JUDGMENT : ARUN DEV CHOUDHURY, J. Heard Mr. D. Mazumdar, learned Senior Counsel assisted by Mr. S.K. Deori, learned counsel for the writ appellant. Also heard Mr. I. Choudhury, learned Senior Counsel assisted by Mr. S. Biswakarma, learned counsel for the respondent No. 4 and Mr. G. Tarak, learned Standing Counsel for the Rural Works Department representing the respondent Nos. 1 to 3. 1. Summery of the Present Litigation: (I) This intra-court appeal is directed against the judgment and order dated 06.05.2022 passed by the learned Single Judge, whereby W.P. (C)/338(AP)/20221 preferred by the present appellant was dismissed. (II) The said writ petition was preferred by the present appellant assailing transfer order dated 20.10.2021 issued by the Secretary, RWD transferring the appellant/petitioner from Sagalee RWD Division to Pakke-Kessang. 2. Ground of challenge urged before the learned Single Judge: (I) The impugned transfer and posting order, transferring the petitioner from Sagalee RWD Division to Pakke Kessang and posting the respondent No. 4 at Pakke Kessang was done, not in any exigencies of services but only to accommodate the respondent No. 4, on the recommendation of local MLA/Ex-Chief Minister, the respondent No. 5. (II) No independent mind was applied by the respondent authority and issued the transfer order at the dictate of the local MLA ignoring the fact that different works of public importance were pending and was under supervision of the appellant petitioner and for the reason of the transfer, said projects of public importance would suffer a serious set back. (III) The transfer order impugned is actuated by malice inasmuch as whole process was initiated only to accommodate the respondent No. 4 at the behest of the local MLA/Ex-Chief Minister. Therefore, there was no exigency of services to transfer out the petitioner. (IV) Though, the competent authority expressed its opinion and suggested to initiate the transfer process only after 31.03.2021 but due to pressure created by the local MLA/Ex-Chief Minister such opinion of the authority was also ignored. (V) The respondent No. 4, had even not completed his tenure at Pakke Kessang Division. (IV) Though, the competent authority expressed its opinion and suggested to initiate the transfer process only after 31.03.2021 but due to pressure created by the local MLA/Ex-Chief Minister such opinion of the authority was also ignored. (V) The respondent No. 4, had even not completed his tenure at Pakke Kessang Division. (VI) By filling affidavit-in-reply, the appellant petitioner introduced a new ground of challenge to the effect that the respondent No. 4 was transferred and posted at Pakke Kessang Division as Executive Engineer in functional basis as stop gap arrangement and his substantive post is an Assistant Engineer drawing pay Scale and Salary of Assistant Engineer and therefore, the respondent No. 4 could not have been transferred and posted against a post meant for cadre of Executive Engineer. A functional Executive Engineer could not have been transferred and posted wherein an Executive Engineer is working. 3. Stand of the State respondents before the learned Single Judge: (I) The petitioner was appointed as Assistant Engineer on 04.02.2000 and was posted at Sagalee Division on 01.11.2002 and since then the petitioner has been posted at Sagalee continuously for last 19 years till his transfer to Pakke Kessang. (II) Though the petitioner was sought to be transferred from Sagalee earlier in 2015 and 2016 but said orders could not be implemented for the request from Zilla Parishad Members and such request of Zilla Parishad Member was endorsed by then Hon’ble Chief Minister/the present MLA/respondent No. 5. (III) The petitioner was appointed as Executive Engineer on officiating basis on 01.03.2017. Therefore, the petitioner has misled and made false statement that he has been promoted to the post of Executive Engineer. (IV) By way of the transfer order, no prejudice has been caused to the petitioner inasmuch as petitioner has already overstayed at Sagalee Division in derogation of prescribed tenure of two years under transfer policy. (V) The MLA of the concerned area being the elected representative of the public, has every right to request the competent authority for transfer and posting of government servant and such recommendation, shall not, ipso facto make the transfer order illegal unless prejudice is caused to the petitioner or the same changes the status and position of the petitioner. (VI) The transfer and posting is an incidence of service and the petitioner is not having vested right to continue at Sagalee Division. 4. (VI) The transfer and posting is an incidence of service and the petitioner is not having vested right to continue at Sagalee Division. 4. Stand of the respondent No. 4 before the Learned Single Judge: (I) Similar stand to that of the State respondents were taken by the respondent No. 4, with an additional stand that two years tenure in a particular place of posting is prescribed to ensure that no government servant develops any vested interest by staying beyond two years of tenure and such tenure of two years is not applicable in case of transfer and posting of government servant before the expiry of normal tenure. (II) The respondent No. 4 has raised an issue of suppression of material facts by the petitioner, which shall be dealt in later part of this judgment. 5. Decisions and Reason of the learned Single Judge: (I) The petitioner was allowed to continue in the Division in one capacity or other since 01.11.2002. (II) He was retained on the basis of endorsement dated 08.05.2015 of respondent No. 5 i.e. local MLA/Ex Chief Minister at Sagalee and subsequently on the basis of endorsement dated 21.08.2016. (III) He was allowed to hold the post of Executive Engineer on officiating basis on the recommendation of the said MLAL/Ex Chief Minister/respondent No. 5. (IV) The petitioner suppresses material fact as indicated at paragraph 16 of the judgment. (V) The posts of Executive Engineer, functional and/or officiating, do not carry any separate meaning rather the same has been interchangeably used. (VI) Both the petitioner and the respondent No. 4 were holding substantive post of Assistant Engineer in RWD, though petitioner was allowed to hold the post of Executive Engineer on officiating basis and the respondent No. 4 on functional basis. (VII) The petitioner has disobeyed government order of transfer with impunity. Even when no interim order staying the impugned transfer order was passed, the petitioner continued in his post. (VIII) The petitioner has failed to demonstrate that the transfer order was vitiated by malice in law or that it was issued in aberration of any service rule or statutory provision. (IX) The petitioner cannot be said to be an aggrieved person inasmuch as one Engineer K. Rina or Engineer Liwang Lowang could have been aggrieved as they were proposed to be posted at Sagalee. 6. Submission of Mr. (IX) The petitioner cannot be said to be an aggrieved person inasmuch as one Engineer K. Rina or Engineer Liwang Lowang could have been aggrieved as they were proposed to be posted at Sagalee. 6. Submission of Mr. D. Mazumdar, learned Senior Counsel for the appellant in the present proceeding: (I) The impugned order of transfer is vitiated by mala-fide. The transfer order has been issued on the dictate of the Ex-Chief Minister/local MLA, though the impugned order of transfer was issued under the signature of the Secretary to the Department. However, the learned Single Judge failed to appreciate such position. (II) The power to issue transfer order is vested upon the Secretary and the Secretary is to apply its own mind to the exigencies of services and need of the department. However, independent application of mind of the said authority is not discernable and what is discernable is that the impugned order has been issued as desired by the MLA/Ex-Chief Minister. In support of such submission Mr. Mazumdar, learned Senior Counsel relies on the judgment of the Hon’ble Apex Court in Purtabpore Co. Ltd. vs. Cane Commissioner of Bihar, 1969 (1) SCC 308 and Dolang Akom vs. State of Arunachal Pradesh, 2016 (3) GLT 404. (III) The petitioner was officiating as Executive Engineer with Scales of Pay of an Executive Engineer though his substantive post is Assistant Executive Engineer. The respondent No. 4 is only functioning as Executive Engineer with Scales of Pay of an Assistant Executive Engineer. Therefore, the respondent No. 4 is holding a subordinate post and therefore, the petitioner could not have been replaced by respondent No. 4. (IV) A learned Single Judge of this Court in W.P. (C) No. 257(AP)/2016, Shri Niapung Konia vs. State of Arunachal Pradesh and Another, while dealing with a similar situation held that when there is a case of inter-se transfer, the transfer is to be carried out within the member of the same cadre and accordingly transfer and posting order wherein the respondent No. 4, an Assistant Executive Engineer was allowed to hold the charge of Executive Engineer, need to be interfered with. In support of such contention, Mr. Mazumdar, learned Senior Counsel also relies on the judgment of Hon’ble Single Bench in Hibu Tama vs. State of Arunachal Pradesh, 2020 (4) GLT 403, in which the principle laid down Shri Niapung Konia (supra) was followed. In support of such contention, Mr. Mazumdar, learned Senior Counsel also relies on the judgment of Hon’ble Single Bench in Hibu Tama vs. State of Arunachal Pradesh, 2020 (4) GLT 403, in which the principle laid down Shri Niapung Konia (supra) was followed. (V) Though, the petitioner stated himself to be an Executive Engineer that cannot be said to be misleading the Court or be treated as suppression of material fact inasmuch as such statement will not give any benefit to the petitioner and the fact remains that the petitioner’s promotion on officiating basis was available before the learned Single Judge and such fact was not withdrawn or suppressed by the petitioner. 7. Submission of Mr. I. Choudhury, learned Senior Counsel for the respondent No. 4 in the present proceeding: (I) The petitioner having posted at Sagalee RWD Division for last 19 years, cannot have any vested right to be continued at the same place. The transfer being an incidence of service, the Government has ample power to transfer one person from one place to another in exigencies of services. Such order of transfer is open to judicial review, only if the same is not issued in the interest of public service or issued in violation of any statutory provision or the order suffers from vice of mala-fide or passed by any authority who is not competent to pass such order or it affects the service condition, submits the learned Senior Counsel. (II) None of the aforesaid is established in the present case and therefore, this is not a fit case for interference with the order of transfer and the writ petition has rightly been dismissed. (III) Merely because the local MLA requested the concerned official to transfer the respondent No. 4 to Sagalee, the said request ipso facto will not constitute mala-fide as the MLA is the people’s elected representative inasmuch as the petitioner appellant is also a beneficiary of such kind of request. In support of the aforesaid contention, Mr. Choudhury relies upon the decision of the Hon’ble Apex Court in Md. Masood Ahmad vs. State of U.P. 2007 (8) SCC 150 and Kalyan Kr. Sarkar vs. Alok Kanti Paul Choudhury, 2006 (3) GLT 624. (IV) Explaining the ratio in Shri Niapung Konia (supra), Mr. In support of the aforesaid contention, Mr. Choudhury relies upon the decision of the Hon’ble Apex Court in Md. Masood Ahmad vs. State of U.P. 2007 (8) SCC 150 and Kalyan Kr. Sarkar vs. Alok Kanti Paul Choudhury, 2006 (3) GLT 624. (IV) Explaining the ratio in Shri Niapung Konia (supra), Mr. Choudhury submits that in the said case, the person who was sought to be transferred out was holding a substantive post of Executive Engineer and the person who was to replace was holding a substantive post of Assistant Engineer. In that background, the aforesaid judgment was passed and the said ratio is not applicable in fact of the present case, submits Mr. Choudhury, learned Senior Counsel. (V) He further submits that in the case in hand, the substantive appointment of both the appellant petitioner and the respondent No. 4 is Assistant Engineer and both are posted as Executive Engineer on officiating and on functional basis respectively and therefore, the ratio in Shri Niapung Konia (supra) and in Hibu Tama (supra) are not applicable in the present case. 8. Submission of Mr. G. Tarak, learned Standing Counsel for the respondent Nos. 1 to 3 in the present proceeding: (I) While adopting the argument advanced by the learned Senior Counsel Mr. I. Choudhury, Mr. Tarak submits that consideration of the request of the local MLA cannot be treated as mala-fide action. He submits that the office note annexed with the affidavit-inopposition clearly reveals that after request of the local MLA, the competent authority applied their mind and considered the name of three persons along with the respondent No. 4, including the case of the petitioner and on the basis of such exercise the impugned order was issued. (II) The petitioner cannot be allowed to continue at Sagalee for unlimited years inasmuch as the petitioner cannot have any right to claim that he cannot be replaced by another person subordinate to him until and unless his service condition is not changed by way of the transfer order. 9. Findings of the Court: (I) The Hon’ble Apex Court in State of U.P. vs. Gobardhan Lal, 2004 (11) SCC 420 held that a Government servant has no vested right to be posted at a place of his choice nor can he insist that he must be posted at one place or the other. 9. Findings of the Court: (I) The Hon’ble Apex Court in State of U.P. vs. Gobardhan Lal, 2004 (11) SCC 420 held that a Government servant has no vested right to be 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 other. It was further 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 absence of any specific indication to the contrary. (II) In Shilpi Bose vs. State of Bihar, 1991 (Supp.) 2 SCC 659 the Hon’ble Apex Court at paragraph-4 held as under: “4. In our opinion, the Courts should not interfere with a transfer Order which are 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 over looked these aspects in interfering with the transfer Orders.” (III) In Md. Masood Ahmad (supra), the Hon’ble Apex court dealing with a transfer order issued on the basis of complain and recommendation of MLA, held that even if the transfer order under challenge was issued on the recommendation of an MLA, that by itself would not vitiate the transfer order. It was further held that there can be no hard and fast rule that every transfer order at the instance of an MP or MLA would be vitiated. (IV) This Court in Kalyan Kr. It was further held that there can be no hard and fast rule that every transfer order at the instance of an MP or MLA would be vitiated. (IV) This Court in Kalyan Kr. Sarkar (Supra), held that writ court can exercise its power of judicial review under Article 226 of the constitution of India only when the persons seeking such writ establishes that his fundamental or other legal rights has been infringed. It is further held that merely for the reason that one Minister of a different department is approached by a person, who in turn may have requested the departmental Minister to look into the matter, will not ipso facto constitute mala-fide as the Minister is the elected representative of the people. (V) In the backdrop of the aforesaid judicial pronouncement, now let us examine the allegation of mala-fide. (VI) It is undisputed that the local MLA/Ex-Chief Minister requested posting of respondent No. 4 to Sagalee for the reason that the petitioner has completed his normal tenure as Executive Engineer in Sagalee. He also opined that the transfer of respondent No. 4 be made in the greater interest of public service. The record also reveals that there were request from District President of rulling political party for posting one Er.K. Rina from Miao to Sagalee. On the basis of such requests, a note was prepared with certain opinion touching merit of claim of each of the incumbents and finally it was proposed that the petitioner be posted at Miao in place of one Kardo Rina and Kardo Rina be posted at Sagalee. The record further reveals that the issue before the authority was, whether the respondent No. 4 can be posted at Sagalee as he has not completed his tenure at Pakke Kessang to post Kardo Rina who has completed his service at Miao. Therefore, it was clear that transfer of petitioner was obvious as he has completed his tenure. The issue before the competent authority was whether to post the respondent No. 4 at Sagalee or post Kardo Rina at Sagalee. Finally, the authority posted the respondent No. 4 at Sagalee. Therefore, it was clear that transfer of petitioner was obvious as he has completed his tenure. The issue before the competent authority was whether to post the respondent No. 4 at Sagalee or post Kardo Rina at Sagalee. Finally, the authority posted the respondent No. 4 at Sagalee. (VII) In the aforesaid factual matrix, the considered opinion of this Court is that the respondent authorities are at liberty to take such a decision and the petitioner cannot be an aggrieved person of such decision in as much as his transfer from Sagalee was an concluded decision as he had completed his tenure at Sagalee. The aforesaid background also reveals that though there was a request from the MLA, the competent authority applied their mind, assessed the position of three incumbents and passed the order. (VIII) It is difficult for a writ court to go into such niceties of the administrative exigencies inasmuch as scope of judicial review is very limited while scrutinizing matter of transfer. The authority has decided that the petitioner has already completed his tenure and he needs to be transferred out. Such satisfaction cannot be interfered under the power of judicial review and in view of settled proposition of law as discussed hereinabove. (IX) The claim of the respondent of his competence and effect of his transfer on such pending work cannot be decided by this Court in exercise of its power of judicial review, while making a judicial review of a transfer order. The ratio laid down in Cane Commissioner (Supra) and Dolam Akong (supra) are not applicable in the present case for the reason that in both the cases the authorities were exercising a statutory power and the same were interfered by the political executives. And same is not the case in the present proceeding. For the aforesaid reasons, the transfer order cannot be said to be actuated by mala-fide. (X) The argument of Mr. Mazumdar, learned Senior Counsel that the petitioner could not have been replaced by a subordinate officer and the proposition of law in Shri Niapung Konia (supra) and in Hibu Tama (supra), is also misplaced both in terms of fact and law. Admittedly, the substantive post of the petitioner is Assistant Engineer and he is officiating as Executive Engineer and the substantive post of the respondent No. 4 is Assistant Engineer and he is functioning as Executive Engineer. Admittedly, the substantive post of the petitioner is Assistant Engineer and he is officiating as Executive Engineer and the substantive post of the respondent No. 4 is Assistant Engineer and he is functioning as Executive Engineer. That being the position, the ratio of the aforesaid two judgments are not applicable in the present case inasmuch as in Shri Niapung Konia (supra), the ratio laid down by the learned Single Judge was that the post of Assistant Engineer is subordinate to the post of Executive Engineer and therefore, the Executive Engineer could not have been replaced by one Assistant Engineer. Further the proposition of law pronounced in Shri Niapung Konia (supra), that in case of inter-se transfer, the transfer is to be carried out within the member of the same cadre is also not applicable in the present case inasmuch as such proposition will depend upon facts and circumstances of each case and cannot be an absolute proposition. In view of the aforesaid, we do not find any merit in such argument of learned Senior Counsel. (XI) Since this Court has decided the issues on merit, therefore, this Court is not inclined to adjudicate or to comment on the issue of suppression of material facts. (XII) Though the issue before the learned Single Judge was the validity and legality of the transfer order impugned, however, the learned Single Judge has issued certain direction beyond the scope of the litigation by directing the state to hold DPC within a period of three months for considering promotion from feeder post of Assistant Engineer in RWD to the promotional post of Executive Engineer and alternatively, if promotions are to be made by the Public Service Commission, the Government was directed to move APPSC to hold selection process and it was further directed that till such time DPC is held, the State to keep in abeyance any officiating/functional/ad-hoc promotion to the post of Executive Engineer. (XIII) Such observation and direction, in the considered opinion of this Court, was beyond the scope of the writ petition inasmuch as it is settled proposition of law that transfer and posting should be left at the wisdom of the employer subject to judicious exercise of such power. (XIII) Such observation and direction, in the considered opinion of this Court, was beyond the scope of the writ petition inasmuch as it is settled proposition of law that transfer and posting should be left at the wisdom of the employer subject to judicious exercise of such power. So far relating to the promotion and holding DPC, same should also be left the discretion of the State and until and unless such decision/exercise of discretion are brought before this Court, this Court should refrain from issuing such direction, more so without the state being given an opportunity to place their position in not holding DPC and allowing Assistant Engineer to officiate/function as Executive Engineer. Accordingly, we interfere with this part of decision of the learned Single Judge, directing the State to hold DPC and the direction not to post any officiating/functional/ad-hoc Executive Engineer to the post of Executive Engineer. 10. Accordingly, this writ appeal is dismissed and the order of the learned Single Judge is modified to the extent as indicated above. Interim order passed earlier stands vacated.