Pratap Kr. Ray, J. - (1.) A. Transfer Order is under challenge in this writ application being the Transfer Order No. 48/2004/E-1 dated 27th February, 2004, posting the petitioner from the post of Regional Manager, West Bengal Region, Calcutta, to the post of Joint Manager (Enquiry), Zonal Office (West), Mumbai against the existing vacancy, issued with the approval of competent authority as alleged and communicated by Manager (P & E) of Food Corporation of India having his office at head-quarter at New Delhi. This Transfer Order has been assailed on the following grounds:- (i) That as per Transfer Policy Guidelines issued under Circular No. EP-03/2002-33 dated 21st November, 2002 (hereinafter referred to as Transfer Policy), petitioner's normal tenure of stay in the present posting have been disturbed as the policy provides normal tenure of stay at a station three years whereas petitioner only served more or less eight months. (ii) The Order of Transfer is on violation of the promise as per said Transfer Policy providing retention at Calcutta office a "choice posting" till normal tenure is completed due to past service in the difficult station namely the North Eastern Zone, in this cafe. (iii) Transfer Order has been issued with a mala fide action upon being motivated and influenced by the respondent no. 6, who is a party in this proceeding by name, since, during service activity being posted at Calcutta, the petitioner did not agree to accept different decisions of the said respondent no. 6, who is admittedly holding the senior position in the hierarchy of service ladder. (iv) Transfer Order is violative of Transfer Policy since the candidates working in the same rank but spending more days herein in Calcutta than the petitioner have not been served with any Transfer Order. (v) Transfer Order is discriminatory action and outcome of pick and choose policy. This writ application has been opposed by the respondents by filing one Affidavit-in-Opposition armed by one Sri Paishuni Kumar, an officer of the organization, contending, inter alia: (i) Normal tenure of posting has not been disturbed as the petitioner is working in a particular zone for more or less 20 years, save and except 2 years service in the harder zone/difficult zone namely North Eastern Zone of India at Guwahati. (ii) There was no violation of the promise on "choice posting" after service at the difficult zone namely North Eastern Zone in India, since after completion of the tenure therein, posting was made as per choice in Calcutta where he remained for few months. (iii) The Transfer Order was issued by delegated authority namely Executive Director (P) having his office at Headquarter at New Delhi and there is no allegation of mala fide against the said officer and the said officer also is not a party in the proceeding. Said officer was not influenced or motivated by respondent no. 6. (iv) Transfer Order has not violated the Transfer Policy by keeping the persons of similar rank, working for longer period in a particular zone. (v) It is not at all a discriminatory order and outcome of pick and choose policy. (vi) The Transfer Order has been issued for administrative exigency. Controverting the material issue of opposition, reply has been filed by the petitioner reasserting the contentions of the writ application and taking a new point that the Transfer Order was not issued by the competent authority namely the Managing Director of the Organisation but by an officer below his rank and the delegation of the power to transfer, is of without jurisdiction, as under the statute, there is no such provision to delegate such power.
(2.) When the matter was moved at the motion stage, this Court passed an interim order of stay by a speaking order on 19th March, 2004 but said order was set aside and quashed by the Hon'ble Division Bench in A.P.O.T. No. 147 of 2004 of this Court., on the ground that the final relief was passed in the form of interim order directed this Court to hear the matter on exchange of affidavits.
(3.) In terms of the order dated 31.3.2004 passed by the Appeal Court, ultimately the matter came up for hearing before this Court.;