Nityapriya Malakar vs State Of Tripura And Ors

[1] Heard Mr. S. Bhattacharjee, learned counsel appearing for the petitioner as well as Mr. M. Debbarma, learned Addl. G.A. appearing for the respondents.

[2] The petitioner has challenged the Memorandum No.F.25-154/TW/REIS/2018/10,439-514 dated 08.03.2019 (Annexure-5 to the writ petition) whereby 27 Post Graduate Teachers and Graduate Teachers under the Directorate of Secondary Education have been sought to be withdrawn from the existing schools and placed under disposal of Tribal Welfare Department, Tripura for utilization of their services in Eklavya Schools. Name of the petitioner figures in the said memorandum dated 08.03.2019 at serial No.6.

[3] Thereafter, by the memorandum of even no. dated 08.03.2019 (Annexure-6 to the writ petition), the Director of Secondary Education, Govt. of Tripura (the respondent No.2) has placed the services of the petitioner and 26 other Post Graduate Teachers/Graduate Teachers under disposal of Tribal Welfare Department, Govt. of Tripura for utilization of their services in the EMR/Residential/Ashram Schools and accordingly, the petitioner has been released w.e.f. 30.09.2013. By the Memorandum No.F.1(7-1)SE-E(NG)/2019(L-16) dated 30.10.2019 (Annexure-14 to the writ petition), the services of the petitioner has been placed in the disposal of the Tribal Welfare Department, Tripura in pursuance to the Memorandum dated 08.03.2019. This Memorandum has also been challenged by the petitioner.

[4] Challenging those three memoranda, the petitioner has filed this writ petition as his representation to the Director of Secondary Education who has failed to give any positive response. The petitioner is presently posted at Baidyanath Majumder Smriti H.S. School, Kailashahar

[5] According to Mr. Bhattacharjee who is appearing for the petitioner, the respondents do not have any authority to transfer/depute his petitioner to the foreign service without his consent/willingness, but the petitioner had never given such consent or expressed his willingness to be deputed in Eklavya Schools which are under disposal of Tribal Welfare Department and not under the Education Department. Mr. Bhattacharjee, learned counsel has further submitted that the petitioners are not willing to work in such schools and accordingly, they had submitted their representation to the respondent No.2 in particular, to cancel the memorandum dated 08.03.2019 (Annexure-5 to the writ petition). It has been urged there that no action be taken on the said memorandum dated 08.03.2019. No action, whatsoever, has been taken on his representation. The release order has been issued individually.

[6] Mr. M. Debbarma, learned Addl. G.A, appearing for the respondents has submitted that the state government is obligated to run those Eklavya schools by making necessary appointments. In view of severe shortage of teachers, those orders were passed in the public interest and there is no mala-fide intention. However, Mr. Debbarma, learned Addl. G.A. has taken this court to an executive note initiated in the file in respect of those postings and transfers. It has been observed that the said arrangement is only for a short period till the teachers in the Eklavya Schools are regularly appointed. Therefore, no prejudice would be caused to the petitioners. In response to this, this court is persuaded to refer to FR 109 and 110 which deal with the transfer to the foreign services. FR 110 (a) clearly provides as follows:

"No Government servant may be transferred to foreign service against his will, Provided that this sub-rule shall not apply to the transfer of a Government servant to the service of a body, incorporated or not, which is wholly or substantially owned or controlled by the Government."

[7] Mr. Debbarma, learned Addl. G.A. appearing for the respondent has submitted that the power remains with the state but this court is not inclined to accept such reasoning as such reasoning is completely in contrast to provision of FR 110 (a).

[8] A similar issue had fallen for consideration before this court in Amrit Rudra Pal vs. State of Tripura (judgment dated 15.09.2017 delivered in WP(C) 3 of 2019), where this court having relied on State of Punjab & ors. vs. Inder Singh & Ors. reported in (1997) 8 SCC 272 has observed that there can be no deputation without consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post. Therefore, the willingness of the candidates is sinequa non for exercise of the power as provided under FR 109 and FR 110.

[9] Mr. Bhattacharjee, learned counsel appearing for the petitioners has drawn attention of this court to the decision of the apex court in Tejshree Ghag and Ors. vs. Prakash Parashuram Patil & Ors. reported in (2007) 6 SCC 220, where the apex court had occasion to observe that transfer may even be incidental to the conditions of service, but nobody can be deprived of his existing right. Existence of power and exercise thereof are two different aspects. An Executive power in absence of any statutory rules cannot be exercised arbitrarily as that might result in civil or penal consequences. Such exercise of power must be bona fide. It cannot be exercised for purpose having no nexus for which such power has been created. An Executive order passed for unauthorized purpose would amount to malice in law. An order of transfer cannot prejudicially affect the status of an employee.

[10] According to Mr. Bhattacharjee, learned counsel if this order of transfer is given effect, the status of the petitioners would adversely be affected. Reference has been made to Umapati Choudhary vs. State of Bihar & Ors. reported in (1999) 4 SCC 659 where the apex court unambiguously enunciated the law in the words as reproduced hereunder:

"8. Deputation can be aptly described as an assignment of an employee ( commonly referred to as the deputationist) of one department or cadre or even an organisation (commonly referred to as the parent department or lending authority) to another department or cadre or organisation (commonly referred to as the borrowing authority). The necessity for sending on deputation arises in public interest to meet the exigencies of public service. The concept of deputation is consensual and involves a voluntary decision of the employer to lend the services of his employee and a corresponding acceptance of such services by the borrowing employer. It also involves the consent of the employee to go on deputation or not. In the case at hand all the three conditions were fulfilled. The University, the parent department or lending authority, the Board, the borrowing authority and the appellant, the deputationist, had all given their consent for deputation of the appellant and for his permanent absorption in the establishment of the borrowing authority. There is no material to show that the deputation of the appellant was not in public interest or it was vitiated by favoritism or mala fide. The learned single Judge in the previous writ petition had neither quashed the deputation order nor issued any direction for its termination. Indeed the learned single Judge had dismissed the writ petition. No material has been placed before us to show that between November 1987 when the judgment of the Single Judge was rendered and December 1991 when the Division Bench disposed of the writ petition filed by the appellant the petitioners of the previous case had raised any grievance or made any complaint regarding non-compliance with the directions made in the judgment of the learned Single Judge. In these circumstances the Division Bench was clearly in error in declining to grant relief to the appellant. Further, the appellant has, in the meantime, retired from service, and therefore, the decision in the case is relevant only for the purpose of calculating his retiral benefits." [Emphasis added]

[11] This court, having appreciated the submission made by the learned counsel for the parties, is of the view that the respondents have deviated from the rules as prescribed, in their attempt to transfer the petitioner. They have exercised their power in contrast to provisions of FR 110 (a) and thus, the impugned order dated 08.03.2019 (Annexure-5 to the writ petition) being vitiated is liable to be interfered with, with the consequential order dated 08.03.2019 (Annexure-6) and the memorandum dated 25.09.2014 (Annexure 14 to the writ petition). Hence, those are set aside. The petitioners shall be allowed to work in the present place of posting. The respondents are always at liberty to post the petitioner on transfer/deputation observing the requirement of FR 110 (a) in the public interest.

In terms of the above, this petition stands allowed and disposed of. The impugned orders stand interfered, so far the petitioner is concerned.

No costs.