JUDGMENT :

ARUN DEV CHOUDHURY, J.

Heard Mr. D. Mazumdar, learned Senior Counsel assisted by Mr. S.K. Deori, learned counsel for the writ appellant. Also heard Mr. I. Choudhury, learned Senior Counsel assisted by Mr. S. Biswakarma, learned counsel for the respondent No. 4 and Mr. G. Tarak, learned Standing Counsel for the Rural Works Department representing the respondent Nos. 1 to 3.

1. Summery of the Present Litigation:

(I) This intra-court appeal is directed against the judgment and order dated 06.05.2022 passed by the learned Single Judge, whereby W.P. (C)/338(AP)/20221 preferred by the present appellant was dismissed.

(II) The said writ petition was preferred by the present appellant assailing transfer order dated 20.10.2021 issued by the Secretary, RWD transferring the appellant/petitioner from Sagalee RWD Division to Pakke-Kessang.

2. Ground of challenge urged before the learned Single Judge:

(I) The impugned transfer and posting order, transferring the petitioner from Sagalee RWD Division to Pakke Kessang and posting the respondent No. 4 at Pakke Kessang was done, not in any exigencies of services but only to accommodate the respondent No. 4, on the recommendation of local MLA/Ex-Chief Minister, the respondent No. 5.

(II) No independent mind was applied by the respondent authority and issued the transfer order at the dictate of the local MLA ignoring the fact that different works of public importance were pending and was under supervision of the appellant petitioner and for the reason of the transfer, said projects of public importance would suffer a serious set back.

(III) The transfer order impugned is actuated by malice inasmuch as whole process was initiated only to accommodate the respondent No. 4 at the behest of the local MLA/Ex-Chief Minister. Therefore, there was no exigency of services to transfer out the petitioner.

(IV) Though, the competent authority expressed its opinion and suggested to initiate the transfer process only after 31.03.2021 but due to pressure created by the local MLA/Ex-Chief Minister such opinion of the authority was also ignored.

(V) The respondent No. 4, had even not completed his tenure at Pakke Kessang Division.

(VI) By filling affidavit-in-reply, the appellant petitioner introduced a new ground of challenge to the effect that the respondent No. 4 was transferred and posted at Pakke Kessang Division as Executive Engineer in functional basis as stop gap arrangement and his substantive post is an Assistant Engineer drawing pay Scale and Salary of Assistant Engineer and therefore, the respondent No. 4 could not have been transferred and posted against a post meant for cadre of Executive Engineer. A functional Executive Engineer could not have been transferred and posted wherein an Executive Engineer is working.

3. Stand of the State respondents before the learned Single Judge:

(I) The petitioner was appointed as Assistant Engineer on 04.02.2000 and was posted at Sagalee Division on 01.11.2002 and since then the petitioner has been posted at Sagalee continuously for last 19 years till his transfer to Pakke Kessang.

(II) Though the petitioner was sought to be transferred from Sagalee earlier in 2015 and 2016 but said orders could not be implemented for the request from Zilla Parishad Members and such request of Zilla Parishad Member was endorsed by then Hon’ble Chief Minister/the present MLA/respondent No. 5.

(III) The petitioner was appointed as Executive Engineer on officiating basis on 01.03.2017. Therefore, the petitioner has misled and made false statement that he has been promoted to the post of Executive Engineer.

(IV) By way of the transfer order, no prejudice has been caused to the petitioner inasmuch as petitioner has already overstayed at Sagalee Division in derogation of prescribed tenure of two years under transfer policy.

(V) The MLA of the concerned area being the elected representative of the public, has every right to request the competent authority for transfer and posting of government ser