The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.1399 of 2020 Union of India and others …. Petitioners Mr. Chandrakanta Pradhan, Senior Panel Counsel Amarendra Nayak -versus- Opposite Party Mr. D.P. Dhalsamanta, Advocate …. CORAM: ACTING CHIEF JUSTICE DR. B.R. SARANGI
Decision
ORDER 01.12.2023 11. 1. This matter is taken up through Hybrid mode. 2. Heard Mr. Chandrakanta Pradhan, learned Senior Panel Counsel for the Petitioners-Union of India and Mr. D.P. Dhalsamanta, learned counsel for the sole Opposite Party. 3. The Union of India-Petitioners have filed this writ petition challenging the order dated 18.09.2019 passed by the learned Central Administrative Tribunal, Cuttack Bench, Cuttack (‘Tribunal’ in short) in O.A. No.260/17 of 2014 by which, the learned Tribunal has allowed the original application filed by the Opposite Party taking into consideration that the said application is similar to the batch of 21 cases, i.e. O.A. No.260/450/2015 and others (O.A. Nos.786 of 2012 and batch of cases disposed of on 05.02.2018). The Tribunal has held that the limited transfer facility from one post to another is made available to the Opposite Party and to maintain the uniformity and consistency in the Page 1 of 6 administration of justice, the Opposite Party has been extended with similar benefits as has been done to the others. 4. Mr. Pradhan has vehemently contended that learned Tribunal has not taken into consideration the policy relating to transfer from one post to another, basing upon which the order has been rendered in the aforementioned batch of cases. It is submitted there is no dispute that when a Gramin Dak Sevak (‘GDS’ in short) has availed one opportunity of transfer, in that case, question of further transfer does not arise. It is submitted that in all the aforementioned batch of cases, which has been referred to in the impugned order, relate to availing of first chance of transfer and, therefore, the Tribunal is well justified in passing such order. But, in the present case, the Opposite Party has already availed such benefit and for the second time when he asked for such benefit that has been denied. Thereby, no illegality has been committed by the authority in doing so. Therefore, it is submitted that the impugned order passed by the learned Tribunal treating the Opposite Party at par with the other applicants in the aforementioned batch of cases cannot be sustained and as such, the order is liable to be set aside. It is further contended that incidentally the counsel, who is appearing in the present case, was a counsel in those batch of cases, where reference has been made to a policy quoted in paragraph-7 of the said order which clearly specifies that the GDS is normally be eligible for only one transfer during the entire career. As such, the Opposite Party after having availed one transfer, cannot be permitted to have the second. Therefore, the learned Tribunal has committed a gross error apparent on the face of record, which cannot be sustained in the eye of law. Page 2 of 6 5. Mr. Dhalsamanta has vehemently contended that so far as the principle with regard to one transfer of the GDS during the entire career is concerned, the batch of cases, which have been referred to, relate to the said principle and, therefore, the learned Tribunal has allowed such benefits. It is contended that as per the Office Memorandum dated 15.07.2021 issued by the Ministry of Communications, Department of Posts, Government of India (copy of which has been produced in Court today by the Opposite Party), now the Conditions of Transfer under Sub-Clause (i) of Clause-1 indicates that “the maximum number of chances to be provided for male GDS shall be TWO chances and THREE chances for female GDS in entire term of engagement.” Thereby, the Opposite Party comes within the fold of Sub-Clause (i) of Clause-1 of the said Office Memorandum, and, therefore, the case of the Opposite Party can be considered for transfer. 6. Having heard learned counsel for the parties and after going through the materials available on record, it appears that there is no dispute that the Opposite Party is seeking transfer for the second time, which is contrary to the guidelines referred to in Paragraph-7 of the order passed by the Tribunal in O.A. No.786 of 2012 and batch of cases. For ready reference, Paragraph-7 of the said order is quoted as under: “7. A summary of the above instructions issued from time to time shows that Limited Transfer Facility has been made available to the GDS on his/her request if he/she satisfies the conditions laid down from time to time. We find that in the case of one Ratikanta Sahoo, a transfer has been made from the post of GDSMD, Sridharpur BO in account with Chitalo SO under Cuttack North Division to the post of GDS BPM, Rahasol BO in account with Chitalo SO under Cuttack North Page 3 of 6 Division. The order is quite relevant to quote hereunder for the purpose of illustration. The Chief Post Master General, Odisha Circle, Bhubaneswar is pleased to approve the transfer of Shri Ratikanta Sahoo, GDS MD, Sridharpura SBO i/a/w Chitalo SO under Cuttack North Division to the post of GDS BPM, Rahasol BO i/a/w Chitalo SO under Cuttack North Division with the following conditions under the existing provisions of amended Rule-3 of GDS (Conduct & Engagement) Rules 2011 as communicated vide Directorate dated 17.07.2006. No.19-10/2004-GDS Letter The above transfer is subject to the following terms and conditions: 1. The GDS ill normally be eligible for only one transfer during the entire career. 2. TRCA of the new post to which the GDS is transferred shall be fixed as per the instructions contained in Directorate letter No.19-10/2004-GDS (Part0 dated 21/22.07.2010 under para-3(iii). The TRC of the GDS official will be fixed at the minimum of the TRCA slab of the transferred post depending upon the workload of the said post. 3. The GDS will not have any claim to go back to the previous recruitment unit/division. 4. As the transfer is at his own request, he will rank junior in the seniority list of the new unit to all the GDS of that unit who exist in the seniority list on the date on which the transfer is ordered. A declaration to the effect that he accepts the seniority on transfer in accordance with this, should be obtained before he is transferred. However the past service of the GDS will be counted for assessing the eligibility for appearing the departmental examination. 5. The transfer will be at the cost and expenditure of the GDS. No expenditure whatsoever on this account Page 4 of 6 will be borne by circumstances. the Department under any 6. All other terms and conditions stipulated in Directorate letter No.19-10/2004 dated 17.07.2006 will also be applicable to this transfer.” 7. On perusal of the aforementioned guidelines relating to transfer, it is made clear that it is a one-time measure, the GDSs require for transfer in the service career. Therefore, the Opposite Party already having availed such opportunity and getting transferred, now he cannot ask for the second transfer, which is contrary to the guidelines already framed. More so, the Tribunal has committed gross error apparent on the face of record by allowing the OA filed by Opposite Party taking into consideration the ratio decided in O.A. No.786 of 2012 and batch of cases, wherein the applicants have not availed even one transfer and, therefore, since that was only one transfer of the applicants, the Tribunal has allowed the same. Thus, the case of the present Opposite Party is distinguishable to that of the batch of cases, which has been relied upon by the Tribunal in the impugned order. The Tribunal has not applied his mind to the above extent that the case of the present Opposite Party is not similar to the batch of cases and, therefore, the finding to that effect has no justification. 8. On the other hand, the reliance has been placed by the Opposite Party on the Office memorandum dated 15.07.2021, which has not seen the light of the day when the matter was subjudiced before the Court. It is well settled principle of law laid down by the apex Court time and again that the case of the parties has to be considered on the basis of the guidelines available and prevailing at the relevant point of time. Therefore, the guideline, which has been Page 5 of 6 referred to in the aforesaid Paragraph-7 is fully applicable to the case of the present Opposite Party and the subsequent Office Memorandum dated 15.07.2021 has no application where it has been mentioned that the maximum number of chances of transfer to be provided for male GDS shall be two chances and three chances for the female GDS in the entire term of engagement. Therefore, the contention raised that since the Opposite Party has availed one chance of transfer, he can be permitted to avail another chance as per the Office Memorandum dated 15.07.2021, is not applicable to him retrospectively because the fact remains that the Office Memorandum dated 15.07.2021 has not seen the light of the day when the case of the present Opposite Party was considered by the Tribunal and the impugned order was passed on 18.09.2019. 9. In view of such facts and circumstances, the impugned order passed by the learned Tribunal dated 18.09.2019 cannot be sustained in the eye of law and the same shall be quashed. It is so ordered. 10. Accordingly, the writ petition is allowed, but in the circumstances, with no order as to costs. ACTING CHIEF JUSTICE (DR. B.R. SARANGI) (M.S. RAMAN) JUDGE S. Behera/ M. Panda Signature Not Verified Digitally Signed Signed by: SUMANTA BEHERA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 06-Dec-2023 17:09:39 Page 6 of 6