Pranab Kumar Mukherjee Vs. State of West Bengal and ors. - Court Judgment

Satyabrata Sinha, J.

1. This Application is directed against an order of transfer which is contained in Annexure 'C' to the writ application. Mr. Sen, learned Advocate appearing for the petitioner submits that one of the daughters of the petitioner is appearing in the Higher Secondary Examination which would start on 30th of this month and another son of his who is reading in Class XI Eco-Science course in St. Xavier's college whose session would be over by December 1995. The learned counsel, therefore, submits that keeping in view the fact that in the event the order of transfer is effected, the children of the petitioner would suffer immensely, the impugned order should he quashed. The learned counsel, however, very fairly states that the petitioner is not averse to transfer and he undertakes to join the transferred post in January 1996.

2. The learned counsel in support of his submission has placed before me a decision of the Supreme Court of India in Director Of School Education, Madras and Ors. V. O. Karuppa Thevan and Anr, reported in 1994 Supp(2) Supreme Court Cases 666. In the said decision, the Supreme Court held - 'However, the learned counsel for the respondent, contended that in view of the fact that respondent's children are studying in school, the transfer should have been effected during midacademic term although there is no such rule, we are of the view that in effecting transfer, the fact that the children of an employee are studying are to be given due weight, if the exigencies of the services are not urgent. The learned counsel appearing for the appellant was unable to point out that there was such urgency in the present case that the employee would not have been accomodated till the end of the current academic year. We, therefore, while setting aside the impugned order of the Tribunal direct that the appellant should not effect the transfer till the end of the current academic year. The appeal is allowed accordingly with no order as to costs'.

3. In terms of the Police Rules midterm transfer is not prohibited. The guideline has only been issued to the effect that as far as practicable no such mid term transfer should be effected. The said guidelines is contained in Police Order No. 2 of 1980 dated February 22, 1980. The Apex Court in a number of decisions has clearly held that the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot interfere with an order of transfeer, except on the ground of mala fide or violations of mandatory provisions of Statute. The Supreme Court held that the right of an employee is to bring his difficulties to the notice ofthe employer by filing an appropriate representationwherein a contention can be raised that such orderof transfer has been passed in violation of such guidelines, Reference in this connection may be made toAIR 1981 SC 1433; AIR 1981 SC 1477; : AIR1993SC1236 ; : [1993]2SCR488 ; (1993-II-LLJ-626)(SC); (1995-I-LLJ-854) (SC) and the recent decision of this Court in C.O No. 1714 (W)/94, PrabhuNath Singh v. Union of India and Ors., disposed ofon February 16, 1995.

4. In the aforementioned Supreme Court decisions it has also been laid down that such guidelines are directory in nature and not mandatory and violation of such guidelines, therefore, do not confer any legal right upon the petitioner to question the order of transfer. It appears that the petitioner has already filed a detailed representation before the Director General and Inspector General of Police, West Bengal which is contained in Annexure 'D' to the writ application. The petitioner, Mr. Sen states, has not yet been communicated with any order of the Director General and Inspector General of Police on the said representation The petitioner has, thus, already taken recourse to a remedy to which he is entitled to in law. I have no doubt in my mind that the Director Genera' and Inspector General of Police, West Bengal shall sympathetically consider the predicament of the petitioner and pass an appropriate order in accordance with law at an early date, preferably within a period of two weeks from the date of communication of this order. In the. meantime, some order has aready been passed, it would be open to the petitioner to approach the said Home Secretary, who, I am, sure, would consider the matter afresh andif possible after giving an opportunity of hearing to him.

5. The decision in Director of School Education, Madras case, upon which strong reliance has been placed by the Hon'ble Supreme Court, is an order under Article 142 of the Constitution of India. Such a decision, in view of the aforementioned binding precedent of the Supreme Court of India which have been rendered under Article 141 of the Constitution of India does not create any binding precedent on this Court. In fact, the Supreme Court times without number clearly stated that the High Court cannot exercise such jurisdiction which the Supreme Court does in exercise of its power under Article 162 of the Constitution of India. Reference in this connection may be made to : (1994)ILLJ780SC .

6. However, it goes without saying that while considering the representation of the petitioner, tbe Director General cum Inspector General of Police or the concerned authorities shall consider all aspects of the matter including the public purpose and urgency. Mr. Sen submits that the petitioner shall file a separate writ representation before the Home Secretary, Government of West Bengal also. It will also be open to the petitioner to pray for some interim order before the appropriate authorities.

7. This writ application is disposed of with the aforementioned observation.

The learned counsel for the petitioner is permitted to note down the gist of this order and communicate the same to the concerned respondents who are, directed to act upon such communication.