The Lieutenant Governor And ORS. v. Shri Abdul Zabit And ANR.

IN THE HIGH COURT AT CALCUTTA

Constitutional Writ Jurisdiction Appellate Side [ CIRCUIT BENCH AT PORT BLAIR ] *** WP.CT/29/2022 The Lieutenant Governor and others ... Petitioners Vs.

Shri Abdul Zabit and another .....Respondents Mr. Shatadru Chakraborty Mr. Ramendu Agarwal ... for the petitioners Mr. P.C.Das ... for the respondents November 23, 2022 [SR] Item No.2 Party/parties is/are represented in the order of their name/names as printed above in the cause title. The Andaman and Nicobar Administration are the petitioners before this Court.

The Administration is represented by the Lieutenant Governor and others and assails the Order of the learned Central Administrative Tribunal (for short the learned Tribunal) dated 23rd of August, 2022. By the said impugned Order, the learned Tribunal had continued with the stay on the transfer of the present respondent/the applicant before the learned Tribunal from Port Blair to Theressa. The present petitioners have taken the point that the transfer is an incidence of service and the present respondent is subject to a transfer Order passed by the authority holding administrative control over his service. The

second point taken by the present petitioners is that the present respondent has not declared his aged mother as a dependant in terms of official rules and hence he is ineligible to claim exemption from transfer on the ground of being a care giver to his mother.

Learned Counsel for the Administration, Mr.Chakraborty, relies upon the judicial authorities in support of the above stand and also disputes the position pointed out by the learned Tribunal that the Administration is obliged to verify the condition of the aged mother of the respondent as well as her extent of dependancy on her son, the respondent, as the care giver.

Mr. P.C.Das, Learned Counsel appearing for the present respondent, submits on the strength of an unreported decision of a concurrent Hon'ble Division Bench of this Court that the law stands settled to the extent that the transfer must be effected by the exact authority empowered to transfer.

It is submitted that the Learned Tribunal committed no wrong by directing the verification of the claim of the respondent in respect of the dependancy of his bed ridden mother on her son.

Having heard the parties and considering the materials placed, this Court is of the view that since the provision for exemption from being transferrd exists in the rules, the

present respondent is entitled to avail of such provision subject to verification of necessary factual parameters. This Court is of the view that the balance of convenience lies in favour of a verification procedure to be conducted by the Administration to determine the dependancy of the mother of the present respondent upon her son to act as her care giver by applying the correct factual position to the exemption clause entitling a transferee to seek exemption from transfer on the ground of being the care giver.

Accordingly, the Order impugned of the Learned Tribunal requires no interference.

Since affidavits are not invited, all allegations to the contrary stand denied and disputed.

WPCT/29 /2022 stands accordingly dismissed.

All parties to act on a server copy of this order downloaded from the website of the Hon'ble High Court. Urgent Xerox certified copy of this order be supplied to the Learned Counsel appearing for the respective parties upon compliance of usual formalities.

( Rabindranath Samanta, J. ) ( Subrata Talukdar, J. )