IN THE HIGH COURT OF ORISSA AT CUTTACK I.A. No. 2881 of 2021 in W.P.C. (OAC) No.4226 of 2011 Jagnyaseni Sahu …. Petitioner Mr. Adhiraj Behera, Proxy Counsel on behalf of Mr. Prafulla Kumar Rath, Advocate -versus- State of Odisha & Others …. Opposite Parties Mr. P.K. Mohanty, ASC CORAM: JUSTICE M.S. RAMAN ORDER 19.10.2022 I.A. No. 2881 of 2021 Order No. 01. 1. The Original Application No. 4226 of 2011 was filed before the State Administrative Tribunal, Cuttack Bench, Cuttack. After its abolition, the same has been transferred to this Court which is renumbered as WPC (OAC) No. 4226 of 2011. 2. C.P. No. 42(C) of 2012 converted to I.A. No. 2881 of 2021 has been filed by the Petitioner for implementation of order dated 30th November, 2011 in OA No. 4226(C) of 2011. 3. The Petitioner has filed this I.A under Section 11/12 of the Contempt of Courts Act, 1971 read with the Administrative Tribunals (Contempt Procedure) Rules, 1998, alleging that though the learned Odisha Administrative Tribunal while passing the order dated 30th November, 2011 in O.A. No. 4226(C) of 2011 disposed of with direction not to take coercive action, the Opposite Parties have been initiated // 2 // Page 2 of 5 disciplinary proceeding against the Petitioner for non-joining in the post on being transferred. 4. The order dated 30th November, 2011 passed in OA No. 4226(C) of 2011 reads thus:- “The Applicant, who is presently working as Constable, Sambapur. G.R.P. in the district of Sambalpur has filed this O.A. with a prayer to quash the order dated 14th November, 2011 (Annexure-2), whereby the applicant has been temporarily attached to Hdqr., GRP, Rourkela on administrative ground and for a direction to the respondents to allow the applicant to continue in GRP, Sambalpur. Heard Mr. M.K. Khuntia, learned counsel for the applicant and Mr. H. Kanungo, learned Govt. Advocate. Mr. Khuntia, learned counsel submits that in the garb of attachment the applicant has been transferred to Rourkela which is at distance of 300 K.Ms from his present place of posting. The impugned order of transfer of the applicant has been issued during the ban period. As per the transfer policy of the Government if in the interest of administrative or public exigencies the transfer is necessary, during the ban period then the transfer is to be made by the higher authority that the competent authority. So far as the applicant is concerned the respondent No.3, who is not competent to transfer the applicant, has transferred the applicant during the ban period by exceeding his jurisdiction. The niece of the applicant is staying with the applicant and she is prosecuting her studies at the present place of posting of the applicant. If the said order of transfer is given effect to in the mid academic session, the studies of niece of the applicant will be hampered, so also the applicant will be highly prejudiced and shall suffer irreparable loss. In hat view of the matter, if at this stage the O.A. is disposed of with a direction to the D.I.G. of Police (Personnel), Orissa, Cuttack/respondent No.2 to consider the grievance of the applicant as has been made in this O.A., // 3 // Page 3 of 5 treating the contents of the O.A. as her representation and dispose of the same within a stipulated period, giving interim protection to the applicant, the grievances of the applicant shall be fully moved out. Mr. Kanungo, learned Advocate submits that transfer is an incident and essential condition of service, which does not adversely affect the status or emoluments or seniority of the employee. This being within the exclusive domain of the employer, the Tribunal need not interfere in the matter of transfer. Since the Government instructions on transfer are mere guidelines without having any statutory force, only if the order of transfer is found to be in contravention of the statutory Rules or there is mala fide, so also that the contempt authority has not passed the order of transfer, then only Court can interfere in the matter. However, the O.A. may be disposed of on the basis of the submission made by the learned counsel for the applicant without any observation on merits of the case. Considering the submission made by the learned counsel for both the parties and after going through the contents of the O.A., keeping in view of the fact that transfer is an incident and essential condition of service, which does not adversely affect the service condition or salary/emolument or promotional prospects of an employee and an employee has no vested right to get a posting at a particular place and it being within the exclusive domain of the employer to determine as to at what place and how long the services of an employee is required at a particular place, and that no mala fide has been proved and the only allegation made by the applicant in this O.A. is relating to her personal inconvenience and the Government guidelines on transfer are only instructions, without having statutory force, under such circumstance I am not inclined to entertain the prayer as has been made by the applicant in this O.A. The O.A. is accordingly disposed of. However, this order shall not be a bar for the respondent No.2 to consider the grievances of the // 4 // Page 4 of 5 applicant as has been made this O.A., treating the averments made in the O.A. as a part thereof and dispose of the same within a period of two weeks from the date of communication of this order along with copy of the O.A. and communicate his decision to the applicant immediately thereafter. Till disposal of the representation of the applicant, no coercive action be taken against the applicant. In the meantime, if the applicant has already been relieved, she is at liberty to joint in her new place of posting, if she so decides, which will abide by the decision taken by the Respondent No.2 on her representation. Respondent No.2 is at liberty to take his independent decision in the matter on its own merit and dispose of the representation of the applicant in accordance with law, for which the Tribunal expresses no opinion. Order be communicated to all the respondents along with the paper books at the cost of the applicant forthwith.” 5. Perusal of said order reveals that the Original Application praying therein to quash the order of transfer dated 14th November, 2011, was not entertained by the Odisha Administrative Tribunal. 6. In the considered view of this Court, mere initiation of disciplinary proceeding would not tantamount to taking coercive action. 7. This Court does not find any wilful disobedience of the order of the Odisha Administrative Tribunal particularly so when the Original Application itself is not entertained by the Odisha Administrative Tribunal. Faced with the above situation, at this juncture, Mr. Adhiraj Behera, proxy counsel appearing on behalf of Mr. Prafulla Kumar Rath, counsel for the Petitioner sought permission to withdraw the contempt petition being I.A. No. 2881 of 2021. // 5 // Page 5 of 5 8. Accordingly, the I.A. No.2881 of 2021 stands disposed as prayed for. (M.S. Raman) Judge Laxmikant