JUDGMENT :

J.K. MAHESHWARI, J.

1. Leave granted.

2. The judgment dated 22.09.2023 passed by the Division Bench of the Gauhati High Court in Writ Appeal No. 266/2023 reversing the judgment of the learned Single Judge dated 11.07.2023 passed in Writ Petition (Civil) No. 199 (AP) 2023 has been assailed by the appellant (respondent No. 5 in Writ Court). The learned Single Judge by upholding order of transfer dated 20.04.2023 observed that transfer made on the basis of UO Note dated 28.02.2023 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 mala-fide exercise of powers by the respondents-authorities in issuing the order.

3. Writ Petition (Civil) No. 199 (AP) 2023 was filed before the High Court by respondent No. 5 herein challenging the modified order of transfer dated 20.04.2023. Learned Single Judge dismissed the writ petition in absence of having any allegation of mala-fide, being transfer is one of the ingredients of the service. The relevant part of the said order is reproduced as thus:

“17. Taking note of the law laid down by the Hon’ble Supreme Court in the case of Mohd. Masood Ahmad (supra); the U.O. Note, dated 28.02.2023, put up by the Member of Legislative Assembly, 29-Basar (ST) Assembly Constituency, requesting the competent authority for transfer of the Respondent No. 5 as Deputy Director of School Education, Government of Arunachal Pradesh, Leparada, cannot be faulted with.

Accordingly, even if the respondent authorities had modified the earlier order of transfer, dated 15.11.2022, issued by the Commissioner (Education), Government of Arunachal Pradesh, Itanagar, vide the impugned order, dated 20.04.2023, issued by the Commissioner (Education), Government of Arunachal Pradesh, Itanagar, acting on the U.O. Note, dated 28.02.2023, put up by the Member of Legislative Assembly, 29-Basar(ST) Assembly Constituency; that itself, cannot be held to vitiate the impugned order, dated 20.04.2023, issued by the Commissioner (Education), Government of Arunachal Pradesh, Itanagar.

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19. Accordingly, in the absence of any mala-fide exercise of power by the respondent authorities or violation of any statutory provision in issuing the impugned order, dated 20.04.2023, by the Commissioner (Education), Government of Arunachal Pradesh, Itanagar; I am, therefore, not inclined to interfere with the impugned order, dated 20.04.2023, issued by the Commissioner (Education), Government of Arunachal Pradesh, Itanagar, in the facts and circumstances of the instant case, even if the aforesaid order, dated 20.04.2023, has been issued by the authority acting on the basis of the U.O. Note, dated 28.02.2023, put up by the Member of Legislative Assembly, 29-Basar(ST) Assembly Constituency, having regard to the law laid down by the Hon'ble Supreme Court in Mohd. Masood Ahmad (supra).

20. In that view of the matter; I do not find any merit in this writ petition and the same is hereby dismissed.”

4. On filing writ appeal by the Respondent No. 5 the Division Bench of the High Court while setting aside the order of learned Single Judge observed that the UO Note of the MLA was approved without application of mind and any remark of administrative exigencies by department to substantiate that it was in public interest or in exigency of the service. The relevant excerpt of the impugned judgment reads as:

“27. The appellant who was already under order of transfer is having a legitimate expectation to join and continue in the transferred place of posting. However, his transfer order was suddenly modified without any proposal being mooted by his employer but acting on the proposal of the Local MLA and in favour of respondent No. 5. In the above backdrop, this court is of the considered opinion that such order of transfer is neither issued in the exigencies of service nor in public interest, rather the same is a result of arbitrary exercise