Decided on January 13,2017

Sri Manoj Kumar Ghosh, Son Of Sri Mukul Kumar Ghosh, Resident Of A.D. Nagar Appellant
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 Respondents


S. Talapatra, J. - (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 : As regards your query that which is Competent Authority, it is intimated that Executive Director Cum Secy of NCDPD is the Competent Authority. Orders dated 10th October 2016 were having the approval of the aforesaid Competent Authority. As regards hard copy of the order, the same was sent through speed post on 14.10.2016 which might have been received at your end by now. It has been further asserted in the said letter dated 20.10.2016 of the respondent No.5 as follows : Owning to late receipt of the orders, Competent Authority permitted 5 days grace period and accordingly you are relieved of your duties from BCDI w.e.f. 25.10.2016. Your leave application dated 20th October 2016 was put up to the Competent Authority and same was not agreed too as your services are urgently required at new place of posting. As such, you are advised for strict compliance of the orders.
(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 v. State of Uttar Pradesh and Others reported in (2010) 10 SCC 677 where the apex court has held that : It is a settled proposition of law that a party has to plead the case and produce/adduce sufficient evidence to substantiate his submissions made in the petition and in case the pleadings are not complete, the court is under no obligation to entertain the pleas. In Bharat Singh v. State of Haryana, (AIR 1988 SC 2181) this Court has observed as under (SCC p. 543, para 13) 13 In our opinion, when a point, when a point, which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the Court will not entertain the point .. there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. There cannot be any quarrel regarding the proposition as laid down in Ritesh Tewari (supra). On the contrary, it has underlined the burden on the writ petitioner to prove the pleaded averments he made in the writ petition.;

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