Writ Petitioner-appellant, aggrieved by order dated 11.12.2007 passed by a learned Single Judge in Writ Petition No. 7896(S/S) of 2007, has preferred this Appeal under Rule 5 Chapter VIII of the High Court Rules.
Short facts giving rise to the present Appeal are that the writ petitioner-appellant, (hereinafter referred to as 'the petitioner'), is Forest Guard and by order dated 19th September, 2007 he was directed to join at Dudhwa National Park after he had undergone training w.e.f. 01.01.2008. He challenged the aforesaid order, inter alia, contending that his transfer from Lakhimpur Kheri to Dudhwa National Park is bad in law, as he was transferred to Lakhimpur Kheri earlier on 08.01.2005 on the ground of illness of his wife. The aforesaid submission did not find favour with the learned Single Judge and he dismissed the writ application inter alia observing as follows :
"The order of transfer passed on compassionate ground does not mean that the employee has got right to remain posted at a 2 particular place for unlimited period . Already two years have elapsed after the petitioner was posted on transfer on compassionate ground at Lakhimpur Kheri and the authorities have got right to transfer him."
Mr. A.M. Trapthi appearing on behalf of the appellant submits that once the petitioner was transferred on compassionate ground, he ought not to have been transferred again and directed to join at Dudhwa National Park. In support of the submission, he placed reliance on a judgement of this Court dated 12.10.2007 passed in Special Appeal No. 849(S/B)/2007 Sripati Yadav Yadav vs. State of Uttar Pradesh & others. Our attention has been drawn to the following passage from the said judgement.
"Here in the instant case on compassionate ground the petitioner has been transferred only on 15.12.2005 in pursuance of which he had joined the transferred place on 25.01.2006 but in a decision taken to the effect that all the employees who were working earlier in Dudhwa National Park be posted there he has also been transferred to that place. We find that the order appears to have been passed without considering the plea that he was transferred on compassionate grounds. We, therefore, set aside the order dated 24.09.2007 passed by learned Single Judge and quash the order of transfer dated 29.06.2007. Appellant shall be allowed to remain at the present place of posting at least for a period of one year and thereafter as the case may be, and if, his transfer required, in exigencies of services, the same be considered, but not without taking into account, that the petitioner has been posted at the present place, on compassionate ground."
We do not find any substance in the submission of the learned 3 counsel for the appellant and the decision relied on is clearly distinguishable. Petitioner was transferred to Lakhimpur Kheri on 08.01.2005. He has been asked to join at the transferred place w.e.f Ist January, 2008, therefore, he has not been directed to join at the transferred place immediately after he was transferred on compassionate ground to Lakhimpur Kheri. We are of the opinion that once an employee is transferred on compassionate ground at a particular place, he does not have the right to continue at that place of posting till perpetuity. It cannot be said as an absolute proposition of law that once an employee is transferred on compassionate ground, he cannot be transferred. However, we hasten to add that if the request of transfer of an employee has been accepted unless, overriding reasons exist he may not be transferred immediately. In our opinion, exigency of service may demand his transfer from the place where he was posted on compassionate ground. We are entirely in agreement with the view of the learned Single Judge that authorities shall not be precluded from transferring an employee when on an earlier occasion, he was transferred on compassionate ground.
Now referring to the decision of this Court in the case of Sripati Yadav (Supra) relied on by the learned Counsel for the petitioner the same is clearly distinguishable. In the said case immediately after the employee was transferred on compassionate ground, another order of transfer was passed which in the facts and circumstances of the case, was found to be illegal by this Court. However, at the same time court observed that the employee shall remain at the present place of posting for a period of one 4 year and thereafter his case for transfer may be considered, in case, the exigency of service so requires. Aforesaid observation of this Court clearly goes to suggest that there is no prohibition of transfer of a person from one place to another, when earlier he was transferred on compassionate ground.
We are of the opinion that the consideration of the matter by the learned Single Judge does not suffer from any error calling for interference in this appeal.
We do not find any merit in the appeal and it is dismissed accordingly.
(C.K.Prasad,C.J.) (Y.K.Sangal,J.) Date: 21.01.2010 Kaushal