Central Administrative Tribunal - Kolkata
Rekiba Khatoon vs Labour Welfare Organization on 21 February, 2024
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CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH
KOLKATA
Date of order: 21.02.2024
O.A.No.350/99/2024
M.A.No. 350/139/2024
Present :Hon'ble Mr. Anindo Majumdar, Administrative Member
Hon'ble Mr Rajnish Kumar Rai, Judicial Member
Rekiba Khatoon, wife of Md. Jahiruddin
Mia, aged about 53 years, working as
Nursing Officer at SCMMU, Kanka,
Residing at Bhata, Nayapara,
Tarakeswar, District: Hooghly,
Pin- 712410
.......Applicant
- VERSUS-
1. Union of India, through the Secretary
to the Govt. of India, Ministry of Labour
& Employment, Jaiselmer House, Man
Singh Road, New Delhi-110011;
2. The Director General(Labour Welfare),
Jaiselmer House, Man Singh Road,
New Delhi-110011;
3. The Welfare & Cess Commissioner,
Ministry of Labour& Employment,
Labour Welfare Organisation,
234/4, AJC Bose Road, 5th Floor,
2nd MSO Building, Nizam Palace,
Kolkata -700020;
4. The Senior Accounts Officer, Labour
& Welfare Organisation, 5th Floor,
2nd MSO Building, Nizam Palace,
Kolkata -700020;
5. Shri Hemant Tirkey, The Welfare &
Cess Commissioner, Ministry of Labour &
Employment, Labour Welfare Organisation,
234/4, AJC Bose Road, 5th Floor, 2nd MSO
Building, , Nizam Palace, Kolkata -700020;
.......Respondents
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For the Applicants : Mr. S.K. Datta, counsel
For the Respondents : Mr. R. Halder, counsel
ORDER
Rajnish Kumar Rai, Judicial Member The applicant has filed this O.A.No.350/99/2024 under Section 19 of Administrative Tribunals Act, 1985, seeking the following reliefs :-
"(a) An order quashing and/or setting aside the Order of Transfer being Office Order No.477 of 2023 dated Nil so far as the applicant is concerned;
(b) An order quashing and/or setting aside the impugned communication dated 22.12.2023, release order dated 22.12.2023 and Office Order dated 27.12.2023;
(c) An order directing the respondents to consider the case of the applicant for posting within the Kolkata Region considering the application of the applicant dated 10.06.2023 submitted in terms of Office Memorandum dated 08.06.2023;
(d) An order directing the respondents to produce/cause production of all relevant records;
(e ) Any other order or further order/orders as to this Hon'ble Tribunal may seem fit and proper."
2. Main grievance of the applicant in this O.A. is that she has been transferred from Kankra to Salar and vide impugned order dated 22.12.2023 she has been released from Kankra to join her new place of posting at Salar. The applicant has prayed for her posting to Kolkata region which was not considered by the respondents.
3. The O.A. was heard by this Tribunal and an interim order was passed on 19.01.2024 whereby the impugned release order of the applicant dated 22.12.2023 was stayed on the ground that her transfer order was not reviewed with proper application of mind as per order of this Tribunal dated 30.11.2023 passed in O.A.No.350/1118/2023, with liberty to the respondents to file an application for vacation of interim order.
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4. The respondents of O.A.No.350/99/2024 have filed this M.A. for vacating the interim order passed on 19.01.2024.
5. Heard Learned Counsel for both sides and perused the materials placed on record.
6. At hearing, Learned Counsel for the applicants in M.A. (respondents of O.A.) has submitted that the applicant was posted at Kankra for more than 8 years and as per the transfer policy of the department , she has rightly been transferred to Salar. The Respondents' counsel further submitted that no extra benefit about posting and transfer to Kolkata region has been given to any para medical staff and there is no reason to give such benefit to the applicant, therefore, the interim order dated 19.01.2024 may be vacated and the applicant should be directed to join the new place of her posting.
7. Learned Counsel for the original applicant objected to the claim of the Learned Counsel for the respondents and has submitted that the order of transfer of the applicant has not been properly reviewed as per order of this Tribunal dated 30.11.2023 passed in O.A.No.350/1118/2023.
8. On perusal of the office notes and documents placed vide Annexure M/3 to the M.A. it appears that a Review Committee for transfer and posting of Para Medical Employees under LWO, Kolkata has been formed consisting of three officers, on 18.12.2023 as per order of this Tribunal dated 30.11.2023 in O.A.No.350/1118/2023 and a meeting was held on 20.12.2023 to review the transfer order No.477 dated 21.08.2023. The minutes of the said meeting has been annexed to the M.A. at page 24 (Annexure MA/3), relevant portion of which reads as under:-
"Under the above facts and circumstances, it is the opinion of the Review Committee that the transfers are according transfer policy of the Department as well as 4 Rules and norms and also to fulfill the public service to run the Dispensaries and Hospital at its best. As such, the cases have been reconsidered and rejected."
6. We have gone through the record. It appears that the case of the applicant as well as 16 others para medical staff were reviewed and the case of the applicant has also been discussed. It appears from the Review Committee Report dated 20.12.2023 that the transfer order has been issued in the public interest on administrative ground as per the Transfer Policy. It further appears that no case of mala fide/statutory violation has been made out. Therefore, we are not inclined to interfere in the action of the Review Committee in the matter of transferring the applicant from Kankra to Salar.
In view of the above, we find that the applicants in M.A.(respondents of O.A.) have complied with the direction of this Tribunal dated 30.11.2023 passed in O.A.No.350/1118/2023 in its true letter and spirit by reviewing the order of transfer of the applicant and posting her to Salar as per the existing Transfer Policy of the department. No rule or guideline regarding transfer of para medical staff was violated.
7. In this regard it would be pertinent to refer to a catena of decisions of Hon'ble Supreme Court in the following cases :-
(i) Shilpi Bose Vs. State of Bihar AIR 1991 SC 532, the Hon'ble Apex Court held that a transfer order, even if, is issued to accommodate a public servant to avoid hardship, the same cannot and should not be interfered by the Court merely because transfer orders were passed on the request of the concerned employees. No person has a vested right to remain posted to a particular place, and 5 unless the transfer order is passed in violation of any mandatory rule, the High Court had no jurisdiction to interfere with the transfer orders. Relevant extract is quoted as under:
"if the competent authority issued transfer orders with a view to accommodate a public servant to avoid hardship, the same cannot and should not be interfered by the Court merely because the transfer order were passed on the request of the employees concerned. The respondents have continued to be posted at their respective places for the last several years, they have no vested right to remain posted at one place. Since they hold transferable posts they are liable to be transferred from one place to the other. The transfer orders had been issued by the competent authority, which did not violate any mandatory rule, therefore, the High Court had no jurisdiction to interfere with the transfer orders."
(ii) That, in Rajendra Rai vs. Union of India 1993 (1) SCC 148 and Union of India vs. N.P. Thomas 1993 Suppl. (1) SCC 704, it was said that the Court should not interfere with the transfer orders unless there is a violation of some statutory rule or where the transfer order was mala fide.
(iii) That, in N.K. Singh vs. Union of India JT 1994 (5) SC 298, the Court said, "Unless the decision is vitiated by mala fides or infraction of any professed norm of principle governing the transfer, which alone can be scrutinized judicially, there are no judicially manageable standards for scrutinising all transfers ..............."
(iv) Further, in the case of State Bank of India vs. Samarendra Kishore Endow (1994(1) SLR 516) the Hon'ble Supreme Court has held that a High Court or Tribunal has no power to substitute its own discretion for that of the authority. In this case, the Apex Court had further observed that the power of judicial review is mean "to ensure 6 that the individual receives fair treatment and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorized by law to decide for itself a conclusion which is correct in the eyes of the Court".
(v) That, in Abani Kanta Ray vs. State of Orissa and others 1995 Suppl. (4) SCC 169 the Hon'ble Supreme Court observed, "It is settled law that a transfer which is an incident of service is not to be interfered with by the Courts unless it is shown to be clearly arbitrary or vitiated by mala fides or infraction of any professed norm or principle governing the transfer."
(vi) The Hon'ble Apex Court in the case of Union of India & Anr. Vs. G. Ganayutham, (1997) 7 SCC 463, observed as follows:-
"We are of the view that even in our country-in cases not involving fundamental freedoms-the role of our courts/tribunals in administrative law is purely secondary and while applying Wednesbury and CCSU principles to test the validity of executive action or of administrative action taken in exercise of statutory powers, the Court and Tribunals in our country can only go into the matter, as a secondary reviewing Court to find out if the executive or the administrator in their primary roles have arrived at a reasonable decision on the material before them in the light of Wednesbury and CCSU test. The choice of the options available is for the authority; the Court/ Tribunal cannot substitute its view as to what is reasonable."
(vii) That, in Union of India Vs. Janardhan Debanath JT 2004 (2) SC 371, the Hon'ble Apex Court held that:-
"No Government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of malafide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the Tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management ............"7
8. From perusal of the aforesaid citations and decisions of Hon'ble Supreme Court, it appears that court should not normally interfere in the transfer order if that is not otherwise violative of statutory provisions or passed with mala fide intention. Transfer is an exigency of service and it is in the domain of executive to place one person at a particular place for effective administration. Therefore, we are not inclined to interfere into the action of the Review Committee who reviewed the transfer order of the applicant in accordance with law.
Hon'ble Supreme Court in the case of G. Ganayutham (supra) and Janardhan Debanath (supra) has discussed the interference of the Tribunals/courts into the executive orders passed by the administration as a secondary review court to find out the role of executive or the administrator with regard to action taken in exercise of statutory powers. In the present case, we find that the transfer of para medical staff was reviewed by the Review Committee, which was purely an executive action exercised as per statutory power and such action was just and valid.
9. In view of the aforesaid facts and circumstances, the O.A. is dismissed at the admission stage being devoid of any merit. The interim order dated 19.01.2024 passed in O.A.350/99/2024 stands vacated. The M.A. is allowed. The applicant is directed join her new place of posting. No order as to costs (Rajnish Kumar Rai) (Anindo Majumdar) Judicial Member Administrative Member Sb