The court emphasized that transfer orders can only be challenged if they exhibit malice or violate statutory provisions, and the burden of proof lies with the party alleging malice.

ORDER :

Nandita Chatterjee, Member (A)

1. The applicant has apprehension Tribunal second stage litigation in a sequel to O.A. No. 351/00429/2018. The said O.A. was disposed of by the Tribunal on 28.3.2018 and the respondent authorities had issued a speaking order in compliance thereof. The instant Original Application has been filed primary assailing the speaking order dated 19.7.2018 and the transfer order dated 13.3.2018.

2. Heard both learned Counsel, examined pleadings and documents on record. Learned Counsel for the respondents would refer to orders of this Tribunal in O.A. No. 351/00695/2018 [Ved Prakash Mishra v. A & N Admn.] in their support.

3. The applicant's case, as submitted through her learned Counsel, is that the applicant had joined as GTT/PGT under the Directorate of Education in 1985 and her last posting was at SSS, Manglutan, South Andaman, Port Blair from 1.8.2017. That, a transfer order had been issued on 13.3.2018, barely seven months after the applicant had been posted as Vice Principal, SSS, Manglutan, South Andaman, Port Blair to SS Mus, Car Nicobar (Zone II) which is a remote posting and that the applicant has only 4 years of service left prior to superannuation.

That, although the respondents had issued a reasoned order, it was issued by an incompetent authority and the said order was nor formally served upon the applicant. Challenging the said reasoned order, however, the applicant has filed the instant Original Application.

The applicant has advanced the following grounds, inter alia, in support of her claim:-

(a) That the reasoned order was issued by an incompetent authority as, despite the Tribunal's directions that the respondent No. 2 namely the Chief Secretary was to consider the case of the applicant, the order was issued by another authority.

(b) The reasoned order is a product of malice in law and malice in fact.

(c) The order so impugned is a product of extraneous considerations.

(d) The applicant has not completed even half the existing tenure at Port Blair but was transferred within seven months therefrom.

(e) That the junior most of 'B' officers are holding higher posts in the Education Department of the A & N Administration.

Learned Counsel would also submit that the applicant's child is studying in Class XI, her spouse is posted in a non-transferrable post at Port Blair and also that the applicant could not have been posted earlier in Car Nicobar (Zone II) as there was no Bengali Medium School therein and hence cannot be penalized with a posting to the said remote zone at the fag end of her service career.

4. Per contra, the respondents have argued that the speaking order has indeed been issued in terms of the orders of the Tribunal on 28.3.2018 and is based on guidelines of the respondent authorities. The respondents would further contend that the applicant was relieved on 30.7.2018, and as the speaking order has been annexed in the instant Original Application and challenged upfront, receipt and knowledge of the same cannot be denied at this stage.

The respondents would further agitate that the applicant's tenure profit vis-à-vis the mandated profits, under the transfer policy of the respondents, requires that the applicant be transferred to the Zone II where she had never served and that her transfer was based absolutely on Station seniority. Regarding the spouse ground, the respondents would refer to sub-para 2 (viii) of the prevalent transfer guidelines which states that considering a large number of teachers have their spouses working in non-transferable Govt. Service at Port Blair, tenure would be reduced to half the tenure fixed for other categories and teachers in different zones and their cases of transfer back to earlier posting or to other zones can be considered only after they have completed half the tenure for zone (subject to completion of academic session) and hence, as the applicant has never-served Zone II the question of her completion of half the tenure or, retention at Port Bl