Writ petition questioning transfer of government employees dismissed and courts power to   judicial review simplified -Manipur high court

P a g e | 1 IN THE HIGH COURT OF MANIPUR AT IMPHAL WP(C) No. 3620 Bobby Laishram aged about 38 years S o L. Sharatchandra of Sagolband Tera Lukhram Leirak Machin PO Imphal & PS Lamphel Manipur now working as Pharmacisthaving EIN 066291 under Directorate of Health Services Government of Manipur. … PETITIONER VERSUS The State of Manipur represented by the Principal Secretary Secretary Government of Manipur office at Old Secretariat Babupara PO & PS Imphal Imphal West District The Director of Health Services Manipur office at Lamphel Opposite RIMS PO & PS Imphal Imphal West District Manipur—795001. … RESPONDENTS Ng. Indira Devi Pharmacist posted at DMO Tamenglong EIN 034486 C o Director of Health Services Manipur office Lamphel Opp. RIMS PO & PS Imphal Imphal West District Manipur—795001. … PRIVATE RESPONDENTS WP(C) No. 3620 P a g e | 2 HON’BLE MR. JUSTICE M.V. MURALIDARAN Mr. M. Hemchandra Sr. Advocate Mr. Juno Rahman S. Advocate Mr. Lenin Hijam Addl. AG For the Petitioner For the Respondents Date of Hearing and reserving Judgment & Order :: Date of Judgment & Order :: JUDGMENT AND ORDER This writ petition has been filed by the petitioner seeking to quash the impugned transfer and posting order dated 15.5.2020 issued by the second respondent in respect of the petitioner and to consider and dispose of the representation dated 8.7.2020 submitted by the petitioner. 2. The case of the petitioner is that on 12.3.2017 the petitioner and others were initially appointed the Health Department Manipur as Pharmacists temporarily on regular basis and posted at PHSC Khubung Khulen Chandel District. After the appointment as Pharmacist and posted at PHSC Khubung Khulen the petitioner has been transferred and posted at PHSC Somtal Tengnoupal District and thereafter by the order dated 01.2.2018 issued by the second respondent the petitioner was transferred and WP(C) No. 3620 P a g e | 3 posted at CHC Nambol Bishnupur District. Further case of the petitioner is that to the utter shock and surprise vide impugned order dated 15.5.2020 the petitioner was transferred and posted at DMO Tamenglong even not completed two years and 3 months at CHC Nambol and also in violation of the order of the Joint Secretary Health and Family Welfare). Manipur dated 25.7.2007. 3. According to the petitioner the new place of posting where the petitioner was supposed to work has no staff quarters and no transportation from location of the petitioner. Further case of the petitioner is that a similarly situated person namely TD Ahar Chiru who was working as Female Health Worker with the petitioner had challenged the transfer order dated 19.6.2020 as the same has full of material irregularities in W.P.No. 3120. By the order dated 25.6.2020 the said writ petition was disposed of by this Court whereby directing the respondent authorities to consider and dispose of the representation dated 23.6.2020 submitted by the petitioner therein within a period of four weeks. In the said writ petition the Court has also ordered that pending disposal of the representation the petitioner therein should be allowed to continue at her present place of posting. Stating all these facts the petitioner submitted a representation on 8.7.2020 praying inter alia to review the impugned WP(C) No. 3620 P a g e | 4 transfer order in respect of the petitioner but the same has not been considered by the official respondents. Hence the writ petition. 4. The respondents 1 and 2 filed counter affidavit stating that the transfer order dated 15.5.2020 was issued by the second respondent in exigencies of service in view of combating and controlling Covid 19 pandemic and the transfer order was issued for the purpose of administrative convenience which may not be interfered with by the Court. It is stated that pursuant to the impugned transfer order the third respondent has joined the new place of posting and there is no vacancy other than the posting given to the petitioner. It is also stated that the petitioner has not yet joined and complied with the impugned order. It is stated that the order dated 25.7.2007 referred by the petitioner has no application in the present case as the transfer policy dated 25.7.2007 has already been superseded by various subsequent orders. The petitioner has been posted at the same place of posting for more than three years. The petitioner in W.P.(C) No. 3120 cannot be equated with that of the petitioner herein. Hence prayed for dismissal of the writ petition. 5. Assailing the impugned transfer and posting order Mr. M. Hemchandra learned senior counsel for the petitioner submitted that the impugned transfer order has not complied the transfer policy WP(C) No. 3620 P a g e | 5 dated 25.7.2007 and is thus bias malafide arbitrary and improper and therefore the same is liable to be set aside as far as the petitioner is concerned. He would submit that the impugned transfer order dated 15.5.2020 was issued not only in violation of various Office Memorandums but also the same was issued with an intention to cause harassment to the petitioner. Further the impugned transfer order was issued not in public interest 6. Learned senior counsel for the petitioner further submitted that the respondent authorities has not considered the representation dated 8.7.2020 of the petitioner till date for the reasons best known to the authorities. 7. Placing reliance upon the decisions of the Gauhati High Court in the cases of Prasanna Kumar Nath v. State of Assam and others 2004 GLT 348 and Dayal Das v. State of Assam and others 2002GLT 109 learned senior counsel for the petitioner submitted that the State Government itself framing the guidelines are bound to act within the parameters of the said guidelines with the justified exception here and there. Arguing so learned senior counsel for the petitioner submitted that the impugned transfer and posting order dated 15.5.2020 is in total disregard and in violation of WP(C) No. 3620 P a g e | 6 the instructions issued in various Official Memorandums and therefore the same is liable to be set aside. 8. Per contra Mr. Lenin Hijam learned Addl. Advocate General for the respondents 1 and 2 submitted that the impugned transfer order was issued in exigencies of service and for the purpose of administrative convenience which may be not be interfered with by the High Court. He would submit that the third respondent pursuant to the impugned transfer order has joined the transferred place but the petitioner has not yet joined and thus disobeyed the order. 9. Learned Addl. Advocate General for the respondents 1 and 2 further submitted that the transfer is a condition of service and the transfer policy dated 25.7.2007 referred to by the petitioner has no application in this case as the said order has already been superseded by the subsequent orders. 10. Learned counsel for the respondents 1 and 2 then submitted that no Government servant has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from place to other is not only an incident but also condition of service necessary too in public interest and WP(C) No. 3620 P a g e | 7 efficiency in the public administration. Unless an order of transfer is shown to be an outcome of malafide exercise the Courts normally may not interfere with such order as a matter of routine. Therefore he prayed for dismissal of the writ petition. 11. This Court considered the submissions made by learned counsel for parties and also perused the materials available on record. 12. The grievance of the petitioner is that by the order dated 1.2.2018 the petitioner was transferred from PHSC Somtal to CHC Nambol and thereafter issued the impugned order dated 15.5.2020 which is only 2 years and 3 months from the last transfer order dated 1.2.2018. According to the petitioner no employee should be kept in a post for more than 3 years. Similarly no transfer may be effected unless the concerned employee has completed about 3 years in a post unless there are compelling reasons to do so. 13. On the other hand it is the say of the official respondents that the impugned transfer order dated 15.5.2020 was issued by the second respondent in exigencies of service and for the purpose of administrative convenience which may not be interfered with by the Court. WP(C) No. 3620 P a g e | 8 14. Admittedly the place of posting of a Government employee cannot be at the desire and choice of the employee and it is within the purview of the competent authorities for administrative convenience in public interest. 15. The case of the petitioner is that he has not completed three years in the present place of posting and therefore the impugned transfer order is in violation of the transfer policy adopted by the respondent authorities. It is true that no transfer may be effected unless the employee has completed 3 years in a post however there are compelling reasons to do so. 16. Admittedly the petitioner was serving as Pharmacist Allo) in the Medical Directorate Government of Manipur and he is duty bound to do healthcare services towards the public which has nowadays become a prime consideration to combat Covid 19 pandemic as well as the exigency of service. 17. It appears that by the impugned transfer order the petitioner was transferred to DMO Tamenglong and the third respondent was transferred to CHC Nambol. Thus the transfer of the petitioner and the third respondent is vice versa. That apart in the transfer order the second respondent clearly stated that the WP(C) No. 3620 P a g e | 9 transfer is made in public interest. It is contended by the respondent authorities that the third respondent joined the transferred place whereas the petitioner has yet to join at his new place of posting. Since the third respondent obeyed the transfer order and has joined the new place of posting it is the bounden duty of the petitioner to join his new place of posting taking note of the Covid 19 pandemic 18. Learned counsel for the petitioner submitted that the Joint Secretary Health and Family Welfare issued a transfer and posting policy dated 25.7.2007 and constituted Committees to consider and decide the transfer and posting in the Department of Health and Family Welfare on the basis of the policy with immediate effect and until further orders. Thus all transfer and postings in the Health and Family Welfare Department shall be made on the recommendations of the Committees only and any transfer and postings made without such Committees shall be treated as null and void. In the case hand no such recommendation was made by the Committee and therefore the impugned transfer and posting order is liable to be quashed. 19. Placing reliance upon the decisions of the Gauhati High Court in the cases of Prasanna Kumar Nath and Dayal DasWP(C) No. 3620 P a g e | 10 learned senior counsel for the petitioner submitted that State Government itself framing the guidelines are bound to act within the parameters of the said guidelines with the justified exception here 20. In Prasanna Kumar Nath the Gauhati High and there. Court held: the aforesaid Office Memorandum learned counsel for the respondent No.5 argued that they are only directory and not mandatory. There is no dispute in respect of the same. However the question arises as to what for such guidelines are framed. Is it only to violate the same and then to say that those guidelines are not mandatory. Guidelines are always guidelines and like statutory rules. However the State Government itself framing the guidelines are bound to act within the parameters of the said guidelines with the justified exception here and there.” 21. In Dayal Dasthe Gauhati High Court held: WP(C) No. 3620 P a g e | 11 “4. …. The guidelines for transfer of officers in the office memorandum dated 19th Sept ’92 may not have statutory roce but are checks against arbitrary transfers and deviations from the said guidelines may result in an arbitrary transfers. For these reasons I am of the view that the transfer of the petitioner by impugned notification dated 27.7.2001 should not be given effect to till the justification of his transfer with grounds are recorded in writing and these are placed before the Chief Minister for approval. Since by the impugned notification dated 27th July 2001 a chain of transfer has been made and any interim order passed by this Court would affect the chain in any considered opinion this Court should not keep the matter pending in Court by passing an interim order of stay and should dispose of the writ petition with appropriate directions as indicate above.” 22. This Court finds no force in the submission made by learned senior counsel for the petitioner that the impugned transfer is not made on the recommendation of the Committee. In fact the WP(C) No. 3620 P a g e | 12 petitioner has failed to produce any material to show the existence and operation of the transfer policy dated 25.7.2007. According to the respondent authorities the transfer policy dated 25.7.2007 referred by the petitioner has already been superseded by various subsequent orders. When such being the position the petitioner cannot refer to the transfer policy dated 25.7.2007. Therefore the decisions relied upon by learned senior counsel for the petitioner are not applicable to the case on hand. 23. Transfer and posting of an employee having such transfer liability is not only an incidence of service but is an essential condition of service. No person having such transfer liability has any justifiable right to claim for a particular posting which is issued on organisational considerations. 24. In Union of India and others v. H.N.Kirtana reported in 1989) 3 SCC 445 the Hon ble Supreme Court held as under: “5. ...... Transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and pressing grounds rendering the transfer order illegal WP(C) No. 3620 P a g e | 13 on the ground of violation of statutory rules or on the ground of mala fide. ......” 25. In Shilpi Bose and others v. State of Bihar and others reported in 1991 SuppSCC 659 the Hon ble Supreme Court held that a Government servant holding a transferable post has no vested right to remain posted at one place or other and he is liable to be transferred from one place to another. It was further held that even if a transfer order is passed in violation of executive instructions or orders the Courts ordinarily should not interfere with the order. 26. In National Hydroelectric Power Corporation Limited v. Shri Bhagwan reported in8 SCC 574 the Hon’ble Supreme Court held as under: “5. ..... it is now well settled and often reiterated by this Court that no government servant or employee of public undertaking has any right to be posted forever at any one particular place since transfer of particular employee appointed to the class or category of transferable posts from one place to another is not only an incident but a condition of service necessary to in public interest and efficiency in public administration. ......” WP(C) No. 3620 P a g e | 14 27. In Rajendra Singh and others v. State of Uttar Pradesh reported in15 SCC 178 the Hon’ble supreme Court observed that 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 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 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. 28. Transfer ordinarily is an incidence of service and Courts should be very reluctant to interfere in transfer orders as long as they are not illegal. Thus this Court is of the view that transfer and posting of a Government employee must be left in the discretion of the respondent authorities concerned which are in the best position to assess the necessities of the administrative requirement of the 29. In the instant case as stated supra the impugned transfer was made in public interest and therefore the question of WP(C) No. 3620 P a g e | 15 completion of three years in the place of posting has no application considering the Covid 19 pandemic situation coupled with the fact that the petitioner is serving in Medical Department. Therefore this Court finds no discrimination in the present transfer. Further this Court is of the view that transfer and posting of the petitioner has been made only after examination of all aspects and thus no policy and or any statutory rule has been violated by the second respondent while issuing the impugned transfer order and therefore no judicial review is warranted. 30. Power of judicial review is available only on two counts namely where the posting is based on mala fide exercise of power or which is made in violation of any statutory provisions. 31. In Union of India and others v. Lt. General Rajendra Singh and another reported in 6 SCC 698 the Hon ble Supreme Court held: “29. ...... Judicial review is permissible only to the extent of finding whether the process in reaching decision has been observed correctly and not the decision as such ........” WP(C) No. 3620 P a g e | 16 32. In State of U.P. and another v. V.Johri Mal reported in 2000) 4 SCC 714 the Hon ble Supreme Court observed as under: “28. ...... The power of judicial review is not intended to assume a supervisory role or don the robes of the omnipresent. The power is not intended either to review governance under the rule of law nor do the courts step into the area exclusively reserved by the supremalex to the other organs of the State. The limited scope of judicial review succinctly put is: i. Courts while exercising the power ofjudicial review do not sit in appeal over the decisions of administrative bodies. ii. .......... iii. An order passed by an administrative authority exercising discretion vested it cannot be interfered in judicial review unless it is shown that exercise of discretion itself is perverse or illegal.” 33. The learned counsel for the respondents argued that even where executive instructions exist and posting is issued in violation of such executive policy but fairly and based on WP(C) No. 3620 P a g e | 17 administrative consideration the Court in its extraordinary writ jurisdiction desists from making any interference. This Court finds some force in the submission made by the learned counsel for the respondent authorities. 34. It is well settled that matters of transfers are best left to the discretion of the competent authority and should not be tinkered with in the absence of a demonstrable violation of statutory rules or an instance of mala fide on the part of the competent authority. In the case on hand the respondent authorities have satisfactorily explained the reason for issuing the transfer and posting order to the 35. The Courts should be extremely slow in interfering with an order of transfer and posting and unless an exceptionally strong case is made out no interference should be made. In the present case since the second respondent has issued the impugned transfer order in public interest this Court finds no malafide in issuing the impugned transfer order and hence no interference is called for. There is no merit in the writ petition and therefore the same is liable to be dismissed. 36. In the result WP(C) No. 3620 P a g e | 18 1) The writ petition is dismissed. 2) The petitioner is directed to report at the transferred place within a period of four weeks from the date of receipt of a copy of this order if already not joined. 3) No costs. 37. Registry is directed to issue copy of this order to both the parties through their WhatsApp e mail. JUDGE FR NFR WP(C) No. 3620 

Summary: Writ petition questioning transfer of government employees dismissed and courts power to   judicial review simplified -Manipur high court The writ petition questioning the transfer and posting of the health officer was dismissed by HON’BLE MR. JUSTICE M.V. MURALIDARAN in the case of  Bobby Laishram versus The State of Manipur and Ors. ( WP(C) No. 368 of 2020) The crux of the case is the petitioner was appointed In the health department, Manipur as a pharmacist and was posted in Chandel district but the petitioner was transferred to a different district without completion of the term of 3 years and concerning this, a writ petition was filed by petitioner challenging the transfer and posting. Respondents 1 and 2 filed counter-affidavit stating that the transfer order was issued by the second respondent in exigencies of service because of combating and controlling Covid-19 pandemic and the transfer order was issued for administrative convenience which may not be interfered with by the Court and does not fall under judicial review. The learned counsel on behalf of petitioners submitted that the impugned transfer order has not complied with the transfer policy and is thus biased, malafide, arbitrary, and improper and therefore, the same is liable to be set aside as far as the petitioner is concerned and further submitted that the transfer order was issued not only in violation of various Office Memorandums but also the same was issued to cause harassment to the petitioner the decisions of Gauhati high court in the cases of Prasanna Kumar Nath v. State of Assam and others, 2004 (4) GLT 348 and Dayal Das v. State of Assam and others, 2002 (2) GLT 109, learned senior counsel for the petitioner submitted that the State Government itself framing the guidelines are bound to act within the parameters of the said guidelines with the justified exception here and there.  The learned counsel on behalf of respondents submitted that impugned transfer order was issued in exigencies of service and for administrative convenience which maybe not be interfered with by the High Court and further submitted that Unless an order of transfer is shown to be an outcome of malafide exercise, the Courts normally may not interfere with such order as a matter of routine. Therefore, he prayed for the dismissal of the writ petition. The court considered the submissions from both sides and decided that According to the petitioner, no employee should be kept in post for more than 3 years. Similarly, no transfer may be effected unless the concerned employee has completed about 3 years in a post unless there are compelling reasons to do so which in this case he is duty-bound to do healthcare services towards the public which has nowadays become a prime consideration to combat Covid-19 pandemic as well as the exigency of service. The court on interference stated that Transfer ordinarily is an incidence of service and Courts should be very reluctant to interfere in transfer orders as long as they are not illegal. Thus, this Court is of the view that transfer and posting of a Government employee must be left in the discretion of the respondent authorities concerned which are in the best position to assess the necessities of the administrative requirement of the situation. And from the case of Union of India and others v. Lt. General Rajendra Singh and another, reported in (2000) 6 SCC 698 the court held that transfers are best left to the discretion of the competent authority and should not be tinkered with, in the absence of a demonstrable violation of statutory rules, or an instance of mala fide on the part of the competent authority. In the case on hand, the respondent authorities have satisfactorily explained the reason for issuing the transfer and posting order to the petitioner, and considering all the above factors the writ petition was dismissed. Click here to read the judgment