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1998 DIGILAW 234 (GAU)

Aswani Kumar Sinha: Sanjib Kar v. State of Tripura

1998-08-12

D.BISWAS

body1998
By this common judgment, Civil Rule No.257 of 1998 and Civil Rule No. 258 of 1998 are proposed to be disposed of at the stage of Motion. 2. Mr. UB Saha, learned Govt Advocate accepted notice on behalf of the respondents in both the cases. Mr. DB Sengupta and Mr. CS Sinha, learned Advocates appeared for the petitioners. I have heard the argument advanced by all of them. 3. The Govt. of Tripura formulated guidelines in respect of special privilege in the matter of transfer of office bearers of recognised Associations vide memorandum No.23(24)GA/93 dated 28.2.1994. The petitioner in Civil Rule No.257 of 1998 is the Treasurer of State Committee of the Tripura Employees' Action Committee, a constituent body of all Tripura Employees' Federation and the petitioner Shri Sanjib Kar of Civil Rule No.258 of 1998 is the General Secretary of All Tripura Employees' Federation, Khowai Sub Division. It is alleged that they have been transferred in violation of the provisions of the said guidelines. In both these writ petitions, the validity of the transfer orders of the writ petitioners have been challenged on the ground that the transfer orders were issued without obtaining prior approval of the concerned departmental Ministers. 4. Mr. UB Saha, learned Govt Advocate referring to the Memo dated 28th February, 1994 (Annexure 5), submitted that the relevant provisions in this regard does only provide for transfer of the office bearers holding the rank of President or Chairman, Secretary General or General Secretary, Treasurer or Cashier with the approval of the departmental Minister. Mr. Saha, further argued that this provisions available only to the State level and Sub ivisional level office bearers of any recognised Association or its constituent unit. Referring to Explanation 1 and 2, he further elaborated that a State level Association or its constituent based at Agartala shall be entitled to this benefit only in respect of three office bearers while its Sub Divisional unit (including constituent units) may claim this special privilege only in respect of two. According to him, Tripura Employees' Action Committee is a constituent body of All Tripura Employees' Federation and, as such, this special privilege having been granted to the parent body, the office bearers of a constituent unit such as All Tripura Employees Action Committee cannot claim this benefit in addition to what has been extended to the apex body. According to him, Tripura Employees' Action Committee is a constituent body of All Tripura Employees' Federation and, as such, this special privilege having been granted to the parent body, the office bearers of a constituent unit such as All Tripura Employees Action Committee cannot claim this benefit in addition to what has been extended to the apex body. Although this argument has not been advanced in respect of Tripura Employees Federation, it has, however, pointed out that the transfer orders of the petitioners have been approved by the concerned Ministers. Mr. Saha has also produced the original file which shows that the concerned Ministers accorded ex post facto approval to the transfer of the petitioners. 5. The common question, therefore, arises whether the transfer orders of both the petitioners have been issued flouting the provisions of para 1 of the guidelines of the Government policy. Para 1 of the guidelines reads as follows : . "1. The undersigned is directed to state that henceforth, 3 (three) State level office bearers, by designation and 2 (two) Sub Division level office bearers, by designation of any recognised employees association or its constituent unit shall be given special privilege in the matter of transfers to the extent that the transfer, when warranted by administrative requirements, shall be issued only with the approval of the departmental Minister concerned." 6. After going through the writ petitions and the documents placed, I find that the transfer orders of both the petitioners have been initially issued without approval of the Ministers concerned. However, ex post facto approval of the Ministers was taken later on. The omission, in my opinion, to issue the transfer orders with prior approval of the Ministers concerned is a mere irregularity and it is not incurable. This irregualrity in the administrative action crept in and continued till the approval of the Minister was obtained. As soon as the concerned Minister accorded his approval, the defect is removed and the order of transfer becomes enforceable. A rigid approach without reserving any scope for inbuilt flexibility to cure such administrative error will serve no purpose as the power to transfer an employee is inherent with the Govt which can be exercised at any time with prior approval. A rigid approach without reserving any scope for inbuilt flexibility to cure such administrative error will serve no purpose as the power to transfer an employee is inherent with the Govt which can be exercised at any time with prior approval. Therefore, it cannot be said conclusively that the omission on the part of the transferring authority to obtain prior approval of the Minister has created an irreversible situation prohibiting transfer of the petitioners in perpetuity. This omission is an administrative error curable ex post facto by obtaining approval of the departmental Minister. In the cases at hand, the defect having been cured by obtaining approval of the Ministers at a subsequent stage, there remains no scope to interfere with the impugned orders. 7. In Union of India & others vs. SL Abbas reported in AIR 1993 SC 2444 in para 7 the Apex Court held as follows : "7. 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 provisions, 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 guidelines however does not confer upon the Govt employee a legally enforceable right." In State of Punjab & others vs. Joginder Singh Dhatt, reported in AIR 1993 SC 2486 , the Apex Court set aside the order of the High Court vide which the transfer order of the respondent was quashed by the High Court on the ground that it was contrary to the instructions and mid-term transfer within two years of the superannuation. Setting aside the said order the Supreme Court held as follows: "3. We have heard learned counsel for the parties. This Court has time and again expressed its disapproval of the Courts below interfering with the order of transfer of public servant from one place to another. Setting aside the said order the Supreme Court held as follows: "3. We have heard learned counsel for the parties. This Court has time and again expressed its disapproval of the Courts below interfering with the order of transfer of public servant from one place to another. It is entirely for the employer to decide when, where and at what point of time a public servant is transferred from his present posting. Ordinarily the Courts have no jurisdiction to interfere with the order of transfer. The High Court grossly erred in quashing the order of transfer of the respondent from Hoshiarpur to Sangrur. The High Court was not justified in extending its jurisdiction under Article 226 of the Constitution of India in a matter, where on the face of it, no injustice was caused." 8. The ratio laid down above in both the cases also show that a Court shall not normally interfere with the order of transfer unless malafide is shown. In the instant case the point urged is that it was issued contrary to the provisions of the policy framed in this matter. But the initial irregularity which crept in because of omission to obtain prior approval has set at the right by obtaining ex post facto approval. That being the position, I am of the opinion that the petitioners are not entitled to any relief in this writ petitions. 9. Scrutiny of the policy dated 28.2.1994 shows that the benefit proposed to be given is limited to three State level office bearers and two Sub Divisional level office bearers or its constituent units. From the provisions of para 3 it would appear that a State level Association is entitled to this special privilege only in respect of three office bearers mentioned in Explanation 1 and a Sub Divisional Association or its constituent unit is entitled to the special privilege only in respect of two Sub-Divisional level office bearers mentioned in Explanation 2. By way of interpretation, the scope of this special privilege cannot be extended to the constituent bodies to multiply the said number. 10. From the writ petition of Civil Rule No. 257 of 1998, it would appear that Tripura Employees' Action Committee is a constituent body of All Tripura Employees Federation. By way of interpretation, the scope of this special privilege cannot be extended to the constituent bodies to multiply the said number. 10. From the writ petition of Civil Rule No. 257 of 1998, it would appear that Tripura Employees' Action Committee is a constituent body of All Tripura Employees Federation. Even if this Action Committee has been given recognition by the State Govt under clause 4 (b) of Tripura Govt Services (Recognition of Services Association) Guidelines, 1995, this Action Committee does not cease to be a constituent unit of its parent body. Therefore, the Action Committee cannot claim further protection for its office bearers since its parent body has already received the benefit as per submission of the learned Govt Advocate. 11. In the result, both the writ petitions are .dismissed. Before parting with the record, it is considered necessary to mention that the provision in para 1 does nor confer any right on the office bearers of the Association or constituent bodies. It only requires prior approval of departmental Minister before certain categories of office bearers are transferred. The Minister concerned, therefore, has the power either to refuse or to approve of the proposed transfer. The Guidelines of 1995 does not lay down any norm as to how the power of the departmental Minister is to be exercised. A State action must not only be fair but must be accepted by all as fair. From this point of view, the Govt may like to consider whether any norm should be prescribed regulating the exercise of this power of the departmental Minister. This is necessary to avoid any controversy regarding equal and impartial treatment to the different Associations. It is for the State Govt to determine and prescribed the norms.