Research › Search › Judgment

Andhra High Court · body

2014 DIGILAW 1346 (AP)

Mohammad Hanif Ahmed v. Union of India

2014-11-06

R.KANTHA RAO

body2014
ORDER R. Kantha Rao, J. 1. The petitioner was appointed as Assistant Professor of Education in the 2nd respondent University at Hyderabad by order dated 25.01.2012. By order dated 28.04.2014 the 2nd respondent transferred the petitioner from Hyderabad Branch to College of Teacher Education Centre at Asansol, West Bengal. The transfer order is challenged in the writ petition on the ground that it is arbitrary, illegal and unconstitutional and in violation of the rights of the petitioner under Articles 14, 19 and 21 of the Constitution of India. 2. It is the version of the petitioner that he suffered serious neurological and E.N.T. issues for which he had to undergo surgery at Yashoda Hospital, Hyderabad, the empanelled Hospital of the 2nd respondent University in November, 2013. One part of the surgery relating to his left ear has already been done and the second surgery relating to the right ear is yet to be done. He says that the Doctors at Yashoda Hospital, Hyderabad advised him to attend for regular consultations and follow-ups and not to travel long distances. The petitioner was transferred along with 11 other Assistant Professors. The petitioner after receiving the transfer orders, brought to the notice of the 2nd respondent his health condition, but the transfer order has not been withdrawn so far. He submits that the transfer order of one Mrs. Taiyaba Nazli who was transferred under the very same impugned order has been stayed and she has been asked to continue at Hyderabad Branch of the 2nd respondent University, but in spite of his medical condition, the petitioner's request to keep him at Hyderabad was not considered. 3. According to the petitioner, the 2nd respondent university does not have any empanelled hospitals in any other part of the country, therefore, if he is transferred to any other part of the country, he would be necessarily required to come to Hyderabad on regular basis for treatment by the Doctors of the empanelled hospital at Hyderabad. Further, he submits that only in the empanelled hospital at Hyderabad there is cashless treatment available and the said facility is not available at the place where he was transferred. 4. Further, he submits that only in the empanelled hospital at Hyderabad there is cashless treatment available and the said facility is not available at the place where he was transferred. 4. Nextly it is submitted by the petitioner that under the apprehension that he may lose his job, he purchased Air ticket to Calcutta and Railway ticket from Calcutta to Asansol, but on the night of 02.07.2014 he again developed serious pain in the left side of the face and therefore, he could not travel and join at the place of his transfer. In response to the representation made by the petitioner, the 2nd respondent did not consider his request for retaining him at Hyderabad and assured that it would reimburse all the medical expenses which the petitioner incurs in any hospital even though not empanelled and also stated that the petitioner can as well apply for leave at Asansol and come to Hyderabad and get the treatment. 5. The version of the petitioner is that he would be able to perform his duties of teaching only if he is under regular supervision of the Doctors at Hyderabad and if he is forced to go to Asansol, he would not be able to perform his duties as a teacher as there is no empanelled hospital there. Stating that if he is forced to go and join at Asansol, he would suffer irreparable loss and injury and his medical condition would worsen and he would suffer permanent deafness, which would make him unemployable as a teacher and his family would also suffer grave hardship because of the transfer. Stating these grounds, the petitioner filed the present writ petition under Article 226 of the Constitution of India to set aside the transfer order and to issue a direction to the 2nd respondent University to reconsider the said transfer order and continue him in Hyderabad. 6. The writ petition is stoutly opposed by the 2nd respondent contending inter alia in the counter affidavit as follows: The medical condition stated by the petitioner in the writ petition is false and invented for the purpose of violating the transfer orders passed by the 2nd respondent university. The appointment order of the petitioner clearly mentions that the petitioner may be posted at any of the institutions of the University in the country during the service. The appointment order of the petitioner clearly mentions that the petitioner may be posted at any of the institutions of the University in the country during the service. The petitioner having accepted the said condition and joined the service cannot now contend that he cannot be transferred to any place other than Hyderabad on medical grounds. The transfer of the petitioner and several others are made on administrative grounds and the petitioner has no legal right to question the transfer order. The petitioner made a representation on 02.05.2014 seeking extension of time for joining at Asansol till the treatment is over. The said representation was considered and the 2nd respondent University vide reply dated 19.06.2014 informed the petitioner that he should join at the new place of posting and then take the leave for the treatment if required. He was also assured that the 2nd respondent university would reimburse the medical expenses of the petitioner as per his entitlement and rules as it did in case of the employees who are posted in any part of the country, and that the petitioner would definitely be provided treatment as per his entitlement. 7. It is further contended that if the teaching faculty is reluctant to join the new institutions on flimsy grounds, the whole academic schedule of the institutions would be adversely affected and the students would suffer a lot and therefore, continuing the petitioner in the same place would be against public interest, academic interest and also against the efficiency of administration. 8. Nextly it is submitted by the 2nd respondent that the representation of the petitioner as well as Mrs. Taiyaba Nazli were considered and after careful consideration of the representations, the case of Mrs. Taiyaba Nazli was considered and she retained back and the petitioner's case was rejected. The case of the petitioner was rejected on careful consideration and that the petitioner cannot claim that as the case of Mrs. Taiyaba Nazli was considered his case also has to be considered. The 2nd respondent University after careful consideration decided that the petitioner should be asked to join at the new place of posting and then take the leave for the treatment if required. Taiyaba Nazli was considered his case also has to be considered. The 2nd respondent University after careful consideration decided that the petitioner should be asked to join at the new place of posting and then take the leave for the treatment if required. Thus, according to the respondents, the transfer is condition of service, the petitioner or any employee has no vested right to remain at a particular place, the transfer is not in violation of any rule, regulation or statute. The writ petition filed by the petitioner is not maintainable and he is not entitled to any relief sought for in the writ petition. 9. I have heard Sri Avinash Desai, learned counsel appearing for the petitioner and Sri K. Ramakanth Reddy and Sri B. Narayana Reddy, learned counsel appearing for the respondents. 10. It is submitted by the learned counsel appearing for the petitioner that in view of the health condition of the petitioner and the medical treatment which the petitioner has to undergo, the impugned transfer order is arbitrary and wholly unjustifiable and therefore, a direction be issued to the 2nd respondent university to cancel the transfer order and retain the petitioner at Hyderabad. 11. On the other hand, the learned counsel appearing for the 2nd respondent submits that the grounds on which the transfer was sought to be reconsidered is invented for the purpose of filing the present writ petition, even otherwise, the petitioner has no right to ask the Court to issue a direction to the 2nd respondent university to reconsider the issue of his transfer and to keep him at Hyderabad only. According to the learned counsel appearing for the respondents since the transfer is made on administrative grounds and the same being not in violation of any rule or statute, the writ petition itself is not maintainable. 12. The transfer order issued to the petitioner clearly indicates that the petitioner was transferred on administrative grounds. Not only the petitioner, along with him several other employees of the 2nd respondent University were transferred. Only the case of one lady Assistant Professor was reconsidered by the 2nd respondent University on being satisfied with the grounds pleaded by her. The petitioner on that score cannot insist that his case also can be reconsidered. The scope of judicial review in the matter of transfers is very limited. Only the case of one lady Assistant Professor was reconsidered by the 2nd respondent University on being satisfied with the grounds pleaded by her. The petitioner on that score cannot insist that his case also can be reconsidered. The scope of judicial review in the matter of transfers is very limited. This Court exercises judicial review only if the transfer is prompted by mala fides. The transfer is a condition of service and the employee is under obligation to work at the place to which he is transferred and he has no legal right to insist that he would only work at a particular place. 13. The learned counsel appearing for the petitioner, in support of his contentions, relied on a judgment of the Hon'ble Supreme Court in State of M.P. v. S.S. Kourav (1995) 3 SCC 270 wherein it was held as follows: "The courts or tribunals are not appellate forums to decide on transfers of officers on administrative grounds. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous considerations without any factual background or foundation. In this case transfer orders having been issued on administrative grounds, expediency of those orders cannot be examined by the court." 14. In fact, the petitioner did not plead the issue of mala fides in the writ petition specifically. He only stated that the transfer is illegal and it is the result of the arbitrary exercise of power. In any event, if he is able to show that the transfer is the result of mala fide exercise of power by the 2nd respondent University, this Court may incline to exercise the power of judicial review under Article 226 of the Constitution of India. 15. On the other hand, the learned counsel appearing for the 2nd respondent relied on the following judgments in support of this contention that the writ petition is not maintainable; 1. Gujarat Electricity Board v. Atmaram (1989) 2 SCC 602 2. Bank of India v. Jagjit Singh Mehta (1992) 1 SCC 306 3. Airports Authority of India v. Rajeev Ratan Pandey (2009) 8 SCC 337 4. Rajendra Singh v. State of U.P. (2009) 15 SCC 178 16. Gujarat Electricity Board v. Atmaram (1989) 2 SCC 602 2. Bank of India v. Jagjit Singh Mehta (1992) 1 SCC 306 3. Airports Authority of India v. Rajeev Ratan Pandey (2009) 8 SCC 337 4. Rajendra Singh v. State of U.P. (2009) 15 SCC 178 16. In Gujarat Electricity Board v. Atmaram (supra), the Hon'ble Supreme Court held that "Transfer of a government servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. Transfer from one place to other is necessary in public interest and efficiency in the public administration." 17. In Bank of India v. Jagjit Singh Mehta (supra) the Hon'ble Supreme Court held that "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 employers 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." 18. In Airports Authority of India v. Rajeev Ratan Pandey (supra), the Hon'ble Supreme held that "mere assertion or bald statement is not enough to discharge the heavy burden that the law imposes upon the person leveling allegations of mala fides; it must be supported by requisite materials." 19. In Rajendra Singh v. State of U.P. (supra), the Hon'ble Supreme Court held that "The only question required to be considered in a writ petition challenging the transfer is whether the transfer of an employee was actuated with mala fides or otherwise in violation of statutory rules. The Supreme Court further held that the government servant has no vested right to remain posted at a place of his choice, nor can he insist that he must be posted at one place or the other because no Government can function in such manner. The Courts should not interfere with a transfer order which is 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." 20. The Courts should not interfere with a transfer order which is 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." 20. The contentions urged by both the parties have to be examined in the light of the ratio laid down by the Hon'ble Supreme court in the afore-referred judgments. 21. The law is well established that when an employee accepts a transferable post, he cannot at a later point of time urge that he has to be retained or posted at a particular place even the transfer may cause hardship to him. The only ground on which the order of transfer can be challenged by an employee is when the transfer is the result of mala fide exercise of power by the employer or if it is made in violation of mandatory statutory rule. The grounds of inconvenience or hardship cannot be urged in a writ petition to exercise the power of judicial review under Article 226 of the Constitution of India. 22. In the instant case, the appointment order of the petitioner itself shows that he can be transferred to any of the branches of the 2nd respondent University in the country. He accepted the said condition and joined as Assistant Professor in the 2nd respondent University. Even though the 2nd respondent contended that the medical condition was only invented by the petitioner for the purpose of avoiding the transfer, the petitioner produced some material to show that he was operated and that he has been suffering from neurological and ENT problem and that he also requires a further operation. It appears that because of the transfer, some inconvenience or hardship would be caused to the petitioner, but that itself is not a ground to challenge the transfer order which is made on administrative grounds. The 2nd respondent considered his representation and rejected his case and therefore, he is under an obligation to join at the place where he is posted. It is not open for him to contend that because it would be convenient for him to undergo medical treatment at Hyderabad he can be retained only at Hyderabad. 23. The petitioner did not specifically allege any mala fide exercise of power by the 2nd respondent University though he submitted that the transfer order is arbitrary and illegal. It is not open for him to contend that because it would be convenient for him to undergo medical treatment at Hyderabad he can be retained only at Hyderabad. 23. The petitioner did not specifically allege any mala fide exercise of power by the 2nd respondent University though he submitted that the transfer order is arbitrary and illegal. As per the law laid down by the Hon'ble Supreme Court, highly convincing and reliable evidence has to be placed on record by the petitioner who attributes mala fides to the employer in the matter of transfer. The material produced by the petitioner though shows that the transfer causes some hardship to him, it does not show that the transfer is the result of mala fide exercise of power by the 2nd respondent university. In its reply to the petitioner's representation, the 2nd respondent assured him to reimburse all the medical expenses which he incurs in any hospital. A person who suffers ill-health after his appointment cannot take the stand that in view of his ill-health he has to be retained at a particular place. 24. Merely because of the medical condition of the petitioner causes him some inconvenience or hardship on account of transfer, this Court will not exercise the power of judicial review under Article 226 of the Constitution of India to issue a direction to the 2nd respondent to reconsider the case of the petitioner and retain him at Hyderabad. This Court is of the considered view that no case is made out by the petitioner to persuade this Court to exercise the power of judicial review. The Writ Petition is therefore dismissed without any order as to costs. 25. Pending miscellaneous petitions, if any, shall stand closed in consequence.