Chief Secretary Govt of West Bengal v. Amritpal Kaur & Ors.

8. In a recent judgment in the case of S K Nausad Rahaman & Ors. Vs. Union of India & Ors., reported in 2022 SCC Online SC 297, a similar issue arose and the Supreme Court has observed as under:- “...55. The State in the present case has been guided by two objectives: first, the potential for abuse of ICTs and second, the distortion which is caused in service leading to plethora of litigation. The State while formulating a policy for its own employees has to give due consideration to the importance of protecting family life as an element of the dignity of the person and a postulate of privacy. How a particular policy should be modulated to take into account the necessities of maintaining family life may be left at the threshold to be determined by the State. In crafting its policy however the State cannot be heard to say that it will be oblivious to W.P.(C) 8974/2023 Page 6 basic constitutional values, including the preservation of family life which is an incident of Article 21.

56. The circular dated 20 September 2018 has taken into account, what it describes “exceptional circumstances” such as “extreme compassionate grounds”. Leaving these categories undefined, the circular allows for individual cases to be determined on their merits on a case by case basis, while prescribing that transfers on a “loan basis” may be allowed subject to administrative requirements with a tenure of three years, extendable by a further period of two years. While proscribing ICTs which envisage absorption into a cadre of a person from a distinct cadre, the circular permits a transfer for a stipulated period on a loan basis. Whether such a provision should be suitably enhanced to specifically include cases involving:

(i) postings of spouses;

(ii) disabled persons; or

(iii) compassionate transfers, is a matter which should be considered at a policy level by the Board.

57. In considering whether any modification of the policy is necessary, they must bear in mind the need for a proportional relationship between the objects of the policy and the means which are adopted to implement it. The policy above all has to fulfil the test of legitimacy, suitability, necessity and of balancing the values which underlie a decision making process informed by constitutional values. Hence while we uphold the judgment of the Division Bench of the Kerala High Court, we leave it open to the respondents to revisit the policy to accommodate posting of spouses, the needs of the disabled and compassionate grounds. Such an exercise has to be left within the domain of the executive, ensuring in the process that constitutional values which underlie Articles 14, 15 and 16 and Article 21 of the Constitution are duly protected....”

9. It may be noted here that in the present case, the petitioner had already obtained a No Objection Certificate vide letter dated 20.08.2019 whereby the State of Haryana conveyed its W.P.(C) 8974/2023 Page 7 agreement for the transfer of the Respondent no. 1 to the Haryana cadre where his wife is posted as an IPS Officer. However, despite repeated requests, his representation has been turned down and a No Objection Certificate has not been granted by the State of West Bengal.

10. Keeping in view, the mandate of law as discussed above, the right to a healthy family life, to start a family and the right to parenthood have to be respected while balancing the careers and duties of the officers concerned. Time and tide wait for none. Child-bearing age for the young couple should not be irretrievably prejudiced by the non-grant of a relieving order for the officers to start their family. Compassion is expected from the State.

11. The urgency of the present case is of starting a family at present, which cannot wait indefinitely depending upon the decision of the concerned authorities.

12. The present writ petition along with the application is dismissed and the State of West Bengal is directed to relieve the respondent no. 1 within a period of three weeks from the date of receipt of a copy of this order. In the event of the respondent no.1 not being relieved within the aforesaid stipulated period, he shall be deemed to have been relieved by the virtue of this order.”

5. In fact, we find, this Bench has also in W.P.(C) No.3137/2023, titled State of West Bengal vs. Sagar and Anr., decided on March 15, 2023 of which a reference has been made by the Tribunal, has in Paragraph 9 stated as under: -

6. In view of the aforesaid position we are not inclined to interfere with the order passed by the Tribunal.

7. At this stage, learned counsel appearing for respondent No.1 would submit that Ministry of Home Affairs, Government of India has issued a notification dated May 18, 2023 whereby they have allowed the transfer of the respondent No.1 from West Bengal cadre to Odisha cadre on the ground of her marriage with Shri Amritpal Singh, IPS:OD:2021. She only requires a relieving order.

8. In any case, in view of our conclusion above, the writ petition is dismissed.

9. No costs.

V. KAMESWAR RAO, J

ANOOP KUMAR MENDIRATTA, J JULY 07, 2023