Wednesday, March 13, 2024

Order of Single Judge Bench of High Court restored, Order of Division Bench set aside: Supreme Court

"Transfer on the instance of MP/MLA always would not per se vitiate the order of transfer"

In Sri Pubi Lombi v. State of Aurnachal Pradesh (2024), the judgement of Supreme Court's bench of Justices J.K. Maheshwari and Sanjay Karol has set aside the judgment and order dated September 22, 2023 of the Division Bench of the Gauhati High Court and restored the judgement of the Single Judge bench dated July 11, 2023. The Single Judge bench had upheld the order of transfer dated April 20, 2023. It observed that transfer made on the basis of UO Note dated February 28, 2023 put up by the Member of the Legislative Assembly, 29-Basar (ST) Assembly Constituency (MLA) itself cannot be held to vitiate the transfer until there is an allegation of any malafide exercise of powers by the respondents-authorities in issuing the order. The Single Judge bench had dismissed the writ petition challenging the modified order of transfer in absence of any allegation of malafide.

The Division Bench of the High Court heard the writ appeal and had set aside the order of the Single Judge bench . It observed that the UO Note of the MLA was approved without application of mind with regard to administrative exigencies by department in public interest or in the service. 

The judgment of the Division Bench was questioned before the Supreme Court. It was contended that in the matter of transfer scope of judicial review is limited,. It can be reviewed only when transfer is in violation of the statutory provisions or due to malafide reasons. It is not open to the Court to interfere with the orders of transfer on a post which is transferrable, in absence of any malafide alleged or infraction of any professed norms if such transfer is not detrimental. The State supported the contention of the appellant. It submitted that the Division Bench has committed an error in setting aside the well-reasoned judgment of Single Judge.

The judgement authored by Justice Maheshwari was delivered on March 13, 2024.

Note: The judgment dated 22.09.2023 passed by the Division Bench of the Gauhati High Court in Writ Appeal No. 266/2023 which reversed the judgment of the Single Judge dated 11.07.2023 passed in Writ Petition (Civil) No. 199 (AP) 2023 do not appear to be on the website of Gauhati High Court. Supreme Court's website refers to Justices Soumitra Saikia and Arun Deve Choudhury for verdict dated 22-09-2023 in WA-266-2023. It refers to Justices Soumitra Saikia and Arun Deve Choudhury "although its a Single Judge bench" for the verdict dated 11-07-2023 in WPC-199(AP)-2023. These errors need to be rectified.

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