Page No.# 1/9 GAHC040004582024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : WP(C)/158/2024 Tai Niku D/o Late Tai Keoram, permanent resident of Pachin Colony, Naharlagun, PO and PS Naharlagun, Papumpare District, Arunachal Pradesh and presently working as Drug Inspector, office of the District Medical Officer, Pasighat, Govt of Arunachal Pradesh, East Siang District, Arunachal Pradesh VERSUS The State of AP and 6 Ors through the Principal Secretary, Department of Health and Family Welfare, Govt of Arunachal Pradesh, Itanagar 2:The Secretary Health and Family Welfare Age: 0 Occupation : Department of Health and Family Welfare Govt of Arunachal Pradesh Itanagar 3:The Director Health Service Age: 0 Occupation : Govt of Arunachal Pradesh Naharlagun 4:The Under Secretary Health and Family Welfare Age: 0 Occupation : Department of Health and Family Welfare Govt of Arunachal Pradesh Itanagar 5:The District Medical Officer Age: 0 Occupation : Page No.# 2/9 Pasighat Govt of Arunachal Pradesh 6:Mijom Lollen Age: 0 Occupation : Drugs Inspector office of the DMO Bomdila West Kameng District Govt of Arunachal Pradesh 7:Talo Jamoh Age: 0 Occupation : Drugs Inspector Office of the DMO Tezu Lohit District Govt of Arunachal Prades Advocate for the Petitioner : Nikita Danggen, K Gao,K Chotton,Honi Tana Tara,P Siga,Oken Duggong Advocate for the Respondent : Taba Tagum, Kirmani Lollen,Terji Kamchi,Taba Tokur,Khoda Apa,Gamken Bam,T T Tara,SC (Health and Family) BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA ORDER Date : 29.01.2025 Heard Ms. N. Danggen, learned counsel for the petitioner. Also heard Mr. T. Tagum, learned standing counsel for the Health Department, representing respondent nos. 1 to 5, as well as Mr. T.T. tara, learned counsel for respondent no.7. None appears for the respondent no.6 on call. 2) By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the impugned transfer order under Memo Page No.# 3/9 no. MEST-1044/2021 dated 22.10.2023, signed and issued on 29.19.2023, by the Principal Secretary, Health and Family Welfare Department- II, Govt. of Arunachal Pradesh, by which 4 (four) Drugs Inspectors, including the petitioner were transferred. The petitioner, namely, Smt. Tai Niku, who is presently serving as Drugs Inspector, under the Office of the District Medical Officer, East Siang District, Pasighat, has been transferred as Drugs Inspector, Office of the District Medical Officer, Bomdila. By order dated 04.04.2024, passed by this Court, status quo, as on the said date, was directed to be maintained. 3) The petitioner projects that against the order of transfer, she had approached this Court by filing W.P.(C) No. 591(AP)/2023 on three grounds, viz., (i) non-disposal of her representation; (ii) violation of the provisions of Drugs and Cosmetics Act, 1945; (iii) violation of transfer policy guidelines; and (iv) transfer order was vitiated by external political influence exerted by the respondent nos. 6 and 7. Accordingly, this Court, vide order dated 13.12.2023, was pleased to dispose of the writ petition by directing the respondent authorities to dispose of the petitioner’s representation in light of circular dated 02.06.1998 within two weeks. However, the Secretary, Health and Family Welfare Department vide order dated 06.03.2024, rejected the representation of the petitioner assigning 3 (three) reasons, viz., (a) the petitioner has completed her usual two-year tenure at Pasighat, (b) since three other Drugs Inspectors were also transferred, their transfer would be affected; and (c) personal inconvenience cannot be considered in the matter of transfer and posting. 4) The learned counsel for the petitioner has submitted that from RTI replies received by the petitioner, which are annexed to the writ petition, it is amply clear that the transfer order, impugned in this writ petition was initiated Page No.# 4/9 because the respondent nos. 6 and 7 had approached political leaders, who had directed the authorities in the Health and Family Welfare Department to consider the case of the respondent nos. 6 and 7. It is submitted that RTI documents also reveal that even on an earlier occasion, the transfer posting of respondent no.7 was made on political interference. Thus, it was submitted that the transfer was not in public interest, but private interest was involved. 5) It has also been submitted that as per Circular dated 02.06.1989, issued by the Department of Personnel, Govt. of Arunachal Pradesh, no Group ‘A and Group ‘B’ personnel are to be transferred in his/her home district so that the person does not develop a vested interest. However, contrary to the said guidelines, the respondent no. 7, then a pharmacist, had approached the Minister, Health & Family Welfare Department by submitting a representation dated 18.01.2021, claiming that he was suffering from Type-2 Diabetes Mellitus. On political intervention, the transfer and posting of respondent no. 7 was altered from Roing in Lower Dibang Valley to Tezu in Lohit District. Once again, the respondent no.7 had submitted a representation dated 10.09.2023, to the Secretary, Health and Family Welfare Department, thereby requesting for a transfer to Pasighat, his home-station to take care of his minor children, which again is in violation to the transfer posting guidelines referred hereinbefore. Parallelly, the note dated 13.09.2023 of the Member of Parliament, Arunachal East Parliamentary Constituency was put up before the Secretary, Health and Family Welfare Department to transfer the respondent no. 7 from Tezu to Pasighat. Accordingly, by the impugned transfer order, the respondent no. 7 was transferred as per choice of respondent no.7. 6) It has been submitted that similarly, the note of the MLA-cum Page No.# 5/9 Advisor, Law Justice and Parliamentary Affairs, Govt. of Arunachal Pradesh, requesting for transfer of respondent no.6 from Office of District Medical Officer, Bomdila to Office of District Medical Officer, Aalo, was put up before the Minister, Health and Family Welfare Department, Govt. of Arunachal Pradesh, who had issued a direction for needful action. Accordingly, by the impugned transfer order, the respondent no. 6 was also transferred as per choice of respondent no.6. 7) Thus, it was submitted that due to political interference, persons like the petitioner, who could not approach any Politian, has suffered a transfer order by rejecting her medical condition. Thus, it is submitted that when the respondent authorities are transferring respondent no. 7 on medical grounds to his home district in violation of transfer posting circular dated 02.06.1998, the non-consideration of medical condition of the petitioner, while rejecting her representation is a clear case of exercising double standard by the executive and thus, this was a clear case of vitiation of the impugned transfer order as the doctrine of “malice in law”. 8) Per contra, the learned standing counsel for the Health and Family Welfare Department has submitted that the plea of mala fide is not tenable because the concerned political persons have not been impleaded as respondents in this case. Moreover, it is submitted that guidelines are only directory and not mandatory as it is not a statute and no enforceable right has accrued in favour of the petitioner. It is also submitted that the petitioner has completed about 4 years of continuous posting under the Office of the District Medical Officer, East Siang District, Pasighat though the normal tenure of posting in the State is two years and therefore, the petitioner, being in a Page No.# 6/9 transferable job, cannot be permitted to assail the transfer order and prolong her stay in the same station. In support of his submissions, the case of Pubi Lombi v. State of Arunachal Pradesh & Ors., 2024 SCC Online SC 279 has been cited. Similar submissions have also been made by the learned counsel for the respondent no.7 and he has also placed reliance on the case of Pubi Lombi (supra). 9) Considered the materials available on record and also considered the case law cited at the Bar. 10) It is pleaded in the writ petition that the petitioner is a single mother, who is bringing up two minor children, who are studying in class IX and VII respectively and the transfer order was issued in mid-academic session. The petitioner has also pleaded that she is suffering from chronic cervical spondylosis with severe lower back pain for the last three years and is advised to avoid long travelling and moreover, she has to attend physiotherapy sessions regularly at Naharlagun. 11) The law in the matter of interference with transfer posting by Courts is more or less settled. In the case of Union of India Vs. S.A. Abbas, (1993) 4 SCC 357, it has been laid down by the Supreme Court of India that the Court or the Tribunal cannot quash the order of transfer, if any of the administrative instructions/ guidelines are not followed, much less can it be characterised as mala fide for that reason and it has been reiterated that the order of transfer can be questioned in a Court or Tribunal only where it is passed mala fide or where it is made in violation of the statutory provisions. Nothing has been placed on record to show that the transfer posting guidelines vide circular dated 02.06.1998 has a statutory force. Page No.# 7/9 12) Similarly, in the case of State of Uttar Pradesh Vs. Gobardhan Lal, (2004) 11 SCC 402, the Supreme Court of India has held that unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. It was further observed and reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless it is shown to be vitiated by mala fides or is made in violation of any statutory provision. 13) In the case of Union of India v. N.P. Thomas, 1993 Supp (1) SCC 704, which has been referred to in the case of Pubi Lombi (supra), it has been held that interference by the Court in an order of transfer on the instance of an employee holding a transferable post without any violation of statutory provision is not permissible. 14) In the present case, the ingredients of mala fide are not present as the concerned political persons are not arrayed as respondents in this writ Page No.# 8/9 petition. In the case of Ratnagiri Gas and Power Pvt. Ltd. V. RDS Projects Ltd., (2013) 1 SCC 524, referred to in the case of Pubi Lombi (supra), the Supreme Court of India has held that it has been reiterated that when allegations of mala fide are made, the persons against whom the same are levelled need to be impleaded as parties to the proceedings to enable them to answer. 15) Thus, it is to be examined as to whether the issue of malice in law, as urged by the learned counsel for the petitioner is attracted in this case to interfere with the impugned transfer order. In this regard, on an examination of the materials available on record, it appears that the petitioner was promoted from the post of Pharmacist to the post of Drugs Inspector vide order dated 04.01.2021 and she was posted at the office of the District Medical Officer, Pasighat. In the State, the tenure of transfer posting at a place is two years, which is not disputed by the learned counsel for the petitioner. Therefore, when transfer is an essential facet and incidence of service, the doctrine of malice in law cannot be invoked under the facts of this case and the Court is inclined to hold that the petitioner has not been able to make out any case whatsoever to assail the transfer order challenged in this writ petition. 16) If the transfer of one employee is made by the authorities on account of his/her health condition or on account of difficulty his/her family is suffering, in the absence of any statutory provisions mandating the respondents to consider the same while reviewing transfer orders issued, no fundamental right of the petitioner is found to have been violated. No judicial pronouncements have been cited to show that principle of negative equality can be invoked while challenging transfer orders. Therefore, in this case, notwithstanding that the petitioner has successfully been able to demonstrate Page No.# 9/9 that the respondent nos. 6 and 7 were transferred due to political interference, yet, as the petitioner has crossed her normal tenure of two years at her place of posting at Pasighat, she has to accept the transfer order. 17) Accordingly, the challenge made by the petitioner against the transfer order dated 22.10.2023, impugned in this writ petition fails and this writ petition stands dismissed. 18) In the event the petitioner complies with the transfer order within three weeks from the date of this order, no coercive steps shall be taken by the authorities. 19) The interim status quo order dated 04.04.2024, stands revoked forthwith. JUDGE Comparing Assistant