Inspector And Posted At ... vs The State Of Manipur Represented ...
2022 Latest Caselaw 246 Mani

                                                                              Page |1

SHAMUR Digitally
         by
                 signed

AILATPA SHAMURAILATP
         AM SUSHIL
                                      IN THE HIGH COURT OF MANIPUR
                                                AT IMPHAL
M SUSHIL SHARMA
         Date: 2022.06.08
SHARMA 11:48:21 +05'30'                        W.P. (C) No. 17 of 2022


                      Shri N. Sadananda Singh, aged about 54 years, S/o. (L) N.

                      Ibohal Singh of Ningomthongjao Bazar, P.O. & P.S.

                      Singjamei, Imphal East District, Manipur, now working as

                      Inspector and posted at OC/CDO-TBL.


                                                                     ... PETITIONER
                                                       -Versus-


                 1.   The State of Manipur represented by the Chief Secretary

                      (Home), Government of Manipur, Office at Old Secretariat,

                      Babupara, P.O. & P.S.Imphal, Imphal West District, Manipur-

                      795001.


                 2.   The Director General of Police, Government of Manipur,

                      Office at Babupara, P.O. & P.S. Imphal, Imphal West District,

                      Manipur-795001.


                                                                  ....RESPONDENTS.

3. N. Tikendra Meitei, Inspector, CDO-TBl, C/o. The Director

General of Police, Government of Manipur, Office at

W.P.(C) No. 17 of 2022 Page |2

Babupara, P.O. & P.S. Imphal, Imphal West District,

Manipur-795001.

                                        ...PRIVATE RESPONDENT

                       BEFORE
       HON'BLE MR. JUSTICE M.V. MURALIDARAN

For the Petitioner/
Accused                       ::   Mr. M. Hemchandra, Sr. Adv.
                                   Mr. Juno Rahman, Adv.

For the Respondents           ::   Mr. H. Debendra, GA for
                                   R-1 and R-2;
                                   Mr. Kh. Tarunkumar, Adv.
                                   for R-3.

Date of Hearing and
Reserving Judgment & Order         ::     09.05.2022

Date of Judgment & Order           ::     06.06.2022.


                         JUDGMENT AND ORDER
                               (CAV)

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

W.P.(C) No. 17 of 2022 Page |3

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

W.P.(C) No. 17 of 2022 Page |4

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. 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

W.P.(C) No. 17 of 2022 Page |5

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

W.P.(C) No. 17 of 2022 Page |6

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.

W.P.(C) No. 17 of 2022 Page |7

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

W.P.(C) No. 17 of 2022 Page |8

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

(ii) Mohd. Masood Ahmad v. State of UP and others, (200&0 8 SCC 150.

(iii) Union of India and others v. Major S.P.Sharma and others, (2014) 6 SCC

(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

W.P.(C) No. 17 of 2022 Page |9

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. 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

W.P.(C) No. 17 of 2022 P a g e | 10

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

(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.

W.P.(C) No. 17 of 2022 P a g e | 11

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."

W.P.(C) No. 17 of 2022 P a g e | 12

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

W.P.(C) No. 17 of 2022 P a g e | 13

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

W.P.(C) No. 17 of 2022 P a g e | 14

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

W.P.(C) No. 17 of 2022 P a g e | 15

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.

W.P.(C) No. 17 of 2022 P a g e | 16

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

W.P.(C) No. 17 of 2022 P a g e | 17

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. 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

W.P.(C) No. 17 of 2022 P a g e | 18

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

W.P.(C) No. 17 of 2022 P a g e | 19

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.

JUDGE

FR/NFR Sushil

W.P.(C) No. 17 of 2022