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2014 DIGILAW 714 (CAL)

Shekhar Chandra Das v. State of West Bengal

2014-08-04

ISHAN CHANDRA DAS, JAYANTA KUMAR BISWAS

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Judgment Jayanta Kumar Biswas, J. The petitioner in the AST under Article 226 of the Constitution of India dated July 28, 2014 is questioning an order of the West Bengal Administrative Tribunal dated July 24, 2014 disposing of his OA No.1189 of 2013. The petitioner is a process server peon. He was posted to the office of the Competent Authority, Urban Land Ceiling, Kolkata. By an order dated September 19, 2013 the OSD Urban Development (Urban Land Ceiling) Department transferred him to the post of process server peon in the office of the Competent Authority, Urban Land Ceiling & SDO, Serampore. The transfer was ordered in the interest of public service. Feeling aggrieved the petitioner filed the OA. The petitioner contended as follows. The OSD, not his appointing authority, but a superior authority, had no authority to issue the transfer order. He is an employee of a statutory authority, the Competent Authority, Urban Land Ceiling, Kolkata, and hence cannot be transferred to another statutory authority. In any case, the transfer was arbitrarily ordered at the instance of the Minister in-Charge of the department on the verge of his retirement. The respondents contested the OA by filing a reply. Their case was this. The offices of the Competent Authorities, Urban Land Ceiling, West Bengal are offices of the Urban Development Department. The OSD being a superior official of the department was empowered to issue the order, especially when it was issued with the prior approval of the highest authority of the department, i.e., the Minister in-Charge. The order was issued in the interest of public service. The Tribunal did not find any merit in the petitioner’s contentions and accordingly dismissed the OA. Then saying that under the existing transfer policy “the transfer of a Group ‘D’ employee should not entail a change of residence,” it granted the petitioner “liberty to file a fresh application, if so advised, in case the instant transfer would require him to go in for a change in residence.” Saying so, it finally disposed of the OA. Mr. Saha Roy appearing for the petitioner and relying on the Supreme Court decision in Joint Action Committee of Air Line Pilots’ Association of India & Ors. v. Director General of Civil Aviation & Ors., (2011) 5 SCC 435 has argued the petitioner’s contentions noted hereinbefore. Mr. Mr. Saha Roy appearing for the petitioner and relying on the Supreme Court decision in Joint Action Committee of Air Line Pilots’ Association of India & Ors. v. Director General of Civil Aviation & Ors., (2011) 5 SCC 435 has argued the petitioner’s contentions noted hereinbefore. Mr. Majumdar appearing for the respondents has submitted that under the Rules of Business the Minister in-Charge was empowered to give direction, if necessary, to the OSD of the department for transferring the petitioner, even though he was a Group-D employee of the Government. The petitioner is a servant of the State Government posted to the office of the Competent Authority, Urban Land Ceiling, Kolkata, an office of the Urban Development Department of the Government. The OSD of the department is an official much superior to the officer functioning as the Competent Authority. The Competent Authority is a statutory authority only for the purposes of the Urban Land (Ceiling and Regulation) Act, 1976. He did not appoint the petitioner under any provision of the Act qua the Competent Authority. The petitioner had been appointed by the Government,–no doubt by the appropriate official of the Government as the competent appointing authority, but not as an authority under the Act. We are, therefore, unable to accept that the petitioner is a statutory employee under the Urban Land (Ceiling and Regulation) Act, 1976; and that hence he could not be transferred by anyone other than the Competent Authority, Urban Land Ceiling, Kolkata and to any post other than a post in the office of the Competent Authority, Urban Land Ceiling, Kolkata. Transfer is not one of the petitioner’s conditions of service. He is a Group-D employee and as such his transfer, if necessary, has to be made according to the Government Orders No.2026-F dated February 8, 1978, No.50(225)-F dated January 4, 1982 and No.9770-F dated August 19,1983. Nothing in these orders prohibits transfer of a Group-D employee of the Government. The Government Orders clearly provide that a Group-D employee normally to be retained in the same place can be transferred in exigencies of public service. The last Government Order No.9770-F dated August 19, 1983 provides that while transferring a Group-D employee it should be kept in mind that he can attend his new place of posting from his usual residence. The Government Orders clearly provide that a Group-D employee normally to be retained in the same place can be transferred in exigencies of public service. The last Government Order No.9770-F dated August 19, 1983 provides that while transferring a Group-D employee it should be kept in mind that he can attend his new place of posting from his usual residence. In view of the clear provisions of the Government Orders applicable to the transfer in question, we are unable to see how the petitioner can contend that he could not be transferred from the office of the Competent Authority, Urban Land Ceiling, Kolkata to the office of the Competent Authority, Urban Land Ceiling & SDO, Serampore. There is no merit in the argument that the OSD could not order the petitioner’s transfer. As the superior official of the department he possessed the same power to transfer the petitioner that the petitioner’s appointing authority, his subordinate, possessed. In the absence of a legal prohibition against exercise of the transfer power by an official superior to the appointing authority, we see no reason to accept the contention, especially when the transfer ordered by the superior authority has not caused any real prejudice. The principle stated in the cited decision has no manner of application to this case. Here neither the petitioner’s appointing authority delegated his any statutory power to the OSD nor did the OSD usurp any statutory power of the petitioner’s appointing authority to transfer the petitioner. It is wrong to say that the OSD issued the transfer order at the instance of the Minister in-Charge of the department. It was clearly stated in Reply para.7 that the OSD issued the transfer order with the prior approval of the Minister in-Charge. This means that after the decision was taken to transfer the petitioner approval of the Minister in-Charge was sought and obtained. The document at p.62 reveals that the Minister in-Charge while approving the department’s decision to transfer the petitioner from the office of the Competent Authority, Urban Land Ceiling, Kolkata to the office of the Competent Authority, Urban Land Ceiling, Serampore also ordered that inquiry into other charges against the petitioner should be conducted. It is evident that the petitioner’s transfer was ordered for good reasons. Hence it is not acceptable that his transfer ordered on the verge of his retirement amounted to an arbitrary transfer. It is evident that the petitioner’s transfer was ordered for good reasons. Hence it is not acceptable that his transfer ordered on the verge of his retirement amounted to an arbitrary transfer. Exigencies of public service must prevail over the petitioner’s individual right not to be transferred normally to another place and, in any case, not to be transferred on the verge of his retirement. For these reasons, we find no merit in the AST. In our opinion, the Tribunal has rightly dismissed the OA. We, accordingly, dismiss the AST. The department is directed to allot permanent WPST number immediately. No costs.