Setback for govt as HC quashes official’s transfer

SHILLONG: Upholding a writ petition by the Director, Printing & Stationery, Salgira R Marak against his transfer to a newly-created post by the state government, the Meghalaya High Court has termed it ‘unsustainable in law as being issued in violation of the statutory Rules’ and has set aside the order.
Marak, serving as the Director, Printing & Stationery, had moved the Court over his appointment to the newly-created post of Officer on Special Duty (OSD) in the Administrative Department of the Printing & Stationery, and the Joint Director as Director in-charge, Printing & Stationery.
Justice HS Thangkhiew, in the order, said, “….the respondents had created the post of Officer on Special Duty personal to the petitioner and his being relieved of the post of Director on his assumption of the newly created post of OSD. This action of the respondents on a careful examination has created a piquant situation and thrown up many questions which merits careful consideration by this court.”
The Court maintained that it cannot be considered as a case of plain transfer of a government servant, as contended by the government, which was the respondent in the case.
“Another aspect of this appointment that cannot escape scrutiny, is that though touted by the respondents to be a case of
simple transfer of the petitioner, but here again even if it is taken to be a transfer, the same has been done to a newly created post which is not borne in the cadre of the Printing &Stationery (Technical) Service Rules of 1995, therefore an ex-cadre post,” it noted, adding that in a posting beyond the cadre of selection, an employee usually cannot be posted or transferred without his consent and in this case, ‘no consent was sought from the petitioner and moreover he did not join to the post of OSD to enable the respondents to contend that there was tacit acceptance of the transfer beyond his cadre’.
The Court also rejected the government’s argument that strength and composition of service can be altered by the government, with the Court pointing that ‘The Rules, have been framed under Article 309 of the Constitution of India and as such have a binding effect and enjoins the respondents to act and regulate the service as per the Rules as framed’.
On the point of limits of judicial review over a policy decision, the verdict stated, “Though the Courts have no role in determining the criteria, method and manner of recruitment or selection, ample jurisdiction is available to interfere into actions which are patently arbitrary or vitiated in any manner.”
“Without delving into other issues raised, such as the pending representation of the petitioner, the inescapable conclusion that is arrived at after discussion and due consideration, is that the impugned Notifications Letter bearing No. SG.12/97/169 and No. SG.12/97/170 respectively, both dated 08.08.2019, are unsustainable in law as being issued in violation of the statutory Rules, and both are accordingly set aside and quashed,” the order said.
“Resultantly also the communication dated 02.09.2019 being consequential to the other impugned notifications does not survive for consideration and is also set aside and quashed,” the Court said, implying setting aside of the transfer order of Marak.

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