are not applicable to the facts of the present case. He would submit that the third respondent is suffering frequent transfer and for which, the petitioner is solely responsible, as the petitioner has been repeatedly interfering with the transfer and posting of the third respondent to ensure that the petitioner continued to remain posted at Kakching C.D. Block, a place of his choice and desire. After nearly about 3 years of the petitioner remaining posted at Kakching C.D. Block, the transfer order dated 16.6.2022 was issued to finally transfer him from Kakching C.D. Block to Tousem T.D. Block in conformity with the terms and conditions of the Government Notification dated 12.5.2022, which allowed for transfer after serving in a place for more than a minimum of 1 year 6 months. The petitioner has no right to question the impugned order. Thus, a prayer is made to dismiss the writ petition. 13. This Court considered the rival submissions and also perused the materials available on record. 14. The petitioner was initially appointed as Section Officer under Rural Development and Panchayat Raj Department on 30.12.2009 and by the order of the second respondent dated 30.12.2009, he was posted at Khengjoy T.D. Block and the services of the petitioner was regularised on 31.12.2016. Since appointment/regularisation as Section Officer, the petitioner has been transferred and posted at different places and the petitioner also obeyed the transfer and posting order issued by the respondent authorities without any complaint till date. By the order dated 22.6.2019, the petitioner was transferred to Kakching C.D. Block. Just after 8 days pursuant to the order dated 22.6.2019, the petitioner was transferred and posted at Tengnoupal T.D. Block vide order dated 1.7.2019. By the order dated 16.6.2022 issued by the second respondent, the petitioner was transferred and posted at Tousem T.D. Block and just after 20 days pursuant to the order dated 16.6.2022, the second respondent issued another transfer order dated 8.7.2022 transferring the petitioner to Kakching C.D. Block. However, by the impugned order dated 8.8.2022, the second respondent stayed and retained the original place of posting with immediate effect. 15. On a perusal of the transfer order dated 16.6.2022, it is seen that the petitioner was transferred from Kakching C.D. Block to Tousem T.D. Block and the third respondent was transferred from Tousem T.D. Block to Kakching C.D. Block. On 8.7.2022, the second respondent transferred the petitioner from Tousem T.D. Block to Kakching C.D. Block and the third respondent was transferred from Kakching C.D. Block to Tousem T.D. Block. While so, on 8.8.2022, the second respondent ordered retaining of the third respondent at Kakching C.D. Block and the petitioner at Tousem C.D. Block. In the transfer orders dated 16.6.2022, 8.7.2022 and 8.8.2022, the second respondent stated that transfer was made in public interest. The concept of public interest cannot be misused. The impugned order was passed without recording any reason justifying the retention of the petitioner at Tousem T.D. Block and the third respondent at Kakchign C.D. Block. 16. In the transfer orders dated 16.6.2022, 8.7.2022 and 8.8.2022, the second respondent stated that transfer was made in public interest. The concept of public interest cannot be misused. The impugned order was passed without recording any reason justifying the retention of the petitioner at Tousem T.D. Block and the third respondent at Kakchign C.D. Block. 16. The first and foremost contention of the learned senior counsel for the petitioner is that the impugned order was issued under the political pressure of Minister/MLA with the pressure of the third respondent. The said contention has been denied by the third respondent by stating that the person against whom the malafide is alleged must also be impleaded as party, however, the petitioner has not impleaded the Minister/MLA as party respondent in the writ petition. The third respondent contended that the petitioner has been always making efforts through political pressure and undue influences to remain continuously posted at Kakching C.D. Block since the issuance of the transfer order dated 1.7.2019 till he was finally transferred from Kakching C.D. Block to other place after more than 3 years. 17. As could be seen from the materials produced by both sides, the challenge to the impugned order is not only made solely on the ground that under the pressure of the Minister/MLA, the impugned order came to be passed. On the other hand, the challenge was made on the ground of frequent transfer of the petitioner from one place to another without any justifiable reason. 18. Admittedly, the official respondents were not able to show reasons for frequent transfer of the petitioner from one place of posting to another. However, the third respondent stated that the petitioner has been enjoying the posting at Kakching C.D. Block for more than 3 years. In this regard, the learned counsel for the third respondent has drawn this Court's attention to Clause No.III - General Conditions, which provides: '(i) Normal Tenure posting of an officer/employee in a post will be a minimum of 1 (one) year and 6 (six) months and maximum of 3 (three) years in the place of posting; (ii) No transfer may be effected unless the concern employee has completed 1 (one) year and 6 (six) months in a post, unless there are compelling reasons/circumstances to do so. .' 19. .' 19. At this juncture, by relying upon the Office Memorandum dated 5.12.2017, the learned counsel for the petitioner submitted that the normal tenure of posting of an officer/employee in a post will be a minimum of two years and maximum of 5 years in a place of posting. 20. In reply, the learned counsel for the third respondent submitted that the aforesaid condition of 3 years and other period has been modified and superseded in the subsequent notification dated 12.5.2022 to reduce to 'period of normal tenure of posting' to minimum of 1 year 6 months to a maximum of 3 years in a place of posting and further reducing from 3 years to 1 year 6 months' regarding the embargo to effect transfer without completion of a specified period, and that too, without compelling reasons/circumstances to do so. However, the third respondent failed to produce the said notification dated 12.5.2022. Nothing has been produced by the third respondent to show that OM dated 5.12.2017 has been superseded and in supersession of the existing Office Memorandum and notifications, if any, notification dated 12.5.2022 has been issued. 21. By relying upon the decision of the Hon'ble Supreme Court in the case of Rajendra Singh and others v. State of UP and others, (2009) 15 SCC 178 : 2009 Legal Eagle (SC) 1137, the learned counsel for the third respondent submitted that the petitioner has no vested right to remain posted at a place of his choice, nor can insist that he must be posted at one place or the other because no Government can function in such manner. 22. In Rajendra Singh, supra, the Hon'ble Supreme Court held: '8. A government servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. No Government can function if the government servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires (see State of U.P. v. Gobardhan Lal, (2004) 11 SCC 402 : 2004 Legal Eagle (SC) 303).' 23. There is no quarrel over the proposition laid down by the Hon'ble Supreme Court. Equally, the aforesaid principle is applicable to the case of the third respondent. 24. The Courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from malafides. 25. In Shilpi Bose v. State of Bihar, AIR 1991 SC 532 : 1990 Legal Eagle (SC) 700, the Hon'ble Supreme Court held: '4. In our opinion, 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-today transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would be conducive to public interest. The Court overlooked these aspects in interfering with the transfer orders.' 26. As stated supra, in the case of petitioner, this year (2022), the first transfer was made on 16.6.2022 from Kakching C.D. Block to Tousem T.D. Block. The Court overlooked these aspects in interfering with the transfer orders.' 26. As stated supra, in the case of petitioner, this year (2022), the first transfer was made on 16.6.2022 from Kakching C.D. Block to Tousem T.D. Block. Just after 20 days after passing of the order dated 16.6.2022, on 8.7.2022, the petitioner was transferred from Tousem T.D. Block to Kakching C.D. Block without any reason. While so, on 8.8.2022, the impugned order came to issued directing the petitioner to retain at Tousem T.D. Block. The aforesaid acts of the second respondent in issuing the frequent transfer order does not mean that the transfer order in respect of the petitioner was made based on transfer policy. On the other hand, the acts of the respondent authorities, prima facie, show that under pressure, they have issued the transfer order and finally, the impugned order dated 8.8.2022. 27. The official respondents are not able to satisfy qua the question as to the norm that in the case of transfer of an officer, the same shall be effected in the month of April-May after the financial year so as not to disrupt the academic lives of the school and college going students. 28. It is also the contention of the third respondent that he has not been posted in his home District till date or not posted for more than 3 years in the Kakching C.D. Block. The aforesaid cannot be decided by the Court and the same is the grievance of the third respondent, for which he has to approach the higher authority. Here, in the case on hand, the third respondent has not approached the higher authority for his grievance. 29. As stated supra, the impugned order has been passed only just after 29 days after the order dated 8.7.2022, which is in total violation of the Office Memorandum issued by the Department of P&AR and also the transfer policy regulating the transfer and posting of the Government employees. 30. 29. As stated supra, the impugned order has been passed only just after 29 days after the order dated 8.7.2022, which is in total violation of the Office Memorandum issued by the Department of P&AR and also the transfer policy regulating the transfer and posting of the Government employees. 30. Earlier, an identical issue came before this Court in W.P.(C) No.312 of 2020 and by the order dated 25.6.2020, this Court passed the following order: ' After hearing both the counsels, the present writ petition is disposed of by directing the respondents to consider and dispose of the aforesaid representation dated 23.06.2020 submitted by the petitioner by issuing a speaking order within a period of 4 (four) weeks from the date of receipt of a copy of this order. It is made clear that pending disposal of the said representation, the writ petitioner should be allowed to continue at her present place of posting. With the above direction, the writ petition stands disposed of.' 31. In W.P.(C) No.17 of 2022, dated 6.6.2022, this Court passed the following order: '38. In the instant case, the impugned transfer and posting order dated 31.12.2021 has been passed in violation of the transfer policy and guidelines issued by the Government of Manipur and, therefore, the same is liable to be set aside. Since the petitioner and the third respondent joined the new place of posting as referred above pursuant to the interim order dated 10.1.2022 and the consequential order passed by the second respondent, there is no necessity to direct the respondent authorities to consider the representation of the petitioner dated 3.1.2022 and pass orders, as the very purpose of submission of the representation dated 3.1.2022 has been fulfilled. 39. In the result, the writ petition is allowed. The impugned transfer and posting order dated 31.12.2021issued by the second respondent in respect of the petitioner and the third respondent is set aside, as it amounts to frequent transfer. No costs.' 32. Nothing has been produced by the respondents to show that as against the order dated 6.6.2022 passed in W.P.(C) No.17 of 2022, appeal has been preferred and the order has been set aside by the appellate court. In the absence of any appeal, the order dated 6.6.2022 passed in W.P.(C) No.17 of 2022 attained finality. 33. No costs.' 32. Nothing has been produced by the respondents to show that as against the order dated 6.6.2022 passed in W.P.(C) No.17 of 2022, appeal has been preferred and the order has been set aside by the appellate court. In the absence of any appeal, the order dated 6.6.2022 passed in W.P.(C) No.17 of 2022 attained finality. 33. In Union of India and others v. Major S.P. Sharma and others, (2014) 6 SCC 351 : 2014 Legal Eagle (SC) 183, the Hon'ble Apex Court held: '82. In a country governed by the rule of law, the finality of a judgment is absolutely imperative and great sanctity is attached to the finality of the judgment and it is not permissible for the parties to reopen the concluded judgments of the court as it would not only tantamount to merely an abuse of the process of the court but would have far-reaching adverse effect on the administration of justice. It would also nullify the doctrine of stare decisis, a well-established valuable principle of precedent which cannot be departed from unless there are compelling circumstances to do so. The judgments of the Court and particularly of the Apex Court of a country cannot and should not be unsettled lightly.' 34. In the instant case, when the writ petition was taken up for admission on 12.8.2022, this Court while admitting the writ petition granted the following interim order: '[6] Till such time, there shall be an order of interim stay of the impugned order bearing No.1/56/77-RD/2008(Pt) Porompat, the 8th August, 2022 (At Annexure-A/9).' 35. The third respondent also filed MC (WP) No.293 of 2022 under Article 226(3) of the Constitution of India praying to vacate the interim order dated 12.8.2022 passed in W.P.(C) No.653 of 2022 alleging that there is lack of grounds to pass interim order. 36. The petitioner has filed affidavit to MC (WP) No.293 of 2022 along with the order dated 24.8.2022 passed by the Block Development Officer, Kakching C.D. Block, wherein the third respondent has been released with effect from 24.8.2022 so as to enable him to join at his new place of posting i.e. Tousem T.D. Block in compliance of the interim order dated 12.8.2022. 37. 37. The affidavit filed by the petitioner in MC (WP) No.293 of 2022 has not been controverted by the third respondent and the third respondent has not disputed the passing of the order dated 24.8.2022 thereby relieving him from Kakching C.D. Block. Thus, as per the transfer order dated 8.7.2022, the third respondent joined the new place of posting Tousem T.D. Block. 38. In view of the subsequent development after passing the interim order dated 12.8.2022 and relieving order dated 24.8.2022 thereby relieving the third respondent from Kakching C.D. Block so as to enable him to join in Tousem T.D. Block, there is no alternate but to set aside the impugned order dated 8.8.2022. 39. It is settled law that the order of transfer is part of 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 of the Constitution of India unless the Court finds that either the order is malafide or that the service rules prohibit such transfer or that the authorities who issued the orders were not competent to pass orders. The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Hon'ble Apex Court in many number of cases. Since the law is well settled, this Court has no quarrel over the said proposition laid down by the Hon'ble Apex Court. 40. In the present case, the impugned order dated 8.8.2022 has been passed in violation of the transfer policy and the guidelines issued by the Government of Manipur and, therefore, the same is liable to be set aside. Since the materials produced reveal that the third respondent has been relieved so as to enable him to join at Tousem T.D. Block pursuant to the interim order of this Court dated 12.8.2022, there is no necessity to direct the official respondents to consider the representation of the petitioner dated 9.8.2022 and pass orders, as the very purpose of the submission of the representation has been fulfilled. 41. In the result, (a) The writ petition is allowed. (b) The impugned order dated 8.8.2022 passed by the second respondent is set aside, as it amounts to frequent transfer. (c) The interim order dated 12.8.2022 shall stands made absolute. (d) Consequently, MC (WP) No.293 of 2022 filed by the third respondent is dismissed. 42. 41. In the result, (a) The writ petition is allowed. (b) The impugned order dated 8.8.2022 passed by the second respondent is set aside, as it amounts to frequent transfer. (c) The interim order dated 12.8.2022 shall stands made absolute. (d) Consequently, MC (WP) No.293 of 2022 filed by the third respondent is dismissed. 42. No costs.