Violation of Executive Instructions Cannot Be Sole Ground to Invalidate Transfer Orders: Tripura High Court

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In Dr Bithika Choudhury vs the State of Tripura & Ors., a Division Bench consisting of Hon’ble Justice S. Talapatra and Hon’ble Justice S.G. Chattopadhyay dealt with an appeal from a Writ Petition dismissal on the ground that the transfer order that is the subject matter of the writ violated an applicable executive direction.

Facts

Appellant had been serving as the Head Mistress of Higher Secondary School at Agartala in West Tripura District since 8.05.2018 and had been transferred to Salema Colony Higher Secondary School at Kachucherra at Kamalpur. The Appellant in matters of transfer enjoyed a special privilege as she was a member of the Tripura Government Educational Officers’ Association. Transfer of designated office bearers could be made only after approval of the departmental minister. Therefore, the transfer order had been challenged through a Writ Petition before a Single Judge Bench which upheld the Order and hence an appeal was pursued.

Arguments Advanced

Appellant submitted that the transfer order was regarding the special privilege to which she was entitled as per memorandum dated 28.02.1994. Further, she had been discriminated by being transferred to one of the remotest schools even after several representations to the department explaining her illness issues. The Single-Judge Bench failed to peruse the concerned files to ascertain the nature of protection enjoyed by the Appellant as an office-bearer and also did not provide due consideration to acute health issues faced by the Appellant. The transfer order made in disregard to the mandate of the memorandum and without paying heed to the Appellant’s representation was mala fide and arbitrary. The counsel for the Appellant cited the cases of Braja Gopal Nath Vs. State of Tripura & Ors and Saral Mohan Tripura Vs. State of Tripura & Ors. that set aside transfer orders in contravention of executive directions.

Learned Government Advocate submitted that the Order was not arbitrary or malafide as administrative exigency warranted the transfer of the Appellant and the necessary approvals as required under the memorandum had been taken to effect the transfer. The Order was due to a lack of experienced teachers in various Higher Secondary Schools and the need to remedy the problem. If the transfer order was interfered with, the public interest would be undermined.

Court’s Observation

The Court observed that under the relevant memorandum, the privilege conferred was subject to an exception that is such privilege should not override the prerogative of the Government’s right to transfer in the event of administrative exigency and hence such need has an overriding effect. On perusal of the documents, it was clear that the Order had received the approval of the departmental minister, however, the minister was not appraised of the existence of such a privilege while he was presented the Order for approval. The Court further examined whether such deficiency alone can invalidate the transfer order. Transfer orders could be interfered with only if proven to be malafide or opposed to statutory provisions, even if the contravention of executive instructions was proven, the Court should not ordinarily interfere with the order as held in Shilpi Bose and others vs. State of Bihar and others, and reiterated in Union of India vs. S.L. Abbas

Court’s Decision

In the present case, the lack of adequate teachers in schools had not been opposed and the contention by the Government advocate of exigency merits acceptance. Further, no malafide intention could be established from the course of action taken by the department. Therefore, the transfer order possessed no illegality. The appeal was therefore dismissed.

Click here to view the Judgement.


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