Smt. Bonani Ghosh vs Union Of India And Another
2009 Latest Caselaw 666 Del

                              Unreportable

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P.(C) No. 364/2009

%
                                       Decided on : 26.02.2009

SMT. BONANI GHOSH
                                                . . . Petitioner

               through :        Mr. M. L. Lahoty with
                                Mr. Paban K. Sharma,
                                Advocates

               VERSUS

UNION OF INDIA & ANOTHER
                                                . . . Respondents

               through         Mr. H. K. Gangwani, Advocate


CORAM :-
    THE HON'BLE MR. JUSTICE A.K. SIKRI
    THE HON'BLE MR. JUSTICE SURESH KAIT

       1.      Whether Reporters of Local newspapers may be allowed
               to see the Judgment?
       2.      To be referred to the Reporter or not?
       3.      Whether the Judgment should be reported in the Digest?

A.K. SIKRI, J. (ORAL)

The petitioner herein is working as the Commissioner of Income

Tax. Her last posting was in Siliguri. It seems that due to some

complaints against her, the respondent decided to transfer her to

some other place. Initially, the Placement Committee submitted the

proposal for her transfer to ITAT, Kolkata, where her conduct could

be watched by her superiors. However, it was not agreed upon by

the Finance Minister, to whom the file was put up, and he suggested

her transfer to a non-sensitive place. On this advice, the Placement

Committee recommended her transfer to Calicut in Kerala. Transfer

orders were accordingly issued. The petitioner challenged these

transfer orders by filing OA in the Central Administrative Tribunal,

Principal Bench, New Delhi.

W. P. (C ) No. 364/2009 1 of 4

2. The petitioner had relied upon the Transfer Policy Para 10.3

thereof which would be attracted in a case like this, stipulates that

when some complaints are made against an officer, she would not

normally be posted or remained posted at the station. Further, it

would be in those cases where the vigilance matter is not closed and

CVC has conducted initiation of vigilance proceedings. In such cases,

the officer is not to be given sensitive charge as well. Submission of

the petitioner before the Tribunal was that her case was not covered

by Clause 10.3 as there was no recommendation of the CVC to initiate

vigilance proceedings. It was also argued that even if the

circumstances justified her posting to a non-sensitive place, and on

that ground the Finance Minister did not agree with the proposal

about her posting to Kolkata, there was no reason to transfer her to a

far-flung place like Calicut. The Tribunal found some merit in these

arguments and in these circumstances vide its order dated 6.1.2009,

while disposing of the said OA, directed the respondents to consider

the case of the petitioner, in consultation with CBDT as to whether

case of the petitioner would be covered by Clause 10.3 of the Transfer

Policy and also to keep in mind that the Finance Minister had only

directed that the petitioner should not be posted to Kolkata and

therefore it should be considered as to whether she can be posted to a

nearby place particularly, having regard to the personal difficulties of

the petitioner.

The petitioner has filed this writ petition against that

order as according to the petitioner when the case was covered by

Clause 10.3, transfer order should have been set aside by the

Tribunal. When this case came up for hearing on 21.1.2009, while we

directed the respondents to consider the case of the petitioner in the

light of aforesaid observations of the Tribunal, without prejudice to

the contention of the petitioner herein in this writ petition. Counter

W. P. (C ) No. 364/2009 2 of 4 affidavit is filed by the respondents along with which copy of the

orders dated 11.2.2009 is annexed. This order is passed by the

competent authority, i.e. Department of Revenue, Ministry of Finance,

Government of India. As per this order, the request of the petitioner

has been rejected. On going through the order, we find that transfer

order is said to be justified on various grounds and particularly,

having regard to the serious vigilance complaints against the

petitioner and her conduct, namely, trying to bring in outside

pressure. However, at the same time the parameters on which her

case was to be considered as per the directions of the Tribunal have

not been examined.

3. Following position emerges which is not in dispute:

(a) The petitioner is permanent resident of Kolkata. She was

posted in Siliguri before her transfer, which is not far away from

Kolkata. The first proposal was to transfer her to Kolkata, i.e. her

native place. However, that was not feasible.

(b) Petitioner's son is studying in VIIIth standard. Her husband is

also suffering from chronic kidney disorder as well as heart ailment.

She is the only support to her son as the movements of her husband

are restricted because of his aforesaid illness.

(c) It has not been pointed out till date as to whether CVC has

recommended initiation of vigilance case against her.

4. In the aforesaid circumstances, even if we proceed on the basis

that the petitioner is to be transferred from Siliguri, it would be

appropriate that she is posted to a nearby station in a non-sensitive

post. We are informed that the department has asked for the option

of the petitioner on 18.2.2009 and she has already given her options.

In these circumstances, it would be apposite for the respondents to

consider her posting at one of the places opted by her and if that is

not possible, to another place in the same region. If necessary, matter

W. P. (C ) No. 364/2009 3 of 4 can be placed before the Finance Minister for taking approval in this

behalf. Necessary orders shall be passed within two weeks from the

receipt of copy of this order.

5. Writ petition stands disposed of in the aforesaid terms.

6. Dasti to both the parties.

(A.K. SIKRI) JUDGE

(SURESH KAIT) JUDGE FEBRUARY 26, 2009 rb

W. P. (C ) No. 364/2009 4 of 4