P.S. Wangoi vs The Union Of India Represented By ...
2022 Latest Caselaw 413 Mani

                  Digitally signed by
SHAMURAILATPA     SHAMURAILATPAM SUSHIL

M SUSHIL SHARMA   SHARMA
                  Date: 2022.09.16 10:26:30 +05'30'                        Page |1



                                IN THE HIGH COURT OF MANIPUR
                                          AT IMPHAL

                                          WP(C) No. 674 of 2022

                        Smt. Sujata Seleibam, aged about 42 years, W/o Th.

                        Nishikanta Singh of Narankonjin Mayai Leikai, P.O. &

                        P.S. Wangoi, District-Imphal West, Manipur-795008.

                                                                    ---Petitioner

                                                -Versus-

                        1. The Union of India represented by its Secretary,

                             Ministry of Human Resource and Development,

                             Shastri Bhawan, C. Wing, Dr. Rajendra Prasad

                             Road, New Delhi-110001.


                        2. The Commissioner, Navodaya Vidyalaya Samiti,

                             Department of School Education & Literacy, Govt.

                             of India, B-15, Institutional Area, Sector 62, Noida,

                             District Gautam Buddha Nagar, Uttar Pradesh-

                             201309.


                        3. The Deputy Commissioner (Pers.) Navodaya

                             Vidyalaya Samiti, B-15, Institutional Area, Sector-




              WP(C) No. 674 of 2022
                                                              Page |2



            62, Noida, District Gautam Buddha Nagar, Uttar

            Pradesh-201309.


       4. The Deputy Commissioner, Navodaya Vidyalaya

            Samiti, Regional Office, Temple Road, Barik Point,

            Lachumiere, Shillong-793001.


       5. The Principal, Jawahar Navodaya Vidyalaya,

            Bishnupur, Manipur-795126.


       6. The Principal, Jawahar Navodaya Vidyalaya,

            Dhemaji, Assam-787057.

                                                ---- Respondents

BEFORE HON'BLE MR. JUSTICE M.V. MURALIDARAN

For the Petitioners :: Mr. O. Kiranjit, Advocate.

For the Respondents         ::        Mr. S. Samarjeet, Sr.PCCG
                                      Mr. BR Sharma, Sr.PCCG

Date of Hearing and
reserving Judgment & Order ::         23.08.2022

Date of Judgment & Order         ::   14.09.2022

                      JUDGMENT AND ORDER
                            (CAV)

By consent the main writ petition itself is taken up

for final hearing at the admission stage.

WP(C) No. 674 of 2022 Page |3

2. The writ petition has been filed to quash the

impugned transfer order dated 18.7.2022 and to direct the

respondents to allow the petitioner to continue at her present

place of posting i.e. Jawahar Navodaya Vidyalaya, Bishnupur.

3. Heard Mr. O. Kiranjit, learned counsel for the

petitioner and Mr. S. Samarjeet, the learned Central

Government Standing Counsel for the respondents.

4. The case of the petitioner is that she was presently

working as a Trained Graduate Teacher (English) in Jawahar

Navodaya Vidyalaya, Bishnupur and is staying at her quarters

inside the JNV, Bishnupur along with her minor daughter and

husband. On 31.8.2017, the petitioner was transferred to JNV,

Dhemaji, Assam. Challenging the said transfer order, she had

filed O.A.No.042/00278 of 2017 before the Central

Administrative Tribunal, Guwahati Bench, Guwahati and

pursuant to the interim order, her transfer was stayed.

However, the OA was dismissed for default due to non-

prosecution. After coming to know the dismissal of the OA, the

petitioner had filed restoration application in MA.No.53/2022

and 54/2022 and the same are pending before the Tribunal.

While so, taking advantage of the dismissal of the OA, the

WP(C) No. 674 of 2022 Page |4

impugned order came to be issued, which is challenged in the

writ petition.

5. Assailing the impugned order, Mr. O. Kiranjit, the

learned counsel for the petitioner submitted that the impugned

transfer order as well as the relieving order dated 20.7.2022 are

de hors the Office Memorandum dated 30.9.2009 regarding

spouse posting at the same station and that the petitioner and

her husband, who was serving as Lecturer at the Roal Academy

of Law, Oinam, Bishnupur are entitled to spouse posting at the

same station at the present place of posting at JNV, Bishnupur

or at a nearby station in terms of the aforesaid Office

Memorandum. He submits that the act of the respondents in

transferring and relieving from her present place of posting has

displaced the petitioner and separated from her spouse and

children in violation of the Office Memorandum dated 30.9.2009

and also the Transfer Policy, 2021.

6. The learned counsel further submitted that the

petitioner and her husband are undergoing IVF treatment since

2019 as per the advice of the Doctors. Further, under the ATD

2022, the petitioner can apply and can exercise her option of

choosing station of her choice and, as such, she opted at JNV,

WP(C) No. 674 of 2022 Page |5

Khumbong. However, the said request of the petitioner was not

considered. Aggrieved by the impugned transfer order as well

as the relieving order, the petitioner had submitted a

representation on 11.8.2022 and the same has not been

considered till date.

7. The learned counsel urged that the petitioner has

not even been given a chance to redress her grievance against

the impugned transfer order dated 18.7.2022 and that the act of

the respondent authorities is totally arbitrary, irrational and

violative of Articles 14, 16 and 21 of the Constitution of India.

Thus, a prayer is made to quash the impugned transfer order

and allow her to work in the present place of posting.

8. On the other hand, Mr. S. Samarjeet, the learned

Sr. PCCG for the respondents submitted that challenging the

transfer order dated 31.8.2017, the petitioner has filed OA

before the Tribunal and due to non-prosecution, the said OA

was dismissed for default on 23.7.2019 and that after passing

the order dated 23.7.2019, the impugned order directing her to

report for duty at the transferred place was issued. Therefore,

there is no arbitrariness in issuing the impugned order. He

submits that the restoration application, if any filed by the

WP(C) No. 674 of 2022 Page |6

petitioner will not affect the impugned order. The claim of the

petitioner that spouse posting at the same station has no basis.

Thus, a prayer is made to dismiss the writ petition.

9. This Court considered the rival submissions and

also perused the materials available on record.

10. The petitioner challenged the impugned transfer

order on two grounds, namely (a) Her application for restoration

of O.A.No.042/00278 of 2017, which was dismissed for default,

is pending consideration before the Central Administrative

Tribunal, Guwahati Bench and (b) She is entitled to serve in

Bishnupur as per Office Memorandum dated 30.9.2009 since

her husband is serving in Bishnupur.

11. As could be seen from the records, in the year

2017, the petitioner was transferred to JNV, Dhemaji, Assam

vide order dated 31.8.2017. Aggrieved by the said transfer

order, she has filed O.A.No.042/00278 of 2017 before the

Central Administrative Tribunal, Guwahati Bench and obtained

stay of the transfer order. According to the petitioner, the said

OA was dismissed for default and she had filed application for

WP(C) No. 674 of 2022 Page |7

restoration of the same and the same is pending before the

Tribunal.

12. It appears that O.A.No.042/00278 of 2017 was

originally dismissed for default on 10.10.2018 and was restored

on 19.12.2018. Thereafter, when O.A.No.042/00278 of 201

was listed on several occasions, the petitioner has not shown

any interest in prosecuting the case, which resulted in the

dismissal of her OA for default again on 23.7.2019. As against

the dismissal of the OA in the year 2019, the petitioner has filed

application for restoration only in the year 2022, which itself

shows her lethargic attitude in prosecuting the case. Indeed,

after the dismissal of O.A.No.042/00278 of 2017 for default, the

respondent authorities should have passed an order to effect

the transfer order dated 31.8.2017. However, the respondent

authorities failed to do so and only in the year 2022, they have

issued the impugned order, thereby directing the petitioner to

report at her place of transfer at JNV, Dhemaji, Assam and

accordingly relieving order was also issued on 20.7.2022. This

Court finds that the said action of the respondent authorities

warrants no interference and also there is no arbitrariness in

issuing the impugned order. Naturally, if the OA challenging

WP(C) No. 674 of 2022 Page |8

the transfer is dismissed, the authorities will give effect to the

transfer order by issuing another order and in that line only the

respondent authorities issued the impugned order. This Court

finds no infirmity in it.

13. At this juncture, by placing reliance upon the order

of this Court dated 4.8.2022 passed in W.P.(C) No.610 of 2022,

the learned counsel for the petitioner submitted that since the

Tribunal is not functioning and the restoration application filed

by the petitioner is pending before the Tribunal and also

adjourned without any next date of hearing, the petitioner has

invoked the jurisdiction under Article 226 of the Constitution of

India. Therefore, the impugned order is liable to be set aside.

14. This Court perused the order passed in W.P.(C)

No.610 of 2022 wherein the OA was filed in the year 2022 and

after considering the pendency of the said OA and after holding

that the writ petition by invoking Article 226 of the Constitution

of India is not at all maintainable on the ground that the

petitioner therein approached the Tribunal and filed O.A.No.167

of 2022, this Court dismissed the writ petition. However,

directed the authorities not to give effect of the movement order

for a period of 15 days from 4.8.2022. Here, it is a case where

WP(C) No. 674 of 2022 Page |9

the earlier OA preferred by the petitioner was dismissed for

default and after the dismissal, the impugned order came to be

passed. Therefore, in facts and circumstances of the case, the

order in W.P.(C) No.610 of 2022 relied on by the petitioner is

not applicable to this case.

15. Coming to the ground taken by the petitioner to

question the impugned order that transfer of spouse to be

treated as in public interest as it reflects the policy of the

Government manifested through the Office Memorandum

issued by the DoPT and the alleged displacement of the

petitioner and the breaking their spouse posting is violative of

public interest canvassed by the petitioner is concerned, there

is no merit in the said submission.

16. Since this Court is of the opinion that there is no

arbitrariness in issuing the impugned order after dismissal of the

OA preferred by her, the challenge made on the ground of

violation of DoPT's mandate of spouse posting is not

sustainable. Only to get the impugned order not to give effect,

the petitioner has taken said ground and there is no bonafide in

it. Therefore, this Court is of the view that there is no violation

of any of the mandate of spouse posting by the respondent

WP(C) No. 674 of 2022 P a g e | 10

authorities. On the other hand, the working capacity of the

petitioner's husband as Lecturer in Royal Academy of Law is an

un-aided College.

17. That apart, merely because the restoration of

application of the petitioner is pending before the Central

Administrative Tribunal, she cannot entitled to get the order

impugned set aside. Since the original order of the transfer is

of the year 2017, the petitioner is duty bound and as per the

service conditions, she has to obey the order.

18. For the foregoing discussions and finding no merit

in the writ petition, the same is dismissed. No costs.

JUDGE

FR/NFR

Sushil

WP(C) No. 674 of 2022