Author Name:   Subhadra

Calcutta High Court Judgment on transfer of a government position, Mrinal Kanti Ghosh v UOI

Mrinal Kanti Ghosh V UOI

Facts:
The petitioner appointed as a junior engineer on 13th august, 1998 @ WMS, Darjeeling. On 1st July 2001, he was transferred to IMS, Kolkata. On 30th June 2011, the petitioner was transferred to Ahmedabad. The petitioner preferred an application u/s 19 of the administrative tribunal act, 1985- penal transfer would be detrimental to academic needs of the son of the petitioner who is class VI, who is studying in a Bengali medium school. The interim order refused- no prayer made regarding postponement of the transfer on the ground of the child’s education. Original Application (679 of 2011) was withdrawn. The petitioner wanted a stay order on the transfer order only for 6 months i.e. end of the academic session of his child. He isn’t transferred till today. Representation made by the petitioner but rejected on administrative grounds.

Points Of Law:
# Whether the respondent can act in derogation to the statutory provision.

# Whether the respondent can deny a human consideration.

# Whether an order passed by a single man of the learned tribunal is sustainable in law.

# Whether the respondent act discriminatorily.

Grounds:
· The power of tribunal cannot be exercised by single member bench consistent of an administrative member only and as such the impugned order dated 16th august, 2011 passed by a single administrative member is without jurisdiction.

· The lis agitated by the petitioner in original application no. 778 of 2011 needs to be heard and adjudicated by a division bench of the tribunal consisting of a judicial member.

· The lis relates to interpretation of the transfer guidelines the application ought to have been heard by a division bench of the tribunal consisting of a judicial member.

· The learned tribunal erred in law in observing that the petitioner’s application was barred by the provision of order II, Rule 2(3) of CPC.

· The learned tribunals ought to have appreciated that subsequent to preference of the original application no. 679 of 2011, a fresh cause of action occasioned and on the rudiments of the same a fresh relief was claimed by the petitioner.

· The impugned order is based upon surmises and conjectures.

· The impugned order had been passed misinterpreting the provision order II, Rule 2(3) of CPC and erroneously applying the same to the facts of the instant lis.

· Transfer order was issued in the midst of the academic session of the petitioner’s child and that the implementation of the same would be detrimental to the academic needs of the child.

Prayer:
(a) A writ in the nature of mandamus commanding the respondent, their servants and agents to forbear from giving effect or further effect to the impugned order dated 16th august, 2011 passed by the administrative member of the learned tribunal.

(b) A writ in the nature of mandamus restraining the respondent, their servants and agents from interfering with the services of the petitioner @ Kolkata office.

(c) A writ in the nature of certiorari directing the respondent, their servants and agents to produce all records and proceedings so that conscionable justice may be administered by quashing the impugned order.

(d) Rule NISI in terms of prayers and to make the rules absolute.

(e) Ad-interim order of injunction restraining the respondent, their servants and agents and further restraining from interfering with the services of the petitioner @ Kolkata office till the disposal of the instant writ application.

Arguments Against The Petitioner:
· Every government job is transferrable and thus employees in a governmental institution can’t challenge or ignore it at any ground.

· He was transferred to IMS Kolkata on 1st July 2001 and from there he got transferred to Ahmedabad on 30th June 2011, he has already spent 10 years at one place at a stretch, now he can’t complain for a transfer to a new place at any ground.

· The reason which he is giving that the transfer would be detrimental to his child’s academic is baseless and unreasonable. From the moment one joins any government job, he is well known about the fact that his/her job is transferrable and he/she has to deal with it no matter what.

· The impugned order passed by a single administrative member is within jurisdiction, thus the petitioner can’t file a petition declaring it as ultra vires.

· The impugned order is based upon surmises and conjectures.

Calcutta high court, on 14th June 2012: Hon’ble Justices Nishita Mhatre and Anindita Roy Saraswati)
Both, the Counsel for the petitioners as well as the respondents did not appear in the matter and it stands dismissed for default of both parties.
~~~~~~~~~~~~~~~
Footnote:
S.19 Applications to tribunals (Administrative tribunal act, 1985)

(1) Subject to the other provisions of this Act, a person aggrieved by any order pertaining to any matter within the jurisdiction of a Tribunal may make an application to the Tribunal for the redressal of his grievance. Explanation-- For the purposes of this sub- section," order" means an order made--
(a) by the Government or a local or other authority within the territory of India or under the control of the Government of India on by any corporation 3[ or society] owned or controlled by the Government; or
(b) By an officer, committee or other body or agency of the Government or a local or other authority or corporation 3[or society] referred to in clause (a).
(2) Every application under sub- section (1) shall be in such form and be accompanied by such documents or other evidence and by such fee (if any, not exceeding one hundred rupees) 4[in respect of the filing of such application and by such other fees for the service or execution of processes, as may be prescribed by the Central Government.]
(3) On receipt of an application under sub- section (1), the Tribunal shall, if satisfied after such inquiry as it may deem necessary, that the application is a fit case for adjudication or trial by it, admit such application; but where the Tribunal is not so satisfied, it may summarily reject the application after recording its reasons.]
(4) Where an application has been admitted by a Tribunal under sub- section (3), every proceeding under the relevant service rules as to redressal of grievances in relation to the subject- matter of such application pending immediately before such admission shall abate and save as otherwise directed by the Tribunal, no appeal or representation in relation to such matter shall thereafter be entertained under such rules.

Code of criminal procedure, 1908:

Order II (Frame of suit)

Rule 2: Suit to include the whole claim-

(3) Omission to sue for one of several reliefs, being oblivious of the fact that the reliefs claimed are distinct and different.

A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

ISBN No: 978-81-928510-1-3
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