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2020 DIGILAW 1 (MAN)

I. Bhanumati Devi v. Union of India

2020-01-14

LANUSUNGKUM JAMIR, RAMALINGAM SUDHAKAR

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JUDGMENT Ramalingam Sudhakar; CJ. - Heard Mr.M.Gunedhor, learned counsel for the petitioner. Also heard Mr. S.Samarjeet, learned CGC for the Union respondents and Ms. Rojita Yumnam, learned counsel for the respondent No.5. [2] This petition has been filed challenging the order of the Central Administrative Tribunal (CAT) dismissing the Original Application No. 042/0012/2017 by its order dated 17.12.2018. The Tribunal declined to quash the transfer order dated 02.05.2017 and 05.5.2017 transferring the present petitioner to JNV, Mokokchung and consequently, transferring the private respondent No.5 to JNV, Khumbong, Imphal West. The petitioner, in this case, joined the JNV in the year 1988 as Staff Nurse and was posted at JNV, Imphal West, Manipur. It is not in dispute that it is her home town. Since the date of posting of 1988 till the order of transfer in 2017, the petitioner continues to be in the same place. [3] In December, 2016, a general transfer proposal was mooted and it was displayed in the official website and in that list, the petitioner was at Sl.No.102. It was suggested that her transfer would be from Imphal West to JNV, Upper Subanshri, Arunachal Pradesh. On seeing this proposal, she made a representation on 10.01.2017 to consider her case for alternative transfer on the ground of illness and that her spouse is working in State Government, Manipur. It is pleaded that her spouse is working in Planning Development Authority, Government of Manipur, Imphal East and it is not a transferable post and the transfer of the petitioner will be against the Government of India Office Memorandum dated 30.09.2009. The representation was not accepted in the manner pleaded but there was a modification to the effect that instead of Arunachal Pradesh, the petitioner was transferred to Mokokchung, Nagaland. Challenging the same, the Original Application was filed which was dismissed and hence, the writ petition. [4] Before the Tribunal, the respondents objected to the Original Application on the ground that the petitioner herein had completed 14 years as on 01.01.2016 and was in the same post of Staff Nurse at JNV, Imphal West which is declared as a deemed vacancy as per the guidelines of the NVS. It is further pleaded that the petitioner did not fill up the column of any desired place of posting in the form. It was left vacant. It is further pleaded that the petitioner did not fill up the column of any desired place of posting in the form. It was left vacant. However, in the representation, she agreed to the transfer as an exigency of service and had no hesitation if transferred to any region of the Samiti. Hence, there is a tacit admission or acceptance of transfer. [5] In this case, considering the grievance of the 5th respondent, who is suffering from cancer also sought transfer to Imphal, and in the absence of any other appropriate vacancy, the 5th respondent was posted in place of the present petitioner and the petitioner has been transferred to Mokokchung, Nagaland. It is also the considered view of the authority that the ailment pleaded by the petitioner did not fall within the parameters to consider retention. On the contrary, 5th respondent, who is held to be suffering from cancer, is entitled as a matter of right. Further, the authority was of the view that the petitioner, in this case, had to be transferred out of the present location due to the transfer guidelines for employees of NV Samiti. Clause 4 of the Transfer Guidelines for employees of NVS deals with the tenure and for Staff Nurse. It is 10 years and 3 years in case of hard and North East Region and 2 years in very hard and difficult station. In the present case, the petitioner has already completed more than 14 years and does not fall within the parameters of hard or difficult station because she has been serving in her home town from inception. The transfer policy squarely applies to her. Hence, the Tribunal was justified in declining the relief. [6] The only other issue is whether she is entitled to claim the benefit on the ground that her spouse is in a non-transferable post as per Office Memorandum dated 30.9.2009. The relevant provision of the Office Memorandum reads as follows: '4. **** **** **** **** (vii) Where one spouse is employed under the Central Govt. [6] The only other issue is whether she is entitled to claim the benefit on the ground that her spouse is in a non-transferable post as per Office Memorandum dated 30.9.2009. The relevant provision of the Office Memorandum reads as follows: '4. **** **** **** **** (vii) Where one spouse is employed under the Central Govt. and the other spouse is employed under the state Govt.:- The spouse employed under the Central Govt., may apply to the competent authority and the competent authority may post the said officer to the station or if there is no post in that station to the State where the other spouse is posted.' [7] In the present case, the Office Memorandum only provides that the authority may consider the posting of the employees to the station where other spouse is posted. This will be subject to availability of the post. If there is no post available, the question of retaining the same post contrary to the JNV transfer policy would be detrimental to the institution, namely, JNV itself. The right of the 5th respondent to seek transfer to a place of her choice, which is provided in the transfer policy, would be negated if such a strict interpretation is given to clause VII of Office Memorandum dated 30.9.2009. It only speaks about the various permutations and combinations of employees of the Central Government and State Government with regard to the posting of the other working spouse. The ultimate decision is left to the authority or the superior authority to decide on the place of posting. Hence, this plea is of no avail. [8] If the petitioner is able to show any other vacant location which is more conducive to her to work, it is always open to her to make a representation to the authorities concerned. In so far as the present case is concerned, having worked in her home town and in the said station for 14 years, the department was right in implementing the transfer policy as per Clause.4 of the transfer guidelines for employees of NV Samiti. The right of 5th respondent, who is said to be suffering from cancer, seeking transfer is not in dispute. Taking into consideration the overall claims of various employees of the JNV, the transfer has been effected as per the website notification, 2016.There is no case of malafide, arbitrariness or irrational transfer. The right of 5th respondent, who is said to be suffering from cancer, seeking transfer is not in dispute. Taking into consideration the overall claims of various employees of the JNV, the transfer has been effected as per the website notification, 2016.There is no case of malafide, arbitrariness or irrational transfer. The representation has been considered and suitable modification has been done in the light of the statement made by the petitioner seeking posting to a different place within the Samiti. [9] The order of Tribunal is correct on the above facts. [10] We, therefore, find no reason to interfere with the order of the Tribunal. We, however, give liberty to the petitioner to make any further representation based on availability of post at any other place which may be duly considered on its own merit. [11] The writ petition stands disposed of with the above observation. Earlier interim order stands vacated.