D.K.Seth, J. - (1.) The appeal has been preferred against the judgment and order dated 15th of October, 2004 passed by learned Single Judge in WP No. 236 of 2004, quashing the order of transfer principally on the ground of discrimination, non-application of mind, violation of the principles of natural justice and equity as well as the provisions of Article 21 of the Constitution of India read with the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
(2.) Mr. Jayanta Mitra, learned Senior Counsel appearing on behalf of the appellant, assailed the order on various grounds whereas Mr. Debashis Kundu appearing on behalf of the respondent/writ petitioner supported the order and countered the submission of Mr. Mitra. We shall be dealing with the respective contentions raised by the respective Counsel with reference to the respective arguments as hereafter. Facts:
(3.) In order to appreciate the situation, a brief reference to the facts, which are admitted, would be beneficial to us. On 28th May, 1999, the writ petitioner/ respondent was posted as Additional Chief Judicial Magistrate, Sealdah. She joined as Additional District and Sessions Judge at Alipore on 4th September, 2001. She was posted on 1st July, 2002 as Additional Principal Judge, 2nd Family Court, Kolkata. Under the norms followed by the High Court at Calcutta in the administration of the subordinate judicial service so far as it relates to the question of transfer, the territories of the State of West Bengal has since been categorized in different zones. An officer after having posted in a particular zone for a period of three years or more is supposed to be transferred to another zone. This is done in normal course of event. The petitioner having been posted in 'A' zone for over three years, she was due for transfer to 'B' Zone as prescribed in the norms. "On 16th of August, 2003, the petitioner/respondent sustained injury in her right eye. She applied for leave for her treatment at Chennai. On 5th September, 2003, the petitioner/respondent reported to Sankara Nethralaya, Chennai and got herself treated there. After her treatment at Chennai, she was advised to continue her periodical check up at Rotary Narayana Sankara Nethralaya at Kolkata. Pursuant to such advice, she reported for check up at the said Nethralaya at Kolkata on 25th September, 2003 and continued till 10th of January, 2004." "(1)In the meantime, her transfer being due, her name was considered by the Transfer Committee, which met on 14th of November, 2003, when a resolution was passed regarding transfer of various judicial officers including the petitioner/ respondent, whose case was in Item No. 6. In the said resolution, it was resolved that the petitioner was being transferred and posted as Additional District & Sessions Judge, Midnapore, which was then vacant. The said resolution was placed before Hon'ble the Chief Justice for approval and was approved on 19th of November, 2003. The petitioner/respondent got herself checked up at Sankara Nethralaya on 21st November, 2003 when she was advised to go there for review once a year. A Notification was issued on 25th November, 2003 appointing the petitioner on reversion to the general lines as Additional District & Sessions Judge in the District of Paschim Midnapore in the interest of public service. A copy of the said Notification was forwarded on 25* November, 2003 to the Special Secretary, Government of West Bengal, Judicial Department, requesting him to move the State Government for replacing the services of the writ petitioner/ respondent at the disposal of the High Court for her appointment in the general line." "(2) At this stage on 11th of December, 2003, the petitioner/respondent submitted a representation to the Registrar (Judicial Service) with a prayer for recalling of the order of transfer and for her posting in the present post till her retirement in August, 2005. Upon consideration of this representation, the Transfer Committee rejected the same on 19th of December, 2003. The petitioner/ respondent was then directed to deliver charge of her present assignment on receipt of necessary Orders/Notifications and to proceed immediately to Paschim Midnapore to join her new assignment. The resolution of the Transfer Committee was placed before Hon'ble the Chief Justice and was approved by him on 4th of January, 2003. A Notification was issued on 29th of December, 2003 under the order of the Governor to replace the service of the petitioner/respondent at the disposal of the High Court for her appointment in the general line to the post of Additional District & Sessions Judge, Paschim Midnapore in the vacancy of Sri B.N Baidya. The order of rejection of her representation was communicated to the petitioner/respondent on 8th January, 2004." "(3) On 9th January, 2004, the petitioner made another representation to the Registrar (Judicial Service) praying that she was due to retire on 31st August, 2005 and that due to her complete loss of vision in the right eye, she should be given light posting at Kolkata and to remain posted in the present post till disposal for her second representation. On the basis of this representation, a note was put up indicating that the post of Additional District & Sessions Judge, Midnapore was lying vacant since 11th June, 2003. At this stage, the petitioner/ respondent addressed a letter on 19th of January, 2004 to the Registrar (Judicial Service) seeking a personal hearing before one of the Hon'ble Judge being one of the members of the Transfer Committee to enable her to advance her submissions in support of her representation. On 20th of January, 2004, the said representation was rejected by the Judge-in-charge, Transfer Committee directing her to deliver charge within 31st January, 2004 and since when she would be deemed to have been relieved from her present office." "(4) On 20th anuary, 2004, the Registrar (Judicial Service) informed the petitioner that her prayer for seeking personal hearing was refused and that her representation dated 19th January, 2004 had since been considered and rejected and that she was directed to deliver charge of her present assignment by 31st January, 2004 and requested her to submit compliance report. On 22nd January, 2004, a Notification was issued by the order of the Governor that the petitioner/respondent should make over her charge of her office to Sri Arup Das, Principal Judge, First Family Court, Calcutta in order to enable her to join her new assignment in the post of Additional District & Sessions Judge, Paschim Midnapore by 31st January, 2004. 8.6 On 27th January, 2004, a certificate was issued from Notary Narayana Sankara Nethralaya advising the petitioner for regular check up after her last check up on 10th of January, 2004. On 30th January, 2004, the petitioner moved the writ petition in which the order of transfer was stayed till 27th January, 2004. An appeal against the said order before the Division Bench was disposed of on 19th February, 2004 on the expectation that the writ petition would be disposed of very soon. The writ petition was heard by the learned Single Judge on several days in between 25th February, 2004 and 7th July, 2004 and the judgment was delivered on 15th of October, 2004, quashing the order of transfer, directing reconsideration of the representation of the writ petitioner/respondent and till such reconsideration, she should be allowed to remain in her present posting till she retires on 31s' August, 2005 in the event no other alternative was possible." The pleadings : Ground of challenge: The scope :;