Saral Mohan Tripura vs State Of Tripura And Ors

[1] Heard Mr. T. D. Majumder, learned counsel appearing for the petitioner as well as Mr. D. Sharma, Addl. G. A. appearing for the respondents.

[2] By the order dated 01.10.2019 Mr. Sharma was asked to produce the File No.F.1(19-1)-DEE/ESTT/2019(L-29) without fail so that the matter could be heard today. The said order was passed in the backdrop that the respondents in Para-3 of the Additional Affidavit which was filed on 01.10.2019 had asserted as under:

"That the petitioner was transferred with prior approval of the concerned Minister and order was issued on 08.03.2019 vide file No.F.1(19-1)-DEE/ESTT/2019(L-29). It is to be mentioned here that the organizational status of all such teachers in the order dated 08.03.2019 was discussed with the Hon'ble Minister and at the time of giving approval for issuance of the order he was aware regarding the organizational status of the petitioner." [Emphasis added]

[3] After perusal of the entire file, there is not a single noting that the status of the petitioner as the Secretary of the Sub-Divisional Committee of the recognized Association was apprised to the departmental Minister. By way of averment in the affidavit, the required aspects, in terms of the policy, referred later on, cannot be improved. The petitioner is the Secretary, Gandacherra Sub-Divisional Committee, Tripura Government Teachers Association (TGTA) H.B. Road, one of the recognized associations within the meaning of the Memorandum dated 28.02.1994 under No.F.23(24)-GA/93. For purpose of reference, it may be mentioned that by the same memorandum it has been provided that three state level office bearers by designation and two sub-divisional level office bearers by designation of any recognized employees' association or a constituent unit shall be given special privilege in matter of transfer to the extent that when their transfer will be warranted by administrative requirement that can be made only with approval of the departmental Minister concerned.

[4] There is no dispute otherwise that the petitioner is the Secretary of the Sub-Divisional Committee of TGTA which is one of the recognized Association and as such, the petitioner is entitled to have the privilege in respect of transfer as declared by the memorandum dated 28.02.1994. The respondents have not disputed that such policy is extendable to the petitioner and he is entitled to get such protection and privilege. It is also in not dispute that if the concerned departmental Minister approved the transfer in the administrative exigencies. Privilege may thus be taken away from the person who is otherwise protected by the said memorandum dated 28.02.1994. For this purpose, this court has asked for the file but unfortunately what is stated in the additional affidavit is not reflected in the file, even not an indication in this regard.

[5] This court has explored whether the concerned Minister was apprised of the status of the petitioner that he is the Secretary of Gandacherra Sub-Divisional Committee of TGTA, one of the recognized Associations. There is no reflection in the entire file that the Minister was apprised about his status and on consideration, the Minister had approved the transfer of the petitioner.

[6] Mr. T. D. Majumder, learned counsel has referred a decision of the Gauhati High Court in Tapan Majumder versus State of Tripura & Anr. reported in (2011) 5 GLR 745, where the court had occasion to observe as follows:

"10. It appears from the Memorandum dated 28.02.1994 that even three State level office bearers and two Sub-Divisional level office bearers, as mentioned therein, are also liable to be transferred, when their services warranted by the State for administrative requirements, with the approval of the Hon'ble Minister concerned. In the instant case there is no doubt that the impugned transfer order was passed by the Director of School Education with the approval of the Minister, but fact remains that the Director of School Education while making proposal for transfer of the petitioner, admittedly did not mention his status as the Secretary of Udaipur Sub-Divisional Committee of All Tripura Teachers' Association and, as a result, the Minister also did not get opportunity to consider the case of the petitioner for not transferring him as an office-bearer of the Sub-Divisional Committee from the place of posting. Had it been known to the Minister of the department, he might not have approved the proposal for transfer of the petitioner.

In view of the above discussion, this Court is of the considered opinion that it would be proper to cancel the impugned transfer order dated 20.03.2010, so far the petitioner is concerned, providing a liberty to the Director of School Education to place fresh proposal for transfer of the petitioner, if so advised, to the Hon'ble Minister concerned for approval and the Hon'ble Minister may consider the same taking note of the fact that the petitioner is even today holding the post of Secretary of Udaipur Sub-Divisional Committee of All Tripura Teacher's Association, a recognized government Employees' Association."

[7] The fact of this case by coincidence is similar. This court is thus persuaded to hold that the impugned transfer order cannot be sustained in view of the policy of the government as reflected in the memorandum dated 28.02.1994. It cannot be held that the transfer order has been issued in conformity to the said policy.

Hence, the impugned transfer order contained in the memorandum No.F.1(19-1)-DEE/ESTT/2019(L-29) dated 08.03.2019 (Annexure-6 to the writ petition), so far the petitioner is concerned, shall stand quashed. However, liberty shall remain with the respondents to act in accordance with the memorandum dated 28.02.1994.

No order as to costs.