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2011 DIGILAW 419 (GAU)

Milan Kumar Debbarma v. State of Tripura

2011-05-13

UTPALENDU BIKAS SAHA

body2011
JUDGMENT U.B. Saha, J. 1. The challenge in this writ petition is the transfer order dated 07.03.2011 issued by the Director, T. W., Directorate of Welfare for Schedule Tribe, Government of Tripura, (Annexure-4 to the writ petition) whereby and whereunder the petitioner was transferred from the office of the Block Development Officer, Jampuijala to Sub-Divisional Magistrate's Office, Sonamura along with other eighteen persons. 2. Heard Mr. D. Saha, learned Counsel for the petitioner as well as Mr. S. Chakraborty, learned Additional Government Advocate appearing for the State respondents. 3. The pleaded case of the petitioner is as under: The petitioner has entered into the service as an Agri-Assistant (T. W.) in the year 1983 under the Department of Welfare for Scheduled Tribe, Government of Tripura and while he was working as an Agri-Assistant, he was promoted to the Grade as Supervisor (T.W.) vide Memorandum, dated 08.10.2010, with effect from 12.03.2010. During his service period, he was transferred from one place to another place and being transfer of a Government employee is an incident of service, he did never object the order of transfer issued earlier. Thereafter, when the petitioner was working in the office of the Block Development Officer, Jampuijala, the respondent No. 2 herein, without taking note of the fact that the petitioner is going to be retired within next ten months, transferred him in violation of the Government policy, particularly, the Memorandum, dated 24.08.1993, issued by the Commissioner, Appointment & Services Department, Government of Tripura, wherein it is specifically stated that as a welfare treasure, Government have decided that ordinarily in the last one year of service of a Government employee, the employee shall not be transferred except to a place of his choice. The petitioner also in his writ petition specifically stated that the impugned transfer order is a composite order, both as a transfer and release order, as in the transfer order itself, it has been stated that transferee employees' should be treated as stand released with effect from 18th March, 2011. 4. Upon receipt of the aforesaid transfer order, the petitioner made a representation on 15.03.2011 to the respondent No.2 with the prayer for modification of his place of posting, but the same has not yet been disposed of. Hence, the instant writ petition. 5. Mr. 4. Upon receipt of the aforesaid transfer order, the petitioner made a representation on 15.03.2011 to the respondent No.2 with the prayer for modification of his place of posting, but the same has not yet been disposed of. Hence, the instant writ petition. 5. Mr. Saha, learned Counsel for the petitioner while urging for quashing of the impugned transfer order would contend that the transfer is an incident of service and the petitioner has no right to ask for posting in a place of his choice ignoring the public interest, but at the same time, when the Government itself framed a policy as an welfare measure to protect the interest of its employees before attaining the age of superannuation, he cannot be denied from the benefit of the said scheme. 6. He has also placed one radio message issued by the Director, TW Department to the Block Officer, Jampuijala under whom the petitioner is working, wherein it is mentioned, inter alia, that the salary of the petitioner should not be paid in case he does not join at Sonamura that is the place he has been transferred. 7. The learned Counsel for the petitioner finally contended that though the choice posting is not a right of an employee, but consideration of representation of the petitioner is obviously a right and the authority before whom the representation was filed is under obligation to dispose of the same by a reasoned order. In the instant case, the authority without disposing of the representation made by the petitioner and informing anything about the result of the said representation, took a decision for taking a penal action like stalling of payment of salary of the petitioner, he contended. 8. Mr. S. Chakraborty, learned Additional Government Advocate appearing for the State respondents submits that the petitioner has not been transferred singly by the impugned transferred order, rather with him, some other employees were also transferred and this is a routine transfer. He further contended that before issuance of transfer order, the petitioner was serving in the office of the Block Development Officer, Jampuijala for about thirty years and taking note of the said fact, he was transferred form Jampuijala to Sonamura. 9. He further contended that before issuance of transfer order, the petitioner was serving in the office of the Block Development Officer, Jampuijala for about thirty years and taking note of the said fact, he was transferred form Jampuijala to Sonamura. 9. Having heard the learned Counsel for the parties and on going through the record, this Court is of the considered opinion that as the transfer is an incident of service, a Court should not interfere with a valid transfer order issued in the public interest, but as the same time, the Court cannot shut its eyes when an employee is entitled to a choice posting under the Government policy and such posting is denied without any reason. More so, the authority without disposing of the representation of the petitioner is going to take some penal action, like non-payment of salary. It is stated by Mr. Chakraborty, learned Additional Government Advocate that the petitioner was working in the office of Block Development Officer, Jampuijala for last thirty years and from such submission of Mr. Chakraborty, it can be noted that the Government itself decided to keep the petitioner in a place for about thirty years and the authority consciously did not transfer him within the aforesaid period. It also appears from the record that on certain occasions, even the higher authority of the State wanted to keep the petitioner in the same station. 10. Whether the service of the petitioner will be utilized in a particular place or not that can only be decided by the employer Government, not by the Court, being employer is the best judge to decide where an employee would be posted, but it would not be proper on the part of the authority to deny the benefit of the scheme, when a particular scheme provided some benefits, like a choice posting, ordinarily in the last one year of service of a Government employee as an welfare measure, without showing any reason. 11. 11. In view of the above, it would be proper to dispose of the instant writ petition at this motion stage with a direction to the respondent No.2, the Director, Department of Welfare for Schedule Tribes, Government of Tripura to dispose of the representation of the petitioner, dated 15.03.2011, if not disposed of by this time, within a period of fifteen days by a reasoned order taking note of Memorandum, dated 24.08.1993, Annexure-7 to the writ petition and till disposal of the representation, the impugned order of transfer, dated 07.03.2011, Annexure-4 to the writ petition and the release order, if he has not been released by this time, shall remain stayed so far as the petitioner is concerned. 12. With the above observations and directions, the writ petition is disposed of.