SRI MANOJ KUMAR GHOSH, SON OF SRI MUKUL KUMAR GHOSH, RESIDENT OF A.D. NAGAR Vs. UNION OF INDIA, OFFICE OF THE DEVELOPMENT COMMISSIONER, (HANDICRAFTS), MINISTRY OF TEXTILES, GOVERNMENT OF INDIA, REPRESENTED BY DEVELOPMENT COMMISSIONER HAVING HIS OFFICE AT WEST BLOCK NO.7, R.K. PURAM, SECTOR

JUDGEMENT

(1.) By means of this writ petition, the petitioner has challenged the office order No. 106/order/2016-Estt dated 10.10.2016 [Annexure P/6 to the writ petition] whereby the petitioner has been transferred, in suppression of the office order No. 106/order/2016-Estt dated 11.07.2016, from the BCDI, Agartala to the National Centre for Design and Product Development, Hall No.1, 3rd Floor, Rajiv Gandhi Handicraft Bhawan, Baba Kharak Singh Marg, Cannaught Place, New Delhi- 10001. The petitioner has also been released from the BCDI, Agartala with effect from 20.10.2016 [Afternoon] with a direction to report for the duty as National Centre for Design and Product Development, ('NCDPD' in short) at New Delhi. Even his travelling allowances has been allowed for purpose of enabling him [the petitioner] to join the new place of posting. Earlier by the office order No. 106/order/2016-Estt dated 11.07.2016, the petitioner was transferred from BCDI, Agartala, to Integrated Design and Technical Development Project in Jute Craft Jajori, Nagaon (Assam). But the petitioner by filing the writ petition being WP(C) No. 802 of 2016 had challenged the said order on several grounds. By the judgment and order dated 16.09.2016 [Annexure P/12 to the writ petition] this court had interfered with the said transfer order with the observation that the transfer is an incidence of service and the National Centre for Design and Product Development (NCDPD) shall remain within its authority to transfer the petitioner in terms of law, in a post which is not inferior to the post presently held by the petitioner. The said judgment and order has remained unchallenged and it has reached its finality. As it appears that the present office order dated 10.10.2016 [Annexure P/6 to the writ petition] is an outcome of fresh exercise and now the National Centre for Design and Product Development has passed the said office order in the said exercise. The petitioner has raised the similar objection that the transfer order has not been issued by the "competent authority", despite the above observation in the earlier writ petition. That apart, the petitioner has raised a fresh issue that earlier the respondents had stated that unless the petitioner is transferred to the Integrated Design and Technical Development Project in Jute Craft Jajori, Nagaon, Assam, the programme in the said development project would suffer a huge setback but now the petitioner has been transferred to the NCDPD, New Delhi. This fact itself, according to the petitioner, shows that the object of the respondents particularly the respondent No.4 is to somehow remove the petitioner from the BCDI at Agartala. Ex-facie, such act is malicious and colourable exercise of power.

(2.) Ms. R. Guha, learned counsel appearing for the petitioner, in support of her contention as referred above, has submitted that in Para 21 of the writ petition the petitioner has asserted the above fact. Moreover the petitioner has asserted that "therefore with malafide intention the respondent No.4 with the help of the respondent Nos. 5 and 7 has issued the impugned office order dated 10.10.2006." According to Ms. Guha, learned counsel that by virtue of the memorandum of agreement dated 27.08.2009, entered between the Development Commissioner (Handicrafts) DC(H) in short, and the NCDPD, the Empowered Committee never took a decision to authorize the Executive Director, NCDPD to transfer the employees of BCDI. Ms. Guha, learned counsel has further submitted that the recruitment along with placement including transfer falls under the administrative authority of the said Empowered Committee as the same committee was established for operationalisation of the BCDI, Agartala. Thus according to her, the Executive Director, NCDPD is not the competent authority for transferring an employee from the BCDI without the permission and sanction of the Empowered Committee. In this regard, she has referred to a letter of the respondent No.5, the consultant of the NCDPD. In the said letter dated 20.10.2016, [Annexure P/10 to the writ petition] the said respondent No.5 has clearly stated as follows :

(3.) Ms. Guha, learned counsel has however candidly admitted that the decision in the said letter dated 20.10.2016 [Annexure P/10 to the writ petition] has not been challenged in this writ petition. The petitioner however has further urged by this writ petition to restrain the respondents from giving any effect to the impugned order dated 10.10.2016 [Annexure P/6 to the writ petition] in respect of the petitioner. Ms. R. Guha, learned counsel has relied on a decision in Ritesh Tewari and Another Vs. State of Uttar Pradesh and Others reported in (2010) 10 SCC 677 where the apex court has held that :