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2004 DIGILAW 351 (JK)

Anjum Shaheen Mirza (Dr. ) v. State

2004-12-15

Y.P.NARGOTRA

body2004
The petitioner is an Assistant Surgeon. She was transferred from P.P. Centre SMGS Hospital, Jammu and posted at Evening Clinic Nanak Nagar Jammu by Govt. Order No. 52-HME of 2004 dated 22-01-2004. She joined at her new place of posting and was performing her duties when the Government by its order No. 428-HME of 2004 dated 18-10-2004 ordered transfer of 101 doctors in the interest of administration and public healthcare. The petitioner is one of them. She has been transferred from Evening Clinic Nanak Nagar to C.H.C. Darhal. She has called in question her transfer through this writ petition. 2. The case of the petitioner is that though she has been working against a clear vacancy and has not completed her normal tenure of two years on the post yet she has been transferred prematurely and that to under the garb of policy of detachment of doctors. Mr. Raina, learned counsel for the petitioner submits that there is a Government policy governing transfer which provides that no employee shall be transferred unless he has completed a tenure of two years at his particular place of posting. He further submits that mid-term transfer of the petitioner is going to result in undue hardships to her as her children are studying in Jammu and they cannot be disturbed in the mid of their session of studies. He also submits that husband of the petitioner, namely Dr. Mushtaq Ahmed Malik was serving as Medical Officer in A.D. Dhoke, block Darhal. His brother-in-law was killed by militants and he was also under their threat, so his transfer was recommended by the then Divisional Commissioner Jammu by his letter dated 20.6.1997. Pursuant to the recommendation he has been transferred from there and is presently posted in Srinagar. According to Mr. Raina the petitioner being the wife of Dr. Mushtaq, apprehends threat to her life at the hands of militants and therefore deserves not to be posted to Darhal. 3. The Stand of the respondents projected in their reply is that healthcare of the citizens of the State has priority. The Government is under obligation to provide better health care to its citizens. Mushtaq, apprehends threat to her life at the hands of militants and therefore deserves not to be posted to Darhal. 3. The Stand of the respondents projected in their reply is that healthcare of the citizens of the State has priority. The Government is under obligation to provide better health care to its citizens. Though the Government has a number of doctors but however, unfortunately they have been able to manage their posting in Jammu city only for their convenience against non-existent posts or even in some cases the posts had been transferred leaving the people of the area wherein the posts were created and wherein doctors had to work at the mercy of the God. So it was decided that the people of the entire state including rural areas would be given better health care or at least where the posts are existing the doctors are posted so that the people of the said area will get health care and the doctors will perform their duties for which they have been appointed. It is further stated that the petitioner has been transferred to C.H.C.Darhal in the interest of administration. Mr. Naik, learned Advocate General, has submitted that transfer is an exigency of service, at any time it can be ordered keeping in view the requirement of providing healthcare to the citizens of the State residing at different places. Transfer being in the interest of administration merits not to be interfered with. 4. In State of U.P. and others v. Govardhanlal, 2004 (AIR) SCW 2082 it was held by the Supreme court as follows:-- "It is too late in the day for any Govt. servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desire. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra in the law governing or conditions of service. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an act or Rule) or passed by an authority not competent to do so, in order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made, Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as if found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. The order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision." 5. Keeping in view the law settled down by the Supreme Court even if there is a guideline that normal tenure of a person at a post shall be of two years such guideline firstly is not binding upon the Government being author of the guideline and secondly does not legally vest enforceable right in favour of an employee that he cannot in any of the circumstance or even in the interest of administration be transferred before completion of his normal tenure. No employee has a right to insist that he should be allowed to continue on a particular post for any length of period. It is the prerogative of the employer to decide as to where such an employee is required to be posted keeping in view the interests of general public and administration. Therefore, there is no merit in the contention that transfer of the petitioner could not have been ordered prematurely. 6. It is the prerogative of the employer to decide as to where such an employee is required to be posted keeping in view the interests of general public and administration. Therefore, there is no merit in the contention that transfer of the petitioner could not have been ordered prematurely. 6. There is also no merit in the contention of learned counsel for the petitioner that since she apprehends threat to her life, she should not be posted at Darhal. Threat perception is not a recognized ground for interference into an order of transfer. An employee who has to perform his duty, he has to go to the place where he is transferred in view of the service conditions and if he has any reservation for going to that place he can seek his premature retirement, if he so chooses. 7. There is also no merit in the contention of learned counsel for the petitioner that order of transfer of the petitioner has been made under the garb of policy of detachment for the reason that the order impugned does not refer to any such detachment. It is only to elucidate the background under which the decision for enmass transfer has been taken. Attachment and transfer of posts have been referred by the respondents in their objections. For the aforesaid reasons, there is no merit in the writ petition of the petitioner. It is as such dismissed, alongwith concerned CMPs. Interim direction, if any shall stand vacated.