PRANAB KUMAR MUKHERJEE Vs. STATE OF WEST BENGAL
HIGH COURT OF CALCUTTA
PRANAB KUMAR MUKHERJEE
STATE OF WEST BENGAL
Referred Judgements :-
DIRECTOR OF SCHOOL EDUCATION,MADRAS AND ORS. V. O. KARUPPA THEVAN AND ANR.
PRABHU NATH SINGH V. UNION OF INDIA AND ORS.
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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 mid academic 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 of the employer by filing an appropriate representation wherein a contention can be raised that such order of transfer has been passed in violation of such guide lines, Reference in this connection may be made to AIR 1981 SC 1433; AIR 1981 SC 1477(1993-II-LLJ-626) (SC); (1995-I-LLJ-854) (SC) and the recent deci sion of this Court in C.O No. 1714 (W)/94, Prabhu Nath Singh v. Union of India and Ors., disposed of on February 16, 1995.
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