Central Administrative Tribunal - Kolkata
Urmila Biswas vs Administration Division on 20 March, 2025
1 OA 1821/2024/AN
CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH
KOLKATA
O.A. 351/1821/2024/AN
Date of hearing: 07.02.2025
Date of order: 20.03.2025
Coram: Hon'ble Mrs. Urmita Datta (Sen), Judicial Member
Hon'ble Mr. Suchitto Kumar Das, Administrative Member
In the matter of :
Urmila Biswas,
Wife of Jayanta Biswas, aged about 56 years, working as
Assistant Engineer (C), ISSD, APWD, Kolkata, residing at AC-
206, Prafulla Kanan (East), Kistopur, Kolkata- 700101.
......Applicant
Vs.
1. Union of India, service through the Secretary to the
Government of India, Ministry of Housing and Urban Affairs,
Room No. 122-C, Nirman Bhawan, New Delhi- 110001.
2. The A & N Administration, through the Lt. Governor, Raj
Niwas, A & N Islands, Port Blair- 744101.
3. The Chief Secretary, the Andaman & Nicobar
Administration, Secretariat, Andaman Public Works
Department, Sri Vijaya Puram, Port Blair- 744101.
4. The Deputy Secretary, Public Works Department (APWD),
Andaman & Nicobar Administration, Secretariat, Andaman
Public Works Department, Sri Vijaya Puram, Port Blair-
744101.
5. The Chief Engineer, Andaman Public Works Department,
Andaman & Nicobar Administration, Nirman Bhawan, Port
Blair- 744101.
Digitally signed by SONALI LAL
SONALI
DN: C=IN, O=Personal, T=0572, OID.2.5.4.65=
1335963617493834803xeKNGD5eN7bXL, Phone=
d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f9970
cce81465079777, PostalCode=800009, S=Bihar,
SERIALNUMBER=
b85cadb360af4981732c949bc31df6d98e2c92428456adc5
LAL
33ade9e38d5aed96, CN=SONALI LAL
Reason: I am the author of this document
Location:
Date: 2025.03.21 11:17:11+05'30'
Foxit PDF Reader Version: 2024.3.0
2 OA 1821/2024/AN
6. The Engineering Officer, Office of the Chief Engineer,
Andaman Public Works Department, Nirman Bhawan, Sri
Vijaya Puram, Port Blair- 744101.
................Respondents
For the Applicant : Mr. Arpa Chakraborty, Counsel
Mr. S. Roy, Counsel
For the Respondents : Dr. D. Chowdhury, Counsel
ORDER
Suchitto Kumar Das, Administrative Member
1. The applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, praying for the following relief:
"a) Impugned Office Order of Transfer Order being Officer Order No. 2761 dated 18.11.2024 issued by the respondent no. 4 issued with respect to the applicant is not tenable in the eye of law and as such the same may be quashed;
b) To grant all consequential benefits;
c) An order do issue directing the respondents to allow the applicant to continue discharging her duties in the present capacity of Assistant Engineer (Civil) at her present place of posting at ISSD, APWD, Kolkata;
d) To call for the records leading up to Office Order of Transfer Order being Office Order No. 2761 dated 18.11.2024 issued by the respondent no. 4 whereby the applicant has been transferred from ISSD, APWD, Kolkata to MID, Hutbay;
e) Costs and incidentals;
f) Any other order or orders as the Hon'ble Tribunal deems fit and proper."
2. For the sake of clarity, facts in the case, as narrated by the applicant, are delineated hereinunder :
The applicant is presently working as Assistant Engineer (Civil) at ISSD, Kolkata. Though the applicant reported for duty at her present place of Digitally signed by SONALI LAL SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f9970 cce81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc5 LAL 33ade9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
Date: 2025.03.21 11:17:11+05'30' Foxit PDF Reader Version: 2024.3.0
3 OA 1821/2024/AN posting on 20.12.2022 she was handed over the charge of Assistant Engineer (Civil) on 31.05.2024.
The applicant is a married woman but she resides separately from her husband. The applicant is now residing with her 84 years old ailing mother. The respondent issued a transfer Order dated 18.11.2024 vide which the applicant has been transferred from her present place of posting Kolkata to Hutbay.
Being aggrieved, the applicant submitted her representation on 20.11.2024 before the respondent no. 3 but no response has been received from the respondents. The applicant has not yet been released from her present place of posting. The applicant has approached this Tribunal challenging her transfer from Kolkata to Hutbay.
3. Learned counsel for the applicant submits that a bare perusal of the Order of Transfer would reveal that the applicant has been transferred to a distant place from her place of posting in violation of the Transfer Policy of the respondents. The applicant has only completed 1 year 11 months in her present tenure in Kolkata and as such the impugned order of transfer deserves interference with respect to the applicant. 3.1 Learned Counsel for the applicant submits that as per Transfer Policy in respect of the employees of A & N Administration dated 30.07.2007 and the Transfer Policy as per the Engineering and Non-Ministerial Staffs of APWD dated 30.07.2003, the tenure of the offices of the A & N Administration located at mainland including Kolkata zone is 03 years whereas the applicant has been posted in the office of ISSD, APWD, Kolkata only on 16.12.2022 and as such, the applicant, having completed only 1 year 11 months service at ISSD, Digitally signed by SONALI LAL SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f9970 cce81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc5 LAL 33ade9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
Date: 2025.03.21 11:17:11+05'30' Foxit PDF Reader Version: 2024.3.0
4 OA 1821/2024/AN APWD, Kolkata is not eligible to be considered for transfer till completion of the tenure of 03 years prescribed in the policy. 3.2 Learned Counsel for the applicant submits that the applicant has been transferred to a distant place from her place of posting without considering the medical issues of her mother. The applicant has been transferred to a remote island where no medical facilities are available and if any emergency occurs there would be no immediate access to such medical facilities. 3.3 Learned Counsel for the applicant submits that earlier the applicant had already served two consecutive terms in two remote islands Campbell Bay, RD/PRI, South Andaman and Mayabunder, Middle Andaman during the year 2016 to 2018.
3.4 Learned counsel for the applicant submits that the applicant has already crossed 56 years of age and will attain 57 years of age within a few days. She is also suffering from certain ailments. The sudden transfer of the applicant, almost at the end of her career, would prevent her old aged mother from getting adequate medical support. The applicant is the sole caregiver of her mother and the sudden transfer of the applicant will adversely affect the medical treatment of her mother as her medical issues are being followed up with reputed medical practitioners in Kolkata. 3.5 Learned Counsel for the applicant submits that the respondents have invited applications vide Circular dated 27.08.2024 showing 1 vacant post of Assistant Engineer at ISSD, APWD, Kolkata against which one Shri Rakesh Kumar Basak applied and transfer order has been issued in his favour whereas in ISSD, APWD, Kolkata office, there is only one post in which the applicant is already working.
Digitally signed by SONALI LAL SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f9970 cce81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc5 LAL 33ade9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
Date: 2025.03.21 11:17:11+05'30' Foxit PDF Reader Version: 2024.3.0 5 OA 1821/2024/AN 3.6 Learned Counsel for the applicant further submits that the applicant was not given enough opportunity to represent her case since no draft order was issued before issuance of the final order of transfer, which is mandated vide Memorandum being F. No. 55-6/2024-PW dated 12.06.2024.
3.7 Learned Counsel for the applicant further submits that the applicant has in her representation, specifically depicted her plight owing to the family issues and medical problems of dependant mother which elicited no response.
The order of transfer is not sustainable in the eye of law as in the present case although the applicant depicted her aforesaid predicaments, the non- consideration of the same by the respondent authorities reflects non- application of mind by the respondents and as such the impugned order should not be given effect with respect to the applicant.
4. Per contra, Learned Counsel for the respondents submits that the applicant reported for her duty at AE, ISSD, APWD, Kolkata on 20.12.2022. Since Smt. Bina Vaidya, AE (Civil) holding the post of AE, ISSD, Kolkata got a stay against the transfer order dated 13.12.2022 vide the Tribunal's order dated 05.01.2023 in OA no. 2030/2022, the applicant was adjusted in another post till the retirement of Smt. Bina Vaidya, AE, ISSD, Kolkata. The applicant was handed over the charge of AE, ISSD, Kolkata after Smt. Bina Vaidya, AE (C) superannuated vide order dated 31.05.2024. 4.1 Learned Counsel for the respondents submits that the representation of the applicant was placed before the 'Hard Case Committee' for reconsideration of her transfer and the Committee found her case devoid of merits and accordingly rejected her prayer for retention. Digitally signed by SONALI LAL SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f9970 cce81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc5 LAL 33ade9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
Date: 2025.03.21 11:17:11+05'30' Foxit PDF Reader Version: 2024.3.0 6 OA 1821/2024/AN 4.2 Learned Counsel for the respondents further submits that the applicant has been transferred on the recommendation of Establishment Board. Her transfer was felt necessary by the Establishment Board solely on the basis that she is not able to handle her charge efficiently and she does not have good coordination with Deputy Resident Commissioner, Kolkata. Her inefficiency and lack of coordination with Deputy Resident Commissioner, Kolkata is adversely affecting the upkeep and maintenance of Salt Lake Guest House, A & N Administration, which acts as transit accommodation for the patients and other travellers from A & N Islands. It is further submitted by the Learned Counsel for the respondents that the applicant was transferred purely due to her inefficiency to discharge her duties at ISSD, Kolkata which is affecting the stay of patients travelling from A & N Islands and is giving a bad reputation to the functioning of Andaman Public Works Department. He further submits that the department has every right to transfer an employee under its jurisdiction as per the requirement of work and also to shuffle and shift employees who are inefficient in the discharge of duties.
4.3 Learned Counsel for the respondents submits that in Union of India vs. S. L. Abbas in 1993 AIR 2444, the Hon'ble Apex Court has observed that the government instruction on transfer are mere guidelines without any statutory force and the court or Tribunal cannot interfere with the order of transfer unless the said order is alleged to have been passed in malice or where it is made in violation of the statutory provisions.
4.4 Learned Counsel for the respondents submits that the problems cited by the applicant is universal and even after that her prayer for transfer to Chennai on the grounds of medical treatment for her mother was acceded to, however with a change of posting to Kolkata. The applicant was appointed in Digitally signed by SONALI LAL SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f9970 cce81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc5 LAL 33ade9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
Date: 2025.03.21 11:17:11+05'30' Foxit PDF Reader Version: 2024.3.0 7 OA 1821/2024/AN the year 1989 and out of her total 35 years of service she has stayed at Port Blair (Zone A) for approximately 24 years. 4.5 Learned Counsel for the respondents submits that the Tribunal, in an earlier OA no. 143/2021 filed by the applicant challenging her transfer at that time, observed that the applicant was mostly posted at Port Blair. It is also submitted by the respondents that posting to Chennai and Kolkata on medical grounds can only be for limited period and such postings cannot be perpetuated, particularly when the said employee is failing in her duties and bringing a bad reputation to the department. 4.6 Learned Counsel for the respondents submits that the applications were invited for the post of AE, ISSD, APWD at Kolkata after receiving multiple complaints of mismanagement against the applicant and the view regarding her inefficiency was also expressed by the highest authorities of the A & N Administration during their visit to Salt Lake Guest House, Kolkata.
Continuing with her as Assistant Engineer at ISSD, Kolkata jeopardizes the entire administrative system of A & N Administration at Kolkata resulting in chaos for the patients of A & N Islands visiting Kolkata for specialized treatment.
4.7 Learned Counsel for the respondents further submits that the draft orders are issued only for the yearly general transfer and in the case of applicant she has been transferred on out of turn basis in view of her inefficiency in discharging her duties.
4.8 Learned Counsel for the respondents has cited the following judgments in favour of his submissions :-
(i) Union of India & Ors. vs. S. L. Abbas in 1993 AIR 2444 Digitally signed by SONALI LAL SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f9970 cce81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc5 LAL 33ade9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
Date: 2025.03.21 11:17:11+05'30' Foxit PDF Reader Version: 2024.3.0 8 OA 1821/2024/AN
(ii) Shilpi Bose (Mrs) & Ors. vs. State of Bihar & Ors. in 1991 Supp (2) SCC 659
(iii) State of UP & Ors. vs. Gobardhan Lal in (2004) 11 SCC 402
(iv) The Tamil Nadu Agricultural University & Anr. etc. vs. R. Agila etc. in Special Leave to Appeal (C) No(s). 13070-13075/2022
5. The applicant has filed her rejoinder and has reiterated her contentions made in the OA. In addition she submits that it is evident from the reply filed by the respondents that she has been subjected to transfer as a punitive measure which is not permissible in law as laid down in Hon'ble Supreme Court's order in Somesh Tiwari vs. Union of India & Ors. in (2009) 2 SCC 592 and Hon'ble Calcutta High Court's order in Tarkeshwar Giri vs Union of India in 2011 SCC OnLine Cal 2855.
6. Heard the parties. Perused the materials on record. 6.1 It is well settled position of law that transfer of an officer/employee is inherent in terms of the appointment and in absence of its provision in the relevant Service Rule, it is implicit as an essential condition of service subject to contrary provision in the rule.
In the case of Shanti Kumari v. Regional Deputy Director, Health Services, Patna Division, Patna and others, reported in (1981) 2 SCC 72, the Hon'ble Supreme Court ruled as under:
"2. .....Transfer of a Government servant may be due to exigencies of service or due to administrative reasons. The courts cannot interfere in such matters. ...."
In B. Varadha Rao v. State of Karnataka and others, reported in (1986) 4 SCC 131, the Hon'ble Supreme Court had the occasion to consider a short point whether an order of transfer is appealable under Rule 19 of the Digitally signed by SONALI LAL SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f9970 cce81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc5 LAL 33ade9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
Date: 2025.03.21 11:17:11+05'30' Foxit PDF Reader Version: 2024.3.0 9 OA 1821/2024/AN Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957, and the Supreme Court held that transfer of a government servant who is appointed to a particular cadre of transferable posts from one place to another is an ordinary incident of service and therefore does not result in any alteration of any of the conditions of service to his disadvantage. That a government servant is liable to be transferred to a similar post in the same cadre is a normal feature and incident of government service and no government servant can claim to remain in a particular place or in a particular post unless, of course, his appointment itself is to a specified, non-transferable post.
In the case of Shilpi Bose (Mrs) and others v. State of Bihar and others, reported in 1991 Supp (2) SCC 659 the Hon'ble Supreme Court set aside the judgment of the Patna High Court and held as under:
"4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day- today transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest.
The law laid down in Shilpi Bose (supra) was again reiterated by the Hon'ble Supreme Court in the case of Union of India and others v. S.L. Abbas, reported in (1993) 4 SCC 357, and observed as under:
"6. An order of transfer is an incident of Government service. Fundamental Rule 11 says that "the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority". Digitally signed by SONALI LAL
SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f9970 cce81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc5 LAL 33ade9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
Date: 2025.03.21 11:17:11+05'30' Foxit PDF Reader Version: 2024.3.0 10 OA 1821/2024/AN The Hon'ble Supreme Court again dealt with the matter of transfer in the case of State of U.P. and others v. Gobardhan Lal, reported in (2004) 11 SCC
402. The Supreme Court held that a challenge to an order of transfer should normally be eschewed and should not be countenanced by the courts or tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that courts or tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer.
Similar view has been reiterated by the Hon'ble Supreme Court in the case of Rajendra Singh and others v. State of Uttar Pradesh and others, reported in (2009) 15 SCC 178, and held as under:
"8. A government servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. No Government can function if the government servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires [see State of U.P. v. Gobardhan Lal, (2004) 11 SCC 402; SCC p. 406, para 7).
9. The courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides..."Digitally signed by SONALI LAL
SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f9970 cce81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc5 LAL 33ade9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
Date: 2025.03.21 11:17:11+05'30' Foxit PDF Reader Version: 2024.3.0 11 OA 1821/2024/AN In Rajendra Roy Vs. Union of India & another, JT 1992 (6) SC 732, it was said "in a transferable post an order of transfer is a normal consequence and personal difficulties are matters for consideration of the department."
In N.K. Singh Vs. Union of India, JT 1994 (5) SC 298, the Hon'ble Apex 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 scrutinised judicially, there are no judicially manageable standards for scrutinising all transfers....."
In Abani Kanta Ray Vs. State of Orissa & 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."
In National Hydroelectric Power Corporation Ltd. Vs. Shri Bhagwan 2001 (8) SCC 574, the Hon'ble Apex Court held that 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. In Public Service Tribunal Bar Association Vs. State of U.P. & another 2003 (4) SCC 104 the Court said, "Transfer is an incident of service and is made in administrative exigencies. Normally it is not to be interfered with by the Courts. This Court consistently has been taking a view that orders of transfer should not be interfered with except in rare cases where the transfer has been made in a vindictive manner." In Union of India VS. Janardhan Debanath, JT 2004 (2) SC 371, the Hon'ble Apex Court said, "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 Digitally signed by SONALI LAL SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f9970 cce81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc5 LAL 33ade9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
Date: 2025.03.21 11:17:11+05'30' Foxit PDF Reader Version: 2024.3.0 12 OA 1821/2024/AN 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 mala fide 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...."
In Prasar Bharti Vs. Amarjeet Singh 2007 (9) SCC 539, the Court said that an order of transfer is an administrative order. There cannot be any doubt that the transfer being an incident of service should not be interfered except some cases where, inter alia, mala fide on the part of the authorities is proved.
In Union of India & another Vs. Murlidhar Menon & others 2009 (11) SCALE 416 the Court observed that even if the conditions of service are not governed by the statutory rules, yet the transfer being an incident of service, an employee can be transferred which may be governed by the administrative instruction since an employee has no right to be posted at a particular place. 6.2 The main grievance of the applicant in the instant case emanates from the fact that she has been in her present post only for 1 year 11 months whereas the transfer policy stipulates a 3 year tenure in Zone A. The applicant's Counsel has cited the following judgments in support of the applicant's claim :-
(i) Tarkeshwar Giri vs Union of India in 2011 SCC OnLine Cal 2855
(ii) The Member Secretary, Central Silk Board & Anr. vs. Swapan Kumar Chakraborty & anr. in 2013 SCC OnLine Cal 7142
(iii) Somesh Tiwari vs. Union of India & Ors. in (2009) 2 SCC 592 In Tarkeshwar Giri(supra) , the petitioner was transferred following specific allegations of corruption against him. Hon'ble High Court in this case Digitally signed by SONALI LAL SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f9970 cce81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc5 LAL 33ade9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
Date: 2025.03.21 11:17:11+05'30' Foxit PDF Reader Version: 2024.3.0 13 OA 1821/2024/AN held that the transfer was punitive in nature and that the petitioner should have been taken up under D & A Rules by instituting disciplinary proceedings against him.
In Somesh Tiwari(supra) , there were anonymous complaints of caste bias against the petitioner which could not be proved in an enquiry undertaken by the respondent organization. Even then the petitioner was transferred first from Bhopal to Shillong and then from Bhopal to Ahmedabad without cancelling the first order of transfer from Bhopal to Shillong although the petitioner had not carried out his transfer to Shillong. Hon'ble Supreme Court in its order dated 16.12.2018 observed as follows :-
"16. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds- one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal."
6.3 In the instant case, the applicant has been transferred to a different post as in the opinion of the administration she was unable to discharge her duties in her present post efficiently. She was also not able to maintain proper coordination with the Deputy Resident Commissioner who has the overall responsibility of overseeing matters of A & N Administration in Kolkata. While her lack of coordination with Deputy Resident Commissioner or her inefficiency may cause inconvenience to the administration, neither of the two Digitally signed by SONALI LAL SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f9970 cce81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc5 LAL 33ade9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
Date: 2025.03.21 11:17:11+05'30' Foxit PDF Reader Version: 2024.3.0 14 OA 1821/2024/AN reasons constitutes violation of any specific conduct rules which may have prompted initiation of disciplinary proceedings against the applicant. It is the responsibility of the administration to ensure that a government servant is suited to hold a particular position. Hon'ble Supreme Court in the catena of judgments quoted above has reiterated that it is the right of the administration to place an incumbent in a particular post on the basis of his suitability for the post. In the instant case, in the administration's view, the applicant is not suitable for the post of Assistant Engineer (C), ISSD, Kolkata.
At the same time, she is not guilty of any misconduct. Therefore, she has been transferred to an equivalent post without any punitive action. We agree with this view of the administration and do not find any reason to interfere with the impugned transfer order on the ground that it is punitive in nature. 6.4 In Swapan Kumar Chakraborty(supra), the petitioner was admittedly transferred from Kolkata to Malda to accommodate another employee who wanted to be posted to Kolkata. Hon'ble High Court, while considering this fact, held that since the petitioner had not completed his tenure as per policy in his present place of posting, set aside the impugned order. In the present instance the facts are different. The applicant has not been transferred to accommodate another employee. Transfer has been effected to ensure more efficient working of a sensitive post. Applicant has alleged that her tenure as per policy is 3 years whereas she has been transferred after 1 year 11 months. There has thus been an express violation of their own policy by the administration, a fact deprecated by the Hon'ble High Court in Swapan Kumar Chakraborty (supra).
Relevant extract from the Transfer Policy dated 30.07.2007 is reproduced below :-
Digitally signed by SONALI LAL
SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f9970 cce81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc5 LAL 33ade9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
Date: 2025.03.21 11:17:11+05'30' Foxit PDF Reader Version: 2024.3.0 15 OA 1821/2024/AN "No. 55-3/2007-PW Andaman and Nicobar Administration Secretariat Port Blair, dated the 30th July, 2007 CIRCULAR Sub: Transfer Policy-regarding.
............................
2. TENURE OF POSTING : Normal tenure of postings in different groups of Islands is as under :-
Zone Group of Islands Tenure of posting
Zone A South Andaman District except 03 years
Little Andaman, Havelock, Neil
Island & Offices of the A & N
Administration located at mainland
....................................... As per the policy normal tenure in Zone A, which comprises South Andaman except Little Andaman, Havelock, Neil Islands and offices located in mainland, is 03 years. The use of the term 'normal' in the abovequoted para clearly implies that in special circumstances, tenure can be changed. In the opinion of the respondents, applicant's lack of efficiency constitutes a special circumstance which merits her transfer from her present post. To quote from Hon'ble Supreme Court's judgment in Gobardhan Lal (supra) :
"This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision."
We do not find any mala fide in the impugned transfer order which has been passed with a view to ensure efficient working of the administrative machinery, nor is there a violation of a statutory provision in issuing the transfer order.
Digitally signed by SONALI LAL SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f9970 cce81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc5 LAL 33ade9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
Date: 2025.03.21 11:17:11+05'30' Foxit PDF Reader Version: 2024.3.0 16 OA 1821/2024/AN 6.5 The applicant has also argued that she is the sole caregiver of her ailing and old mother. There are specific guidelines issued by the government regarding consideration of exemption from transfer on grounds of being the sole caregiver of a dependent family member. Though the applicant has stated in her OA as well as in her representation against the order of her transfer that her mother is ailing, old and senile requiring medical attention in Kolkata, no specifics have been mentioned and no documentary evidence has been made available to the respondents by the applicant which can establish her claim for exemption from transfer on the ground of her being the sole caregiver.
6.6 In view of the discussion above and the ratio laid down in the catena of judgments quoted above, we find no legal infirmity in the impugned transfer order and hence we find no reason to interfere with the order dated 18.11.2024.
7. OA is dismissed being devoid of merit. There will be no order as to costs.
Suchitto Kumar Das Urmita Datta (Sen)
Administrative Member Judicial Member
sl
Digitally signed by SONALI LAL
SONALI
DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f9970 cce81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc5 LAL 33ade9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
Date: 2025.03.21 11:17:11+05'30' Foxit PDF Reader Version: 2024.3.0