Bela Datta vs State Of Tripura And Ors

[1] The petitioner has challenged the order dated 29.01.2020 by which she has been transferred from her present place of working at Kendriya Sanshodhanagar, Bishalgarh to Kailashahar District Jail by the Inspector General of Prisons, Tripura.

[2] Brief facts are as under:

The petitioner joined the Government service as Female Sub-Jailor on 24.09.1997 as a direct recruit. The State of Tripura created a post of female jailor sometime in the year 2017. To the creation of this post there is a legal background to which I would make a reference at a later stage. The petitioner was promoted to the said post of Female Jailor and she joined the said post on 05.10.2018. By the impugned order dated 29.01.2020 she is now transferred from the said female jail to Kailashahar District Jail which transfer order the petitioner has challenged on various grounds. According to the counsel for the petitioner the post of Female Jailor is specially created and is attached only to the Kendriya Sanshodhanagar which contains female jail. The petitioner's post is therefore, non-transferable. She further submitted that in the whole of the State at no other place any significant number of female prisoners, under trial or convicts, are kept. Transferring the petitioner, a Female Jailor from the only female jail in the State to any other place where majority of the prisoners are males, is without logic. Counsel further pointed out that the petitioner has taken special training in looking after female jails. Her experience and training would be vested if she is transferred out of the present place. She lastly contended that there are no complaints against the petitioner in the discharge of her duties. Her transfer within just over one year from her assuming charge is even otherwise contrary to the general tenure protection of three years.

[3] On the other hand, the respondents have filed replies in which it is contended that the petitioner is holding a transferable post. The transfer is ordered in the interest of administration. All District Jails including Kailashahar District Jail contain a female block where female prisoners are kept on regular basis. The petitioner cannot refuse to work any place other than female jail at Kendriya Sanshodhanagar, Bishalgarh. Presently at Kendriya Sanshodhanagar two Jailors and one Sub-jailor (other than petitioner) are posted. The petitioner's services are thus not required at the said centre. It was argued by the Government Advocate that the transfer order which is neither contrary to statutory provisions nor shown to be mala fide, calls for no interference. Accepting the petitioner's contention would mean that she can never be transferred out of Kendriya Sanshodhanagar which neither emerges from the materials on record nor would be conducive of good administration. As a holder of gazetted post the petitioner carries the transfer liability anywhere in the State. The petitioner has not alleged any mala fides.

[4] The examination of issues presented before me can be broken in two parts. In the first stage we may consider the question of the petitioner's transfer ability. In this context, we may trace the background under which the said post of Female Jailor was created by the State Government. It appears that previously a post of Female Jailor (Group-C gazette) was created by the State of Tripura under a memorandum dated 06.06.2003 in the pay scale of Rs.5500 - 10,700/-. However, at that time the petitioner was not qualified for being promoted to the said post as per the criteria prescribed. Under the memorandum dated 30.11.2006 such post of Female Jailor was abolished, since the post was lying vacant for more than one year. This position continued for a long time. Neither the petitioner nor any other female Sub-jailor got an opportunity of promotion in absence of a sanctioned post. The petitioner thereupon filed W.P(C) No.201/2015 and requested the Court for a direction to the respondents to promote her to the post of Female Jailor with retrospective effect of the year 2007 when she had completed the qualifying service in the feeder post. The learned Single Judge recorded the background of creation and thereafter abolition of the post in question and also noted that the initiatives were taken by the Government itself for re-creation of the post. The learned Judge recorded that in absence of any sanctioned post the petitioner would have no right to be considered for promotion. However, in the background of creation and thereafter abolition of the post and the Government's own thinking of re-creation of the post, the Court directed the respondents to complete the process of creation of post of Female Jailor within stipulated time and thereafter to undertake the process for filling up the said post by promotion considering all eligible officers.

[5] It was in this background that under the notification dated 27.04.2017 the State of Tripura in exercise of powers under Article 309 of the Constitution of India in consultation with the Tripura Public Service Commission created a post of Female Jailor under the Department of Home (Jail), Government of Tripura. The schedule to the said notification contained Recruitment Rules for the post in question. These rules envisage creation of three posts plus one additional post as and when needed by the Government. By a corrigendum it was changed to creation of only one post. The scale of pay prescribed was Rs.10230 - 34,800/- with a Grade Pay Rs.4400/-. Method of recruitment prescribed was 100% by promotion failing which by direct recruitment. Essential educational qualification was a degree from recognized university or equivalent required for direct recruitment and three years of experience in special or correctional service or prisons administration. The promotion would be granted on the principle of selection from the grade of Female Deputy Jailor/Discipline Officer with 5(five) years service in the grade, failing which with 8(eight) years total service in the grade of Female Deputy Jailor/Discipline Officer and Female Sub-Jailor, failing which Sub-Jailor with 10(ten) years service in the grade.

[6] I have referred to the background of creation of the said post and at some length the contents of the Recruitment Rules in order to demonstrate that there is nothing on the record to suggest that the said post of Female Jailor is attached to the female jail at Kendriya Sanshodhanagar. Even otherwise such non-transferability cannot be presumed. Quite apart from this, there is no material suggesting that the post is meant to be either non-transferable or fixed at a certain centre. Learned counsel for the petitioner however painstakingly drew my attention to the file notings of the time of previous creation of the post to suggest that all along the desire of the Government was to create one such post which would be attached only to the Kendriya Sanshodhanagar Female Jail. I have perused such notings which were made way back in the year 2003 and whereabouts before creation of the post. Since the present re-creation of the post in question does not trace its origin to the creation in the year 2003, any file notings or the expression of prima facie opinion by any of the Government officers in such file notings, cannot be utilized for the purpose of deciding the true purport of creation of the post. The petitioner's contention therefore, that she is holding a post which is non-transferable cannot be accepted.

[7] This brings me to the examination of factual aspect. I am conscious that in a transfer matter the High Court would not go into the justification. It is entirely for the employer to decide in the best interest of administration in a transferable post, which officer to be posted at which station. However, the case on hand presents certain peculiar factual aspects which cannot be ignored even in relation to the transfer order which is in challenge.

[8] To gather full facts, on 27.02.2020 following further information was called from the Government:

"(i) The number of jails in different districts in the State where women cells are created.

(ii) The capacity to accommodate the number of women prisoners in each such cell.

(iii) The intake capacity of women prisoners at Kendriya Sansodhnagar where there is a designated female jail.

(iv) The number of women prisoners under trial as well as convicts who are kept at female jail and women cells in different district jails as on 1st March, 2020."

In response to said order, the respondents have filed further affidavit dated 03.03.2020 in which the following information has been provided:

"Reply of para(i) :- There are 14 jails in the State having male and female block.

Sl. No

Name of Jail

District

Female ward

Remarks

1.

Kailashahar Dist. Jail

Unakoti

01

NB:- New Kailashahar Dist-Jail is now under construction having capacity of Male-100 and Female-25. The construction almost 80% completed.

2.

Dharmanagar Sub-Jail

North TPA

01

NB:- New Dharmanagar Sub-Jail is under construction having capacity of Male-100 and Female-25. The construction almost 80% completed

3.

Kanchanpur Sub-Jail

Do

02

4.

LTV Sub-Jail

Dhalai TPA

01

5.

Gandacharra Sub-Jail

Do

05 Cell (ward)

6.

Kamalpur SubJail

Do

01

7.

Khowai Sub-Jail

Khowai District

01 cell (ward)

8.

Kendriya Sansodhanagar with Female block/Jail

Sepahijala District

03 cell (ward)

9.

Sonamura Subjail

Do

07 cell (ward)

10

Belonia Sub-Jail

South TPA

02 cell (ward)

11.

Subroom SubJail

South TPA

01 cell (ward)

12.

Udaipur DistrictJail

Gomati TPA

01 cell (ward)

13.

Amarpur SubJail

Do

01 cell (ward)

Reply of para(ii) :- The capacity to accommodate the number of women prisoners in such cell.

Kailashahar Dist-Jail-04

Dharmanagar Sub-Jail-02

Kanchanpur Sub-Jail-25

Longtharai Valley Sub-Jail-25

Gandacharra Sub-Jail-25

Kamalpur Sub-Jail-02

Khowai Sub-Jail-06

Kendriya Sansodhanagar -25

Sonamura Sub-jail-25

Belonia Sub-Jail-02

Subroom Sub-Jail-04

Udaipur District-Jail-02

Amarpur Sub-Jail-04

Reply of para(iii) :- The intake capacity of women prisoners at Kendriya Sansodhanagar, designated female block is 25

Reply of para(iv) :- The number of women prisoners under trial as well as convicts who are kept at different jail in women cells in different jails as on 01.03.2020.

Kailashahar Dist-Jail- Female Convict-Nil, Female UTP-2 nos.

Dharmanagar Sub-Jail- Female Convict-Nil, Female UTP-04 nos.

Kanchanpur Sub-Jail- Female Convict-Nil, Female UTP-Nil.

Longtharai Valley Sub-Jail- Female Convict-Nil, Female UTP-Nil.

Gandacharra Sub-Jail- Female Convict-Nil, Female UTP-Nil.

Kamalpur Sub-Jail- Female Convict-Nil, Female UTP-Nil.

Khowai Sub-Jail- Female Convict-Nil, Female UTP-1 no.

Kendriya Sansodhanagar - Female Convict-25, Female UTP-08 =33 nos.

Sonamura Sub-jail- Female Convict-Nil, Female UTP-Nil.

Belonia Sub-Jail- Female Convict-Nil, Female UTP-3 nos.

Subroom Sub-Jail- Female Convict-Nil, Female UTP-Nil.

Udaipur District-Jail- Female Convict-Nil, Female UTP-1 no.

Amarpur Sub-Jail- Female Convict-Nil, Female UTP-Nil."

[9] Perusal of the said data would reveal the following:

(a) Presently there are 5(five) sub-jails at Kanchanpur,LongtharaiVally,Gandacherra,Kendriya Sanshodhanagar and Sonamura sub-jail where there is a capacity of keeping 25 women prisoners.

(b) At Kailashahar District Jail and Dharmanagar Sub-Jail construction of new jail blocks is going on. Upon completion, these two centers would also have the capacity of accommodating 25 female prisoners.

(c) Presently only at Kendriya Sanshodhanagar there are any significant number of women prisoners kept. The number shown is a total of 33 comprising of 25 convicts and 8(eight) under trial prisoners.

(d) At the rest of the centers number of female prisoners as on date ranges from Nil in large number of centers, to a maximum of 4 at Dharmanagar sub jail. At Kailashahar District Jail where the petitioner is posted as per the transfer order there are only two female prisoners, both under trial.

[10] As noted, though the petitioner does not hold a non-transferable post, the purpose behind her transfer within only about one year of her promotion and posting on such post, is difficult to appreciate. The petitioner is promoted on a specially created post of Female Jailor. As stated by her in the petition, she also has special training for such purpose. She is not only a graduate in Arts. she also has been a member of Modern Prison Manual representing State of Tripura. She has successfully undertaken six month of Correctional Administrative Training Course from Sampuranand Jail Training Institute, Uttar Pradesh, Lucknow in the year 2001 and also undergone short training on Vertical Interaction Course, Human Rights in Prison Management, Government of India. Her capabilities, surely can be utilized best where there are maximum female prisoners. She is being sent from a centre which presently keeps 33 female prisoners to a centre which has only 2. It is not as if she is being substituted by another Female Jailor. Presently, she is the only Female Jailor in the State. She has been at this center only for over a year. There are no complaints against her service, at least brought on record. In my opinion the State administration should reconsider her transfer in light of such facts.

[11] Under the circumstances, the Inspector General (prison) is requested to reconsider the question of transferring the petitioner bearing in mind the observations made above. Till such exercise is completed, the transfer order shall not be implemented.

[12] Petition is disposed of accordingly. Pending application(s), if any, also stands disposed of.