Calcutta High Court (Appellete Side)
Ranjit Chandra Mandal vs Union Of India And Others on 13 January, 2021
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
13-01-2021
ct no. 13
Sl.37
pk
WPA 594 of 2021
Ranjit Chandra Mandal
Versus
Union of India and others
Mr. Saunak Bhattacharya,
Mr. Debanjan Das
... for the petitioner.
Mr. Sudipto Majumder, A. S. G.
Mr. Arijit Ghosh
...for the Union of India
The writ petitioner is aggrieved by an order of
transfer from Sevok, North Bengal to Tamang,
Arunachal Pradesh. The writ petitioner submits that
his medical condition indicates COPD with acute
excerbation now diagnosed chronic obstructive airway
disease. He further submits that there is an
employability restriction on him. The above has been
opined by the Medical Board whose opinion is
annexed to the writ petition.
The petitioner also submits that he is due to
retire in January, 2023 and hence has less than two
years of service left. He, therefore, relies Rule 83
Record Office Instructions, 1998 of the General
Reserve Engineer Force which entitle him to
compassionate posting or non transferability.
Per contra, learned Assistant Solicitor General
at Jalpaiguri has elaborately argued that the
petitioner has been repeatedly accommodated in his
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service career. He has only served in Gangtok, Sevok,
Tezpur and nearby places. He submits that his
medical condition is self inflicted and the primary
cause behind it is excessive smoking.
He also submits that the petitioner is only a few
days short of full two years in service and hence non-
transferability for having less than two years of service
cannot be invoked by him.
This Court notes the dicta laid down by the
Supreme Court in the case of Gujarat Electricity
Board Vs. Atmaram Sungomal Poshani reported in
(1989) 2 SCC 602 (Para 4) where it is being held that
transfer is incident of service and cannot generally be
interfered with and the persons seeking to challenge
an order of transfer is required to first join the place of
posting. The same is set out hereunder:
"4. Transfer of a government servant appointed
to a particular cadre of transferable posts from
one place to the other is an incident of service.
No government servant or employee of Public
Undertaking has legal right for being posted at
any particular place. Transfer from one place
to other is generally a condition of service and
the employee has no choice in the matter.
Transfer from one place to other is necessary
in public interest and efficiency in the public
administration. Whenever, a public servant is
transferred he must comply with the order but
if there be any genuine difficulty in proceeding
on transfer it is open to him to make
representation to the competent authority for
stay, modification or cancellation of the
transfer order. If the order of transfer is not
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stayed, modified or cancelled the concerned
public servant must carry out the order of
transfer. In the absence of any stay of the
transfer order a public servant has no
justification to avoid or evade the transfer
order merely on the ground of having made a
representation, or on the ground of his
difficulty in moving from one place to the other.
If he fails to proceed on transfer in compliance
with the transfer order, he would expose
himself to disciplinary action under the
relevant rules, as has happened in the instant
case. The respondent lost his service as he
refused to comply with the order of his transfer from one place to the other."
Learned Assistant Solicitor General, however, in all fairness agrees not to give effect release order issued to the petitioner for two weeks and also wishes to bring on record certain facts by way of affidavit.
Let a report be filed by way of affidavit by the respondents through the learned Assistant Solicitor General within a period of two weeks from date upon prior service to the counsel for the petitioner.
Let this matter appear as "Motion" two weeks hence.
Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all formalities.
(Rajasekhar Mantha, J.)