CENTRAL ADMINISTRATIVE TRIBUNAL CALCUTFA BENCH (CIRCUIT AT PORT BLAIR) No. MA351/loo2/201.7 0A351/12/2o16 Date of order: JI-'*-CI,.M- g Present: Hon'ble Mr.S.ICPattnaik, Judiciai Member Hon'ble Dr. Nandjta Chatterjee, Administratjjre Member

• SHYAMAL MAZUMDAR S/o Late kalimohan Mazumdar R/o Minnie Bay, Port Blair, Present Place of posting as Vice Principal/HM(s) under the Director of Education, A&N Admn., Port Blair being posted at Govt. Sec. School South Andaman, Port Blair.

.APPLICANT

VERSUS

I. Union of India, through The Secretary, Govt. of India, Ministry of Human Resources Dçvelopment, Shastri Bhawan, New Delhi- 110001.

2, The Chief Secretary, A&N Administration, Port Blair. I The Principal Secretary (Education), Secretariat, A&N Administration, Port Blair.

The Secretary cum Director (Education) A&N Administration, Port Blair.

Deputy Director of Education (Education) Directorate of Education, VIP Road, Port Blair - 744103.

Shri Varghese Chacko Vice Principal, Govt, Sr. Sec. School,. Subash Gram, North Andaman.

.RESPONDENTS. I " . , 2

For the applicant Ms.S.Oanguly, counsel / For the respondents: Mr.S.C.Misra, counsel /1 .

ORDER

Per Dr. Nandita Chatterjee, Administrative Member

Aggrieved by the order of transfer vide office order No. 931 dated

1.4.2016, the applicant has sought the following relief in particular in

the instant application:

An order be passed setting aside the impugned transfer of the applicant from Govt. Secondary School South Point, Port Blair (Zone VI) to Govt. Senior Secondary School, Subash Gram (North Andaman) (Zone III where he already served for more than 18 years combinely with Zone IV) vide Order No. 931 dated 1.4.2016 (Annexure B collectively to the original application) being contrary to the existing transfer policy of the Administration (Annexure B collectively to the original application and station seniority list (Annexure C collectively). An order be passed directing the respondent authorities to transmit the case record before the Hon'ble Tribunal, so that, after perusing the same conscionable, justice may be rendered to the applicant directing the respondent authorities especially the respondent No, 4 & 5 to allow the applicant to continue in his present place of posting. An order be passed restraining the respondents to relieve the applicant from his present place of posting, in any manner whatsoever, as the impugned transfer order issued violating transfer policy to accommodate private respondent within one year nine months of applicants' earlier transfer before completion of his tenure. Cost and incidentals of this application may be awarded to the applicant. $ Any other order/orders further order/orders as the Hon'ble Tribunal may deem fit and proper.

Heard ld. Counsel, examined the pleadings and documents on

record. IA. Counsel for the applicant also furnished written notes of

arguments. Despite notice, Private Respondent No.6 did not enter

appearance and 'hence the matter was proceeded with ex parte.

The case of the applicant, as canvassed by his ld. Counsel, is that

the applicant was initially appointed as POT (Pol. Science) and posted at

GSSS, Kadamtaia (Zone IV) and that he had served Zone III and IV for

more than 18years. $

3

That, he was promoted to the post of Vice Principal/HM Wlile

serving in Sr. Secondary School, Port Mout (Zone V) and within a month / 1 was transferred to Secondary School, Subash Gram, biglipur (Zone Ill).

After 1 1/2 years, the applicant was transferred to Secondary School,

Bengali, Teressa, Nicobar District and thereafter to South Point '(Zone I)

for the first time in his service career. Within 1 year 9 mont1s of his

transfer to Zone VI, however, he was again transferred to Scond4ry

School, Subash Gram, Diglipur ignoring the fact that he had already

completed combined tenure with respect of Zones III & IV and he is yefto

complete the year marked tenure of 5 years in Zone VI.

That, the applicant had filed the instant applicatibn upon which on

6.4.2016, the Tribunal directed the respondent No.4 to decide on the

representation of the applicant within a period of 48 h4urs from the date

of service of the order and accordingly an order was passed by the

respondent authorities on 7.4.2016 in which his claiM for retention. at

present place of posting in Zone VI was rejected. kn interim order,

however, was issued on 11.4.2016 vide which the order of transfer so

impugned was directed to be kept in abeyance.

The matter, being listed for further hearing, was heard in extenso.

The applicant has challenged the transfer order dated '1.4.2016

(Annexure B to the OA) on the following grounds:

that the transfer order so impugned is actu4ted with malafide

and made arbitrarily on extraneous consideration in complete

violation of existing transfer policy circulated: by the Director of

Education vide notification dated 11.7.20 14;

the applicant has rendered 18 years of service in Zones III §& IV

and although transferred to Port Blair (ZoneVI) in July 2014,

has not been allowed to complete the tenure of 5 years of

continuous service as required by the transfer; policy. / 7. I. 4

9' 4. On the contrary, the respondents have argued that the applicant's

service history is as follows :

Sl.No. Place of posting From To Remarls

1. Govt. SSS Kadamtaia 1.10. 1988 23.8. 1994 Zone IV

2, Govt. SSS Baicultaia 24.8.1994 5.8.2091 Zone. IV

Govt. SSS Neil Island 6.8.2001 10.8.2006 Zone;IV

Govt. SSS Port Mout 11.8.2006 29.12:2010 Zone' V:

Govt. SSS Subash Gram 30.12.2010 28.6.2012 Zone III

Govt. 555 Bengali, 29.6.20 12 21.7.2014 Zone I Teressa ______Govt. 555 South Point, 2.7.2014 Till date Zone VI Port Blair ______

That, as the applicant had already enjoyed his posting inZonë V

for 4.5 years and at Zone VI for 1.9 years, the transfer coMthitee

considering his station seniority at Zone V and Zone VI., had proposed. for

his transfer from Zone VI to Zone III.

Moreover, the Vice Principals/HM (55) in the seniority lis e*qhpt

those who are exempted as per Transfer Guidelines and for essenialtyof

service, have been transferred outside from Zone V & VI to accommddte

the Vice Principals/MM (55) who have completed tF}eir tenurel in the

outer area in Zone I/Il/Ill & IV and to accammodató those who dame

under the periphery of norms of Transfer Guidelines.

That, the transfer committee has observed that the applIcant has

not completed the prescribed minimum tenure of 4 years in Zone III,as

per transfer guidelines. The minimum tenure in Zone III & IV is i0 years

with a minimum tenure of 4 years each in Zone III & Zone IV sejarëly

as per the transfer guidelines. N ' 5. The issue before us in order to adjudicate . in the insant

application is whether judicial review is invoked in the contexf of the

transfer of the nnnlicant. 5

S 6. An order of transfer is subject to judicial review as any bfher

administrative action. The grounds of review, however, may not b, :as

expansive as in the case of other administrative order& 1

In Bank of India Staff Union -vs- Bank of India [(1996) H. LW

1222 (Cal)], the principle laid down by the Hon'ble Apex Court in•respëct

of judicial review of transfer was summarized analytically conblüding

thereby that unless the order of transfer is vitiated by malafide or made

in violation of any statutory provisions, the Court cannot interfdre with

it. (Union of India -vs. S.LAbbas [(1993) 4 SCC 357]);

It was further held in N.K.Slngh -vs- Union cf India [(1995) 1

LW 854] that only if the decision is vitiated by malafide or infrabtion of

any professed norm or principle governing the transfer that aione can be

scrutinized judicially.

To examine the original application in the baèkground of such

II ratio, the material document for this purpose would be the transfer

policy as notified by the respondent authorities on 11.7.2014. The

guidelines thereof are extracted below for purpose of adjudicatidn:

"GUIDELINES ARE :-

• All the Schools located in UT of A&N Islands are :divided into Zoes asunder: (1) Zone - I: Schools located in Great Nicobar, Little Nicobar, Ndncowry, Katchal including Rut Land, Banboonallah (Rut Land). (a) Zone - 1(A) : Schools located in Afra Bay, Mdcachua Pulolo, Pulopanja, East Bay Katchal, Dering, •kizitdsuk, Dugong Creek, Strait Island, Macarthy Valley, Foster Valley, Cut be rt Bay, Lou kinallah-III, Lou kinailah-IV, 4-kzratikri, Badadabla, Paloon Chuglurngum, Goojinallah, Budhanallqh, Birsanagar, Sippitikri, Hanspuni, Boraing, Niscjiint&pur, Jaganathdera, Narayan Tikni, Burmachad, Bandhanallah, Krishnanagar-I, Krishnanagar-II, Gopalnagar-H, Huntherchcid, Sagardeep, Ganesh Nagar-I, Ganesh Na'ar-II, Shdntinagar, Gandhinagar-II, Paschirn Sagar-lI, Chipoh., Garjantikri. H Zone - II: Schools located in Car Nicobar including vehg liqrd areas of South Andaman viz. Shoal Bay-19, LitUe Andaman and Long Island. Zone-Ill: Schools located in North Andaman. Zone - IV : Schools located in area from Baratang to Mayabunder including Neil & Havelock, Zone - V: Schools located in South Andaman and M(irnbely Guru. 69 Zone - VI: Schools located in Municipal Areq:àf sqrt lair. / 6 .4 .

(ii) Normally, all Teaching and Non-Teaching Staff duringth4r s&1ce career are required to render minimum service in dacb:zo4 ds given below: " Zone - I 02 years " Zone-1(A) 01 year

Zone - II 02 years/03 years as the caàemd!.:bd :1 Zone -IJJ&IV 10 years

Zone - V&VI 15years 4. (iii)Norrnally the minimum continuous tenure in each of the aforçsic4 Zones shall be as follows: I

Zone - I 02 years :. 1 Zone - I(A) 01 year Zone - II Car Nicobar and Shpal Bay-I 9 with continuous posting of tenure of two years, For Little Andaman and Long Island with continuous posting tqntIe of three years. Zone-Ill 04 years . 'FI Zone -N 04 years Zone - V 05 years Zone - Vt 05 years However, teachers who have served in Zone 1(A) for, one yezr will be exempted from serving in Zone L°

It has also been noted in the said policy that if any deviation from.

the norms as contained in this guidelines has to be resorted to for any

reason whatsoever, the same shall have to done with clue approvaj of the

Administrator.

7. In the instant matter, as admitted by the respondents, tfr

applicant has been posted in Zone VI only since 22.7.2014 and the

applicant has traversed Zones IV,V,III & I (since his appointment dated

1,10.1988 to 2 1.7.2014) which is a long period covering about 26 years.

It is also seen from Annexure 'C' to the OA, (which refers to the station

seniority of Group 'B' staff attached to Department of Education as on

3 1,5.2014), that the applicant who is at Sl. No. 4 in seniority, has spent

zero years in Zone VI and more than 17 years 'in Zone IV. The

respondents, while issuing the speaking order, has referred to the table

furnished in their reply and concluded that although the applicant has

served for 17.9 years in Zone IV, he has served only for 1.6 years in Zone

III against the prescribed tenure of 4 years and hence: his trai)sfer has

been proposed from Zone VI to Zone III. This rationale of the respondents

is self-defeating. While moving the applicant from Zone VI after an expiry

of only one year and 9 months (as on the date of the application) against /0 his requisite tenure of 5 years, the respondents are tzj'ihg to thale good / V the applicant's shortfall in Zone III of 2.4 years without reckóningh

fact that such move will lead to tenure shortfall in Zone VL:Adniittedly; it'

is the respondents who have transferred and postedt the applicant': in

Zone VI w.e,f. 22.7.20 14 and it is reasonable to expectIthat sUch transfer

was done in public interest in accordance with the iansfer polky and

with the best interest of the administration in mind. If so, an ,airbitra.ry

transfer without completion of tenure in a specific zohe to bompensate

for the shortfall in another zone is contradictory and vIolates the transfer

policy guidelines, as issued by the respondents themselvë. The

respondents could very well have allowed the applicant to contpkte his

tenure in Zone VI and thereafter moved him accordirtg to their trahsfê

policy to the next zone for which he was eligible. Hendé the entire action

of the respondents being violative of their own transf& policy and being

an arbitrary attempt to adhere to the transfer policy in an irçatiohal

manner leads us to conclude that this case calls for an intenenticn a it

violates the principles laid down by the respondent authorities

themselves,

8. Accordingly we direct that the transfer order dated 1.4.2016

(Annexure 'B' to the OA) as far as 81.23 i.e. the applicant it concçrned is set aside. The applicant will be permitted to continue in Zone ViUntil the

completion of the designated tenure as laid down in the transfer policy :j guidelines. Once the applicant has completed his tenuire as laid down in

the transfer policy guidelines, the respondents may take furthbi- aëtion

as permitted by such policy. The transfer order dated 1.42016,howevE,

will continue to be operative with respect to other transferees brbng the F.. applicant.

With this, the OA is disposed of. -

An MA bearing No.351/1002/2017 arsingoutoOA251/12/D6

has been filed by the ld. Counsel for the applicant for dorctiqruif

certain errors apparent in the order dated 7.4.20 17 of this Tribi.thal in t - I fr 8

/ which certain typographical errors have reportedly occu4'ed. As hôwsM',

we are disposing of the matter finally, we feel that pasth'nk dn order o MA referring to an order passed by another Division Bènéh cjrn't 4fe

considered by this Bench at this stage and the MA is aqthrdingly rejected

The interim order dated 11.4;2015 is vacated with tthe 'final disposal of the OA.

The OA succeeds, There will be no order as to costs.

- . I (DR. NANDITA CHATrERLJEE) (S.K.P)WNAIK) ADMINISTRATIVE MEMBER JUDICIAL MEMBER

I.Nath

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