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2004 DIGILAW 1315 (ALL)

Hari Ram Tiwari v. State of U. P.

2004-07-21

DEVI PRASAD SINGH

body2004
JUDGMENT : DEVI PRASAD SINGH, J. 1. Heard the parties' counsel. 2. With the consent of parties' counsel, I proceed to decide the writ petition finally at admission stage. 3. Petitioner has been working on the post of Upper Division Clerk at Lucknow. The submission of the learned Counsel for the Petitioner is that by the impugned order, he has been transferred to Kheri. Further submission of the learned Counsel for the Petitioner is that epidemic disease may spread at Lucknow, hence, it is necessary that he may continue at the present place of posting on account of efficiency and dedicated service. In case, he is transferred, the function of the department may be adversely affected. Learned Counsel for the Petitioner had relied upon the interim order passed by this Court, a copy of which has been filed as Annexure-9 to the writ petition. I do not think that the interim order passed in another case by this Court, extends any assistance to the Petitioner as Petitioner has been working in Lucknow since June, 1996. 4. It is not for a Government servant to raise a plea that his transfer will adversely affect the functioning of the department. It is for the State Government to take step for the proper functioning of the department and employee have got no right to claim a particular post on the ground that his transfer will cause hardship to the public. 5. It has been settled by the Hon'ble Apex Court that normally, the transfer of order may be interfered only in case it has been passed with malice or there is violation of certain rules or regulations. 6. Hon'ble Supreme Court, in a case in State of Rajasthan and Others vs. Anand Prakash Solanki, (2003) 7 SCC 403 , Union of India and Others vs. S.L. Abbas, (1993) 4 SCC 357 and Public Services Tribunal Bar Association vs. State of U.P. and Others, (2003) 4 SCC 104 . 7. For convenience relevant portion from Apex Court judgment in the case of Public Service Tribunal (supra) is reproduced as under: 37. Transfer is an incident of service and is made in administrative exigencies. Normally, it is not to be interfered with by courts. This Court consistently has been taking a view that orders of transfer should not be interfered with except in rare cases where the transfer has been made in a vindictive manner. Transfer is an incident of service and is made in administrative exigencies. Normally, it is not to be interfered with by courts. This Court consistently has been taking a view that orders of transfer should not be interfered with except in rare cases where the transfer has been made in a vindictive manner. 38. From the abovequoted decision, it is evident that this Court has consistently been of the view that by way of an interim order the order of suspension, termination, dismissal and transfer etc. should not be stayed during the pendency of the proceedings in the Court. 8. For convenience relevant portion from Apex Court judgment in the case of S.L. Abbas (supra) is reproduced as under: Para 7 - Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala-fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right. Part 8 - The jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Article 226 of Constitution of India in service matters. This is evident from a perusal of Article 323A of the Constitution. The constraints and norms which the High Court observes while exercising the said jurisdiction apply equally to the Tribunal created under Article 323A. (We find it all the more surprising that the learned single member who passed the impugned order is a former Judge of the High Court and is thus aware of the norms and constraints of the writ jurisdiction). The administrative Tribunal is not an appellate authority sitting Judgment over the orders of transfer. It cannot substitute its own judgment for that of the authority competent to transfer. In this case the Tribunal has clearly exceeded its jurisdiction in interfering with the order of transfer. The administrative Tribunal is not an appellate authority sitting Judgment over the orders of transfer. It cannot substitute its own judgment for that of the authority competent to transfer. In this case the Tribunal has clearly exceeded its jurisdiction in interfering with the order of transfer. The order of the Tribunal reads as if it were sitting in appeal over the order of transfer made by the Senior Administrative Officer (competent authority). Para 9 - Shri Goswami, learned Counsel for the respondent relies upon the decision of this Court in Bank of India vs. Jagjit Singh Mehta, (1992) 1 SCC 306 , rendered by a Bench of which one of us (J.S. Verma, J.) was a member. On a perusal of the judgment, we do not think it supports the respondent in any manner. It is observed therein (para 5 of AIR): There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employer be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with the administrative needs. In the case of all India services, the hardship resulting from the two being posted at different station may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other's posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an all India service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, they cannot as of right claim to be relieved of the ordinary incidents of all India service and avoid transfer to a different place on the ground that the spouse thereby would be posted at different places... No doubt the guideline requires the two spouses to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees. 9. In view of above, I am not inclined to interfere with the impugned transfer order. However, so far as the grievance raised in the writ petition is concerned, liberty is given to the Petitioner to approach the competent authority and submit a representation within a period of two weeks. In case, such representation is submitted the competent authority shall decide the same expeditiously and preferably within a period of one months thereafter, after considering the entire facts and circumstances of the case by passing a speaking and reasoned order. 10. Subject to above writ petition is disposed of finally. Liberty is given to the Petitioner to come again to this Court in case he is not satisfied with the order passed by the competent authority on account of certain illegal and incorrect finding.