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2025 DIGILAW 818 (GAU)

Mori Riba, Son of Late Tamo Riba v. State of AP

2025-05-19

SANJAY KUMAR MEDHI

body2025
JUDGMENT : SANJAY KUMAR MEDHI, J. The instant writ petition under Article 226 of the Constitution of India has been filed challenging inter alia an order of transfer dated 24.12.2024 and a subsequent speaking order dated 21.02.2025 whereby the representation of the petitioner has been rejected. 2. The case in hand has a chequered history. 3. The petitioner herein claims to be a Selection Grade Officer in the Arunachal Pradesh Forest Office, currently holding the post of Deputy Conservator of Forest (DCF). Pursuant to an order dated 14.02.2024, the petitioner was transferred from the Office of the Divisional Forest Officer (DFO), Mehau, to the Office of the DFO, Sagalee, where he duly joined his new place of posting at Sagalee. Subsequently, by an order dated 08.11.2024, the petitioner was again transferred from Sagalee Forest Division to Banderdewa Forest Division. The petitioner claims to have joined at his new place of posting at Banderdewa on 13.12.2024. However, vide the impugned order dated 24.12.2024, the earlier order was modified and the petitioner was directed to be retained at his previous posting in Sagalee. By the said order, the respondent No. 3, at Sl. No. 15, was transferred to Banderdewa. Further, at Sl. No. 19, it was clarified that the said respondent No. 3 would join the post at Banderdewa after retirement of the incumbent holding the post, namely, one Shri T. T. Toppu, who was scheduled to superannuate on 28.02.2025. The petitioner, being aggrieved by the aforesaid move, had submitted a representation on 31.12.2024 followed by approaching this Court for the first time by filing WP(C) No. 58(AP)/2025. This Court, vide Order dated 05.02.2025, while issuing notice, had passed an order of status quo. The aforesaid writ petition had come up for further consideration on 14.02.2025 when the same was disposed of by directing consideration and disposal of the representation. This Court had however observed that till such disposal, the order of status quo would be maintained. Pursuant thereto, vide the second impugned order dated 21.02.2025, the representation submitted by the petitioner was rejected. Hence, the instant writ petition has been filed. 4. I have heard Shri R. Saikia, learned counsel for the petitioner. I have also heard Shri R. H. Nabam, learned Additional Advocate General representing the official respondents. 5. Pursuant thereto, vide the second impugned order dated 21.02.2025, the representation submitted by the petitioner was rejected. Hence, the instant writ petition has been filed. 4. I have heard Shri R. Saikia, learned counsel for the petitioner. I have also heard Shri R. H. Nabam, learned Additional Advocate General representing the official respondents. 5. So far as the respondent No. 3 is concerned, the said respondent has chosen not to appear in spite of service and in this regard, this Court has taken into consideration the affidavit filed on 27.03.2025 as proof of Dasti service upon the said respondent No. 3. 6. Shri Saikia, the learned counsel for the petitioner, submits that the impugned order of transfer dated 24.12.2024 is in violation of statutory provisions governing service conditions and has been passed only to extend undue favour to the respondent No. 3. By drawing the attention of this Court to the Arunachal Pradesh Forest Service Rules, 2019 (in short, ‘Rule of 2019’), the learned counsel has referred to Rule 3(2) which lays down that there would be 4 (four) grades in the service. He further refers to Rule 2(h) which mandates the constitution of a Departmental Promotion Committee (DPC) for both promotion and confirmation in service. He has also referred to Rule 24, which provides that confirmation in service shall be undertaken by a duly constituted Departmental Promotion Committee in conformity with Rule 14 of the said Rules of 2019. Reference is also been made to Rule 5(ii), which lays down the method of recruitment as per which there is a quota of 50% by promotion and 50% by direct recruitment. He has contended that the Office at Banderdewa is to be headed by an Additional Deputy Conservator of Forest (ADCF) and in this regard, he has drawn the attention of this Court to the schedule of the post laid down in the said Rules. 7. Shri Saikia, learned counsel for the petitioner, further submitted that vide an order dated 09.03.2023, the respondent No. 3 was promoted from the post of Range Forest Officer (RFO) to Assistant Conservator of Forest (ACF) and the said promotion was for a probation of 2 (two) years which is to be followed by a confirmation of service. He has reiterated that such confirmation would be done as per Rule 24 read with Rule 14 of the aforesaid Rules of 2019. He has reiterated that such confirmation would be done as per Rule 24 read with Rule 14 of the aforesaid Rules of 2019. He has submitted that as on the date of issuance of impugned order dated 24.12.2024, respondent No. 3 was still in the probation period as an ACF which is otherwise also lower in grade to the post of DCF held by the petitioner. He further submitted that taking cognizance of such procedural and substantive irregularities, this Court in the first round of litigation had initially passed an order of status quo which was continued by the final order dated 14.02.2025, while directing the respondent authorities to dispose of the petitioner’s representation in accordance with law. 8. Shri Saikia, learned counsel for the petitioner, has been critical about the order dated 21.02.2025 by which the representation of the petitioner has been disposed of. He has submitted that the order is cryptic and apart from laying down the facts which led to the aspect of consideration and disposal of the representation, no discernible reasons have been cited for such disposal. He further points out that in the said order, a decision of the High Court of Madras has been taken into consideration in which it has been laid down that when 2 (two) posts are considered equally under the Rules, an employee cannot demand a specific position as their right or personal preference. In the said order, a case of the Hon’ble Supreme Court has also been referred wherein it has been held that the employees do not have a fundamental right to request for transfer and that government employees cannot demand a posting of their choice. 9. Shri Saikia, the learned counsel, has submitted that neither of the ratios would be applicable in the instant case which is on different footing altogether. Shri Saikia, the learned counsel, accordingly submits that the impugned action is liable to be interfered with and his client be permitted to serve at his place of posting in the Office of the DFO, Banderdewa. 10. Per contra, Shri Nabam, the learned Additional Advocate General, has strenuously opposed the writ petition. Shri Saikia, the learned counsel, accordingly submits that the impugned action is liable to be interfered with and his client be permitted to serve at his place of posting in the Office of the DFO, Banderdewa. 10. Per contra, Shri Nabam, the learned Additional Advocate General, has strenuously opposed the writ petition. He has firstly submitted that in matters concerning transfers, the scope of interference is very limited and unless there is apparent violation of the statute or apparent mala fide involved in such transfer, those are not be interfered with by a Court as the aforesaid action of transfer would fall within the domain of the executive as it is the best judge as to how to utilize the service of the employees. 11. The learned State Counsel, while addressing the factual matrix of the case, has submitted that though the order dated 21.02.2025, by which the petitioner’s representation was disposed of, may not be a very elaborate order, there are bona fide reasons for which the order dated 24.12.2024 was passed. Firstly, he has submitted that the petitioner had joined the Office of the DFO, Sagalee only on 14.02.2024 and within a span of 9 (nine) months, he was again transferred to the Office of the DFO, Banderdewa vide order dated 08.11.2024. The learned State Counsel had also initially disputed the aspect that the petitioner had indeed joined at Banderdewa. He has submitted that the impugned order dated 24.12.2024 would make it clear that the petitioner was retained at Sagalee and therefore there would not have been an occasion for him to join at Banderdewa. To buttress the said point, the learned State Counsel has also submitted that it was not possible for the petitioner to join at his post at Banderdewa on 13.12.2024, as claimed, as the incumbent, in place of whom the petitioner was to join, was scheduled to retire only on 28.02.2025. He submits that the aforesaid aspect has been clarified in the impugned order dated 24.12.2024 whereby it has been stipulated that the respondent No. 3, who has been transferred to Banderdewa, would join only after retirement of the earlier incumbent, namely Shri T. T. Toppu, on 28.02.2025. 12. He submits that the aforesaid aspect has been clarified in the impugned order dated 24.12.2024 whereby it has been stipulated that the respondent No. 3, who has been transferred to Banderdewa, would join only after retirement of the earlier incumbent, namely Shri T. T. Toppu, on 28.02.2025. 12. With regard to the status of the services of the petitioner, vis-a-vis the respondent No. 3, the learned State Counsel has submitted that though it is a matter of fact that the promotional order dated 09.02.2023 of the respondent No. 3 from RFO to ACF was on probation for 2 (two) years, the aforesaid period of 2 (two) years was over on 08.02.2025 and therefore there was no obstacle or bar for the respondent No. 3 to join the post at Banderdewa on 28.02.2025. He has also submitted that though the schedule of post as per the Rules of 2019 stipulates that the Office at Banderdewa is to be headed by an Additional Deputy Conservator of Forest, for exigency of service, an officer who is in the cadre of ACF can also be appointed, which has been done in the instant case. He has also submitted that both the incumbents are presently working in the respective places and otherwise also the impugned order of transfer is not liable to be interfered with. The learned State Counsel has placed before this Court the records of the case in original. Shri Nabam, learned Additional Advocate General, has however very fairly pointed out that though initially he has submitted that there was doubt on the aspect of joining of the petitioner at Banderdewa, the records would however indicate that he had submitted a joining report. 13. Shri Saikia, learned counsel for the petitioner, in his rejoinder, has submitted that the contention advanced by the State that the incumbent Shri T.T. Toppu was holding the post for which the petitioner could not have joined at Banderdewa is incorrect inasmuch as the initial order of transfer dated 08.11.2024 itself had stipulated that the said incumbent Shri T. T. Toppu was attached to the Office of the CCF, WAC. Since the learned Additional Advocate General had also raised an issue questioning whether the petitioner was actually holding a post in the Selection Grade, Shri Saikia, the learned counsel for the petitioner, has drawn the attention of this Court to the Annexure No. 5 to the writ petition, which contains a list of officers earmarked to be eligible for promotion to the Administrative Grade and in the said list, the name of the petitioner also figures. He has immediately drawn the attention of this Court to Rule 3(2) of the Rules of 2019 which lays down 4 (four) cadres to buttress the aforesaid point. Reference is also been made to Rule 33(2) of the Rules of 2019, wherein it has been laid down that only Selection Grade Officers would be eligible for promotion to the Administrative Grade. He has also referred to Rule 31(i) of the Rules of 2019, whereby another stipulation is laid down that an incumbent should serve 5 (five) years as Entry Grade to be appointed in the Arunachal Pradesh Forest Service (Senior Grade). 14. The rival contentions advanced by the learned counsels for the parties have been duly considered and the materials placed before this Court including the original records have been carefully perused. 15. Before going to the issue which requires a determination of certain fact which are not disputed are required to be placed on record. 16. As indicated above, the petitioner was transferred to Sagalee Forest Division vide order dated 14.02.2025 and by a subsequent order dated 18.11.2024, he was again transferred from Sagalee Forest Division to Banderdewa Forest Division and the petitioner claims that on 13.12.2024, he had joined at Banderdewa. Since an issue was raised on the aspect as to whether the petitioner had joined at Banderdewa, the records have been perused and as have fairly pointed out by the learned Additional Advocate General, the records would indicate that the petitioner had indeed submitted his joining report on 13.12.2024. This brings this Court to the aspect as to whether such joining was possible inasmuch as the incumbent in whose place the petitioner was to join was to retire only on 28.02.2025. The said aspect stands answered by the order dated 08.11.2024 itself as per which the said incumbent Shri T. T. Toppu was attached to the Office of the CCF, WAC. The said aspect stands answered by the order dated 08.11.2024 itself as per which the said incumbent Shri T. T. Toppu was attached to the Office of the CCF, WAC. This Court has perused the original records and there is a noting that such arrangement was made only taking into consideration that the said incumbent Shri T. T. Toppu was on the verge of his retirement, which was on 28.02.2025. Therefore, this Court finds that there could not have been any reason for the petitioner for not being able to join at Banderdewa on 13.12.2024, as claimed by the learned AAG. 17. The initial writ petition, i.e. WP(C) No. 58(AP)/2025, was instituted on 05.02.2025, on which date, this Court was pleased to pass an order of status quo, which was continued till the final order dated 14.02.2025, with the stipulation that the same would remain in force till the representation is disposed of. This Court has also examined the order dated 21.02.2025 by which the representation has been disposed of. The grounds of challenge, as would be discernible from the representation dated 31.12.2024 and the pleadings in the writ petition are not the grounds which have been cited while rejecting the representation. While there is no dispute to the proposition of law that the transfer is an incidence of service and are not to be interfered with by a Court in exercise of judicial review unless there is violation of the statutory norms or mala fide, the grounds of challenge in the instant case were wholly different. Apart from the ground that such impugned transfer order dated 24.12.2024 was passed within a period of less than 2 (two) months, the same appears to have been passed only to accommodate the respondent No. 3. The perusal of the records would also make another startling revelation that the accommodation of the respondent No. 3 was only because of a representation made by the local MLA. While this Court is not averse to submitting of such representation by a public representative, the same are to be considered in the proper perspective and strictly in accordance with law and without prejudice to any other affected person. This Court would hasten to add that such prejudice has to be legal prejudice and not mere suffering of certain inconvenience. While this Court is not averse to submitting of such representation by a public representative, the same are to be considered in the proper perspective and strictly in accordance with law and without prejudice to any other affected person. This Court would hasten to add that such prejudice has to be legal prejudice and not mere suffering of certain inconvenience. In the instant case, the aspect that the petitioner had joined at Banderdewa on 13.12.2024, which is supported by the records, was totally ignored and the impugned order dated 24.12.2024 was simply passed by retaining him at Sagalee without assigning any proper justification. 18. So far as the contention advanced on behalf of the State that such arrangement had to be done by taking into account that one of the incumbents, who was posted at Banderdewa and scheduled to retire on 28.02.2025, is not acceptable by the Court as the same arrangement could have been maintained even by directing that the petitioner to join at Banderdewa on retirement of the aforesaid incumbent Shri T. T. Toppu. Furthermore, the order dated 08.11.2024 had taken this aspect into consideration and the incumbent was not as such transferred from the locality but was attached to another Office in Banderdewa itself which is the Office of the CCF, WAC. In any case, as on today, the said incumbent has retired from service and with effect from the said date, the post at Banderdewa has fallen vacant. 19. In the conspectus of the aforesaid discussion and also taking into account that the respondent No. 3 was not even in the cadre of the petitioner and the post where the petitioner was transferred vide order dated 08.11.2024 is not in the cadre where the respondent No. 3 is performing, namely, Assistant Conservator of Forest (ACF), this Court is of the considered opinion that the impugned action of the respondent authorities is unsustainable in the eye of law. In this connection, reference may be made to a judgment of this Court passed in the case of Hibu Tama Vs. The State of AP & Anr reported in (2021) 1 GLR 449 wherein in a similar circumstance the transfer order was found illegal and interfered with. In this connection, reference may be made to a judgment of this Court passed in the case of Hibu Tama Vs. The State of AP & Anr reported in (2021) 1 GLR 449 wherein in a similar circumstance the transfer order was found illegal and interfered with. It is to be mentioned that in the aforesaid case of Hibu Tama (supra), reference to many earlier cases were made including the order dated 28.09.2016, passed in WP(C) No. 257(AP)/2026 (Shri Niapung Konia Vs. State of Arunachal Pradesh & Ors.) 20. In view of the aforesaid discussions, the writ petition is allowed and the impugned orders dated 24.12.2024 & 21.02.2025 are set aside. Consequently, the respondent authorities are hereby directed to allow the petitioner to discharge his duties in the Office of the Divisional Forest Officer (DFO), Banderdewa, in accordance with law. 21. The writ petition is accordingly disposed of. 22. The original records are handed over back to the learned Additional Advocate General.