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2022 DIGILAW 179 (MAN)

Sujata Seleibam v. Union of India

2022-09-14

M.V.MURALIDARAN

body2022
JUDGMENT 1. By consent the main writ petition itself is taken up for final hearing at the admission stage. 2. The writ petition has been filed to quash the impugned transfer order dated 18.7.2022 and to direct the respondents to allow the petitioner to continue at her present place of posting i.e. Jawahar Navodaya Vidyalaya, Bishnupur. 3. Heard Mr. O. Kiranjit, learned counsel for the petitioner and Mr. S. Samarjeet, the learned Central Government Standing Counsel for the respondents. 4. The case of the petitioner is that she was presently working as a Trained Graduate Teacher (English) in Jawahar Navodaya Vidyalaya, Bishnupur and is staying at her quarters inside the JNV, Bishnupur along with her minor daughter and husband. On 31.8.2017, the petitioner was transferred to JNV, Dhemaji, Assam. Challenging the said transfer order, she had filed O.A.No.042/00278 of 2017 before the Central Administrative Tribunal, Guwahati Bench, Guwahati and pursuant to the interim order, her transfer was stayed. However, the OA was dismissed for default due to non-prosecution. After coming to know the dismissal of the OA, the petitioner had filed restoration application in MA.No.53/2022 and 54/2022 and the same are pending before the Tribunal. While so, taking advantage of the dismissal of the OA, the impugned order came to be issued, which is challenged in the writ petition. 5. Assailing the impugned order, Mr. O. Kiranjit, the learned counsel for the petitioner submitted that the impugned transfer order as well as the relieving order dated 20.7.2022 are de hors the Office Memorandum dated 30.9.2009 regarding spouse posting at the same station and that the petitioner and her husband, who was serving as Lecturer at the Roal Academy of Law, Oinam, Bishnupur are entitled to spouse posting at the same station at the present place of posting at JNV, Bishnupur or at a nearby station in terms of the aforesaid Office Memorandum. He submits that the act of the respondents in transferring and relieving from her present place of posting has displaced the petitioner and separated from her spouse and children in violation of the Office Memorandum dated 30.9.2009 and also the Transfer Policy, 2021. 6. The learned counsel further submitted that the petitioner and her husband are undergoing IVF treatment since 2019 as per the advice of the Doctors. 6. The learned counsel further submitted that the petitioner and her husband are undergoing IVF treatment since 2019 as per the advice of the Doctors. Further, under the ATD 2022, the petitioner can apply and can exercise her option of choosing station of her choice and, as such, she opted at JNV, Khumbong. However, the said request of the petitioner was not considered. Aggrieved by the impugned transfer order as well as the relieving order, the petitioner had submitted a representation on 11.8.2022 and the same has not been considered till date. 7. The learned counsel urged that the petitioner has not even been given a chance to redress her grievance against the impugned transfer order dated 18.7.2022 and that the act of the respondent authorities is totally arbitrary, irrational and violative of Articles 14, 16 and 21 of the Constitution of India. Thus, a prayer is made to quash the impugned transfer order and allow her to work in the present place of posting. 8. On the other hand, Mr. S. Samarjeet, the learned Sr. PCCG for the respondents submitted that challenging the transfer order dated 31.8.2017, the petitioner has filed OA before the Tribunal and due to non-prosecution, the said OA was dismissed for default on 23.7.2019 and that after passing the order dated 23.7.2019, the impugned order directing her to report for duty at the transferred place was issued. Therefore, there is no arbitrariness in issuing the impugned order. He submits that the restoration application, if any filed by the petitioner will not affect the impugned order. The claim of the petitioner that spouse posting at the same station has no basis. Thus, a prayer is made to dismiss the writ petition. 9. This Court considered the rival submissions and also perused the materials available on record. 10. The petitioner challenged the impugned transfer order on two grounds, namely (a) Her application for restoration of O.A.No.042/00278 of 2017, which was dismissed for default, is pending consideration before the Central Administrative Tribunal, Guwahati Bench and (b) She is entitled to serve in Bishnupur as per Office Memorandum dated 30.9.2009 since her husband is serving in Bishnupur. 11. As could be seen from the records, in the year 2017, the petitioner was transferred to JNV, Dhemaji, Assam vide order dated 31.8.2017. 11. As could be seen from the records, in the year 2017, the petitioner was transferred to JNV, Dhemaji, Assam vide order dated 31.8.2017. Aggrieved by the said transfer order, she has filed O.A.No.042/00278 of 2017 before the Central Administrative Tribunal, Guwahati Bench and obtained stay of the transfer order. According to the petitioner, the said OA was dismissed for default and she had filed application for restoration of the same and the same is pending before the Tribunal. 12. It appears that O.A.No.042/00278 of 2017 was originally dismissed for default on 10.10.2018 and was restored on 19.12.2018. Thereafter, when O.A.No.042/00278 of 201 was listed on several occasions, the petitioner has not shown any interest in prosecuting the case, which resulted in the dismissal of her OA for default again on 23.7.2019. As against the dismissal of the OA in the year 2019, the petitioner has filed application for restoration only in the year 2022, which itself shows her lethargic attitude in prosecuting the case. Indeed, after the dismissal of O.A.No.042/00278 of 2017 for default, the respondent authorities should have passed an order to effect the transfer order dated 31.8.2017. However, the respondent authorities failed to do so and only in the year 2022, they have issued the impugned order, thereby directing the petitioner to report at her place of transfer at JNV, Dhemaji, Assam and accordingly relieving order was also issued on 20.7.2022. This Court finds that the said action of the respondent authorities warrants no interference and also there is no arbitrariness in issuing the impugned order. Naturally, if the OA challenging the transfer is dismissed, the authorities will give effect to the transfer order by issuing another order and in that line only the respondent authorities issued the impugned order. This Court finds no infirmity in it. 13. At this juncture, by placing reliance upon the order of this Court dated 4.8.2022 passed in W.P.(C) No.610 of 2022, the learned counsel for the petitioner submitted that since the Tribunal is not functioning and the restoration application filed by the petitioner is pending before the Tribunal and also adjourned without any next date of hearing, the petitioner has invoked the jurisdiction under Article 226 of the Constitution of India. Therefore, the impugned order is liable to be set aside. 14. Therefore, the impugned order is liable to be set aside. 14. This Court perused the order passed in W.P.(C) No.610 of 2022 wherein the OA was filed in the year 2022 and after considering the pendency of the said OA and after holding that the writ petition by invoking Article 226 of the Constitution of India is not at all maintainable on the ground that the petitioner therein approached the Tribunal and filed O.A.No.167 of 2022, this Court dismissed the writ petition. However, directed the authorities not to give effect of the movement order for a period of 15 days from 4.8.2022. Here, it is a case where the earlier OA preferred by the petitioner was dismissed for default and after the dismissal, the impugned order came to be passed. Therefore, in facts and circumstances of the case, the order in W.P.(C) No.610 of 2022 relied on by the petitioner is not applicable to this case. 15. Coming to the ground taken by the petitioner to question the impugned order that transfer of spouse to be treated as in public interest as it reflects the policy of the Government manifested through the Office Memorandum issued by the DoPT and the alleged displacement of the petitioner and the breaking their spouse posting is violative of public interest canvassed by the petitioner is concerned, there is no merit in the said submission. 16. Since this Court is of the opinion that there is no arbitrariness in issuing the impugned order after dismissal of the OA preferred by her, the challenge made on the ground of violation of DoPT's mandate of spouse posting is not sustainable. Only to get the impugned order not to give effect, the petitioner has taken said ground and there is no bonafide in it. Therefore, this Court is of the view that there is no violation of any of the mandate of spouse posting by the respondent authorities. On the other hand, the working capacity of the petitioner's husband as Lecturer in Royal Academy of Law is an un-aided College. 17. That apart, merely because the restoration of application of the petitioner is pending before the Central Administrative Tribunal, she cannot entitled to get the order impugned set aside. Since the original order of the transfer is of the year 2017, the petitioner is duty bound and as per the service conditions, she has to obey the order. 17. That apart, merely because the restoration of application of the petitioner is pending before the Central Administrative Tribunal, she cannot entitled to get the order impugned set aside. Since the original order of the transfer is of the year 2017, the petitioner is duty bound and as per the service conditions, she has to obey the order. 18. For the foregoing discussions and finding no merit in the writ petition, the same is dismissed. No costs.