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2022 DIGILAW 98 (MAN)

N. Sadananda Singh v. State of Manipur

2022-06-06

M.V.MURALIDARAN

body2022
JUDGMENT 1. This writ petition has been filed to quash the impugned transfer and posting order dated 31.12.2021 issued by the second respondent and to direct the respondents to review/cancel the impugned transfer order and also to consider the dispose of the representation of the petitioner dated 3.1.2022 by a speaking order. 2. Heard Mr. M. Hemachandra, learned senior counsel for the petitioner; Mr. H. Debendra, learned Government Advocate for the respondents 1 and 2 and Mr. Kh.Tarunkumar, learned counsel for the third respondent. 3. The case of the petitioner is that he was initially appointed as Sub-Inspector (Legal) and posted at CID (Crime Branch), Manipur and subsequently, transferred and posted at Imphal West District Police. Thereafter, the petitioner was promoted to the post of Inspector of Police in December, 2009 and posted at 8th IRB attached with Imphal West District Police and thereafter, he was posted at Imphal East and then Bishnupur District Police as OC/CDO Unit, Bishnupur in the year 2014. In the same year 2014, the petitioner was posted at Imphal East District Police. In 2017, as OC/CDO, Thoubal District Police and thereafter, he was posted as in-charge of Special CDO Unit, Khabeisoi. 4. Further case of the petitioner is that to the utter shock, the second respondent issued the impugned transfer order dated 312.2021 transferring the petitioner from in-charge of Special CDO to 8th IRB which is full of bias. Therefore, the impugned transfer order is liable to be cancelled as the same is bad in law and abuse of good office of the respondents in respect of the transfer and posting of an employee working under the respondent Government. 5. The petitioner stated that the Superintendent of Police, Thoubal District vide order dated 3.1.2022 stated that the petitioner attached with Special CDO Unit Camp at 7th MR, Khabesishoi had joined at DHO, Thoubal on 3.1.2022 FN as OC-CDO Unit, Thoubal on transfer. 6. According to the petitioner, the impugned order dated 31.12.2021 was issued under the political pressure of the Minister/MLA under the undue pressure of the third respondent so as to get the political benefit of the political boss. Therefore, the impugned transfer order is tainted with full bias and therefore, the same is liable to be quashed. 7. 6. According to the petitioner, the impugned order dated 31.12.2021 was issued under the political pressure of the Minister/MLA under the undue pressure of the third respondent so as to get the political benefit of the political boss. Therefore, the impugned transfer order is tainted with full bias and therefore, the same is liable to be quashed. 7. The second respondent filed counter stating that the transfer and posting is a condition of service and there is no malafide or arbitrariness in the impugned transfer and posting order. Since the petitioner belong to State security force, such transfer and posting order is issued as per the exigency of service in order to maintain law and order situation in the State. It is stated that the recent transfer and posting of Inspector of Police was made in connection with the ensuing 12th Legislative Assembly Election of the State. Since the writ petition is devoid of merits, the same is liable to be dismissed. 8. The third respondent filed counter stating that the allegation of the petitioner that the impugned order 31.12.2021 is an outcome of the malafide exercise of power in an arbitrary manner is without any basis and foundation for the reason that the petitioner failed to identify the person against whom the malafide is alleged. He would submit that the person against whom malafide is alleged must also be impleaded as party so that he gets an opportunity to controvert such allegation. But, for drawing such inference, there must be firm foundational facts pleaded and established. 9. It is stated that if the order dated 31.12.2021 was brought to the knowledge of the concerned authority in time, the order dated 3.1.2022 would not have been issued and the order dated 31.12.2021 reached the office of the Superintendent of Police, Thoubal very lately as the same was brought by way of normal service/day. It is also stated that by the impugned transfer order, the official status of the petitioner was not affected adversely and there is no infraction of any career prospect such as seniority, scale of pay and emoluments. Without impleading the Minister/MLA by name in the writ petition, the writ petition is not maintainable. The impugned transfer order does not suffer from the vice of malafide exercise of power and hence, the writ petition is liable to be dismissed. 10. Without impleading the Minister/MLA by name in the writ petition, the writ petition is not maintainable. The impugned transfer order does not suffer from the vice of malafide exercise of power and hence, the writ petition is liable to be dismissed. 10. When the writ petition is taken up for admission on 10.1.2022, this Court, while issuing notice, passed an interim order directing stay of operation of the impugned transfer order dated 31.12.2021 insofar as the petitioner and the third respondent are concerned. The third respondent filed M.C (WP) No.11 of 2022 to vacate the said interim order dated 10.1.2022. 11. Assailing the impugned order dated 31.12.2021, Mr. M. Hemchandra, the learned senior counsel for the petitioner submitted that the second respondent has passed the impugned order just after one day which is totally in violation of the Office Memorandum of the Department of P&AR. The impugned transfer and posting order is tainted with full of material irregularities, bias, malafide and non-application of mind and contrary to various conditions laid down in the Office Memorandum dated 21.7.1982 and also the transfer policy regulating the transfer and posting of the Government employees. 12. The learned senior counsel would submit that the impugned transfer and posting order was issued under the political pressure of the Minister/MLA under the undue pressure of the third respondent and therefore, the same is tainted with full of bias and liable to the set aside. 13. The learned senior counsel further submitted that the Office Memorandum issued by the respondent Government is only directory and not mandatory. However, the question arises as to what for such guidelines are not mandatory and that the guidelines are always guidelines and not like statutory rules. However, the respondent State itself framing the guidelines is bound to act within the parameters of the said guidelines with the justified exception. 14. The learned senior counsel next submitted that the guidelines for transfer of officers in the Office Memorandum may not have statutory force, but are checks against the arbitrary transfers and any deviation from the said guidelines may result in an arbitrary transfers. He would submit that the petitioner submitted a representation dated 3.1.2022 to review the impugned transfer order. However, the said representation has not been considered and disposed of till date. In support, the learned senior counsel relied upon the following decisions: (i) Kalyan Kr. He would submit that the petitioner submitted a representation dated 3.1.2022 to review the impugned transfer order. However, the said representation has not been considered and disposed of till date. In support, the learned senior counsel relied upon the following decisions: (i) Kalyan Kr. Sarkar v. Alok Kanti Paul Choudhury and others, 2006 (3) GLT 624. (ii) Mohd. Masood Ahmad v. State of UP and others, (2000) 8 SCC 150. (iii) Union of India and others v. Major S.P.Sharma and others, (2014) 6 SCC 351 . (iv) Prasanna Kumar Nath v. State of Assam and others, 2005 (4) GLT 348. (v) Bharat Singh and others v. State of Haryana and others, (1988) 4 SCC 534 . 15. Per contra, Mr. H. Debendra, the learned Government Advocate appearing for the respondent State submitted that the petitioner belongs to State security force and therefore, the impugned transfer and posting order is issued as per the exigency of service, especially in order to maintain the law and order situation in the State. Further the transfer and posting is a condition of service. He would submit that the transfer and posting order of the Inspector of Police was made in connection with the State Legislative Assembly Election and therefore, there is no malafide, ulterior motive and illegality in the transfer and posting order. 16. Mr. Kh. Tarunkumar, the learned counsel for the third respondent submitted that the petitioner has failed to implead the MLA/Minister as party respondent in the writ petition. The petitioner has to implead the said Minister/MLA under whose pressure the transfer and posting order was issued. He would submit that there is no specific pleading regarding the malafide exercise of power except a vague statement which is not permissible in law. 17. The learned counsel for the third Respondent further submitted that the impugned transfer order does not amount to frequent transfer and moreover, the said transfer order does not deprive any of the fundamental rights of the petitioner, including his seniority, salary and service position. 18. The learned counsel for the third respondent urged that the interim order dated 10.1.2022 has been complied with by the authorities and therefore, the writ petition has become infructuous. 18. The learned counsel for the third respondent urged that the interim order dated 10.1.2022 has been complied with by the authorities and therefore, the writ petition has become infructuous. He added that it is fundamental principle of law that a party who is in enjoyment of an interim order, is found to lose the benefit of such interim order when the ultimate outcome of the case goes against him. In support, the learned counsel placed reliance upon the following decisions: (i) Kalyan Kr. Sarkar v. Alok Kanti Paul Choudhury and others, 2006 (3) GLT 624. (ii) Rajendra Singh and others v. State of Uttar Pradesh and others, (2009) 15 SCC 178 . (iii) State of U.P. v. Gobardhon Lal, (2004) 11 SCC 402 . (iv) S.C. Saxena v. Union of India, (2006) 9 SCC 583 . (v) Chairman-cum-Managing Director, Fertilizer Corporation of India Ltd. v. Rajesh Chandra Shrivastava and others [Civil Appeal No.2260 of 2022 dated 7.4.2022]. 19. This Court considered the rival submissions raised and also perused the materials available on record. 20. The first and foremost contention of learned senior counsel for the petitioner is that the impugned transfer order dated 31.12.2021 was issued under the political pressure of Minister/MLA with the pressure of the third respondent. 21. On the other hand, by placing reliance upon the decision of the Gauhati High Court in the case of Kalyan Kr. Sarkar (supra), the learned counsel for the third respondent submitted that the petitioner has to implead the Minister/MLA under whose pressure the transfer order was issued. 22. In Kalyan Kr. Sarkar (supra), the Hon'ble First Bench of Gauhati High Court held as under: '9. ... The person against whom the malafide is alleged must also be impleaded as party so that he gets an opportunity to controvert such allegation. It is very easy to allege malafide than to prove. At the same time, it may not always be possible to demonstrate malice in fact with full and elaborate particulars and in appropriate case it may be permissible to draw reasonable inference of malafide from the facts pleaded and established. But for drawing such inference there must be firm foundational facts pleaded and established and such inference cannot be drawn on the basis of insinuations conjectures and surmises.' 23. In paragraph 11 of the writ petition, the petitioner stated as under: '11. But for drawing such inference there must be firm foundational facts pleaded and established and such inference cannot be drawn on the basis of insinuations conjectures and surmises.' 23. In paragraph 11 of the writ petition, the petitioner stated as under: '11. That, petitioner begs to submit that in the impugned transfer and posting order dated 31.1.20221 (AT ANNEXURE-A/4) was issued under the political pressure of the Minister's/Political MLA's under the undue pressure of the private respondent so as to get political benefit of the political boss, therefore, impugned transfer and posting order dated 31.12.2021 is tainted with full of bias, malafide and unreasonable, thus liable to be quashed and set aside.' 24. At this juncture, the learned senior counsel for the petitioner submitted that the impugned transfer and posting order mentioning public interest is not the public interest in real sense and it is a private interest. In fact, the transfer order was issued under political pressure in collusion with the third respondent so as to get the political benefit in the General Election, 2022. He would submit that in the scenario, the Election Commission of India vide order dated 20.1.2022 has approved the proposal of the Home Department to issue another transfer order on 21.1.2022 in public interest wherein the petitioner was again transferred and posted as OC/CDO, Thoubal Unit. In view of the above, the impugned transfer order suffers from illegalities. 25. The non-impleading of the Minister/MLA against whom the allegation of malafide and bias made by the petitioner is not fatal to the writ petition. The challenge is not made solely on the ground that under the pressure of the Minister/MLA, the impugned transfer order came to be passed. On the other hand, on a perusal of the records, this Court finds that the petitioner has been frequently transferred from one place to another without any justifiable reason. 26. According to the learned senior counsel for the petitioner, the Office Memorandam dated 24.7.1982, 24.4.1991 issued by the Commissioner (DP), Government of Manipur and the Office Memorandum dated 31.7.1996 issued the Chief Secretary and also the Office Memorandum dated 15.11.1996 issued by the Commissioner, Education (S), Government of Manipur, clearly provide various condition that 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. To controvert, the said contention of the petitioner, the respondent State has not produced any material. According to the learned Government Advocate, the transfer and posting of personnel of the State security force was made from time to time to control the law and order situation in the State. In the instant case, nothing has been produced by the respondent State to show that there is really law and order problem in the area where the petitioner is serving and therefore, the impugned transfer and posting was made. In the absence of any material produced by the respondent State, it can safely be concluded that the impugned transfer was made with full of bias. 27. The learned senior counsel for the petitioner vehemently submitted that the subsequent transfer order which has been passed just a day after issuance of the earlier transfer order has been done in an arbitrary manner and colourable exercise of power without any reason just to accommodate the third respondent. This Court finds force in the submission of the learned senior counsel for the petitioner. 28. It is trite law that order of transfer made in transgression or administrative guidelines cannot be interfered with by the High Court as they do not confer any legally enforceable rights unless the transfer order is shown to be vitiated by malafide or is made in violation of any statutory provision or issued by an incompetent person. 29. It is true that even if a transfer order is passed in violation of executive instruction or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authority in the Department. 30. In the instant case, on 3.1.2022, the petitioner has submitted a detailed representation to the Chief Secretary and the Director General of Police to review/cancel the impugned transfer order dated 31.12.2021. The said representation, admittedly, has not been considered by the said authorities till date. There is no convincing reason forthcoming from the side of the official respondents for non-consideration of the representation of the petitioner dated 3.1.2022 till date. 31. On 10.1.2022, this Court passed an interim order not to give effect of the impugned transfer order dated 31.12.2021 insofar as the petitioner and the third respondent till the next. Admittedly, the said interim order still continuing. The third respondent also filed petition to vacate the interim order dated 10.1.2022. 32. 31. On 10.1.2022, this Court passed an interim order not to give effect of the impugned transfer order dated 31.12.2021 insofar as the petitioner and the third respondent till the next. Admittedly, the said interim order still continuing. The third respondent also filed petition to vacate the interim order dated 10.1.2022. 32. It appears that during the pendency of the writ petition and the miscellaneous petition for vacating the interim order, the second respondent wrote a letter to the Chief Electoral Officer, Manipur whereby requested to accord permission to comply the interim order dated 10.1.2022 passed in the writ petition. Accordingly, after getting the approval from the Chief Electoral Officer, the second respondent issued the order dated 21.1.2022 transferring the petitioner from OC/CDO, Thoubal (under the order of transfer to 8-IRB) to OC/CDO, Thoubal and the third respondent from CDO, Thoubal (under the order of transfer to OC/CDO, Thoubal) to CDO, Thoubal with immediate effect in public interest. Pursuant to the order dated 21.1.2022, the petitioner had also submitted joining report on 22.1.2022. By the order dated 23.1.2022, the third respondent was directed to report to his new place of posting immediately. Pursuant to the order dated 23.1.2022, the third respondent submitted joining report on 31.1.2022. 33. It also appears that the challenging the order dated 21.1.2022, the third respondent filed W.P.(C) No.84 of 2022 and the said writ petition was subsequently withdrawn. Thus, pursuant to the interim order dated 10.1.2022, the second respondent issued an order dated 21.1.2022 as compliance to the interim order and accordingly, the petitioner joined the new place of posting i.e. OC/CDO, Thoubal on 22.1.2022 and the third respondent joined his new posting i.e. CDO, Thoubal on 31.1.2022. 34. Though the learned counsel for the third respondent submitted that the petitioner being a Government servant has no vested right to remain posted at one place or other of his own choice and he is liable to be transferred in the administrative exigencies from one place to the other, the same principle will apply to the third respondent, who is also a Government servant. 35. 35. In view of the subsequent development after passing the interim order dated 10.1.2022 and in view of the joining reports submitted by the petitioner and the third respondent, there is no alternative but to set aside the impugned order dated 31.12.2021 in respect of the petitioner and the third respondent since the petitioner joined the new place of posting i.e. OC/CDO, Thoubal on 22.1.2022 and the third respondent joined his new posting i.e. CDO, Thoubal on 31.1.2022. 36. 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 and Article 226 of the Constitution of India unless the Court finds that either the order is mala fide 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 Supreme Court in many number of cases. 37. Since the law is well settled and this Court has no quarrel over the proposition laid by the Hon'ble Supreme Court in the decisions cited by both parties, the same have not been elaborated upon further. 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 31.12.2021 issued by the second respondent in respect of the petitioner and the third respondent is set aside, as it amounts to frequent transfer. No costs.