Dr. M. Priyobarta Singh vs State of Manipur and Others

A.K. Patnaik, J.—In this application under Article 226 of the Constitution, the petitioner has prayed for quashing the order dated 4.12.1999 of the Government of Manipur, transferring him from Thoubal College, Thoubal to Pettigrew College, Ukhrul in place of Sri B. Jagadishchandra Sharma, respondent No. 3.

The petitioner''s case in this writ petition is that by order dated 11.11.1999 of the Government of Manipur, Education Department, the petitioner was appointed as a Reader in English with effect from 15.6.1997. The petitioner therefore, could not be reduced to the lower rank or status of lecturer. But by the impugned order dated 4.12.1999, the petitioner has been transferred as a lecturer in English to Pettigrew College, Ukhrul in place of respondent No. 3. The impugned order therefore, lowers the status and rank of the petitioner from Reader to Lecturer. The petitioner''s further case in the writ petition is that since the impugned order dated 4.12.1999 does not state that it has been passed in the public interest, the same is vitiated by malafide and is liable to be quashed by this court.

Mr. C. Kamal, learned counsel for the petitioner, submitted that it will be clear on a comparison of the Recruitment Rules for the posts of Lecturer and Reader, copies of which have been annexed to the Additional Affidavit filed on 28.12.1999 as Annexures-A/5 and A/6, that while the post of Lecturer is to be filled up by direct recruitment and is to carry the scale of pay of Rs. 2200-4000 the post of Reader is to be filled up by promotion on the basis of selection and is to carry the scale of pay of Rs. 3700-5700 Mr. Kamal also referred to order dated 29.9.1999 of the Government of Manipur, Finance Department, a copy of which has been annexed to the writ petition as Annexure-A/2 to show that for movement into the grade of Reader and above from the post of lecturer, the minimum eligibility criteria would be Ph.D. He submitted that those teachers who are without Ph.D. can go upto the level of Lecturer (Selection Grade) but cannot go upto the level of Reader. According to Mr. Kamal, therefore, the rank or status of the post of Reader is different from that of a Lecturer (Selection Grade) and the impugned transfer of the petitioner from the post of Reader to that of Lecturer reduces the rank of status of the petitioner. He cited the decision of the Supreme Court in E P Royappa v. State of Tamil Nadu AIR 1974 SC 55, for the proposition that transfer to a post lower in status and responsibilities is violative of Articles 14 and 16 of the Constitution.

In reply to the aforesaid submission of Mr. Kamal, Mr. N. Kerani, learned senior counsel appearing for the State-respondents, submitted that as soon as the authorities came to learn of the mistake in the impugned order of transfer describing the petitioner as Lecturer instead of Reader, a corrigendum was issued on 24.12.1999, a copy of which has been annexed to the counter-affidavit of the State-respondents as Annexure-D/4 and in the said corrigendum, the petitioner has now been correctly described as Reader in English. Mr. N. Kerani further submitted that it will be clear from the letter dated 27.11.1995 of the University Grants Commission to the Additional Director of Education (U), Government of Manipur, a copy of which has been annexed to the counter-affidavit as Annexure-D/2, that the grade of Reader is at par with the grade of Selection Grade Lecturer and only the designation is different inasmuch as Selection Grade Lecturer is not designated as a Reader. That a Selection Grade Lecturer is at par with a Reader will also be clear from the order dated 29.9.1999 of the Government of Manipur, Finance Department in which same scale of pay has been fixed both for Selection Grade Lecturer and for Reader. Mr. Kerani therefore submitted that the petitioner will continue to enjoy the scale of pay of a Reader equivalent to that of a Selection Grade Lecturer in his new place of posting in Pettigrew College, Ukhrul and that there is no reduction of rank or status of the petitioner by the impugned order of transfer.

It is clear from the judgment of the Supreme Court in EP Royappa v. State of Tamil Nadu (supra) that transfer of an officer or a government servant to a post having a status and responsibility lower than his existing post would be violative or Articles 14 and 16 of the Constitution. But in the decision of the Supreme Court in EP Royappa v. State of Tamil Nadu, the Supreme Court found that the posts of Deputy Chairman, Planning Commission and the officer on Special Duty were equal in status and responsibility to that of Chief Secretary. Thus, the designation of an officer or an government servant does not determine his status and responsibility. In the present case, it is clear from the order dated 29.9.1999 of the Government of Manipur, Finance Department and the letter dated 27.11.1995 of the University Grants Commission to the Additional Director Education (U), Government of Manipur that the Grade of Reader is at par with the Selection Grade Lecturer and carries same scale of pay. It is also apparent from the order dated 11.11.1999 of the Government of Manipur, Education Department, copy of which has been annexed to the counter-affidavit as Annexure-D/1, that the respondent No. 3 was given Selection Grade with effect from 10.4.1996. Hence, on transfer to the post held by the respondent no. 3 under the impugned order of transfer dated 4.12.1999, the petitioner will continue to enjoy the scale of pay equivalent to that of Selection Grade Lecturer as well as that of a Reader. The petitioner''s only prejudice can be that he may not continue as a Reader in Pettigrew College to which he has been transferred in place of respondent No. 3. But this apprehension of the petitioner is mis-conceived inasmuch as by corrigendum dated 24.12.1999, the petitioner has now been described as Reader in English and therefore is being transferred to Pettigrew College as a Reader of English and not as Selection Grade Lecturer. As a matter of fact, in the very order dated 11.11.1999 of the Government of Manipur, Education Department by which the petitioner amongst other was appointed/designated as a Reader, it was stipulated in paragraph - 2 that the posts of Reader would be personal to their incumbents and would be automatically reverted back as Lecturer once the post become vacant again. This would mean that the petitioner who is designated as Reader will carry the designated of Reader wherever he is posted. This would further mean that as soon as the petitioner vacates the post at Thoubal College in which he as working as Reader in English, the said post reverts back as a Lecturer unless another Reader is posted in the said post and this would also mean that as soon as the petitioner joins pursuant to the impugned order of transfer at Pettigrew College at Ukhrul, he will work as a Reader in English in the said College and not as a Selection Grade Lecturer. For these reason, I am of the considered opinion that the impugned order of transfer has not in any way lowered the status, rank or responsibility of the petitioner.

Mr. Kamal next submitted that since the petitioner had approached this court against the impugned order of transfer and obtained an interim order staying the transfer order on 20.12.1999, the State-respondents committee an act of contempt by issuing the corrigendum dated 24.12.1999 to the impugned order of transfer. I am unable to accept the said submission of Mr. Kamal. The petitioner''s grievance in the writ petition is that although he was designated as a Reader in English he was described as a Lecturer in English in the impugned order dated 4.12.1999. By corrigendum dated 24.12.1999, the State Government corrected the wrong description in the impugned order of transfer correctly describing the petitioner as Reader in English instead of Lecturer in English. Such corrective measure taken by the State-respondents during the pendency of the writ petition does not affect the administration of justice so as to call for action for contempt against the State-respondents but instead furthers and advances the cause of justice by correcting an inadvertent or wrong act on the part of the State-respondents.

Mr. Kamala finally submitted that in the impugned order dated 4.12.1999 it has not been stated that the impugned transfer of the petitioner has been made in public interest. On the other hand, in various orders issued by the Government from time to time including one issued by the same Under Secretary (Higher Education), Government of Manipur, which was brought to the notice of the court, it has been stated that the transfers have been made in the public interest. Mr. Kamal further submitted that the impugned transfer has been made only to accommodate the respondent No. 3 and that the impugned order of transfer is vitiated by malafide. He cited the decision of the Supreme court in B. Varadha Rao Vs. State of Karnataka and Others, for the proposition that a transfer which is not in the public interest and is made not for professed purpose is vitiated by malafide, particularly when it is not made in normal course. Mr. Kamal pointed out that it would be clear from the impugned order dated 4.12.1999 that it has not been made in normal course in the regular chain of transfers and that it has been made only to accommodate the respondent No. 3.

Mr. N Kerani, learned counsel for the State-respondents, on the other hand, submitted that the impugned order of transfer has been made in the public interest and has not been made to accommodate the respondent No. 3. He further argued that the petitioner has only made bald statements in the writ petition that the impugned order of transfer is vitiated by malafide but has not furnished any facts to show that the impugned order is actually occasioned by malafide motive.

I find a lot of force in the aforesaid submission of Mr. N. Kerani Singh. On a reading of the averments in the writ petition, I find that no facts have been stated to make a case of malafide against the State-respondents in issuing the impugned order of transfer. In fact, the main case in the writ petition is that the petitioner has been transferred to a post which is not equivalent to that of Reader and it is only in para - 10 of the writ petition that the petitioner has taken a general ground that the impugned order of transfer is illegal, malafide, biased, arbitrary, etc. In the absence of facts being properly pleaded in the writ petition on to show malafide and in the absence of cogent materials to establish such malafide on the part of the authorities, the court cannot quash an order of transfer on the ground of malafide. Further, although it is normally stated in the order of transfer that the same has been made in the public interest, an order of transfer which does no state that the transfer has been made in the public interest cannot be quashed unless the court comes to a finding on the basis of cogent materials that such order of transfer has actually not been passed in the public interest. There is no such material in the present for the court to come to the conclusion that the impugned order of transfer has been passed not in the public interest but only to accommodate the respondent No. 3. In B. Varadha Rao v. State of Karanataka (supra), cited by Mr. Kamal, the court after discussing the proposition of law as laid down in EP Royappa v. State of Tamil Nadu (supra) did not interfere with the order of transfer as it did not find any material to come to the conclusion that the same was arbitrary or vitiated by malafide.

For the aforesaid reasons, this writ petition is dismissed. The interim order passed by this court on 20.12.1999 is vacated. Considering the entire facts and circumstances of the case, I make no order as to costs.