The Lieutenant Governor And Others v. Mehraz Begum

IN THE HIGH COUR AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR] ...

WP.CT/189/2021 The Lt. Governor & others

...Petitioners

Vs.

Mehraz Begum & another ... Respondents Mr.Krishna Rao, Advocate ... for the petitioners Mr.P.C.Das, Advocate .... For the respondent No.1 (through virtual mode) November 09, 2021 [GNC] Item No.2 The writ petition is directed against the judgment and order dated 14th September, 2021 passed by the Central Administrative Tribunal, Kolkata Bench. By the said order, the respondent/applicant's transfer order from Port Blair to Rangat which came to be altered, as, from Port Blair to Diglipur to enable the respondent/applicant to be with her husband who is also posted at Diglipur, has been stayed.

The brief facts of the case are that the respondent/applicant and her husband are both teachers in the Education Department of the Administration.

The respondent/applicant's husband has been transferred from Port Blair to Diglipur. The respondent/applicant was transferred to Rangat from Port Blair. The respondent represented against the said order of transfer. The respondent/applicant filed a original application being OA 351(1)/(A&N) of 2021 assailing the original transfer order dated 24th December, 2020. The said Original Application was heard on 8th January, 2021. However, before the judgment could be pronounced, in consideration of the respondent's representation, the order of transfer to Rangat came to be modified by the Administration.

The respondent/applicant was transferred to Diglipur where her husband was already posted and working.

The Tribunal, felt offended by the action of the Administration in passing the orders when the matter was pending delivery of detailed reasons.

An Original Application was moved again by the respondent/applicant in which an interim order dated 14th September, 2021 was passed staying the modified order of transfer to Diglipur. The order of stay was passed relying upon

Section 19 (3) and (4) of the Administrative Tribunal Act, 1985. This order dated 14th September, 2021 is impugned herein. Mr.P.C.Das, learned Counsel for the respondent/applicant would argue that his client's daughter is studying in class-VIII. Hence the order of transfer from Port Blair to Diglipur, would affect the child's education. The Tribunal was therefore justified in passing the impugned order of stay according to the counsel for the respondent. It is also argued that the Administration acted malafide by altering the transfer order from Rangat to Diglipur without waiting for the final judgment to be pronounced by the Tribunal.

Reliance is also placed on the transfer policy dated 5th December, 2014, particularly, clauses ix, xii and xiii. It is submitted that a conjoint reading of the above guidelines would entitle the respondent/applicant/teacher to remain in Port Blair in aid of his client's daughter's education.

Mr.Rao assailing the impugned order would argue that the original transfer order was, in fact, based on administrative exigencies. The modified order of transfer, albeit passed pending delivery of judgment was only in consideration of the respondent's representation and is neither malafide nor motivated. The respondent/applicant's original order of transfer from Port Blair to Rangat was withdrawn to assist and accommodate the respondent/applicant, to live and serve along with her husband at Diglipur.

This Court has heard and considered the rival submissions of the parties.

It is now well settled that transfer is an incident of service and is generally not interfered with, unless it is tainted with malafides or made for collateral purposes. Another ground for interference is when an order of transfer is penal. It is seen from the facts that the transfer in the instant case is neither any malafide nor penal, and has been issued primarily based on administrative requirements and necessities. The respondent has not disputed the same.

The exceptions to the general transfer policy, are available in the notification/policy dated 5th December, 2014. The said exceptions are in harmony with similar exceptions to transfer available for all Central and State government. The respondent/applicant in terms of the spouse joining spouse policy is entitled to claim or request for transfer to a place where her husband is posted and vice-versa. The guidelines stipulate that a joint application by husband and wife is required to be made for the said benefit. In the instant case it is found that the application was made solely by the wife. Be that as it may, the Administration appears to have considered and accommodated the respondent/applicant in consideration of her representation, by altering the original order of transfer and posted her to Diglipur. The Administration may have waited for the final judgment to have been delivered by the Tribunal. However, considering that the modified order itself, in fact, accommodates the respondent/applicant posting her to

serve along with her husband at Diglipur cannot be deemed as any attempt to overreach the Central Administrative Tribunal in the pending proceeding. The Central Administrative Tribunal had not prevented the appellants from dealing with the respondent's representations. It could have been in the fitness of things if the appellants had intimated the Tribunal before issuing the said order.

The Administration could be faulted for over-enthusiasm but no inference of malafide can be drawn against it in these facts.

The next ground urged by Mr.Das is by reference to clauses ix, xii and xiii of the transfer policy (supra). Clause xiii conceives of accommodation being made to an employee whose children are studying in classes X, XI and XII. Indeed, such concession is laudable since the Board examination of class X and/or XII constitute a crucial part and component of the education and career of a child.

However, in the instant case it is seen that the respondent/applicant's daughter is studying in class-VIII. Having accommodated the respondent/applicant to be posted along with her husband in Diglipur, it would be extremely onerous, if not taxing on the Administration to compel it to retain the respondent/applicant at Port Blair ignoring administrative exigencies.

In the above circumstances, the impugned order dated 14th September, 2021 stands set aside.

The respondent/applicant shall join the place of transfer at Diglipur as expeditiously as possible preferably within a period of ten days from date.

In view of the above order, this Court is of the view that nothing remains in OA No.351/1410/2021. The said original application is disposed of in terms of the order passed hereinabove.

Parties shall act on the server copy of this order duly downloaded from the official website of this Court. (Rajasekhar Mantha, J. ) (Amrita Sinha, J. )