JUDGMENT
Pradip Mohanty, J.
1. In this writ application, the Petitioner challenges the order dated 03.10.2001 passed in O.A. No. 474 of 1999 by the Central , Administrative Tribunal, Cuttack Bench. The O.A. was filed against the order of transfer of the present Petitioner dated 09.08.1999 vide Annexure 1 to the writ petition. The Tribunal, however, did not find any merit in the O.A. and dismissed the same.
2. The case of the Petitioner is that she was working as a primary teacher in Kendriya Vidyalaya, Balasore with effect from 25.10.1983. The transfer order dated 09.08.1999 was issued on the ground of surplus. She made representations to all authorities concerned for not giving effect to the said order on medical ground. In her representations, she averred that her juniors had not been transferred. Further case of the Petitioner is that another teacher, namely, Gayatri Prasad, who was also transferred along with her, made a representation and her case was considered favourably by the authorities whereas the Petitioner’s case was rejected.
3. The case of the opposite parties is that the Petitioner along with other teachers were found surplus due to reduction in roll strength in Kendriya Vidyalaya, Balasore. In accordance with the policy adjusting the surplus, the Petitioner could not be adjusted within the State of Orissa and was transferred to the nearest Kendriya Vidyalaya, AFS, Salua. The Petitioner was declared surplus along with other two teachers of the same school. One Gayatri Prasad, who was transferred along with the Petitioner made a representation to the authority to retain her at Balasore on compassionate ground as her son was totally blind and was reading in B.A. 2nd year in F.M. College, Balasore. The competent authority taking a sympathetic view of the total blindness of the son of Gayatri Prasad allowed her to remain at Kendriya Vidyalaya, Balasore and in her place declared the next senior-most teacher, namely, Sadananda Sahoo, as surplus. The Petitioner assailed the transfer order before the Central Administrative Tribunal, Cuttack Bench in O.A. N.o.474 of 1999 and the Tribunal after hearing the parties by order dated 03.10.2001 rejected the O.A. with a finding that the Petitioner has not been able to make out a case for any relief. Against that order, the Petitioner has preferred this writ application.
4. Mr. Rath, Learned Counsel’ appearing for the Petitioner, assailed the impugned order of the Tribunal on the ground that the ratio decided by the Hon’ble Supreme Court in the cases of Ghaziabad Development Authority v. Sri Vikram Chaudhary ; and Air India Statutory Corporation v. United Labour Union ; have not been followed either by the transferring authority or by the Tribunal. He further submitted that the Kendriya Vidyalaya should follow the principle of “last come first go” settled by the Hon’ble apex Court. His further contention was that the Rashmirekha Mohapatra v. Com, Kendriya Vidyalaya Tribunal has overlooked the ailment and health condition of the Petitioner.
5. Mr. Ashok Mohanty, Learned Senior Counsel for the opposite parties, vehemently contended that the Petitioner was declared surplus along with two others. One Gayatri Prasad, senior to the Petitioner, was also transferred along with her. But she made a representation to the authorities on compassionate ground as her son was totally blind. Therefore, her case was considered on compassionate ground and she was allowed’ to continue at Kendriya Vidyalaya, Balasore. He further contended that during 2001-02, said Gayatri Prasad has been transferred and she has joined at Kendriya Vidyalaya No. 1, Bokaro on 05.12.2001. The Petitioner frequently availed leave throughout her service career and was’ negligent in performing her duty. She was continuing in the said post from 1983 till the impugned order of transfer was issued. As against the said order of transfer, she preferred O.A. No. 474 of 1999 along with an application for stay. Her prayer for interim stay having been rejected by the Tribunal, she approached this Court in OJC No. 12545 of 1999. By order dated 06.10.1999, although this Court stayed the impugned order of transfer, by then she had already been relieved. However, in view of the interim order of stay, the Petitioner was allowed to continue at Kendriya Vidyalaya, Balasore in spite of the fact that no post was available to accommodate her. Ultimately, the said writ petition was disposed of on 27.04.2001 directing the Tribunal to dispose of the O.A. before the summer vacation of that year. This Court also directed status quo to continue till disposal of the matter by the Tribunal. The Tribunal disposed ofthe O.A. on 03.10.2001 and the Petitioner was relieved on 09.10.2001. His further contention was that the Petitioner’s transfer was made according to the surplus adjustment policy floated by the Kendriya Vidyalaya Sangathan dated 23/24.07. 1996. He lastly con tended that the representation of Gayatri Prasad was allowed only for the time being. That apart, the Petitioner was not on the same footing as Gayatri Prasad.
Sic 7. Before adverting to the submissions made by the Learned Counsel for the Petitioner, it will be useful to take note of the law relating to the scope of interference in a writ petition filed under Article 226 of the Constitution assailing an order of transfer. In the case of Shilpi Bose v. State of Bihar AIR 1991 SC 532, the Appellants, who were lady teachers in primary schools, were transferred on their request to places where their husbands were posted. The contesting Respondents, who were displaced by the Appellants, challenged the validity of the transfer orders before the High Court by filing a writ petition under Article 226 of the Constitution, which was allowed and the transfer orders were quashed. The Apex Court allowed the appeal and set aside the judgment of the High Court by observing as under:
In our opinion, the Courts should not interfere with a transfer order which are made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department….
Similar view has been taken In National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan and Anr. (2001)8 SCC 574; and J.K. Bansal v. Union of India AIR 2005 SC 3341.
8. The detailed counter affidavit filed by the opposite parties clearly shows that it was a transfer order to adjust the surplus staff. Moreover, the Petitioner had already worked for a pretty long time at the station. The decisions referred to by the Petitioner are not applicable inasmuch as the point involved in them was regularization of service not for transfer. Considering the submissions made by the parties and applying the ratio decided in Shilpi Bose’s case (supra), this Court is of the view that there is no scope to interfere with the order of transfer of the Petitioner since transfer is an incident of service and is well within the domain of the administration. The Petitioner has not alleged any mala fide intention on the part of the opposite parties in passing the order of transfer. Therefore, the Tribunal rightly declined to interfere with the same.
9. For the foregoing discussions, we do not feel inclined to interfere with the order of the Tribunal. However, we would like to observe that it is open to the Petitioner to make a representation to the authorities to adjust her in a place where adequate medical facilities would be available to her. In case such a representation is filed, the authorities shall consider and dispose of the same in accordance with law on its own merit within three months of its receipt.
10. With the aforesaid observation and direction the writ petition is disposed of.
I.M. Quddusi, J.
11. I agree.