Dismissed

Mamata Nayak v. State of Orissa

Orissa HC21 Jul 2017WP(C)/13391/2017

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the Odisha Administrative Tribunal's order refusing to interfere in the petitioner's transfer. The court held that an employee repatriated to a parent department has no vested right to a specific posting and found no evidence of mala fide against the authorities.

What did the court decide?

Writ petition disposed of without interfering with the decision of the authority regarding the petitioner's posting.

Mamata Nayak Vs State of Orissa — Service and Employment | Orissa HC (2017)

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HIGH COURT OF ORISSA: CUTTACK.

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W.P.(C) No.13391 of 2017

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In the matter of application under Articles 226 and 227 of the Constitution of India.

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Mamata Nayak …… Petitioner

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Versus-

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State of Orissa and others …… Opposite Parties

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For Petitioner : M/s. Manoja Kumar Khuntia, G.R. Sethi, J.K. Digal & B.K. Pattnaik.

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For Opposite Parties : Mr. M.S. Sahoo,

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Additional Government Advocate (For opposite parties no.1 to 3)

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PRESENT:

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THE HONOURABLE KUMARI JUSTICE SANJU PANDA &

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THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD

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Date of hearing and judgment : 21.07.2017

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-------------------------------------------------------------------------------------------------- S. N. Prasad, J. This writ petition under Articles 226 and 227 of the Constitution of

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India has been filed wherein the order dated 4.7.2017 passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.1123(C) of 2017 is under challenge whereby and whereunder the Tribunal has refused to interfere with the decision of the authority, by which, the applicant/petitioner has been transferred.

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The brief fact of the case is that the applicant/petitioner, who was posted as B.D.O., Junagarh Block, has repatriated to Revenue and Disaster Management Department vide order dated 02.05.2017 and posted as Deputy

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Collector, Khurda. While she was posted there, was placed under suspension vide order dated 16.2.2017, was reinstated in service on 10.4.2017 and as such, was posted as B.D.O., Junagarh, where she joined on 16.4.2017, but before completion of one month in the said place, she was repatriated to Revenue & Disaster Management Department for posting as Deputy Collector, Khurda and in her place one Sri Parambrahma Joshi has been posted, who on earlier occasion was relieved on 16.4.2017. 3. The petitioner has taken ground of frequent transfer and also mala fide on the part of the authorities by submitting that only in order to accommodate one Sri Parambrahma Joshi, who had earlier been posted in the same station for long years, she has been disturbed by transferring within a span of less than one month.

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The Tribunal, after considering the submission of the learned counsel for the opposite parties-State before it and taking into consideration the scope of judicial review by the court of law in the matter of transfer, has refused to interfere by dismissing the Original Application, which is under challenge before this Court by way of this instant writ petition.

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We have heard learned counsel for the parties and perused the documents available on record.

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So far as the finding related to posting of the petitioner that by way of repatriation to the parent department, i.e., the Department of Revenue & Disaster Management and as such, according to our considered view, the petitioner has got no legal vested right to be posted in a particular place.

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It is settled that if any employee posted in a parent department, he/she can be repatriated at any time to the parent department and accordingly the petitioner has repatriated to the parent department. Hence, according to our opinion, there is no error in the decision taken by the authorities.

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We have considered the scope of judicial review in the matter of transfer by the court of law and also perused the order passed by the Tribunal wherein the Tribunal after taking note of the various judgments pronounced by the Hon’ble Apex Court and considering the scope of judicial review in the administrative decision of authorities in posting on transfer, declined to interfere with the same.

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According to our considered view, the Tribunal has made no error in passing the order. Hence, we refuse to interfere with the same.

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Learned counsel for the petitioner has taken a ground of mala fide by making a statement that one Parambrahma Joshi has been posted in the place of the petitioner only to accommodate him, she has been transferred from the post of B.D.O., Junagarh. According to the petitioner, Mr. Joshi is posted as B.D.O., Junagarh for a long period and as such, the petitioner has been subjected to malice only in order to accommodate Mr. Joshi.

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So far as this contention of the petitioner and the allegation of malice upon the authority are concerned, we find nothing on record of allegation of mala fide against the authority, since we have not found anything in the pleadings of the instant writ petition or the Original Application filed before the Tribunal or in the order impugned in this writ petition. So far as allegation of

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mala fide is concerned, it is very easy to allege, but proving the allegation of mala fide is very difficult, to that effect, a specific statement should have been made by the petitioner making the allegation of mala fide by impleading the authority party by name, but we have got nothing in record regarding the allegation of mala fide since it is settled that mala fide cannot be alleged against the post, rather the mala fide is always against a particular individual. But we have found from the record that no authority has been made a party by name in order to prove the allegation of mala fide and as such, we have found no substance in the arguments advanced on behalf of the petitioner. However, if the allegation of the petitioner regarding posting of Mr. Joshi for long period at a particular place, as alleged, it is upto the Government to take decision in accordance with law.

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In view thereof, the writ petition is disposed of without interfering with the decision of the authority, so far it relates to the posting of the petitioner is concerned. However, the Government will see that no person be posted in a place for a long period otherwise the same will be against the decision of the circular, which bars posting of a particular person in a place for a long period.

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…..… …………… S.N. Prasad, J.

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….…..………….….

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Sanju Panda, J.

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Orissa High Court, Cuttack,

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Dated the 21^st July, 2017/D. Aech

Mamata Nayak v. State of Orissa

Case brief

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Mamata Nayak v. State of Orissa

Case brief

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