High Court · 2012

We have heard Mr. A. Ganguli, learned counsel for the applicant 02. and Ms. R. Borah, learned Central Govt. Standing Counsel for the opposite party.

03. The facts, in bare essential for the disposal of the instant app lication are that the applicant while posted as Hindi Teacher at 3(NH) Bn Assam Rifles, Chariduar, Assam was by order dated 07.12.2011 issued from the office of the Directorate General, Assam Rifles, Shillong, transferred to 14 Assam Rifles , Serchhip in the State of Mizoram. She having come to learn of this order on 26 .12.2011 laid a request before the concerned authority requesting extension of t he date of her release pursuant thereto till April, 2012 to see the completion o f the current academic session of her children. This request was accepted and b y order dated 07.02.2012 issued by the above Directorate she was directed to be released so as to enable her to join the receiving unit before 21.05.2012.

04. Being aggrieved, the applicant approached the learned Central Ad ministrative Tribunal, Guwahati Bench, Guwahati (hereinafter for short referred to as the Tribunal) contending inter alia that the order of transfer dated 07.12 .2011 had not been served on her and that she was arbitrarily sought to be poste d during the mid academic session of her children which was not permissible in l aw. The learned Tribunal by its judgment and order dated 12.04.2012 05. interfered with the order of transfer and directed the authorities concerned to allow her to continue at Chariduar till the end of the academic session of her children. In this backdrop, the decision of the learned Tribunal was impeached before this Court in the abovementioned WP(C) No.2745/2012.

06. This Court, after hearing the learned Central Govt. Standing Cou nsel for the writ petitioner (opposite party) herein, issued notice on 23.07.201 2 making it returnable on 10.08.2012. The writ petitioners were ordered to take steps for service of notice on the applicant (respondent therein) by registered post with A/d. Liberty was also granted to cause dasti service on her. By an affidavit dated 21.08.2012, the writ petitioners affirmed personal service of no tice of the writ proceedings on the applicant on 18.08.2012 and stated on oath t hat she on acknowledgement thereof had subscribed her signature as well. This C ourt by order dated 27.08.2012, on a perusal of this affidavit accepted service of notice on the applicant, but instead of taking up the matter for hearing on t hat date, adjourned it till 29.08.2012. The writ petitioners were directed to o fficially inform the applicant of the next date fixed. On 29.08.2012 the learne d Central Govt. Standing Counsel laid before this Court a copy of the receipt da ted 27.08.2012/28.08.2012 evidencing service of the letter No.I.11011/A-Discp/20 12/591 dated 27.08.2012 from the office of the Commandant, 3(NH) Bn Assam Rifles , intimating the applicant of the next date of the hearing of the writ petition to be 29.08.2012. This Court being satisfied about the service of notice on the applicant, however listed the writ petition for final disposal on 03.09.2012 no ticing that she had remained un represented. It was observed in clear terms tha t in case the applicant was not present on the next date, the writ petition woul d be heard and decided ex parte. On the next date as well i.e. 04.09.2012 the a pplicant was not only unrepresented, no prayer for adjournment on her behalf was also made. This Court, therefore, heard the learned Central Govt. Standing Cou nsel and by its judgment and order dated 04.09.2012 allowed the writ petition an d interfered with the impugned decision dated 12.04.2012 of the learned Tribunal .

07. While traversing the facts, as above demonstrating the sequence of events in seriatim and culminating in the order dated 07.02.2012 directing th e release of the applicant so as to enable her to join the receiving unit before 21.05.2012, this Court declined to interfere with her transfer observing as wel l that the order to that effect was not vitiated either by the violation of stat utory norms or proved mala fide on the part of the concerned authorities.

08. In the instant application, the applicant has pleaded the follow ing grounds in endorsement of her request to recall the judgment and order dated

04.09.2012: a) after the judgment and order dated 12.04.2012 was passed by the learned Tribunal, she came to Guwahati in the month of May,2012 and instr ucted her previous counsel Shri H.G. Baruah, to take steps for filing a caveat p etition. b) her learned counsel, as above, however did not take steps as a result she went unrepresented in WP(C) No.2745/2012; c) on 28.08.2012 she had received a copy of the writ petition a long with letter No.I.11011/A-Discp/2012/591 dated 27.08.2012 from the office of the Commandant 3(NH) Bn Assam Rifles informing her that the next date of the he aring of the writ petition was fixed on 29.08.2012; d) being in service in the Armed Forces it was impossible to ex pect her to appear on the very next date. She, therefore, contacted Shri H.G. B aruah, Advocate who expressed his inability to represent her and advised her to come to Guwahati and take necessary steps, in consultation with a Senior Counsel ; e) she, therefore, went unrepresented on the next date i.e. 04. 09.2012 as after 29.08.2012 she had no intimation of the next date of the petiti on. f) it was not possible for her to take leave and come to Guwaha ti since she has two minor children and her husband was then away at Gowalior. g) on 27.08.2012 she and her children were afflicted with vario us ailments and had to visit the unit hospital to take treatment. h) though, she had made an application on 26.12.2011 for exten sion of the date of her release, from 15.01.2012 to April, 2012, the gist thereo f was only recorded and she only affixed her signature thereon; i) the Assam Rifles School located in Mizoram follow a syllabus , which is different from the one in the Assam Rifles School at Chariduar and t hat her transfer if made now, would entail a change over for her children in the mid academic session resulting in severe problems. Whereas, Mr. Ganguli has reiterated the above in his emphatic bi d to have the judgment and order dated 04.09.2012 recalled, Ms. Borah has insist ed that none of the grounds now urged is contemplated in law for review of a jud icial decision and therefore the application ought to be rejected.

09. We have duly considered the pleadings on record as well as the d ocuments in support thereof. The circumstances in which the writ petition was h eard and disposed of on 04.09.2012 have been narrated herein before. The instan t application clearly records the applicant’s admission of service of the notice of the writ petition on her on 27.08.2012 and the next date thereof i.e. 29.08. 2012. It is apparent from the averments made by her, in the application under c onsideration that she in spite of her knowledge of the pendency of the writ peti tion and the date fixed, failed to take steps as expected of her to secure her r epresentation therein. Her plea of having contacted her learned counsel for mak ing an application for lodging caveat and thereafter to represent her in the fac e of the intervening developments is wholly unconvincing. To say, the least, he r failure to enter appearance in the writ petition demonstrates an inexplicably casual approach qua a judicial proceeding. Her endeavour to contend that the re quest for extension of time for her release from 15.04.2012 to April, 2012 as is made in her application dated 26.12.2011 had not been correctly projected and e ntertained lacks persuasion, as well. Being in a transferable service, her plea based on mid academic session of her children in the above conspectus of facts also does not appeal to us. The opposite party (writ petitioners) in paragraph - 12 of the w rit petition had highlighted the service exigency necessitating the applicant’s joining at 14 Assam Rifles (Serchhip), Mizoram without further delay; (cid:28)That it is further pertinent to mention herein that the post of the Hindi Teacher where the Applicant/Respondent stands posted has been vacated in anticipation of arrival of the Applicant/Respondent, as agreed by her to mov e on termination of the academic session 2011-2012 of her children and now, as a fallout of the impugned order passed by the Hon’ble CAT, Guwahati Bench, the Assam Rifles School at 14 Assam Rifles (Serchip, Mizoram) would be now without a ny Hindi teacher and the innocent schoolchildren would be at the receiving end, thus jeopardizing the future of the children, for no fault of theirs. (cid:29) Thus her resistance on the ground of transfer during the mid aca demic session of her children on this count as well is of no avail. We find no cogent and convincing reason to recall the judgment and order dated 04.09.2012. The miscellaneous case is rejected. No costs.