The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) Nos.4704 of 2024 & 5267 of 2024 Dr. Madhubrata Satpathy Petitioner …. Mr. D.K. Mohapatra, Advocate State of Odisha and Another -versus- …. Opposite Parties Mr. B.P. Tripathy, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 16.04.2024 Order No. 08. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel for the parties. 3. Petitioner initially filed W.P.(C) No.4704 of 2024 inter alia with the following prayer:- “Therefore, it is prayed that this Hon’ble Court may be graciously pleased to: (i) Admit the writ application. (ii) Call for the record. (iii) Issue Rule NISI calling upon the Opp. Parties to show cause as to why the impugned letter dated 24.02.2024 of the Principal under Annexure-8 shall not be quashed. (iv) If the Opp. Party do not show cause or show insufficient cause issue a writ in nature of certiorari in quashing the impugned letter dtd.24.02.2024 of the Principal under Annexure-8. // 2 // (v) Issue a writ of mandamus, directing the Opp. Party No.2 to allow the petitioner to function as Vice-Principal of BJP Autonomous College as per the Govt. Letter dtd.07.10.2022.” 4. During pendency of the matter in W.P.(C) No.4704 of 2024, when petitioner was put under transfer vide notification dtd.02.03.2024, W.P.(C) No.5267 of 2024 was filed inter alia with the following prayer:- “Therefore, it is prayed that this Hon’ble Court may be graciously pleased to; (i) Admit the writ application; (ii) Call for the records, (iii) Issue Rule NISI calling upon the Opp. Parties to show cause as to why the impugned notification dtd.02.03.2024 in respect of the petitioner only under Annexure-9 shall not be quashed. (iv) If the Opp. Party do not show cause or show insufficient cause issue a writ in nature of certiorari in quashing the impugned letter dtd.02.03.2024 of the Principal under Annexure-9. (v) Issue a writ of mandamus, directing the Opp. Party No.2 to allow the petitioner to continue in BJB Autonomous College as Asst. Professor Economics (Stage-III).” 4.1. It is contended that the petitioner while continuing as an Asst. Professor of Economics (Stage-III) in BJB Autonomous College, Bhubaneswar vide communication dated 07.10.2022 so issued by the Department under Annexure-3, she was allowed to work as Vice-Principal- in-Charge in addition to her own duties until further orders. 4.2. By virtue of the said order, petitioner in addition to her work as Asst. Professor of Economics (Stage-III) also Page 2 of 11 // 3 // discharged the duty of Vice-Principal-in-Charge. The order issued by the Govt. was also acted upon by the College-O.P. No.2 with issuance of office order dated 10.10.2022 under Annexure-4. 4.3. It is contended that while so working as the Vice- Principal-in-Charge in terms of the order issued under Annexure-3 and 4, Principal of the College-O.P. No.2 vide communication dated 19.01.2024 under Annexure-5, while shifted the Vice Principal’s Chamber, vide letter dated 20.01.2024 under Annexure-6, O.P. No.2 requested the Section Officer to take necessary step to shift the furniture to Room No.17 of New Arts Block. Present petitioner was also requested to hand over the key of the room to the Section Officer by 24.01.2024. But O.P. No.2 on the face of the letter issued on 20.01.2024 under Annexure-6, issued a fresh letter on 22.01.2024 under Annexure-7 requesting the petitioner to hand over the key of Room No.3 by 23.02.2024 for shifting of the furniture to Room No.17, New Arts Block for functioning of the Vice-Principal’s Chamber w.e.f. 26.02.2024. 4.4. Petitioner vide her letter dated 23.02.2024, when made a request not to shift the office of the Vice-Principal to Room No.17 of Arts Block and instead prayed to allow her to work in Room No.3 of the Administrative Block, without considering the request so made, Principal-O.P. No.2 vide her letter dated 24.02.2024 under Annexure-8, Page 3 of 11 // 4 // relieved the petitioner from her additional responsibility of Vice-Principal-in-Charge. 4.5. Petitioner when assailed such action of O.P. No.2 in issuing Annexure-8 by filing W.P.(C) No.4704 of 2024, all and sudden petitioner at the instance of O.P. No.2, was put under transfer vide notification issued on 02.03.2024 of the Govt. in the Department of Higher Education. Though vide the said order, petitioner was put under transfer to Rajadhani College Rajadhani within the township of Bhubaneswar, but alleging malafide, W.P.(C) No.5267 of 2024 was filed by the petitioner challenging the order of transfer. 4.6. It is contended that this Court vide its order dated 13.02.2024 while directing the State Counsel to obtain instruction, passed the following interim order in W.P.(C) No.4704 of 2024 and 5267 of 2024:- “ W.P.(C) No.4704 of 2024 1. This matter Arrangement (Virtual/Physical) Mode. taken up is through Hybrid Though the matter was not on the board but on 2. being mentioned it was taken up.
Decision
3. Let an extra copy of the Writ Petition be served on learned State Counsel in course of the day. He is directed to obtain instruction as to the reason for passing of the order by the Principal-O.P. No.2 on 24.02.2024 vide Annexure-8. 4. As requested, list this matter on 19.03.2024. I.A. No.3060 of 2024 In the 1. 24.02.2024 so passed by Annexure-8 be kept in abeyance.” interim, operation of order dated the O.P. No.2 under Page 4 of 11 // 5 // “ W.P.(C) No.5267 of 2024 1. This matter Arrangement (Virtual/Physical) Mode. taken up is through Hybrid 2. Memo containing application dated 23.02.2024 produced before this Court be kept in record. 3. Heard learned counsel for the parties. 4. Let an extra copy of the Writ Petition be served on learned State Counsel in course of the day. He is directed to obtain instruction as to the reason for putting the petitioner under transfer when the order passed by the Principal on 24.02.2024 vide Annexure- 8 was under challenge before this Court in W.P.(C) No.4704 of 2024. 5. As requested, list this matter on 19.03.2024. I.A. No.3355 of 2024 1. Till the next date, status-quo as on today with regard to continuance of the petitioner be maintained.” 4.7. It is contended that on the face of the order passed by this Court on 11.03.2024, petitioner was not allowed to discharge her duty in BJB (Auto) College, Bhubaneswar and accordingly an application was filed in I.A. No.4175 of 2024. This Court vide order dated 02.04.2024, directed learned State Counsel to obtain instruction on the plea made in I.A. No.4175 of 2024. Pursuant to the order passed by this Court on earlier occasion and on 02.04.2024, instruction provided by the Department vide letter dated 15.04.2024 was produced by the learned State Counsel in Court today. The same be kept in record. Page 5 of 11 // 6 // 4.8. Learned counsel appearing for the petitioner accordingly contended that since petitioner challenged the action of O.P. No.2 in issuing the order issued on 24.02.2024 under Annexure-8 in W.P.(C) No.4704 of 2024, at the instance of O.P. No.2, O.P. No.1 with malafide intention transferred her vide Notification dtd.02.03.2024. The order of transfer so issued vide Notification dtd.02.03.2024 is under challenge in W.P.(C) No.5267 of 2024. 4.9. It is contended that on the face of the order issued on 07.10.2022 under Annexure-3, prior to its recalling & cancellation by O.P. No.1, O.P. No.2 was not competent to relieve her from the additional responsibility of Vice- Principal-In-Charge vide order dated 24.02.2024 under Annexure-8. Petitioner when challenged such action of O.P. No.2 in filing W.P.(C) No.4704 of 2024, at the instance of O.P. No.2 and with malafide intention, petitioner was put under transfer by O.P. No.1 vide Notification dtd.02.03.2024. 4.10. It is also contended that order of transfer can be interfered with by this Court, if it has been issued with malafide intention. In support of such stand learned counsel for the Petitioner relies on the decision of this Court rendered in the case of Prasanna Kumar Acharya vs. State of Orissa and Others. This Court in Para-13, 15 to 17 has held as follows:- Page 6 of 11 // 7 // “13. The Hon’ble Supreme Court in Shilpi Bose v. State of Bihar, AIR 1991 SC 532 : 1992 (6) SLR (SC) has observed as under:- “xxxxxx the Courts should not interfere with a transfer order which are made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the 6 other. Transfer orders issued by the competent authority do not violate any of the legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order, instead affected party should approach the higher authorities in the department.” From the above is evident that the executive instructions even if not followed, the Court should not interfere with the order of transfer. it 15. Referring to Shilpi Bose case (supra) and Gujurat Electricity Board v. Atmaram Sungomal Poshani, 1989 (2) SLR 684 (SC), it is held that a judicial review of an administrative action is of course permissible, but orders of transfer are interfered when:- a. the transfer is mala fide or arbitrary or perverse; b. when it adversely alters the service conditions in 15 terms of rank, pay and emoluments; c. when guidelines laid down by the department are infringed and lastly; d. when it is frequently done; and e. if there is a statutory infraction. Therefore, whenever a public servant is transferred, he must comply with the order but if there be any genuine difficulty in the proceeding of transfer, it is open to him to for make modification or cancellation of the transfer order. the competent authority representation to