SUBOTH KUMAR MITTRA Vs. UNION OF INDIA

JUDGEMENT

(1.) THE instant application has questioned the judgment and order of the learned Tribunal dated 14th November, 2007 by which the applicant's challenge against order of transfer has been disallowed. The applicant, at present, is a Superintending Archaeologist and at the time of moving the application before the learned Tribunal he was posted at Kolkata circle. By an Office Order No. 106/2007-ADM. 1 dated 31st July, 2007signed by section Officer; (Administration) the petitioner has been transferred from kolkata to Nagpur. The petitioner joined at Kolkata Circle on 11th July, 2006 pursuant to earlier order of transfer. According to the petitioner, the petitioner in Kolkata has undertaken major archaeological works and the said work is in the midst of completion. In performing this work he is responsible for analysing, estimating and framing several important conservation works of viswa Bharati University at Santiniketan and he has also completed the civil deposit works of the Victoria Memorial Hall at Kolkata. As such the transfer of the petitioner to Pre-history Branch, Nagpur will seriously affect completion of this works and perhaps will jeopardise the works altogether. The petitioner also complains that this sort of order of transfer does not sub-serve the public good rather results in wastage of Government money. Apart from the petitioner's own assessment about the efficiency of such kind of transfer he has questioned on other aspects that the order of transfer was issued not by competent authority namely Director but by section Officer who is inferior in rank to the applicant. According to this, order of transfer is mala fide as in some other cases several persons have been allowed to remain for a longer time and as per practice a person is allowed to remain at a particular place for a cotinuous period of four years. It is also contended that, in fact, there is no published norm and policy for effecting order of transfer, in absence thereof, obviously there is a strong possibility of meeting out discrimination and taking arbitrary decision with regard to transfer. It is alleged that transfer orders had hitherto been passed on recommendation of Departmental Promotion and Transfer Committee which cannot function because of lack of quorum owing to post of Additional Director General and Joint Director Generals remaining vacant. Moreover, the petitioner has personal problem as his wife is under treatment in Kolkata. According to him, at present, there is no director General to take decision for transfer rather ad hoc appointee of this post has taken decision. Therefore, order of transfer has not been passed with due process of law. It is further alleged that on representation transfer order of one S. V. P. Halkatti, has been modified allowing him to remain at Bangalore. It is clear that there is no norms or policy of transfer. This has also been recorded in the report of the Parliamentary Standing Committee transport, tourism and culture. The learned Tribunal found on production of records that although the order of transfer has not been signed by the Director, the same was passed with the approval of the Director. The Tribunal observed that there is no mala fide, and since the terms and incidence are part and parcel of the service the petitioner has to accept order of transfer.

(2.) THIS application is opposed by filing affidavits. In the affidavit-in-opposition it has been stated that actually order of transfer has not been signed by Section Officer rather the, same has been notified by him. Order of transfer has been approved by the Director as proposal for transfer was put forward by the Additional Director. Xerox copies of the relevant extract of the records has been annexed in the supplementary affidavit. It is also alleged that before passing order of transfer the petitioner had been over telephone consulted and indeed at his request order of transfer at Nagpur had been issued. According to the respondents, this procedure had been uniformly followed as it is a routine Transfer order and a number of officers have been transferred and they have accepted and joined at their respective places and there is no grievance against it. There is no hard and fast rule that a particular officer has to be retained at a particular place until he finishes the job he has undertaken. His unfinished work is undertaken by the next incumbent and no one is indispensable in any sphere of the works. It appears during pendency of this application there has been subsequent development which is brought on record by filing supplementary affidavit by the petitioner stating that by a subsequent order dated 11th December, 2007 the petitioner has been transferred from Nagpur to Bhubaneswar. Thus his transfer at Nagpur or at any other place is not for administrative necessity.

(3.) MR. Debabrata Banerjee, appearing with Mr. Kazi Safiullah and Mr. Koushik Bhattacharyya on behalf of the petitioner, contends that order of transfer is unlawful and the same was singed by an inferior officer. It may be true going by the records that the order was issued with approval of the competent authority and duration of the petitioner's stay in Kolkata slightly over one year only. Therefore, usual practice which is followed has been departed from as previously the petitioner likewise other officers was allowed to remain at one place for a minimum period of four years. As such learned tribunal has ignored aforesaid serious infirmity and illegality of the order of transfer.