WA 170/2010 BEFORE HON’BLE THE CHIEF JUSTICE MR RS GARG HON’BLE MR JUSTICE T NANDAKUMAR SINGH Heard Mr DK Das, learned counsel for the appellant and Mr B Dev, learned Advocat e General, Mizoram appearing for the respondents. 2. The appellant, who was earlier posted as Engineer-in-Chief in Pu blic Health Engineering Deptt, being aggrieved by the orders/communications date d 10-10-2009, 17-11-2009 and 16-4-2010 came to the court in WP(C) No.23/2010 (Ai zawl Bench) with a submission that his transfer from the Office of the Engineer- in-Chief as Consultant in the Civil Secretariat (PHE Deptt) was a transfer contr ary to the Rules, it was a transfer to the ex-cadre post and was a mala fide exe rcise of the powers. 3. To understand the facts properly it is to be noted that on 29-9- 2009, the Work Charged staff and Muster Roll labourers made an agitation as thei r salary was not paid to them. The petitioner vide his letter dated 8-10-200 9 required the Chief Engineer, Public Health Engineering Department to give the details as to what persuaded the Muster Roll labourers and the Work Charged staf f to make the agitation. Vide letter dated 13-10-2009 the said Chief Engineer in formed the petitioner that the incident took place without his knowledge and he came to know about the incident at about 10.30 PM on 29-9-2009 only when the Sup erintendent of Police informed him. He also informed the Engineer-in-Chief that in such a situation he was not in a position to give prior information regarding the matter which took place on 29-9-2009. It appears that the government took a serious view of the matter and thereafter vide letter dated 19-10-2009 requeste d the petitioner to apply for leave for at least 3 months w.e.f. 20-10-2009. It appears that the petitioner did not take the letter in its earnest, understandin g therefore the government issued him yet another letter and ultimately finding that a preliminary enquiry into the cause and conduct of the present petitioner was not possible so long he was in the office he was transferred vide notificati on No.22012/8/2008-P&AR(CSW) dated 16-4-2010, in exercise of the powers containe d in Rule 28 of Mizoram Engineering Service Rules, 2001 to occupy the Office of Consultant, Civil Secretariat (PHE Deptt). It is also to be seen that vide anoth er notification No.11013/1/89-SAD/PART dated 14-10-2009 the Govt of Mizoram crea ted two posts of Consultant under Secretariat Administration Department. The pet itioner was required to join the Office of the Consultant, the post which was cr eated on the very same day. 4. The petitioner being aggrieved by the action taken by the govern ment firstly asking him to proceed on leave and secondly directing his appointm ent as Consultant filed the writ petition submitting inter alia that the governm ent could not transfer him outside the cadre and at the same time the transfer w as illegal, whimsical and mala fide.. 5. The respondents appeared before the learned Single Judge and sub mitted that no order was issued to the petitioner to proceed on leave but in the wake of a preliminary enquiry which was deemed desirable the petitioner was req uested to proceed on leave to have a fair enquiry. The further submission in the return was that for quite some time the State Govt as a matter of public policy and in public interest was considering the pressing need for the requirement of technical hands in the Administrative Department of PHED and as a matter of pol icy and in wider public interest the petitioner was posted as Consultant in the Civil Secretariat. However giving a jolt to the pleadings raised in paragraph 7, it was contended in paragraph 12 that the petitioner’s posting as Consultant wa s not a permanent measure but as a temporary arrangement in public interest havi ng immediate effect and until further orders. In paragraph 8 it was contended th at posting of the petitioner as Consultant in the PHED was not a punishment but was made in the interest of public service. In fact any member of the service co uld be posted to any other office in public interest as provided in Rule 28 of t he Mizoram Engineer Service Rules, 2001(hereinafter referred to as the Rules, 2 001 ). 6. After hearing the learned counsel for the parties the learned Si ngle Judge came to the conclusion that two posts of Consultant and two posts of Officer on Special Duty which were created by notification dated 14-10-2009 und er Secretariat Administration Department were neither in cadre of Engineer Servi ce nor attached to any other service. The learned Single Judge further observed that the government must have intentionally avoided to give specific cadre to t he aforesaid posts and must have kept the option open to utilize the posts in an y department, where it is found necessary. Further the court also observed that as the petitioner has been retained as Consultant under the disposal of Principa l Secretary, PHE Deptt and therefore it would be difficult to take a view that t ransfer of the petitioner to the post of Consultant would amount to change of ca dre. 7. In our opinion the findings recorded by the learned Single Judge were running contrary to each other. In the first part of paragraph 11 the lear ned Single Judge clearly observed that the post was not in the cadre of Engineer ing Service and if that be so the posting of the petitioner to such a post would amount to change of the cadre. It is also not in dispute before us that the Rul es 2001 have not been amended to include the post of Consultant. If the post of Consultant was included in the Rules then the same would become a cadre post and not otherwise. It is also to be noted that the post according to the government so also according to the findings of the learned Single Judge are floating post which can be kept under the supervision of Secretariat Administration Departmen t. However, it is also to be seen that the government was relying upon Rule 28 o f the Rules which provides as under :- 28. A member of the service shall be liable to be posted to hold any post under the Government anywhere within the State of Mizoram or anywhere in India in pub lic interest. He/she may also be posted to any other Department of the Governmen t. 8. A perusal of the Rules would make it clear that a member of the service shall be liable to be posted to hold any post under the government anyw here within the State of Mizoram or anywhere in India. He may also be sent to an y other Department of the Government, in the public interest. If such powers are reserved by the government in its favour then in our considered opinion the pet itioner chould have been transferred to a post which was outside the cadre. The submission of the State Govt that exercising power under Rule 28 they could tran sfer the petitioner to any post outside the cadre, appears to be a justifiable a rgument. 9. The question still is whether the transfer of the petitioner eve n in exercise of the powers under Rule 28 is in accordance with law or whether i t was a mala fide exercise of the powers. 10. The facts would show that on 19-10-2009 the petitioner was reque sted to proceed on leave at least for 3 months though the letter dated 19-10-200 9 does not bring into light the reason but it was submitted at Bar that the gove rnment wanted to have a fair and free preliminary enquiry into the matter which could not be conducted if the petitioner was occupying the top chair. It is also to be noted that on 14-10-2009 a new post was created and on 16-4-2010 the peti tioner was transferred from the Office of the Engineer-in-Chief to the Office of the Consultant. Creation of the post on 14-10-2009 and transfer of the petiti oner on 16-4-2010 cannot be taken to be a co-incident which has been created by the State Govt to get rid of the petitioner who turned down the request of the S tate to proceed on leave. 11. Though it was vehemently contended that the State Govt did never require or ordered the petitioner to proceed on leave but in our opinion a request by a n officer holding higher authority would always amount to an order. 12. We would simply look into the intention of the government firstl y in creating the post and then sending the petitioner on transfer to the post. The manner in which the petitioner was transferred that too for small period or temporarily, in our opinion was not showing illegal exercise of the powers by th e Government. 13. It was contended by the learned Advocate General that the State Govt could take a serious action against the writ petitioner but to be honest ag ainst him they did not proceed with a strict action rather simply provided that if he proceeds on leave or he is transferred then a preliminary enquiry could be conducted. In our opinion the government’s action even bad in law then it canno t be allowed to stand. In our opinion after the petitioner refused to oblige the government by proceeding on leave the government in fact had transferred him an d such transfer is an illegal exercise of the powers. 14. Taking into consideration the totality of the circumstances the order dated 16-4-2010 transferring the petitioner from the office of the Enginee r-in-Chief to join as Consultant under the PHE Secretariat is hereby quashed. Th e petitioner/appellant shall immediately be relieved by the transferee departmen t to the transferor department and shall be allowed to take charge immediately. If in the meanwhile somebody has been appointed to occupy the office of the Engi neer-in-Chief then without attaching any stigma to such an officer he would be t ransferred back to his original office. 15. It is however made clear that if the government is of the opinio n that the petitioner/appellant could not conduct himself properly or could not control the situation or was an absolute failure in managing the affairs or he m isconducted himself then the government would be entitled to proceed with a depa rtmental enquiry and can even exercise the powers of putting the petitioner/appe llant under suspension. 16. The appeal is allowed, but however with the liberty aforesaid in favour of the government. 17. In view of the final disposal of the appeal MC No.1854/2010 stan ds disposed of.