Manipur High Court

Smt. Th. Lakhipriya Devi Aged About 58 ... vs The State Of Manipur Represented By The ... on 5 August, 2024

Author: A. Guneshwar Sharma

Bench: A. Guneshwar Sharma

JOHN      Digitally signed by
          JOHN TELEN KOM

TELEN KOM Date: 2024.08.05
          16:15:36 +05'30'




                                                                           reportable

                       IN THE HIGH COURT OF MANIPUR
                                           AT IMPHAL
                                      WP(C) No. 667 of 2023

                         Smt. Th. Lakhipriya Devi aged about 58 years, W/o Ibotombi
                         Namoijam a resident of Yaiskul Chingakham Leirak, Imphal West,
                         Manipur

                                                                 ...... Petitioner/s
                                                - Versus -

                 1.      The State of Manipur represented by the Additional Chief Secretary
                         (Social Welfare), Government of Manipur, New Secretariat
                         Building, P.O. & P.S. Imphal, Imphal West District, Manipur-
                         795001.
                 2.      The Joint Secretary (SW), Government of Manipur, New Secretariat
                         Building, P.O. & P.S. Imphal, Imphal West District, Manipur-
                         795001.
                                                         ........Official Respondents

3. Smt. Pratibha Khoyumthem, CDPO, ICDS Project, Chandel, C/o Director of Social Welfare, Government of Manipur, 2nd M.R. Gate, opposite to D.M. University, P.O. Imphal, P.S. City, Imphal East District, Manipur-795001.

........Private Respondent/s

Smt. Th. Lakhipriya Devi aged about 58 years, W/o Ibotombi Namoijam of Yaiskul Chingakham Leirak, Imphal West, Manipur.

...... Applicant/s

- Versus -

WP(C) No. 667 of 2023 with MC(WP(C) No. 267 of 2023 with MC(WP(C) No. 88 of 2024. Page 1

1. The State of Manipur represented by the Additional Chief Secretary (Social Welfare), Government of Manipur, New Secretariat Building, P.O. & P.S. Imphal, Imphal West District, Manipur- 795001.

2. The Joint Secretary (SW), Government of Manipur, New Secretariat Building, P.O. & P.S. Imphal, Imphal West District, Manipur- 795001.

3. Smt. Pratibha Khoyumthem, CDPO, ICDS Project, Chandel, C/o Director of Social Welfare, Government of Manipur, 2nd M.R. Gate, opposite to D.M. University, P.O. & P.S. Imphal, Imphal East District, Manipur-795001.

........ Respondent/s

1. The State of Manipur represented by the Additional Chief Secretary (Social Welfare), Government of Manipur, New Secretariat Building, P.O. & P.S. Imphal, Imphal West District, Manipur- 795001.

2. The Joint Secretary (SW), Government of Manipur, New Secretariat Building, P.O. & P.S. Imphal, Imphal West District, Manipur- 795001.

........Applicant/s Versus.

1. Smt. Th. Lakhipriya Devi aged about 58 years, W/o Ibotombi Namoijam of Yaiskul Chingakham Leirak, Imphal West, Manipur.

......Principal Respondent

2. Smt. Pratibha Khoyumthem, CDPO, ICDS Project, Chandel, C/o Director of Social Welfare, Government of Manipur, 2nd M.R. gate, opposite to D.M. University, P.O. & P.S. Imphal, Imphal East District, Manipur-795001.

........Proforma Respondent/s

WP(C) No. 667 of 2023 with MC(WP(C) No. 267 of 2023 with MC(WP(C) No. 88 of 2024. Page 2 B E F O R E HON'BLE MR. JUSTICE A. GUNESHWAR SHARMA

For the petitioner :: Mr. HS. Paonam, Sr. Adv., Mr. BR.

Sharma, Adv.

For the respondents :: Mr. M. Rarry, Adv., Ms. Nikita, Adv., Mrs. O. Momota Devi, Adv. & Ms. Merina, Adv.

      Date of Hearing                ::    13.03.2024
      Date of Order                  ::     05.08.2024

                           JUDGMENT & ORDER (CAV)


[1]              Heard Mr. HS. Paonam, learned senior counsel assisted by Mr.

BR. Sharma, learned counsel for the petitioner, Mr. M. Rarry, learned Special

State counsel assisted by Ms. Nikita, learned counsel for respondent Nos. 1 & 2

and Mrs. Momota Devi Oinam, learned counsel assisted by Ms. Merina, learned

counsel for respondent No. 3.

[2] The present writ petition has been filed by the petitioner praying for

setting aside/quashing the impugned transfer order dated 27.09.2023 issued by

the Joint Secretary (Social Welfare), Government of Manipur on the ground that

the petitioner has been subjected to frequent transfer, as many as three transfers

within a period of 18 months without any valid reasons. Vide order dated

03.10.2023, this Court issued notice and stayed the impugned transfer order

dated 27.09.2023 till next date and the interim order has been extended from

time to time and is subsisting till pronouncement of final order.

WP(C) No. 667 of 2023 with MC(WP(C) No. 267 of 2023 with MC(WP(C) No. 88 of 2024. Page 3 [3] The brief facts of the case are that the petitioner is presently

working as Child Development Project Officer (CDPO), ICDS Project, in the

Social Welfare Department, Government of Manipur. Vide transfer order dated

24.03.2022 issued by the Deputy Secretary (SW), Government of Manipur, the

petitioner (who is at Serial No. 20) was transferred from Imphal City ICDS Project

to Nungba ICDS Project on promotion and the respondent No.3 was also posted

and transferred form ICDS Project Chakpikarong as CDPO, Chandel ICDS

Project on promotion. Just after completion of 6 (six) months, the Deputy

Secretary (SW), Government of Manipur, again issued another transfer order

dated 13.10.2022 in which the petitioner (who is at Serial No. 4) was transferred

from CDPO, ICDS Project Nungba to CDPO, ICDS Project Imphal City. Vide

impugned transfer order dated 27.09.2023 (issued within 11 months of the

previous posting) issued by the Joint Secretary (SW), Government of Manipur,

the petitioner was again transferred from CDPO, ICDS Project, Imphal City to

CDPO, ICDS Project Chandel with additional charge of i/c Programme Officer

(ICDS) Cell, Chandel. By the impugned transfer order dated 27.09.2023, the

private respondent was also transferred from Chandel to CDPO, ICDS Project,

Imphal City and the posting of the petitioner and private respondent has been

inter-changed in public interest.

[4] The impugned transfer order dated 27.09.2023 is challenged

mainly amongst the following grounds:

WP(C) No. 667 of 2023 with MC(WP(C) No. 267 of 2023 with MC(WP(C) No. 88 of 2024. Page 4

(i) The petitioner has been frequently transferred without giving

sufficient reasons in as much as 3 times in less than 18

months on the verge of attaining the age of superannuation.

(ii) All the impugned orders issued by the respondents are non-

application of mind, arbitrary and illegal and not in public

interest and the impugned order is mala fide only to bring the

private respondent into the place of posting of the petitioner.

(iii) The impugned transfer order in respect in respect of the

petitioner has violated all the O.M.s and Transfer Policy

dated 12.05.2022 for Transfer and Posting of the

Government Employees of the State of Manipur, particularly

Para III (ii), (vii) & (xi) and Para V.

(iv) The transfer order is also in violation of the general condition

of para III (vii) of the transfer policy dated 12.05.2022

whereby an employee is given an option of retirement in the

Home District within 2 (two) years before retirement. The

petitioner is about to retire within one year and four months

from the date of transfer.

(v) The frequent transfer of the petitioner is punitive in nature as

she was transferred for not attending the meeting called by

Deputy Commissioner, Imphal West when she was

attending official training in another course on the same day.

WP(C) No. 667 of 2023 with MC(WP(C) No. 267 of 2023 with MC(WP(C) No. 88 of 2024. Page 5 [5] In the Counter affidavit filed by the State respondent, it is stated

that the petitioner was serving in the ICDS Project at Imphal City/Valley District

since October, 2008. On the contrary, the private respondent has been posted

in ICDS Project located in Hill District since October, 2009 and hence, a proposal

for transfer and posting of CDPO was made on 14.09.2023. It is further stated

that the petitioner made serious dereliction of duty of unbecoming a Government

Servant as she failed to attend District Review Committee Meeting chaired by

Deputy Commissioner, Imphal West for monitoring relief camps and vide order

dated 14.09.2023, the DC, Imphal West sent a letter to the Commissioner (Social

Welfare), Government of Manipur for initiating necessary action against the

petitioner for not attending the Review Meeting. It is also stated that on

14.09.2023, the department has taken up initiative for transfer and posting of

CDPOs in the Social Welfare Department and for exemption. It is stated that with

the approval of the Hon'ble Chief Minister in terms of Para V of the transfer policy

dated 12.05.2022, the transfer and posting of the various Officers in the Social

Welfare Department was made. It is stated that the impugned transfer order is

in terms of the transfer policy laid down by the State. On merit, it is stated that

the petitioner has wrongly alleged that it is a case of frequent transfer. It is

clarified that one of the transfers (from Nungba to Imphal) was made on her

request, but the same has not been disclosed in the petition. The first transfer

order dated 24.03.2022 was due to promotion of the petitioner and the second

transfer order dated 13.10.2022 was at her insistence and the third transfer order

dated 27.09.2023 was made in public interest. The State respondent has also

filed misc. Application being MC(WP(C)) No. 88 of 2024 for vacation of the

WP(C) No. 667 of 2023 with MC(WP(C) No. 267 of 2023 with MC(WP(C) No. 88 of 2024. Page 6 interim order dated 03.10.2023. Similar averments have been made in the

counter affidavit.

[6] The petitioner filed a reply to the misc. application being MC(WP(C)

No. 88 of 2024 wherein it is stated that by the present application the State

respondent is trying to mislead the Court. It is stated that the petitioner was

attending three-day programme of Gram Panchayat Development Plan (GPDP)

from 14.09.2023 to 16.09.2023 as nominated by the Director (Social Welfare),

Government of Manipur vide his letter dated 12.09.2023 and that is the reason

why the petitioner could not attend the Review Meeting chaired by Deputy

Commissioner (DC), Imphal West on 14.09.2023. On 13.09.2023, the petitioner

informed the ADM, Imphal West that the petitioner would be attending GPDP

Meeting from 14.09.2023 to 16.09.2023 and could not be able to attend the

review meeting. There was no material on record to show that the transfer was

approved by the Hon'ble Chief Minister in terms of the transfer policy framed by

the State. The averment of initiating for transfer in public interest on 14.09.2023

is after-thought to camouflage the punitive transfer on the recommendation of

the DC, Imphal West for failure to attend meeting on 14.09.2023. It is stated that

the State respondent has not denied that the petitioner is retiring within 2 (two)

years from the date of transfer order. It is pointed out that the process for transfer

was initiated on 14.09.2023 itself, the day the DC/IW requested the

Commissioner (SW) to initiate action against the petitioner for failure to attend a

meeting chaired by him.

WP(C) No. 667 of 2023 with MC(WP(C) No. 267 of 2023 with MC(WP(C) No. 88 of 2024. Page 7 [7] During the course of hearing, Mr. HS. Paonam, learned senior

counsel for the petitioner submits that the reply of the petitioner to the misc.

application filed by the State respondent may be treated as rejoinder to the

counter affidavit filed by the State respondent in the main petition. The private

respondent also filed counter affidavit stating that during 27 years of her service,

the respondent No. 3 was posted for 13 years in Chandel, 13 years in

Sawombung, Imphal East and one year and six months in Chandel. For half of

her career, she was posted in Hill Districts and it is submitted that her posting in

Imphal may not be disturbed as she is entitled to be posted in valley. Learned

senior counsel for the petitioner, further submits that vide order dated

24.03.2022, the petitioner as a Supervisor, Imphal City, ICDS Project was posted

as CDPO, Nungba, ICDS Project on promotion and respondent No. 3 as a

Supervisor in ICDS Project, Chandel was posted as CDPO, Chandel Project on

promotion. Thereafter, vide order dated 13.10.2022, the petitioner was

transferred as CDPO, ICDS Project, Nungba to CDPO, ICDS Project, Imphal

City. However within one year and vide impugned order dated 27.03.2023, the

posting of the petitioner and respondent No. 3 was interchanged as CDPO, ICDS

Project, Chandel and Imphal City. In the circumstances, the petitioner was

transferred from Imphal City to Chandel and respondent No. 3 was brought from

Chandel to Imphal City, ICDS Project. It is informed that the date of birth of the

petitioner is 01.02.1965 and hence, she is retiring on 31.01.2025. It is stated that

the petitioner has been transferred from Home District, Imphal City to another

district within 2 (two) years from the date of her superannuation and the same is

in violation of the para III (vii) of the transfer policy dated 12.05.2022 issued by

WP(C) No. 667 of 2023 with MC(WP(C) No. 267 of 2023 with MC(WP(C) No. 88 of 2024. Page 8 the Government of Manipur. Para III (vii) reads as "As far as possible, officials

may be posted at their Home District, if the Official so Chooses, 2 (two) years

before their retirement so as to facilitate ease in processing in processing

pension matters". Learned senior counsel for the petitioner submits that the

petitioner has not been given any option to choose Home District before the

transfer order in terms of Para III sub-para (iii) & (vii) of the transfer policy. It is

also stated that the posting of the petitioner in Imphal City till 24.03.2022 was in

a lower cadre and on being promotion, she was transferred and posted to

Nungba, ICDS Project and in the cadre of the CDPO, she is in Imphal City only

from 13.10.2022 to 27.09.2023.

[8] It is specific case of the petitioner that the tenure in lower cadre

cannot be counted towards the posting in the higher cadre of CDPO and as such,

the petitioner was posted in Imphal in the cadre of CDPO for only 11 months

prior to the impugned order. It is also stated that in the impugned order dated

27.09.2023, the first mover is not mentioned and as such, this is not an effective

transfer order within the meaning of Para III(xi) of the transfer policy.

[9] Mr. HS. Paonam, learned senior counsel for the petitioner, further

submits that the impugned transfer is punitive in nature and the same has been

initiated upon the letter dated 14.09.2023 sent by the DC, Imphal West to the

Commissioner (Social Welfare), Government of Manipur to take action against

the petitioner for her failure to attend the Review Meeting on 14.09.2023. It is

pointed out that a separate file for initiating transfer and posting on 14.09.2023

is to justify the transfer which is initiated as a punitive to be done in the public

WP(C) No. 667 of 2023 with MC(WP(C) No. 267 of 2023 with MC(WP(C) No. 88 of 2024. Page 9 interest. It is further submitted that relaxation is to be given by Hon'ble CM and

not by the Department of Personnel. Since the petitioner is retiring on

31.01.2025 and in terms of Para III (vii) of the transfer policy dated 12.05.2022,

the petitioner may be permitted to continue in Imphal City till her superannuation

and to facilitate for processing of pension paper and for easy receipt of

pensionary benefits after retirement. Approval under Para V is granted by DP

and not by the Chief Minister.

[10] Learned senior counsel for the petitioner refers to the decisions of

the Hon'ble Supreme Court reported as (i) (2009) 15 SCC 178 to the effect that

if the transfer order is contrary to Rules framed by the competent authority and

with malafide intention, it can be interfered being stigmatic in exercise of the

power of judicial review; (ii) (2009) 2 SCC 592, the transfer order with malafide

intention is liable to be set aside; (iii) (2013) 15 SCC 732, the transfer order

cannot be issued without complying with the minimum tenure of posting; (iv)

(1986) 4 SCC 131, the transfer order not in public interest for collateral purpose

and with oblique motive is vitiated; (v) In WA No. 2001 of 2023 of the Kerala

High Court, the transfer order or misbehaviour without any opportunity of being

heard is in violation of principle of natural justice; and (vi) (1985) 3 SCC 398 &

(1998) 2 SCC 109, in absence of rule, regulation framed by the State has binding

effect. It is stated that the transfer policy dated 12.04.2022 is binding on the State

and any transfer in violation of this policy will be vitiated. In the present case, the

petitioner has been transferred within 2 years of retirement without affording the

WP(C) No. 667 of 2023 with MC(WP(C) No. 267 of 2023 with MC(WP(C) No. 88 of 2024. Page 10 option of choosing Home District and she has been transferred before the

minimum tenure of one and half year.

[11] Mr. M. Rarry, learned special counsel for the State respondent,

submits that the petitioner has been in Imphal for 16 years with effect from 2008

till she transferred to Chandel vide order dated 27.09.2023 while the respondent

No. 3 was posted in the Hill Districts for 15 years since 2009. Learned special

counsel for the State respondent draws the attention of this Court to Para III (iii)

of the transfer policy dated 12.05.2022 where it is stated that an employee shall

not be posted for more than 9 years in hill throughout the entire period of service

and in the present case, the respondent No. 3 has been continually posted for

15 years in hills. It is stated that the transfer order was issued invoking power

conferred under Para V (power to relax) by obtaining exemption from DP. It is

also stated that the period of posting in lower cadre has to be considered in view

of Para III of the transfer policy 12.05.2022. It is also submitted that the transfer

order in public interest ought not to be interfered by the Court and the reason

given by the Hon'ble CM for relaxation under Para V is not required to be

mentioned in the transfer order but the same has been recorded in the file noting.

Malafide in the transfer order cannot be proved by the petitioner.

[12] Learned Special Counsel for the State respondent relies on the

judgment reported as (i) (2009) 15 SCC 178 to the effect that a Government

Employee has no vested right for posting in a particular area; (ii) (2003) 4 SCC

739, malice in law has to be shown that the State action is not bonafide and with

malice in violation of the statutory provision; (iii) (2005) 8 SCC 760, when

WP(C) No. 667 of 2023 with MC(WP(C) No. 267 of 2023 with MC(WP(C) No. 88 of 2024. Page 11 malafide action is alleged, there is a heavy burden on the petitioner to proof as

such; (iv) (2007) 9 SCC 786, malafide exercise of power should be in violation

of the statutory provision in the name of public purpose to defeat right of an

individual; (v) (2020) 3 SCC 86, transfer after 20 years of posting in the

headquarter cannot be termed as malice in law; (vi) WP(C) No. 8141 of 2020

dated 11.06.2020 passed by MP High Court that malifide intention and the

malice in law for transfer order have to be proved. It is submitted that there is no

malafide intention on the part of the State respondent in transferring the

petitioner who has been in Imphal City for 16 years, whereas the respondent No.

3 was posted in Hill Districts for 15 continuous years. It is submitted that writ

petition may be dismissed and interim order be vacated.

[13] Mrs. O. Momota, learned counsel for respondent No. 3, submits

that throughout last 27 years of her service, the private respondent has been

posted for almost 15 years in Hill Districts and by the present transfer order, she

has been brought back to Imphal and there is no illegality in the impugned

transfer order with respect to her case and her posting at Imphal may not be

disturbed. Learned counsel for respondent No. 3 relies on the decision of the

Hon'ble Supreme Court reported as (i) (1993) 4 SCC 357 to the effect that

transfer is an incidence of service in terms of FR 11 and unless the order of

transfer is vitiated by malafide or one of the statutory provision, court cannot

interfere the same; (ii) (2001) 5 SCC 508 held that transfer of an employee is

part of service condition and cannot be interfered likely by a Court unless it is

malafide or in violation of the statutory rules; (iii) (1989) 2 SCC 602, stating that

WP(C) No. 667 of 2023 with MC(WP(C) No. 267 of 2023 with MC(WP(C) No. 88 of 2024. Page 12 no Government Servant has a vested right to be posted in a particular place and

transfer from one place to another is necessary in public interest and efficiency

in the administration; and (iv) CA No. 7011 of 2008, the Hon'ble Supreme Court

held that unless the order of transfer is contrary to the statutory provisions or

settlement, the same should not be interfered. Learned counsel for the

respondent No. 3 submits that the petitioner has failed to show that the transfer

is in violation of the statutory provisions or the same is malafide. In conclusion,

she submits that the writ petition be dismissed being devoid of any merit.

[14] This Court has considered the materials on record, submissions

made by the learned counsel for the parties and decisions cited. The original

files submitted by the State respondent have also been perused.

[15] On perusal of the transfer policy framed by the Department of

Personnel, it is clear that Para III (i) says that the minimum posting will be one

year and 6 months and maximum 3 years in the place of posting. Para III (ii)

stipulates that no transfer be effected unless an employee has completed one

year and 6 months except for compelling reasons. Sub para (iii) says that an

employee shall not be posted in hill areas/difficult places during the entire service

period for 9 years. Sub para (vii) says that a Government Servant retiring within

2 years shall have the option of choosing Home District to facilitate ease in

processing pension matters. Sub para (xi) mandates that in the transfer order,

the first mover and handing over of charge should be mentioned. Para V

empowers the Chief Minister to transfer an employee to any places in relaxation

of provisions after recording reasons justifying such relaxation. No transfer,

WP(C) No. 667 of 2023 with MC(WP(C) No. 267 of 2023 with MC(WP(C) No. 88 of 2024. Page 13 contrary with the policy, shall be made by any department without the approval

of the Chief Minister.

[16] From the plain reading of the transfer policy dated 12.05.2022, it is

undisputed position that the minimum tenure at the place of posting is one year

and 6 months and maximum 3 (three) years in a place of posting. Minimum and

maximum tenure are with respect to a posting at a place. A person should not

be posted for more than 9 years in hill or difficult areas and a retiring employee

shall have option to choose home district within 2 years from the date of

retirement. The option of choosing Home District is to facilitate processing

pension matters and any transfer in relaxation of the conditions laid down in the

policy has to be done with the approval of the Chief Minister in writing with

reasons of such relaxation in terms of Para V of the transfer policy.

[17] From the admitted fact of the present case, both the petitioner and

respondent No. 3 are posted for 16 years and 15 years in Imphal and Hill Districts

with some intermediate breaks.

[18] In the present case, the last posting of the petitioner at Imphal was

vide order dated 13.10.2022 and the impugned transfer order dated 27.09.2023

was issued within one year of the last transfer order, thereby apparently violating

provisions of para III (i) & (ii) of the transfer policy dated 12.05.2022. Respondent

No. 3's last transfer and posting was at CDPO, ICDS Project, Chandel on

promotion on 24.03.2022 and impugned transfer order dated 27.09.2023 is

issued just after completion of one year and 6 months as stipulated in para III (i)

& (ii) of the transfer policy and the same is in consonance with the policy. With

WP(C) No. 667 of 2023 with MC(WP(C) No. 267 of 2023 with MC(WP(C) No. 88 of 2024. Page 14 respect to the transfer of the petitioner, the impugned transfer order dated

27.09.2023 was issued within 2 years from the date of her superannuation

without affording any opportunity of choosing Home District as stipulated under

para III(vii).

[19] In terms of Para III (iii) & (vii) of the transfer policy and without going

into the other aspect of the case, as to whether transfer was punitive/malafide or

not, the impugned transfer order dated 27.09.2023 has violated the provisions

of para III (i), (ii) & (vii) and para V with respect to the petitioner. Whereas in case

of the private respondent No. 3, the transfer order is in tune with the provisions

of Para III (i), (ii) & (iii).

[20] This Court has also perused the noting of the file submitted by the

learned counsel for the State respondent. The file was put up to the Department

of Personnel for obtaining of the approval of the Chief Minister for relaxation as

mandated under Para V of the transfer policy. But the approval was given by the

DP itself and in the file, there is no noting of the Chief Minister granting approval

for transfer of the petitioner. However, without going to the aspect as to whether

the transfer is punitive or malafide, this Court is of the opinion that the impugned

transfer order with respect to the petitioner is in violation of the provisions of para

III (i), (ii) & (vii) and para V. Transferring within 2 years from the date of retirement

to non-home district without affording an option of choosing home district is in

violation para III (vii) of the transfer policy and the same cannot be termed as in

the public interest, when there is no approval from the Chief Minister in terms of

Para V.

WP(C) No. 667 of 2023 with MC(WP(C) No. 267 of 2023 with MC(WP(C) No. 88 of 2024. Page 15 [21] Accordingly, writ petition is partly allowed and the impugned

transfer order dated 27.09.2023 with respect to the petitioner from Imphal to

Chandel is set aside, but upheld the transfer of the respondent No.3 from

Chandel. However, since the same person cannot be posted at Imphal in a

particular post, the State Government is directed to make an appropriate

arrangement for posting the respondent No. 3 in any of the Valley Districts

except for the post retained by the petitioner in terms of this order.

[22] Writ petition is disposed of in terms of the above directions that the

petitioner be retained as CDPO, ICDS Project Imphal City and the respondent

No. 3 may be posted as CDPO, ICDS Project in any appropriate place in the

Valley Districts. No cost.

[23] All the misc. applications and the interim orders are disposed of in

terms of the above directions. Return original files to the State Government.