Saila Dholey vs Union of India and Others

Ashim Kumar Banerjee, J.—The petitioner is working in BSNL. He is posted at Calcutta for last 26 years. From pages 39 to 40 it appears that he was posted at Calcutta with effect from October 14, 1985 whereas his colleague Soumyajit Mahapatra was posted at Calcutta with effect from October 01, 1985 and his other colleagues Biswanath Mondal and Mihir Bose were posted at Calcutta on the same date i.e October 14, 1985.

As per the transfer policy senior in the Station should move first before the junior. Applying such theory, the petitioner contends that transfer to Assam is illegal and to support his contention he has relied upon the transfer of Soumyajit Mahapatra, appearing at pages 53 - 56 wherein Soumyajit was transferred from one office to other office, both at Calcutta.

The petitioner approached the Tribunal. The Tribunal declined to pass interim order, directed affidavits to be exchanged. While doing so, the Tribunal considered the issue at length and delivered a judgment where no interim order was passed.

The Tribunal lastly observed, " no such ground is taken for interference in the impugned transfer order, as such, I do not find it fit to interfere in the impugned transfer order dated 04.11.2011. As such the interim relief is rejected."

Being aggrieved, the petitioner has now come up before us by filing this instant application.

Mr. Swapan Banerjee, learned counsel, appearing for the petitioner, submits that petitioner is not against the order of transfer. His objection is with regard to the violation of the transfer policy to favour some of the favoured candidates. He has drawn our attention to the documents, appearing at pages 53-56, to show how Soumyajit was transferred from one office to other office both at Calcutta. He has also drawn our attention to his representation, appearing at page 60 of the petition. In the said representation, the petitioner cited instances of four colleagues who were transferred from one office to other at Calcutta in case of three and at Kharagpur in the case of fourth one. He has also drawn our attention to the support given by the Officers'' Association, appearing at pages 57 - 58 of the petition.

We have considered the rival contentions. The policy of transfer is exclusively within the domain of the Executive. It comes within the ambit of judicial scrutiny, once the petitioner is able to show arbitrariness and mala fide vitiating the process. The petitioner is admittedly posted at Calcutta for last 26 years. Hence, his transfer could not be assailed. His representation is yet to be considered. The Tribunal did not reject the same.

The Tribunal asked the Authority to file reply. It is true that the Tribunal while rejecting the prayer for interim relief observed that the order of transfer did not call for any interference. In our view such observation was absolutely, prima facie, in nature and should not and must not influence the final hearing of the application by the Tribunal after calling for affidavits.

The Authority is also free to consider the representation made by the petitioner, as appearing at page 60 of the petition, that does not call for any interference by this Court at this stage.

The petitioner may join his transferred post. Such joining would not prejudice either his representation made to the Authority or his application before the Tribunal.

With this observation WPCT 312 of 2011 is disposed of.

There would be no order as to costs.

Urgent photostat certified copy of this order, if applied for, be given to the parties on usual undertaking.

I agree,