IMPORTANT POINT
The court established that transfer policies, while important, do not confer absolute rights against transfer, and administrative discretion under statutory authority prevails.

JUDGMENT :

DEBANGSU BASAK, J.

1. Appellant has assailed the judgment and order dated December 21, 2022 passed in WPA 19024 of 2022 dismissing the writ petition of the appellant.

2. Learned advocate appearing for the appellant has submitted that, the appellant is working as Office Superintendent under the West Bengal Board of Secondary Education. As employee of the Board, appellant is governed by the Office Order dated March 23, 2007 which is the transfer policy for the officers and employees of the Board.

3. Learned advocate appearing for the appellant has contended that, although, the transfer policy cannot be said to have statutory flavour, nonetheless, such transfer policy is required to be taken into consideration by the Administration while issuing an order of transfer in respect of officers and employees of the Board.

4. Referring to the facts of the present case, learned advocate appearing for the appellant has contended that, appellant has crossed the age of 52 years. Since appellant has crossed the age of 52 years, appellant should not have been transferred from his post at Kolkata. Moreover, appellant has to look after his ailing mother and that, the medical condition of the ailing mother of the appellant is such that, she cannot be moved out from Kolkata.

5. Learned advocate appearing for the appellant has referred to the last paragraph of the transfer policy and contended that, powers under Section 28 (3) (c) of the West Bengal Board of Secondary Education Act, 1963 is required to be exercised subject to the transfer policy. He has referred to the order of transfer dated August 17, 2022 and contended that, the same was not issued by the President of the Board. He has also pointed out that, such transfer order does not refer to the transfer policy nor does it appear that, the transfer policy has been considered by the Administration while issuing such order of transfer. He has contended that, since the transfer policy was framed by the Board, the same cannot be flouted by the Board. Previous exercise of powers under Section 28 of the Act of 1963 or previous orders of transfer de hors the transfer policy and no challenge being thrown with regard thereto are of no consequence.

6. In support of his contentions that, since there exist a transfer policy, the same has to be taken into consideration by the authorities, although such transfer policy may not have statutory flavour, learned advocate for the appellant has relied upon 2022 (14) SCC 187 (Ms. X vs. Registrar General, High Court of Madhya Pradesh and Another) and 2008 (14) SCC 370 (Punjab National Bank by Chairman and Another vs. Astamija Dash).

7. Referring to order dated May 21, 2024, learned advocate appearing for the appellant has submitted that, original file was required to be produced by the respondent authorities. He has referred to a writing dated August 17, 2022 containing the signature of the President relating to placement of service. He has contended that, such a writing cannot be construed to be grant of approval by the President in terms of the transfer policy or under Section 28 of the Act of 1963.

8. Learned Advocate General appearing for the Court has referred to the transfer policy and contended that, the same cannot be said to be imbibed with any statutory flavour. No mala fide has been alleged as against the Board and therefore, the question of proving the same by the appellant does not arise. In absence of the transfer order being in violation of a statute or being issued mala fide, Writ Court should not interfere with the transfer order. In support of such contention, he has relied upon AIR 1991 SC 532 (Shilpi Bose and Others vs. State of Bihar and Others) and 1993 (4) SCC 357 (Union of India and Others vs. S.L. Abbas).

9. Learned Advocate General appearing for the Board has referred the conduct of the appellant. He has submitted that, the appellant obtained an interim protection in the appeal. Against such order, a special leave petition was filed. S