Natabar Pal vs The Food Corporation Of India And 5 ...
2022 Latest Caselaw 890 Gua

                                                                    Page No.# 1/5

GAHC010050582022




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WP(C)/1858/2022

         NATABAR PAL
         S/O LATE SRI MADHUSUDAN PAL, R/O F.C.I. GUEST HOUSE, H.N. NO. 180,
         RAJGARH ROAD, DIST- KAMRUP(M), PIN-781007, ASSAM

         VERSUS

         THE FOOD CORPORATION OF INDIA AND 5 ORS
         REPRESENTED BY THE CHAIRMAN AND MANAGING DIRECTOR, 16-20,
         BARAKHAMBA LANE, NEW DELHI-110001

         2:THE CHIEF GENERAL MANAGER (PE)
          FCI
          HEADQUARTERS
          16-20
          BARAKHAMBA LANE
          NEW DELHI-110001

         3:THE GENERAL MANAGER (PE)
          FCI
          HEADQUARTERS
          16-20
          BARAKHAMBA LANE
          NEW DELHI-110001

         4:THE EXECUTIVE DIRECTOR (PERS)
          FCI
          HEADQUARTERS
          16-20
          BARAKHAMBA LANE
          NEW DELHI-110001

         5:THE ASSISTANT GENERAL MANAGER (PERS.)
          FCI
          G.S. ROAD
                                                                                    Page No.# 2/5

             GUWAHATI-781007
             ASSAM

            6:M.S. BHULLAR
             C/O FCI
             HEADQUARTERS
             16-20
             BARAKHAMBA LANE
             NEW DELHI-11000

Advocate for the Petitioner   : MR. U K NAIR

Advocate for the Respondent : SC, F C I




                                           BEFORE
                 HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                            ORDER

14-03-2022

(1) Heard Mr. U. K. Nair, learned Senior counsel assisted by Mr. K. P. Pathak, learned counsel for the petitioner and Mr. K. Agarwal, learned Senior counsel, assisted by Mr. V. Singh, appearing for the Food Corporation of India (FCI).

(2) Mr. U. K. Nair submits that the petitioner is presently serving as a General Manager of Food Corporation of India (FCI) Zonal Office (NE) at Guwahati since November, 2019. He submits that as per the Transfer Policy of the FCI, an Officer serving in NE Zone for 2 years or in other difficult stations, are allowed to choose their place of postings as per their preference, pursuant to the Circular No.EP-03-2021-06 dated 22.03.2021.

(3) The petitioner's counsel submits that the petitioner had requested the respondents vide letter dated 11.01.2021 that he should be transferred to the Odisha Region or the Zonal Office (East), Kolkata for his next place of posting in terms of the earlier Transfer Policy reflected in the Circular dated 12.02.2014. As per the Transfer Policy issued vide Circular dated 12.02.2014, an Officer serving in the N.E. Zone or in other difficult stations for one year, was allowed to choose their place of postings and as per their preference.

The petitioner's counsel submits that the Transfer Policy also provides that employees Page No.# 3/5

whose children are studying in Class X or XII would be exempted from transfer for a period of one year.

(4) The petitioner's counsel submits that though the petitioner had made his choice of posting in terms of the Circular dated 12.02.2014, the Circular dated 22.03.2021 came into force 2 months after the petitioner had made his request for choice posting. The petitioners choice posting was not considered and the respondent authorities have transferred the petitioner to Kerala vide the impugned order dated 28.02.2022. Though the petitioner preferred a representation on 01.03.2022, against the impugned transfer order dated 28.02.2022, the Assistant General Manager (Personal) has issued the impugned Office Order No. 63/2020 dated 09.03.2022, whereby the petitioner is to be relieved from his post from FCI (NE) Guwahati w.e.f. the afternoon of 14.03.2022.

(5) The petitioner's counsel submits that action of the respondent authorities is arbitrary, illegal and malicious. He submits that the respondent authorities have revised transfer orders time and again, to allow officers to be transferred to a station of their choice, which has been denied to the petitioner. He also submits that as one of his children is studying in Class X, the petitioner should not be moved from his present place of posting. The petitioner's counsel thus prays that the impugned transfer order and relieving order should be set aside.

(6) Mr. K. Agarwal, learned Senior counsel, appearing for the respondent FCI, submits that the petitioner's sons are studying in the State of Odisha and not in Guwahati. He further submits that the petitioner has been relieved from his post this afternoon and the respondent No.6 has joined the petitioner's post. He further submits that 6 persons had given their choice of postings, which included the petitioner, which is reflected in the letter dated 21.01.2021 (Annexure F) issued by the Assistant General Manager (Personal) FCI. Out of those 6 persons, only 2 persons have been given postings in their choice place of posting, while 4 persons, including the petitioner, have not been transferred to their choice place of posting. He further submits that the petitioner can only be considered for posting to his choice place of posting and he has no absolute right to be posted to his choice place of posting in terms of the Transfer Policy. He also submits that there is no malafides involved in the posting of the petitioner to Kerala.

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(7) The counsel for the FCI submits that a Government Servant cannot disobey a transfer order and in terms of the judgment of the Hon'ble Supreme Court in the case of S.C. Saxena Vs. Union of India reported in (2006) 9 SCC 583, a Government Servant would have to first report to his place of posting and then file a representation with regard to his grievances against the transfer order. He submits that the Hon'ble Apex Court frowned upon the habit of Government Servants challenging the transfer order before the Courts in the first instance. He accordingly submits that this writ petition should be dismissed.

(8)    I have heard the learned counsels for the parties.

(9)    Though the earlier Transfer Policy of the FCI dated 12.02.2014 provided that Officers,

who had served in the North East Region for 1 year or in other difficult stations are allowed to chose their next place of posting as per their preference, the period of 1 year was raised to 2 years in terms of subsequent Transfer Policy vide Circular dated 22.03.2021. The petitioner opted for Odisha Region and Zonal Office (East) vide letter dated 11.01.2021. However, as can be seen from the impugned Office Order dated 28.02.2022, the petitioner's request has not been granted and he has been posted to Regional Office, Kerala. The petitioner thereafter, filed a representation on 01.03.2022 to the respondent No.1 requesting the respondents to retain him in the NE Zone against the vacancy of Nagaland or to transfer him to Zonal Office, Noida or FCI Headquarters, so that he could maintain a balance between his personal and professional life. It may be reflected here that the petitioner's family is staying in Odisha, where his children are also studying.

(10) The Apex Court in the case of S.C. Saxena (supra) has held that a Government Servant cannot disobey a transfer order, by not reporting at the place of posting and go to a Court to ventilate his grievances. It is his duty to first report for work where he is transferred and make a representation as to what may be his personal problems. The Apex Court further held that the tendency of not reporting at the place of posting and indulging in litigation needs to be curbed.

(11) In the present case, the transfer policy of the FCI clearly shows that while the petitioner could submit his preferred place of posting, there is nothing in the transfer policy to show that the employee has to be posted in the said preferred place of posting. The Transfer Page No.# 5/5

Policy states that the respondents "may" be posted to his choice/preference place of posting subject to administrative convenience. There is nothing to show that the transfer has been affected by malafides or that it is not in public interest.

(12) In the present case, the counsel for the FCI has shown the photograph of the document, which shows that the respondent No.6 has taken the charge of the petitioner's post in Guwahati today.

(13) Further in view of the decision of the Hon'ble Apex Court in the case of S.C. Saxena (supra), this Court is of the view that the petitioner would have to first join his new place of posting and thereafter submit a representation with regard to his personal problems. However, in view of the fact that the petitioner's representation dated 01.03.2022 has not been disposed of by the respondent No.1, the respondent No.1 is directed to consider the petitioner's representation dated 01.03.2022 and take a decision on the same within a period of 10 days, from the date of receipt of a certified copy of this order.

(14) Writ petition is accordingly disposed of.

JUDGE

Comparing Assistant