Allowed

The Union of India and 3 Ors. v. Niranjan Kumar Deori

Gauhati HC13 Sept 2022WP(C)/211/2021

Case brief

AI extract

What is this about?

In this appeal, the High Court set aside the C.A.T.'s order quashing a transfer. Despite the petitioner's son's disability, the Court held the Tribunal exceeded jurisdiction as the transfer was not malafide, noting better medical facilities exist in the original posting area and awards to stick to a post.

What did the court decide?

Impugned judgment and order dated 28.10.2020 quashed and set aside.

The Union of India and 3 Ors. Vs Niranjan… — Pension and Retirement Benefits | Gauhati HC (2022)

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Page No.# 1/6

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GAHC010188662020

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/211/2021

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THE UNION OF INDIA AND 3 ORS

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MINISTRY OF RAILWAYS, REP. BY THE SECY., RAIL BHAWAN, NEW DELHI11006 2: THE GENERAL MANAGER (CONSTRUCTION) N.F. RAILWAY MALIGAON GHY-11

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3: THE ASSTT. PERSONNEL OFFICER (CONSTRUCTION) OFFICE OF THE GENERAL MANAGER N.F. RAILWAY MALIGAON GHY-11 4: THE DY. CHIEF ENGINEER (CONSTRUCTION) SILAPATHAR DHEMAJI- 78705

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VERSUS

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NIRANJAN KUMAR DEORI S/O- LT. BUDU RAM DEORI, R/O- SURAJ NAGAR, 2 NO. BHARALICHUK, P.O. AND P.S. DHEMAJI- 787057, ASSAM

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Advocate for the Petitioner : MR S CHAKRABORTY

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Advocate for the Respondent : MR N M HAZARIKA

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Page No.# 2/6

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BEFORE HONOURABLE THE CHIEF JUSTICE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

ORDER

13-09-2022

R.M. Chhaya, C.J.

Heard Mr. S. Chakraborty, learned counsel for the petitioners and Mr. N.M. Hazarika, learned counsel for the respondent.

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By way of this petition under Article 226 of the Constitution of India, the petitioners have challenged the order dated 28.10.2020 passed by the Central Administrative Tribunal, Guwahati Bench in Original Application No. 040/00236/2020. The short facts which arise in this petition are as under:

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“By this petition the petitioners are challengeing an order dated 28.10.2020 passed by the Central Administrative Tribunal, Guwahati in OA No. 040/00236/2020 whereby the Original Application was disposed of with direction to the Railways not to give effect to the transfer order dated 03.12.2019 and allow him to continue at this present place of posting at Silapathar. The aforesaid order was passed without issuing any notice to the petitioners/ respondents herein granting an opportunity to place the relevant facts that controvert the fact projected by the applicant/respondent. It is relevant to note herein that the earlier transfer order of the applicant dated 19.11.2019 transferring him from his present place of posting to Alipurduar was modified by the competent authority on his representation keeping in mind his personal difficulties, but instead of carrying out the modified order of transfer dated 03.12.2019 he approached the Central Administrative Tribunal, Guwahati. The facts projected by the applicant were accepted by the learned Tribunal without giving any opportunity to the present petitioners to clarify by way of written statements.”

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The respondent herein is working in NF Railways in the Construction Organization as Inspector of Works since 30.10.1990. As per the facts on record, he

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Page No.# 3/6

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was posted on transfer in the district of Goalpara in the year 1991 to 1992 and thereafter, he was posted from time to time at different places like Maligaon, Guwahati, Tinsukia, Amguri, Sivsagar, Kumarghat, Tripura, Dibrugarh, North Lakhimpur and since 2017, he is posted at Silapathar under Dhemaji District as Senior Section Engineer/Works/Construction in the petitioners railways.

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By an order dated 19.11.2019, the respondent came to be transferred from Silapathar to Alipurduar, however, the respondent approached the petitioners authority with a representation which was favourably considered and the respondent herein came to be transferred to Maligaon at Guwahati. The said order was also challenged by the respondent/ original petitioner before the Tribunal.

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It is the case of the respondent that because of the physical disability of the son of the respondent, who requires medical attention, it was contended that he may be placed nearer to his home district Dhemaji. In fact time and again the respondent has been requesting for the same. It is also the case of the respondent/ original petitioner that his son is a special child and is studying in Class-VI in St. Mary’s English Medium School, Dhemaji and on such grounds the order of transfer came to be challenged.

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The learned Central Administrative Tribunal, Guwahati Bench allowed the petitioner by observing as under:

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“9. I have heard both the sides, perused the OA and the documents annexed therein. Keeping in view the school certificate (Annexure-C) issued by the Headmaster of the School and the medical papers of the Apollo Hospital, Chennai, I am inclined to pas an order in the interest of the 10 years disabled child and for his better care, education. Accordingly, I direct the respondent not to give effect the applicant’s transfer order no. 264/2019 dated 03.12.2019 presently at least for his disabled treatment is over. Respondents are directed to allow the applicant to serve at Silapathar so that the applicant is able to take care of his disabled child and his education. Alternatively for the balance and reasonable consideration, applicant may be posted to any station nearer to his home stations.”

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On being aggrieved by the same, the present petition has been filed. Considering the short issue involved in this petition and more particularly, as the same relates to transfer of the respondent which has been quashed and set aside. With the consent of the learned counsel for the parties, the matter is taken up for its final disposal.

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Mr. S. Chakraborty, learned counsel for the petitioners has contended that the Central Administrative Tribunal has committed an error in allowing the application inasmuch as that even though the respondent has been transferred to Maligaon at Guwahati at his own request and while favourably considering the representation filed by the respondent/ original petitioner, he has been transferred to Maligaon at Guwahati. On the contrary, according to the learned counsel for the petitioners better medical facilities are available. It was contended by Mr. S. Chakraborty, learned counsel for the petitioners that for the purposes of better administration, such decision was taken and for no legitimate reason, the same has been quashed and set aside by the Tribunal. Mr. S. Chakraborty, learned counsel appearing for the petitioners also further submitted that on humanitarian ground itself in order to see that the son of the respondent/ original petitioner gets appropriate medical treatment, he was posted from Silapathar to Maligaon at Guwahati. According to the learned counsel for the petitioners that the respondent has no legal right to stick to a particular place. According to Mr. S. Chakraborty, on the contrary, the respondent is avoiding the implementation the said order since 2019 and on the aforesaid grounds, it was contended that the petition be allowed.

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Per contra, Mr. N.M Hazarika, learned counsel for the respondent has supported the impugned order. Mr. Hazarika, learned counsel appearing for the respondent herein contended that the respondent has a son who is a special and is disabled and requires proper medical treatment. It was also contended that the son of the respondent is Studying in VI standard and therefore, it is difficult for the respondent to settle at Guwahati. Mr. Hazarika, learned counsel for the respondent also submitted

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that the petitioners authorities may consider the case of the respondent sympathetically. No other further submissions or grounds or contentions have been raised by the learned counsel appearing for the parties.

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We have gone through the impugned Judgment and Order except to the expectations that medical treatment of his son of the respondent/original petitioner is going on, the transfer order dated 03.12.2019 has been quashed and set aside.

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Upon considering the facts of the case, it cannot be said that the transfer order dated 03.12.2019 is malafide. Records further indicate that the respondent is at Silapathar since 2017 i.e. since 5 years by now. The transfer is always an incidence of service until and unless the same is based on malafide which has not even been raised by the respondent, the same cannot be tinkered with.

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In the opinion of this Court, the Tribunal has exceeded its jurisdiction as there is no reason for interfering with the transfer order.

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It is no doubt that the son of the respondent requires special medical treatment, however, it goes without saying that Guwahati being the Capital/Major town of the State of Assam, excellent medical facilities are available in Guwahati which is an aspect of knowledge of all including the respondent. In a tenure of service, an employee has no inherent right to stick to one place on one ground or the others. Even before this Court, the contention raised is that the authorities may re-consider the issue. Having been at one place for almost more than 5 years by now, the respondent has no legal right or inherent right to stick to this said post. Petitioners are at liberty to take appropriate decision as per the administrative needs of the organisation.

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A bare reading of the order passed by the learned Tribunal does not indicate any reason except the reason for the illness of the son of the respondent which and that to it is provided that till the same is over. Such observation made by the learned Tribunal is without any basis and thus the Tribunal has committed an error apparent on the face of the record in interfering with the transfer order which is regular in

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nature. It is a matter of fact that there is no foundation for any allegation of malafide, the Tribunal has therefore, committed an obvious error in interfering with the transfer order which deserve to be quashed and set aside.

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Accordingly, the petition is allowed, the impugned Judgment and order is hereby quashed and set aside. However, there shall no order as to costs.

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JUDGE CHIEF JUSTICE

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Comparing Assistant

The Union of India and 3 Ors. v. Niranjan Kumar Deori

Case brief

What is this about?

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The Union of India and 3 Ors. v. Niranjan Kumar Deori

Case brief

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