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2011 DIGILAW 384 (GAU)

Tapan Majumder v. State of Tripura

2011-04-28

UTPALENDU BIKAS SAHA

body2011
JUDGMENT and ORDER U.B. Saha, J. 1. The instant writ petition has been filed by the petitioner, Shri Tapan Majumder, challenging the order of transfer dated 20.03.2010 (Annexure-5 to the writ petition), by which he was transferred from Gamaria Higher Secondary School, Udaipur to Tulamura Higher Secondary School, Udaipur, while the petitioner was functioning as elective Secretary of Udaipur Sub-Divisional Committee of All Tripura Teachers' Association, an Association recognised by the Government of Tripura. 2. Heard Mr. A.K. Bhowmik, learned senior counsel assisted by Mr. B. Bhattacharji, learned counsel appearing for the petitioner as well as Mr. J. Majumder, learned State counsel appearing for the State-respondents. 3. The pleaded case of the petitioner is that he, at the relevant time, was holding the post of the Secretary of Udaipur Sub-Divisional Committee, a recognized Association, and as such, is not liable to be transferred beyond the Sub-Division Headquarter without the prior approval of the Hon'ble Minister. In the instant case though the petitioner was transferred along with 73 persons, vide impugned transfer order dated 20.03.2010, but the fact relating to holding the post of office bearer of the Sub-Divisional Committee, like Secretary, was not brought to the notice of the Hon'ble Minister. Hence, the said transfer order is liable to be dismissed. It is further stated in the paragraph-8 of the writ petition that the petitioner submitted a representation dated 25.03.2010 to the respondent No. 2, Director of School Education informing that he was holding the post of Secretary of Udaipur Sub-Divisional Committee of All Tripura Teacher's Association and that he could not be transferred to the new place of posting at Tulamura Higher Secondary School as per Memorandum dated 28.02.1994 issued by the Appointment and Services Department, Government of Tripura and admittedly the said representation has not yet been disposed of by the authority concerned. Hence, this writ petition. 4. The State-respondents' by way of filing their counter, have stated that neither the State Level Employees' Association nor Sub-Divisional Employees' Association or its constituent unit is before this Court for infringement of any right of the Association or its constituent unit, and hence, the writ petition is liable to be dismissed. Hence, this writ petition. 4. The State-respondents' by way of filing their counter, have stated that neither the State Level Employees' Association nor Sub-Divisional Employees' Association or its constituent unit is before this Court for infringement of any right of the Association or its constituent unit, and hence, the writ petition is liable to be dismissed. It is also stated that the petitioner has no right as such to claim any immunity/privilege from the Memorandum dated 28.02.1994 (Annexure-1 to the writ petition), and hence, the claim of the petitioner on the basis of the said Memorandum is totally misconceived. It is further stated in the counter that the petitioner has been transferred to Tulamura Higher Secondary School, Udaipur because it is newly upgraded Higher Secondary School and there is a need of regular, trained and experienced post graduate teacher in history. 5. Mr. A.K. Bhowmik, learned senior counsel for the petitioner, while urging for setting aside the order of transfer, would contend that every Government employee is liable to be transferred within the State of Tripura, but in view of the Memorandum dated 28.02.1994 (Annexure-1 to the writ petition), an employee holding either the post of President or Chairman and Secretary General or General Secretary or Secretary and Treasurer or Cashier in the State Level Committee of an Association, and similarly in respect of the Sub-Divisional Committee of a recognized Employees' Association, the President or Chairman and Secretary General or General Secretary or Secretary, recognized by the Government, is normally allowed to stay in the State Headquarter and only with the approval of the Hon'ble Minister of the concerned department they can be transferred when their services are required for administrative purpose. Therefore, it can be easily said that the State Government has decided normally to keep 3 (three) State level office bearers of a recognized Association in the State Headquarter and 2 (two) Sub-Divisional level office bearers in the Sub-Divisional Headquarter and, admittedly, the present petitioner at the relevant time of issuance of the impugned transfer order was the Secretary of the Udaipur Sub-Divisional Committee of All Tripura Teachers' Association. Therefore, the petitioner is entitled to the benefit of the said Memorandum dated 28.02.1994 (Annexure-1 to the writ petition). 6. Mr. Bhowmik, learned senior counsel relying upon the Division Bench decision of this Court in Tripura Government Employees 'Association Vs. State of Tripura & Ors. Therefore, the petitioner is entitled to the benefit of the said Memorandum dated 28.02.1994 (Annexure-1 to the writ petition). 6. Mr. Bhowmik, learned senior counsel relying upon the Division Bench decision of this Court in Tripura Government Employees 'Association Vs. State of Tripura & Ors. reported in (1998) 1 GLR 151 has submitted that the purpose of providing privilege to an office bearer, vide Annexure-1 to the writ petition, is that the office bearers of the Service Associations should not normally be transferred inasmuch as they are representatives of the employees who will represent the cause of the employees as representative of the Service Associations for bettering the employer-employee relation and also for the purpose of negotiating the matter of interest of employees and also the Government. In the instant case due to transfer of the petitioner, the Association of the petitioner is prejudiced and it would not be in a position to discharge its duties to the member-employees at Udaipur Sub-Division. The learned senior counsel further urges that on 05.04.2010 the learned Government Advocate while placing the file being No. F.1 (2-1)-SE-E(NG)/2008(L-338) before the Court clearly contended that when the proposal for transfer of the petitioner along with others was placed before the Hon'ble Minister concerned, the Director of School Education did not inform the Hon'ble Minister through his note regarding the status of the petitioner, i.e., the petitioner is the Secretary of the Udaipur Sub-Divisional Committee of All Tripura Teachers' Association, a registered Association of the Government employees. His further contention is that at the relevant time of transfer of the present petitioner the authority might not have been aware about the fact that the petitioner was holding the post of Secretary to the Sub-Divisional Committee of All Tripura Teachers' Association, but after sub-mission of the representation dated 25.03.2010 (Annexure-6 to the writ petition), the authority was very much aware about the status of the petitioner and not only that the State Level Committee of the petitioner's Association also vide letter dated 25.03.2010 (Annexure-7 to the writ petition) informed the respondent No. 2 regarding the status of the petitioner and requested him to cancel the transfer order relating to the petitioner, but the said representation of the petitioner as well as letter of the Association was neither disposed of by the respondent No. 2 nor placed before the Hon'ble Minister for his information and such an inaction is nothing but curtailment of privilege provided to an office bearer by the Government. 7. Mr. J. Majumder, learned State counsel while resisting the prayer of the petitioner urges that an employee has no right to be posted in any particular place even after issuance of the Memorandum dated 28.02.1994 (Annexure-1 to the writ petition). According to him, by the said Memorandum the State Government has framed a policy to provide certain benefits to the President/Chairman, Secretary General/General Secretary/Secretary and Treasurer/Cashier in the State Level Committee of an Employees' Association and in the Sub-Divisional Committee. Learned State counsel further contends that in the instant case neither the State Level Association of the petitioner nor Sub-Divisional Employees' Association approached this Court for cancelling the transfer order of the petitioner and on that ground alone the writ petition is liable to be dismissed. Mr. Majumder finally contended that it appears from the writ petition itself that the term, for which the petitioner was elected, has already been elapsed and hence, he is not entitled to get the benefit of the Memorandum dated 28.02.1994 (Annexure-1 to the writ petition). 8. In para-14 of Tripura Government Employees' Association (supra), the Division Bench of this Court considered the purpose of providing such a privilege to the office bearers of a recognized Association for better understanding. It would be proper to reproduce herein below the said paragraph:- 14. 8. In para-14 of Tripura Government Employees' Association (supra), the Division Bench of this Court considered the purpose of providing such a privilege to the office bearers of a recognized Association for better understanding. It would be proper to reproduce herein below the said paragraph:- 14. There cannot be any doubt that the clear purpose of providing such a privilege, which also forms part in various other statutory provisions, like Standing Orders governing the workmen, etc, is that the office-bearers of the Service Associations should not normally be transferred inasmuch as they are representatives of the employees who will represent the cause of the employees as representative of the Service Associations for bettering the employer-employee relation and also for the purpose of negotiating the matters of interest of employees and also the Government. This has also to be noticed that the Service Associations will normally be formed of persons having common interest and their elected representatives are expected to present before the employer the genuine grievance of the members of their Association for betterment of their conditions of service and for negotiating with the Government and thus the office-bearers at the State Level Service Associations should be at the State capital to negotiate with the competent authorities of the State Government and the Office-bearers of Sub-Divisional Level to negotiate with the competent authorities should be at Sub-Divisional Headquarters. 9. Having heard the learned counsel for the parties and also considering the records available, this Court is constrained to note that the Director of School Education had failed to discharge his duties after receipt of the representation of the petitioner. More so, the learned Government Advocate also on 05.04.2010 while placing the relevant file being No. F.1(2-1)-SE-E(NG)/2008(L-338) submitted before this Court that when the proposal for transfer of the petitioner along with others was placed before the Hon'ble Minister, the Director of School Education did not inform regarding the status of the petitioner. This Court is of the further opinion that had the Director of School Education informed the Hon'ble Minister regarding the status of the petitioner at the time of sending the proposal for transfer, then the Hon'ble Minister might not have transferred him taking note of the policy of the Government. This Court is of the further opinion that had the Director of School Education informed the Hon'ble Minister regarding the status of the petitioner at the time of sending the proposal for transfer, then the Hon'ble Minister might not have transferred him taking note of the policy of the Government. There is no doubt that transfer of an employee is an incident of service and an employee has no right to be posted in any place, but when the State Government provided some special benefit to an employee by its policy, then such employee has the right to avail the benefit of that policy and the Government is also duty bound to consider the case of such an employee in the light of the said policy. 10. It appears from the Memorandum dated 28.02.1994 that even three State level office bearers and two Sub-Divisional level office bearers, as mentioned therein, are also liable to be transferred, when their services warranted by the State for administrative requirements, with the approval of the Hon'ble Minister concerned. In the instant case there is no doubt that the impugned transfer order was passed by the Director of School Education with the approval of the Minister, but fact remains that the Director of School Education while making proposal for transfer of the petitioner, admittedly did not mention his status as the Secretary of Udaipur Sub-Divisional Committee of All Tripura Teachers' Association and, as a result, the Minister also did not get opportunity to consider the case of the petitioner for not transferring him as an office-bearer of the Sub-Divisional Committee from the place where he was working to the new place of posting. Had it been known to the Minister of the department, he might not have approved the proposal for transfer of the petitioner. 11. In view of the above discussion, this Court is of the considered opinion that it would be proper to cancel the impugned transfer order dated 20.03.2010, so far the petitioner is concerned, providing a liberty to the Director of School Education to place fresh proposal for transfer of the petitioner, if so advised, to the Hon'ble Minister concerned for approval and the Hon'ble Minister may consider the same taking note of the fact that the petitioner is even today holding the post of Secretary of Udaipur Sub-Divisional Committee of All Tripura Teachers' Association, a recognized Government Employees' Association. 12. 12. Ordered accordingly. 13. With the above observations and directions, this writ petition is disposed of. No order as to costs.