ABSI YAMPANSAO Vs. STATE OF NAGALAND

JUDGEMENT

(1.) Heard Mr. Taka Masa, learned counsel for the petitioners and Mr. P. Pius Lotha, learned Addl. Advocate General for the State respondents.

(2.) Mr. Taka Masa, the learned counsel for the petitioners submits that the petitioner Nos. 1 to 5 are ABSI and the petitioner Nos. 6 to 12 are Havildars under Nagaland Armed Police serving as Instructors at Nagaland Armed Police Training Centre (NAPTC), Chumukedima. The petitioners are collective aggrieved by the impugned transfer order dated 29.5.09. The impugned transfer order was issued purportedly to revamp the NAPTC by infusing young and capable instructors. The petitioners are serving without any adverse records and no explanation calls ever served upon them. As such, the impugned transfer order dated 29.5.09 was not a transfer simpliciter on public interest but a punishment for the petitioners without any inquiry and it causes stigmas upon the petitioners. The petitioners on inquiry it was found that the transfer order was issued on the basis of the letter dated 29.9.08 written by the Commandant to the DGP, Nagaland where the length of service and other bio-data of the serving Instructors was mentioned. On careful verification, it was found that the letter dated 29.9.08 was a clearly manipulated and factually incorrect letter with mala fide intentions with pick and choose policy and upon which the impugned transfer order was issued. It was found that unqualified person and person with poor disciplinary record were brought as Instructors. The DGP, Nagaland by an Order dated 12.3.07 had banned transfer of NAP(IR) Bn. Personnel to non-IRBNs/ DEF as per the directive of the Ministry of Home Affairs, Government of India. The impugned transfer order was issued in violations of the said order dated 12.3.07. Also, the transfer order dated 29.5.09 was issued in clear violations of the Rules of Executive Business without jurisdiction. The actions of the respondents was a clear case of mala fide, abuse of power and in violations of the standing order without jurisdiction. Hence, the present writ petition.

(3.) Mr. Taka Masa, the learned counsel for the prtitioners further state and submits that the case of the petitioners more specifically is contained in paras 6, 7, 8 & 9 of the writ petition. The transfer order of the prtitioners was issued not in public interest but as a punishment and also not a transfer simpliciter but a transfer with stigma. The transfer order has been issued on the basis of a letter dated 29.9.08, which was submitted directly to the DGP bypassing the DGP, Training and the IGP, Training, which is in clear violation of the established procedure. The actions of the respondents were purely subjective ignoring merit and efficiency, a clear case of punishing the petitioners with pick and choose policy and to protect and favour their favorites with mala fide intentions and under extraneous considerations. The transfer order issued without approval of the Government and concerned Minister is in clear violation of the Rules of Executive Business. It has also been issued without jurisdiction. The petitioners have also moved a Misc. application praying for release of their salaries from June onwards on the grounds that vide order dated 30.6.09, their transfer order dated 29.5.09 was suspended and that they have not been released as their transfer order has been stayed moreover, they had not accepted their release order as they have submitted a representation to the authorities against their transfer order. In this connection, Mr. Taka Masa, the learned counsel for the petitioners has submitted several documents to substantiate of this issue. Another point stressed by Mr. Taka Masa, learned counsel for the petitioner is that order dated 12.3.07 has been passed not to entertain any proposal for transfer to non-IR Bn/DEF and in this view of the matter the transfer of respondent Nos. 4, 5 & 6 from IRBn to NAPTC is in utter violation of the order dated 12.3.07, which is still in force. Another instance is the case of one Havildar Mayangmeren Ao, impleaded as respondent No. 15 in this writ petition, was released from NAPTC vide an order dated 11.10.07 on disciplinary grounds and has again been brought to the NAPTC vide the impugned order dated 29.5.09. Mr. Taka Masa, learned counsel for the petitioner has also cited the example that the respondent No.12 is not a young and capable but a driver and he is presently driving NL-11-0702, School Bus at Chumukedima. The very first sentence, "To revamp the NAPTC by infusing young and capable Instructors and in public interest", the transfer has been made. No suitability or efficiency test has been conducted before issuance of the impugned transfer order. By the impugned order, the petitioners have now been condemned and stigma put on them as not young and capable Instructors. This itself smacks of arbitrariness, mala fide and no interest of public, as such, this Hon'ble Court may be pleased to quash and set aside the impugned transfer order dated 29.5.09. The learned counsel for the petitioners has relied upon the decision of the Apex Court, reported in (2003) 4 SCC 104, in para 37 of the said Judgment.