Manipur High Court
Mayengbam Sanahal Meetei vs The State Of Manipur Represented ... on 2 November, 2022
1
Digitally signed
SHAMUR by
SHAMURAILATP
AILATPA AM SUSHIL
M SUSHIL SHARMA
Date:
SHARMA 2022.11.04
15:03:04 +05'30' IN THE HIGH COURT OF MANIPUR
AT IMPHAL
WP(C)No. 653 of 2022
Mayengbam Sanahal Meetei, aged about 47 years, S/o (L) M.
Nodia Meetei of Keirak Mayai Leikai, PO & PS Kakching, Kakching
District, Manipur.
....... Petitioner
- Versus -
1. The State of Manipur represented by the Additional Chief
Secretary (RD&PR), Government of Manipur, Office at
Secretariat, Babupara, PO & PS Imphal, Imphal West District,
Manipur-795001.
2. The Director, Rural Development & Panchayati Raj(RD& PR),
Government of Manipur, Office at Porompat DC Complex, PO
& PS, Porompat, Imphal East District, Manipur-795005.
3. Moirangthem Bikenjit Singh, C/o, The Director, Rural
Development & Panchayati Raj(RD& PR), Government of
WP(C) No. 653 of 2022 with MC(WP(C))No.293 of 2022 Page 1
2
Manipur, Office at Porompat DC Complext PO & PS Porompat,
Imphal East District, Manipur-795005.
.... Respondents
with
MC(WP(C))No.293 of 2022
Moirangthem Bikenjit
....... Applicant
- Versus -
The State of Manipur & 2 Ors.
.... Respondents
BEFORE
HON'BLE MR. JUSTICE M.V. MURALIDARAN
For the Petitioner : Mr. M. Hemchandra, Sr.Adv.
For the Respondents : Mr. H. Samarjit, GA for R1 &R2,
Mr. M. Rarry, Adv. for R3.
Date of Reserved : 29.09.2022
Date of order : 02.11.2022
WP(C) No. 653 of 2022 with MC(WP(C))No.293 of 2022 Page 2
JUDGMENT & ORDER
(CAV)
[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,
WP(C) No. 653 of 2022 with MC(WP(C))No.293 of 2022 Page 3
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-in-
opposition 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
WP(C) No. 653 of 2022 with MC(WP(C))No.293 of 2022 Page 4
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
WP(C) No. 653 of 2022 with MC(WP(C))No.293 of 2022 Page 5
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.
WP(C) No. 653 of 2022 with MC(WP(C))No.293 of 2022 Page 6
[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.
WP(C) No. 653 of 2022 with MC(WP(C))No.293 of 2022 Page 7
[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.
WP(C) No. 653 of 2022 with MC(WP(C))No.293 of 2022 Page 8
[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.
WP(C) No. 653 of 2022 with MC(WP(C))No.293 of 2022 Page 9
[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] 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
WP(C) No. 653 of 2022 with MC(WP(C))No.293 of 2022 Page 10
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
WP(C) No. 653 of 2022 with MC(WP(C))No.293 of 2022 Page 11
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] 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
WP(C) No. 653 of 2022 with MC(WP(C))No.293 of 2022 Page 12
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, 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
WP(C) No. 653 of 2022 with MC(WP(C))No.293 of 2022 Page 13
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)."
[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, 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
WP(C) No. 653 of 2022 with MC(WP(C))No.293 of 2022 Page 14
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. 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.
WP(C) No. 653 of 2022 with MC(WP(C))No.293 of 2022 Page 15
[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] 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:
WP(C) No. 653 of 2022 with MC(WP(C))No.293 of 2022 Page 16
" ... 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
WP(C) No. 653 of 2022 with MC(WP(C))No.293 of 2022 Page 17
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] In Union of India and others v. Major S.P. Sharma and others,
(2014) 6 SCC 351, 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."
WP(C) No. 653 of 2022 with MC(WP(C))No.293 of 2022 Page 18
[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] 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
WP(C) No. 653 of 2022 with MC(WP(C))No.293 of 2022 Page 19
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,
WP(C) No. 653 of 2022 with MC(WP(C))No.293 of 2022 Page 20
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.
WP(C) No. 653 of 2022 with MC(WP(C))No.293 of 2022 Page 21
(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.
JUDGE
FR/NFR
John Kom
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