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1998 DIGILAW 208 (GAU)

Sumita Pal (Mazumder) v. Deputy Director, Navadaya Vidyalaya Samity

1998-07-22

H.K.SEMA

body1998
In this writ petition the petitioner has assailed the impugned order dated 16.3.1995 transferring the petitioner as Art Teacher from Jawahar Navadaya Vidyalaya, South Tripura to Jawahar Navadaya Vidyalaya, Mahadevpur against the post vacated by Shri Pulak Baran Choudhury. 2. I have heard Mr. P. Roy Barman, learned counsel for petitioner as well as Mr. KN Bhattacharjee, learned Senior Central Govt. Standing Counsel for respondents. 3. On 18th August, 1992 the respondent has made a policy decision and issued guidelines with regard to the appointment of the spouses as teacher in Navadaya Vidyalaya School and the posting of the spouses thereof. The following guidelines have been issued: "(1) The spouse to be considered for appointment must possess the essential qualifications as per the Recruitment Rules for the concerned teaching post. (ii) A special recruitment drive for spouses is to be made once in a year only, (iii) A spouse is to be posted in the same Navodaya Vidyalaya subject to availability of the vacancy." 4. There is no dispute that the petitioner has been appointed on the basis of spouse case, although this has been disputed by the respondents in their counter, it is crystal clear that the appointment order dated 16.12.92 of the petitioner was considered on the basis of the guidelines issued as referred above as spouse case. 5. It is contended by Mr. Roy Barman, learned counsel for the petitioner that the transfer of the petitioner vide impugned order dated 16.3.1995 has been made in violation of the guidelines issued by the respondents on 18th August, 1992 as referred above inasmuch as it was stipulated in the guideline that a spouse is to be posted in the same Navodaya Vidyalaya subject to availability of the vacancy. 6. Next, it is contended by Mr. Roy Barman, that the posting of the petitioner in the same station with her spouse was condition of appointment and, therefore, transfer cannot be made in violation of the condition of service. This submission is utterly untenable, because the petitioner was appointed on the basis of guidelines as referred to above which is not a statutory right. The appointment of the petitioner flows from the policy decision and if the policy decision is held to be not enforceable the condition of appointment also cannot be enforced. 7. The law on the point are no more res integra. The appointment of the petitioner flows from the policy decision and if the policy decision is held to be not enforceable the condition of appointment also cannot be enforced. 7. The law on the point are no more res integra. It has been set at rest by the Apex Court in Union of India & others vs. SL Abbas, AIR 1993 SC 2444 . This is what the Apex Court has said in paragraph 7 of its judgment as under : "Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafides or is made in violation of any statutory provision, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Govt on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration- The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Govt employee a legally enforceable right." 8. In the instant case as already said that the case of the petitioner is that the order of transfer has been passed in violation of the guidelines issued by the respondent on 18th August, 1992 as referred to above. Such guidelines that the spouse should be posted at the same Navadaya Vidyalaya subject to the availability of the vacancy is only a guideline and has no statutory force, the petitioner therefore, does not possess any enforceable right, in the light of the judgment of the Apex Court in SL Abbas (supra) squarely covered the facts of the case in hand. 9. In the result, there is no merit in this writ petition and the same is dismissed. However, without costs. 10. Despite the dismissal of the writ petition, it is surprising to know that the petitioner's husband has represented against the transfer by his application dated 31.3.1995 addressed to the respondent which is still pending for disposal. Right to representation is a statutory right and such representation should not be keep pending un-attended. In the representation petitioner's husband recited the mitigating circumstances for consideration of the cacellation of the transfer order. Right to representation is a statutory right and such representation should not be keep pending un-attended. In the representation petitioner's husband recited the mitigating circumstances for consideration of the cacellation of the transfer order. In a normal course it is expected that such representation filed by an incumbent should have been disposed at the earliest opportunity either to allow representation or reject representation. Keeping such representation till date, the concerned authority has failed to discharge their statutory duty. Respondents are accordingly directed to dispose of the representation within a period of one month from the date of receipt of this order. Till such time "the representation is disposed, the petitioner shall not be disturbed from her present posting because in view of the interim order dated 8.6.1995 the petitioner is still contunuing in her post. Subject to the aforesaid observation, the interim order stands vacated.