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IN THE HIGH COURT OF MANIPUR

AT IMPHAL

W.P. (C) No. 86 of 2018

Shri Thokchom Vikramjit Singh, aged about 40 years,

S/o (L) Th. Navakumar Singh, resident of Sagolmang

Mamang Leikai, P.O. & P.S. Lamlai, Imphal East

District, Manipur.

... PETITIONER

- Versus -

1. The State of Manipur represented through its

Chief Secretary, Department of Personnel &

Administrative Reforms (Personnel Division), Govt. of

Manipur.

2. The Joint Secretary (DP), Government of Manipur.

3. Shri M. Rajen Singh, MPS, C/o Director General of

Police, having its office at Babupara, Imphal, Imphal

West District, Manipur.

... RESPONDENTS

B E F O R E

HON’BLE MR. JUSTICE KH. NOBIN SINGH

For the petitioner : Shri M. Devananda, Advocate.

For the respondents : Shri N. Kumarjit, Advocate General

asstd. by Shri P. Tamphamani, Advocate;

Shri E. Premjit, Advocate with

Shri N. Jotendro, Sr. Advocate.

Date of Hearing : 19-03-2018.

Date of Order : 26-03-2018

FR/NFR

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JUDGMENT AND ORDER

[1] Heard Shri M. Devananda, the learned Advocate

appearing for the petitioner; Shri N. Kumarjit, the learned Advocate

General, Manipur assisted by Shri P. Tamphamani, the learned

counsel appearing for the State respondents and Shri E. Premjit, the

learned Advocate with Shri N. Jotendro, the learned Sr. Advocate

appearing for the private respondent.

[2] The order of transfer and posting dated 30-01-2018 issued

by the Joint Secretary (DP), Government of Manipur is under

challenge in this writ petition.

[3] The facts of the case as narrated in the writ petition are

that the petitioner was initially appointed as MPS Grade-II in the year

2007 and after having served for more than seven years as MPS

Grade-II, he was promoted to the post of MPS Grade-I in the year

2014. During the period from 2007 to 2014, the petitioner was posted

at many places, both in the valley and in the hills. On 28-11-2016 the

petitioner while serving as the Additional Superintendent of Police

(Ops.), Imphal West, was transferred as the Commandant (i/c), 2

nd

Bn. Manipur Rifles and after having served for about six months, he

was transferred as the Superintendent of Police, Jiribam vide order

dated 23-05-2017 issued by the Deputy Secretary (DP), Government

of Manipur and after having served hardly a one month therefrom, he

was transferred as the Commandant, 3

rd

Indian Reserve Battalion

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vide order dated 19-06-2017 issued by the Deputy Secretary (DP),

Government of Manipur. After about seven months, the petitioner

was again transferred as the Superintendent of Police (i/c), Railway

vide impugned order dated 30-01-2018 issued by the Joint Secretary

(DP), Government of Manipur. Being aggrieved by it, the petitioner

submitted a representation dated 31-01-2018 to the Chief Secretary

(DP), Government of Manipur for reviewing/ cancelling the transfer

order on the ground that he has been subjected to frequent transfer

with a malafide intention and that too, without assigning any reason

thereof. Since the impugned order being given immediate effect, the

petitioner approached this court by way of the present writ petition to

quash and set aside the impugned order dated 30-01-2018 without

awaiting the outcome of the said representation.

[4] In order to contest the writ petition, an affidavit on behalf

of the respondent Nos.1 and 2 has been filed wherein it has been

stated that since the extension of railways to all the North Eastern

States of India and in particular, Manipur being given a priority, the

petitioner being a young and energetic officer, was required to

be transferred and posted as the i/c Superintendent of Police,

Railways. The order of transfer and posting dated 28-11-2016 was

issued by the earlier government while the subsequent orders dated

23-05-2017, 19-06-2017 and 30-01-2018 were issued by the present

government keeping in mind the change in the government and due

emphasis to be given to the development of newly created districts

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and the railway project as well. After the impugned order dated

30-01-2018 being issued by the Joint Secretary (DP), Government of

Manipur, the private respondent who was relieved on 30-02-2018,

had joined his place of posting on the same day by taking self-

charge. In the said affidavit, it has also been submitted that the

interim order dated 02-02-2018 passed by this court has severely

affected the functioning, administration and morale of the police

administration more particularly, in an insurgent State like Manipur

and moreover, the same has severely affected the transfer and

posting of other officers who are not party in the present writ petition.

There is no malafide in the transfer and posting and not a single

plead is taken in the present writ petition with respect to the transfer

order being issued in a mala fide manner. In order to support their

contention, the decision rendered by the Hon’ble Supreme Court in

Gujarat Electricity Board Vs. Atmaram Sungomal Poshani,

(1989) 2 SCC 602 has been referred to and relied upon. The

impugned order has been issued in public interest and there is no

intention on the part of the State Government to penalize any

individual officer, who cannot claim to be posted at a particular place.

In terms of the O.M. dated 05-12-2017, an employee who has not

completed three years in a post, can be transferred under compelling

reasons/ circumstances. In a similar line, an affidavit in opposition

has been filed by the private respondent.

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[5] Relying upon the decision rendered by the Hon’ble

Supreme Court in T.S.R Subramanian & ors. Vs. Union of India &

ors, (2013) 15 SCC 732, it has been submitted by Shri M.

Devananda, the learned counsel appearing for the petitioner that the

petitioner has been subjected to frequent transfer without assigning

any reason thereof. Since the O.M. dated 24-04-1991 having been

issued by way of a policy decision, the State Government ought to

have followed the same while issuing the transfer orders. Combating

the submissions made by the learned counsel appearing for the

petitioner, Shri N. Kumarjit, the learned Advocate General, Manipur

has submitted that no material has been produced by the petitioner

to establish malafide on the part of the State Government except

using the expression “malafide intention” in the petition. No employee

has got any right to be posted at a particular place. The guidelines

contained in the O.M. dated 05-12-2017 are not enforceable in law

and non-enforcement of any provisions of the guidelines shall not

confer any right upon an employee. In order to support his

contention, he has placed reliance on the decisions rendered by the

Hon’ble Supreme Court in S.C. Saxena Vs. Union of India & ors.,

(2006) 9 SCC 583; Union of India & ors. Vs. S.L. Abbas, (1993) 4

SCC 357; and Rajendra Singh & ors. Vs. State of Uttar Pradesh &

ors., (2009) 15 SCC 178. The submissions of Shri E. Premjit, the

learned counsel appearing for the private respondent are similar to

that of the learned Advocate General, Manipur and therefore, the

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same are not repeated herein for the sake of brevity. However, in

addition to the decisions being relied upon by the learned Advocate

General, he has relied upon various decisions rendered by the

Hon’ble Supreme Court in the cases of B. Varadha Rao Vs. State of

Karnataka & ors., (1986) 4 SCC 131; Shilpi Bose (Mrs.) & ors. Vs.

State of Bihar & ors. (1991) 2 SCC 659; Union of India & ors. Vs.

H.N. Kirtania, (1989) 3 SCC 445; State of Punjab Vs. Joginder

Singh Dhatt, AIR 1993 SC 2486; Rajendra Roy Vs. Union of India

& anr., (1993) 1 SCC 148 and National Hydroelectric Power

Corporation Ltd. Vs. Shri Bhagwan & anr., (2001) 8 SCC 574.

[6] Before adverting to the rival contentions of the learned

counsel appearing for the parties, this court proposes to examine the

law laid down by the Hon’ble Supreme Court with respect to orders of

transfer issued by various States in the country and in particular, the

decisions relied upon by the counsel appearing for the parties.

In B. Varadha Rao Vs. State of Karnataka & ors., (1986)

4 SCC 131, it has been held that it is well understood that transfer of

a government servant who is appointed to a particular cadre of

transferable posts from one place to another is an ordinary incident

of service and therefore does not result in any alteration of any of the

conditions of service to his disadvantage. That a government servant

is liable to be transferred to a similar post in the same cadre is a

normal feature and incident of government service and no

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government servant can claim to remain in a particular place or in a

particular post unless, of course, this appointment itself is to a

specified, non-transferable post. Distinguishing the decision in E.P.

Royappa case, the Hon’ble Supreme Court has further held:

“6. One cannot but deprecate that frequent, unscheduled

and unreasonable transfers can uproot a family, cause

irreparable harm to a government servant and drive him

to desperation. It disrupts the education of his children

and leads to numerous other complica tions and

problems and results in hardship and demoralisation. It

therefore follows that the policy of transfer should be

reasonable and fair and should apply to everybody

equally. But, at the same time, it cannot be forgotten

that so far as superior or more responsible posts are

concerned, continued posting at one station or in one

department of the government is not conducive to good

administration. It creates vested interest and therefore

we find that even from the British times the general

policy has been to restrict the period of posting for a

definite period. We wish to add that the position of

Class III and Class IV employees stand on a different

footing. We trust that the government will keep these

considerations in view while making an order of

transfer.”

In Union of India & ors. Vs. H.N. Kirtania, (1989) 3 SCC

445, the Hon’ble Supreme Court has held that 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

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rendering the transfer order illegal on the ground of violation of

statutory rules or on the ground of malafides.

In Shilpi Bose (Mrs) & ors. Vs. State of Bihar & ors.,

1991 Supp (2) SCC 659, the Hon’ble Supreme Court held:

“4. In our opinion, the courts should not interfere with a

transfer order which is made in public interest and for

administrative reasons unless the transfer orders are

made in violation of any mandatory statutory rule or on the

ground of mala fide. A government servant holding a

transferable post has no vested right to remain posted at

one place or the other, he is liable to be transferred from

one place to the other. Transfer orders issued by the

competent authority do not violate any of his legal rights.

Even if a transfer order is passed in violation of executive

instructions or orders, the courts ordinarily should not

interfere with the order instead affected party should

approach the higher authorities in the department. If the

courts continue to interfere with day-to-day transfer orders

issued by the government and its subordinate authorities,

there will be complete chaos in the administration which

would not be conducive to public interest. The High Court

overlooked these aspects in interfering with the transfer

orders.

In State of Punjab & ors. Vs. Joginder Singh Dhatt, AIR

1993 SC 2486, the Hon’ble Supreme Court held:

“3. We have heard learned Counsel for the parties. This Court

has time and again expressed its disapproval of the courts

below interfering with the order of transfer of public servant

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from one place to another. It is entirely for the employer to

decide when, where and at what point of time a public

servant is transferred from his present posting. Ordinarily

the courts have no jurisdiction to interfere with the order of

transfer. The High Court grossly erred in quashing the

order of transfer of the respondent from Hoshiarpur to

Sangrur. The High Court was not justified in extending its

jurisdiction under Article 226 of the Constitution of India in

a matter where, on the face of it, no injustice was caused.”

In National Hydroelectric Power Corporation Ltd. Vs.

Shri Bhagwan, (2001) 8 SCC 574, the Hon’ble Supreme Court held:

“5. On a careful consideration of the submissions of the

learned counsel on either side and the relevant Rules to

which our attention has been invited to, we are of the view

that the High Court was not justified in interfering with the

impugned orders of transfer. It is by now well settled and

often reiterated by this Court that no government servant

or employee of a public undertaking has any legal right to

be posted forever at any one particular place since transfer

of a particular employee appointed to the class or category

of transferable posts from one place to other is not only an

incident, but a condition of service, necessary too in public

interest and efficiency in the public administration. Unless

an order of transfer is shown to be an outcome of mala fide

exercise of power or stated to be in violation of statutory

provisions prohibiting any such transfer, the courts or the

tribunals cannot interfere with such orders as a matter of

routine, as though they are the appellate authorities

substituting their own decision for that of the management,

as against such orders passed in the interest of

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administrative exigencies of the service concerned. On the

facts and circumstances of the cases before us, we are

also unable to agree with the learned counsel for the

respondents that Rule 4.1.1 of the Seniority Rules

interdicts any transfer of the employees from one office or

project or unit to any one of the other as long as the

seniority of such an employee is protected based on the

length of service with reference to the date of promotion or

appointment to the grade concerned irrespective of the

date of transfer. We also consider it to be a mere

submission in vain, the one urged on the basis of alleged

adverse consequences detrimental to their seniority

resulting from such transfer. In the facts of the present

cases, at any rate, no such result is bound to occur since

the Project undertaken to which the respondents have

been transferred is itself a new one and, therefore, we see

no rhyme or reason in the alleged grievance.

In S.C. Saxena Vs. Union of India & ors., (2006) 9 SCC

583, the Hon’ble Supreme Court held:

“6. We have perused the record with the help of the learned

counsel and heard the learned counsel very patiently. We

find that no case for our interference whatsoever has been

made out. In the first place, a government servant cannot

disobey a transfer order by not reporting at the place of

posting and then go to a court to ventilate his grievances. It

is his duty to first report for work where he is transferred

and make a representation as to what may be his personal

problems. This tendency of not reporting at the place of

posting and indulging in litigation needs to be curbed.

Apart therefrom, if the appellant really had some genuine

difficulty in reporting for work at Tezpur, he could have

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reported for duty at Amritsar where he was so posted. We

too decline to believe the story of his remaining sick.

Assuming there was some sickness, we are not satisfied

that it prevented him from joining duty either at Tezpur or

at Amritsar. The medical certificate issued by Dr. Ram

Manohar Lohia Hospital proves this point. In the

circumstances, we too are of the opinion that the appellant

was guilty of the misconduct of unauthorisedly remaining

absent from duty.

In Rajendra Singh & ors. Vs. State of Uttar Pradesh &

ors., (2009) 15 SCC 178, the Hon’ble Supreme Court held:

“8. 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 the 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 (see State of U.P. v. Gobardhan Lal, SCC p. 406,

para 7).

[7] From the aforesaid decisions relied upon by the learned

counsels appearing for the respondents, it is seen that the law laid

down by the Hon’ble Supreme Court is that transfer is an incident of

service. A government servant holding a transferable post has no

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vested right to remain posted at one place or the other and he is

liable to be transferred from one place to the other. Transfer orders

issued by the competent authority do not violate any of his legal

rights. Transfer order cannot be questioned by an employee except

on the ground of violation of statutory rules or on the ground of

malafide.

Transfer can be broadly divided into two types- one, a

simple or an ordinary or a general transfer and two, a frequent

transfer. There can be no doubt about the law being laid down by the

Hon’ble Supreme Court but the law laid down by the Hon’ble

Supreme Court therein is a general one applicable to a transfer

which is simple or ordinary or for that matter, a general transfer

relating to any department or any post. Frequent transfer was not the

subject matter in issue in those cases. Frequent transfer is quite

different from a simple or an ordinary or a general transfer and it

means transfer for more than once in a short period of time. If one

looks at the impugned order in isolation, it can be said to be a

general transfer but the allegation is that the petitioner has been

subjected to four transfers in a short period of hardly 13 months

which is nothing but a frequent transfer. In other words, the present

case falls in the second category namely the frequent transfer and

since the facts of those cases are not similar, the law laid down

therein will have no application to the facts of the present case. In B.

Varadha Rao case (supra) relied upon by the counsel appearing for

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the private respondent, the Hon’ble Supreme Court has observed

that one cannot but deprecate that frequent, unscheduled and

unreasonable transfers can uproot a family, cause irreparable harm

to a government servant and drive him to desperation.

[8] The issue relating to transfer of a police officer has been

specifically dealt with in Prakash Singh & ors. Vs. Union of India,

(2006) 8 SCC 1 and in fact, the issues involved therein have arisen

out of the non-implementation of the recommendations of the various

Commissions/ Committees and in particular, the recommendation of

the National Police Commission relating to police reforms in the

country. As has been observed by the Hon’ble Supreme Court, the

second report of the said Commission which noticed the

phenomenon of frequent and indiscriminate transfer order on political

considerations as also other unhealthy influences and pressure

brought to place on police, is relevant for the present case. The stand

of the Union of India is evident from a letter dated 03-04-1997 of the

Ministry of Home Affairs sent to all the State Government expressing

that the popular perception all over the country appears to be that

many of the deficiencies in the functioning of the police had arisen

largely due to an overdose of unhealthy and petty political

interference at various levels starting from transfer and posting of

policemen of different ranks, misuse of police for partisan purposes

and political patronage quite often extended to corrupt police

personnel. While considering the said issues, the Hon’ble Supreme

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Court referred to its earlier decision in Vineet Narain & ors. Vs.

Union of India & anr., (1998)1 SCC 226 wherein it had noticed the

urgent need for the State Governments to set up the requisite

mechanism and directed the Central Government to pursue the

matter of police reforms with the State Governments and ensure the

setting up of a mechanism for selection/ appointment, tenure,

transfer and posting of not merely the Chief of the State Police but

also all police officers of the rank of Superintendent of Police and

above. The Hon’ble Supreme Court had expressed its shock that in

some States the tenure of a Superintendent of Police is for a few

months and transfers are made for whimsical reasons which has not

only demoralising effect on the police force but is also alien to the

envisaged constitutional machinery. It was further observed that

apart from demoralising the police force, it has also the adverse

effect of politicising the personnel and therefore, it is essential that

prompt measures are taken by the Central Government. Considering

the contentions of the parties and keeping in mind the circumstances

of that case, the Hon’ble Supreme Court had issued various

directions, out of which the relevant direction for the present case is

that police officers on operational duties in the field like the Inspector

General of Police in-charge Zone, Deputy Inspector General of

Police in-charge range, Superintendent of Police in-charge district

and Station House Office in-charge of a Police Station shall also

have a prescribed minimum tenure of two years unless it is found

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necessary to remove them prematurely following di sciplinary

proceedings against them or their conviction in a criminal offence or

in a case of corruption or if the incumbent is otherwise incapacitated

from discharging his responsibilities. Referring to and relying upon

the said decision in Prakash Singh’s case, the Hon’ble Supreme

Court in T.S.R. Subramanian & ors. Vs. Union of India, (2013) 15

SCC 732, held:

“35. We notice, at present the civil servants are not having

stability of tenure, particularly in the State Governments

where transfers and postings are made frequently, at the

whims and fancies of the executive head for political and

other considerations and not in public interest. The

necessity of minimum tenure has been endorsed and

implemented by the Union Government. In fact, we notice,

almost 13 States have accepted the necessity of a

minimum tenure for civil servants. Fixed minimum tenure

would not only enable the civil servants to achieve their

professional targets, but also help them to function as

effective instruments of public policy. Repeated

shuffling/transfer of the officers is deleterious to good

governance. Minimum assured service tenure ensures

efficient service delivery and also increased efficiency.

They can also prioritise various social and economic

measures intended to implement for the poor and

marginalised sections of the society.

The Hon’ble Supreme Court directed the Union, State

Governments and Union Territories to issue appropriate directions to

secure providing of minimum tenure of service to various civil

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servants within a period of three months. It may be noted that in

these decisions of the Hon’ble Supreme Court, the scope of

challenging order of transfer has been widened by it.

[9] The case of the petitioner is that he has been subjected to

frequent transfer, without assigning any reason thereof, with a

malafide intention. Frequent transfer is not denied by the State

Government and all that it has submitted, is that it has been done in

public interest and the petitioner has no right to remain posted in one

place. On perusal of the impugned order, it is seen that no reason

has been given for frequent transfer of the petitioner except stating

that the transfer order has been issued in public interest. But it is

interesting to note that in all the transfer orders which are placed on

record, the expression “public interest” has been used, thereby

intending to show as if all transfer orders have been issued in public

interest. The mere statement that the transfer order is issued in

public interest, is not sufficient and reasons are to be assigned or

recorded, if an employee is to be transferred frequently. Frequent

transfer cannot be said to be an ordinary or a general transfer and it

being an exception to a general transfer, reasons for it are to be

recorded by the State Government. In this regard, the observations

made by the Hon’ble Supreme Court in E.P. Royappa Vs. State of

T.N., (1974) 4 SCC 3 are relevant wherein it has been observed that

frequent transfers, without sufficient reasons to justify such transfers,

cannot, but be held as mala fide. A transfer is malafide when it is

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made not for professed purpose, such as in normal course or in

public or administrative interest or in the exigencies of service but

for other purpose, that is to accommodate another person for

undisclosed reasons. It is the basic principle of rule of law and good

administration, that even administrative actions should be just and

fair.

[10] It is not in dispute that the State Government being an

institution, ought to act fairly and reasonably and any action which is

unreasonable, arbitrary, malafide etc. will attract the provisions of the

Article 14 of the Constitution. Article 14 strikes at arbitrariness of

State action in any form. The act of malafide which takes place within

four walls of the State Government, is something which is to be

discerned and inferred on the basis of circumstances only. In the

present case, in order to ascertain whether the frequent transfer was

malafide or not the following circumstances have been considered:

First, it is not in dispute that the petitioner has been

subjected to four transfers with a period of 13 months;

Second, in Vineet Narain’s case; Prakash Singh’s case

and TSR Subramanian’s case, the Hon’ble Supreme Court

had already directed the State Governments including the

State of Manipur to provide minimum tenure of service to

police officers above the rank of Superintendent of Police

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and other civil servants as well. It is not clear as to whether

the State of Manipur has complied with it or not;

Third, no reasons have been assigned by the State

Government for frequent transfer of the petitioner except

stating that it has been done in public interest which is

common for all;

Fourth, it is no doubt true that it is the discretionary power

of the State Government to decide as to how, when and

where an employee be transferred but it is settled law that

it shall be exercised by the State Government in

accordance with a principle. It appears that no such

principle has been incorporated in the Recruitment rules

except the guidelines contained in the O.M. dated

05.12.2017. But it may be noted that while issuing the

transfer orders, the said guidelines are not strictly followed

and the stand of the State Government is that non-

enforcement of the said guidelines will not confer any right

upon the employee. It is true to that extent but if the

guidelines which are executive instructions, are not to be

followed by the State Government itself, there is no point of

issuing such instructions;

Fifth, the only explanation given in the affidavit as to why

petitioner has been transferred as the i/c SP, railways is

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that since a young and energetic MPS officer with good

service record is required for the said post, he has been

chosen for transfer to it. It is again well settled that what is

not there in the document, cannot be explained in the

affidavit. Document speaks for itself. Moreover, since there

are other eligible police officers to hold the said post, one

cannot be singled out by the State Government to treat him

differently without taking into account the earlier transfers.

Considering the above circumstances and the fact that the

Hon’ble Supreme Court had deprecated the short tenure of service

provided to the police officer, this court is of the view that the

impugned order as regards the petitioner, is bad in law and is liable

to be quashed and set aside.

[11] In view of the above, the instant writ petition is allowed and

consequently, the impugned order dated 30-01-2018 is quashed and

set aside in respect of the petitioner with no order as to costs.

[12] Before parting from the matter, this court proposes to make

certain observations. In the affidavit filed on behalf of the respondent

Nos.1 & 2, it has been stated that the interim order dated 02-02-2018

passed by this court has severely affected the functioning,

administration; morale of the police administration and the transfer &

posting of the officers who are not party in the writ petition. Being the

parties in the above matter, the respondent Nos.1 & 2 are not

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supposed to criticise the court’s order which is highly contemptuous

for which suo motto contempt proceedings can be initiated against

them and in case they are aggrieved by any order of the court, it is

open to them to challenge it before the appellate forum. The said

affidavit appears to have not been vetted by either the law

Department or the learned Advocate General. The respondent Nos. 1

& 2 being the responsible officers of the State Government, ought to

be very careful while making statement in the form of affidavit before

the court and to refrain from indulging in such activities. This being

the first incident of this nature, no action is being taken against them

by this court but the respondent Nos. 1 & 2 are being warned not to

repeat the same in future.

JUDGE

Devananda