Thounaojam Jamini Devi vs State Of Manipur And Others

Lanusungkum Jamir, J

By this writ petition, the petitioner has challenged the transfer and posting order dated 8.3.2019 by which the petitioner who was serving as in-charge CDPO, ICDS Project, Lamsang I/W-I has been transferred and posted as in-charge CDPO, ICDS Project Singhat.

[2] Heard Mr.A.Mohendro, learned counsel for the petitioner. Also heard Mr.S.Nepolean, learned GA for respondent Nos.1, 2 and 3 and Mr.H.S.Paonam, learned senior counsel appearing for respondent No.4.

[3] Mr.A.Mohendro, learned counsel appearing for the petitioner submits that the petitioner is a regular employee holding the substantive post of Supervisor in the Social Welfare Department, Government of Manipur and the petitioner is to retire on superannuation w.e.f. 28.02.2020. During the past service tenure, the petitioner had served for fourteen years in the hill areas/districts. He submits that the Government of Manipur, Department of Personnel and Administrative Reforms (Personnel Division) has issued an Office Memorandum dated 5.12.2017 laying down the policy for transfer and posting of Government servants. Therein, at clause 2(i) it provides that normal tenure of posting of an officer/employee in a post will be a minimum of two years and maximum of five years in a place of posting. At clause 2(ii) it is further provided that no transfer may be affected unless the concerned employee has completed three years in a post, unless there are compelling reasons/circumstances to do so. Clause 2(viii) further stipulates that officials may be posted in a district of their choice two years before their retirement. He submits that this has been circulated to all the departments to ensure compliance of the instructions. It is submitted that the transfer order dated 8.3.2019 has been issued in violation of the Office Memorandum dated 5.12.2017 inasmuch as the petitioner will retire from service in not less than nine months i.e. on 28.2.2020.

The second ground of attack to the order dated 8.3.2019 is that the order has not been issued in public interest and the same is amply made clear by the order dated 8.3.2019 inasmuch as the word "public interest" has not been mentioned. He, therefore, submits that the impugned order dated 8.3.2019 has been issued to accommodate the respondent No.4 at Lamsang. Further submission has been forwarded that the order dated 8.3.2019 transferring the petitioner out of Lamsang to Singhat has been issued on political interference in favour of the respondent No.4. He, therefore, submits that the action of respondent No.4 by bringing in political interference attracts clause 2(xvii) of the Office Memorandum dated 5.12.2017 which provides that any Government servant who brings or attempts to bring any political or other external influence to bear upon any authority to further his/her interest in respect of matters pertaining to service under the Government, including transfers, shall be liable to be severely dealt with and action may be taken against him/her for violation of Rule 20 of the Civil Services Conduct Rules.

Learned counsel for the petitioner also submits that the Office Memorandum dated 5.12.2017 has been issued for strict compliance by all the departments in the matters of transfer and posting of Government servants and that the Office Memorandum is not only instructions but has statutory force which all the departments are to strictly comply. To support his case, he placed reliance in the case of Lalaram & Ors Vs Jaipur Development Authority & Anr reported in 2016 (1) Supreme 337. It is the further case of learned counsel for the petitioner that the transfer order dated 8.3.2019 has been issued malafide with the intention of transferring the petitioner, not only to hill district but also to a remote area of the State. He has also placed reliance in the cases of Deputy Transport Commissioner & Secretary Anr Vs M.B.Kishore reported in (2005) 11 SCC 541 and Food Corporation of India & Anr Vs Seil Ltd & Ors reported in (2008) 3 SCC 440.

[4] Mr.H.S.Paonam, learned senior counsel appearing for respondent No.4, at the outset submits that the writ petition is not maintainable for non joinder of parties. He submits that the impugned order dated 8.3.2019 is a general transfer involving eleven officials, which would have a chain reaction affecting the rights of those officials. However, none of the officials has been made parties except respondent No.4 and, therefore, the writ petition is liable to be dismissed for non joinder of parties. It is submitted that in the event, the transfer order dated 8.3.2019 is interfered with, the whole transfer concerning the eleven officials will have to be rearranged. Learned senior counsel also submits that the prayer of the petitioner in the writ petition is also defective inasmuch as he has prayed for quashing and setting aside the impugned transfer order dated 8.3.2019 in respect of the petitioner only and not that of the respondent No.4.

Learned senior counsel for respondent No.4 also submits that the Office Memorandum dated 5.12.2017 has no statutory force and it is only directory in nature and, therefore, the petitioner cannot claim any right under the Office Memorandum dated 5.12.2017. Further submission has been forwarded by the learned senior counsel that the petitioner cannot pick and choose any particular transfer order alleging that the same has not been issued in public interest. Referring to a transfer order dated 1.6.2017 wherein the petitioner has been transferred from Singhat ICDS Project to Lamsang and which is annexed to the writ petition as Annexure A/2, he submits that the said order also does not contain the word 'public interest'. However, the petitioner has accepted the same without any protest and, therefore, challenging the present transfer and posting order dated 8.3.2019 on the ground that the said transfer order is not in public interest inasmuch as the word 'public interest' has not been used in the order dated 8.3.2019 is not maintainable inasmuch as the petitioner cannot be allowed to approbate and reprobate at the same time. It is also submitted that no pleading has been taken by the petitioner in the writ petition that his transfer has been initiated at the influence of politicians. In any case, he submits that interference of politicians cannot vitiate the transfer order provided the same has been done in public interest. In that view of the matter he submits that there is no merit in the writ petition and the same deserves to be dismissed. Learned senior counsel has also placed reliance in the cases of (1) Kh.Siraj Vs High Court of Kerala & Ors (2006) 6 SCC 395, (2) Shilpi Bose (Mrs) & Ors Vs State of Bihar & Ors : 1991 Supp (2) SCC 659, (3) Mohd Masood Ahmad Vs State of U.P & Ors : (2007) 8 SCC 150, (4) Kalyan Singh Chouhan Vs C.P.Joshi: (2011) 11 SCC 786, (5) Union of India Vs Ibrahim Uddin & Anr: (2012) 8 SCC 148 (6) Chengaseng Kath Vs State of Nagaland & Ors: 2009 (4) GLT 801.

[5] Mr.Nepolean, learned GA appearing for respondent Nos.1, 2 and 3, while endorsing the submission made by Mr.H.S.Paonam, learned senior counsel for respondent No.4 further submits that the transfer order dated 8.3.2019 is a general transfer effecting eleven officials under the Social Welfare Department. The petitioner is holding a transferable post and, therefore, he can be posted anywhere at any time in public interest. The learned G.A, relying in the case of S.C.Saxena Vs Union of India & Ors reported in (2006) 9 SCC 583 submits that the petitioner had earlier made a representation dated 16.3.2019 against the transfer order dated 8.3.2019. On approaching this Court by way of WP(C) No.255 of 2019, this Court had disposed of the said writ petition by an order dated 20.03.2019 directing the respondents to consider the said representation dated 16.3.2019. In compliance, the respondent has considered the representation made by the petitioner and has disposed of the same by order dated 3.4.2019 rejecting the representation made by the petitioner. However, till date, the petitioner is yet to join to her place of posting and is interfering with the process of law by refusing to accept the transfer order dated 8.3.2019. He submits that the respondent No.4 in compliance of the order dated 8.3.2019 has already joined to his place of posting on 18.3.2019. However, till date, the petitioner is refusing to join to her place of posting.

Learned G.A further submits that there is no allegation of malafide in the writ petition, nor is there any allegation that the impugned transfer order has been issued to accommodate the respondent No.4. It is submitted that the order dated 8.3.2019 is a general transfer order without any influence of any politicians and, therefore, the allegation of the petitioner that the order dated 8.3.2019 has been issued on the interference of politicians is incorrect. Any direction issued by the Minister concerned cannot be treated as political interference and, therefore, the allegation made by the petitioner is without any force. He has also placed reliance in the case of State of Assam & Ors Vs Dilip Kumar Das & Anr: 2003 (1) GLT 530 and Registrar General, High Court of Judicature of Madras Vs Perachi & Ors: (2011) 12 SCC 137.

[6] The submission made by learned counsel for the petitioner that the transfer of the petitioner from Lamsang to Singhat was on the intervention of politician has been considered by this Court. On this issue, this Court has perused the records produced by the learned Government Advocate. A perusal of the same would indicate that the initiation of the transfer and posting of nine officials including the petitioner and respondent No.4 was done by the Minister (Coop/SW) by U.O.Note dated 8.3.2019. At page 61 of the records, another U.O Note dated 7.3.2019 was written by the Minister (Coop/SW) proposing transfer and posting of two other officials. The two U.O.Notes culminated in the order dated 8.3.2019. There is nothing to indicate in the records, apart from the U.O.Notes written by the Minister (Coop/SW) that there was any interference by any politician. The U.O.Note of the Minister cannot be termed as a political interference, more particularly when the minister concerned was in-charge of the Social Welfare Department. In that view of the matter, I am unable to accept the submission of learned counsel for the petitioner that there was political interference with malafide intention for transferring the petitioner from Lamsang to Singhat.

There is no manner of doubt that the Minister (Coop/SW) is the competent authority to effect transfer of officers under the Social Welfare Department. It is settled principles that the competent authority has jurisdiction to transfer the employees, if the necessity arises considering the exigency of service and in public interest.

[7] The second ground of contention of learned counsel for the petitioner that the transfer order dated 8.3.2019 was issued in contravention of the Office Memorandum dated 5.12.2017 issued by the Department of Personnel and Administrative Reforms (Personnel Division, Government of Manipur) has also been considered.

In the case of Syndicate Bank Vs Ramachandran Pillai & Ors reported in (2011) 15 SCC 398 the Hon'ble Court has held as under:

"6. If any executive instructions are to have the force of statutory rules, it must be shown that they were issued either under the authority conferred on the Central Government or a State Government or othe4 authority by some statute or the Constitution. Guidelines or executive instructions which are not statutory in character, are not "laws", and compliance therewith cannot be enforced through courts. Even if there has been any violation or breach of such non-statutory guidelines, it will not confer any right on any member of the public, to seek a direction in a court of law, for compliance with such guidelines. An order validly made in accordance with a statute (as in this case the Public Premises Act) cannot be interfered with, even if there has been any transgression of any guidelines, except where it is arbitrary or malafide or in violation of any statutory provision. These are well-settled principles (see Union of India Vs S.L.Abbas: (1993) 4 SCC 357, South Central Railway V. G.Ratnam: (2007) 8 SCC 212 and State of U.P. V Gobardhan Lal: (2004) 11 SCC 402.

Again in the case of Chief Commercial Manager, South Central Railway, Secunderbad & Ors Vs G.Ratnam & Ors reported in (2007) 8 SCC 212 the Hon'ble Court has held as under:

"19.

...................................................... . .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. Broadly speaking, the administrative rules, regulations and instructions, which have no statutory force, do not give rise to any legal right in favour of the aggrieved party and cannot be forced in a court of law against the administration. The executive orders appropriately so-called do not confer any legally enforceable rights on any persons and impose no obligation on the subordinate authorities for whose guidance they are issued. Such an order confer no legal and enforceable rights on the delinquent even if any of the directions is ignored, no right would lie. Their breach may expose the subordinate authorities to disciplinary or other appropriate action, but they cannot be said to be in the nature of statutory rules having the force of law, subject to the jurisdiction of certiorari.

It is well settled that the Central Government or the State Government can give administrative instructions to its servants how to act in certain circumstances; but that will not make such instructions statutory rules which are justiciable in certain circumstances. In order that such executive instructions have the force of statutory rules, it must be shown that they have been issued either under the authority conferred on the Central Government or the State Government by some statute or under some provisions of the Constitution providing therefor. Therefore, even if there has been any breach of such executive instructions that does not confer any right on any member of the public to ask for a writ against the Government by a petition under Article 226 of the Constitution of India."

The Office Memorandum dated 5.12.2017 is an administrative instruction which have no statutory force and, therefore, the same cannot be enforced in the Court of law. The petitioner, therefore, does not accrue any legal right even if there is any breach of the Office Memorandum dated 5.12.2017. The case of Lalaram & Ors (supra) relied upon by the petitioner's counsel has no relevance to the case in hand.

[8] The order dated 8.3.2019 has been considered by this Court. A consideration of the order dated 8.3.2019 along with the records would clearly indicate that it is a general transfer effected in public interest despite the word 'public interest' not used in the transfer order.

[9] Having come to the conclusion that there was no political interference while issuing the order dated 8.3.2019 and that non adherence to the Office Memorandum dated 5.12.2017 does not give any legally enforceable right to the petitioner, this Court does not deem it necessary to address the other issues raised by the petitioner's counsel as well as that of respondents' counsel. Accordingly, this Court has no hesitation to hold that the order dated 8.3.2019 was issued in public interest and that it was a general transfer. In that view of the matter, there is no merit in the writ petition and the same is accordingly, dismissed.

Before parting with the case, this Court has taken into consideration that the petitioner is due for retirement w.e.f. 28.2.2020. In that view of the matter, the respondents, despite dismissal of the writ petition, may take into consideration the short period of service available to the petitioner and may consider posting the petitioner as per her choice on humanitarian grounds.

Return the records to Mr.Nepolean, learned Government Advocate forthwith.