1. Heard Sri Anurag Tripathi, learned counsel for the petitioner and Ms. Deepshikha, learned Additional Chief Standing Counsel for the State-respondent.
2. Vide impugned order dated 12.7.2021, the petitioner has been transferred from District Aligarh to District Bijnor.
3. Learned counsel for the petitioner submits that the children of the petitioner are studying at Aligarh and his wife is suffering from Tuberculosis and is under treatment at District Aligarh. There is a policy of the State Government dated 29.3.2018, wherein under Clause-1 (ga), it has been provided that if there is personal difficulty of the employees in regard to the ill-health or studies of the children, then while making transfer, the same would be considered by the authority empowered to make transfer.
4. Submission of learned counsel for the petitioner is that the children of the petitioner are studying at Aligarh and in case the transfer is made, their studies will suffer great irreparable loss and injury. In support of his submission, he placed reliance upon a judgment of Hon'ble Supreme Court in the case of Director of School Education, Madras & Others Vs. O. Karuppa Thevan & Another [1994 Supp (2) Supreme Court Cases 666], wherein there was an occasion to consider that in case the children are studying and there is likelihood of suffering of their education, the transfer would be interfered till the end of the academic session. Relevant paragraph is quoted below :-
"2. The tribunal has erred in law in holding that the respondent employee ought to have been heard before transfer. No law requires an employee to be heard before his transfer when the authorities make the transfer for the exigencies of administration. However, the learned counsel for the respondent, contended that in view of the fact that respondent's children are studying in school, the transfer should not have been effected during mid-academic term. Although there is no such rule, we are of the view that in effecting transfer, the fact that the children of an employee are studying should be given due weight, if the exigencies of the service are not urgent. The learned counsel appearing for the appellant was unable to point out that there was such urgency in the present case that the employee could not have been accommodated till the end of the current academic year. We, therefore, while setting aside the impugned order of the Tribunal, direct that the appellant should not effect the transfer till the end of the current academic year. The appeal is allowed accordingly with no order as to costs."
5. Next submission of learned counsel for the petitioner is that the wife of the petitioner is suffering from Tuberculosis and is undergoing treatment at District Aligarh. He submits that while passing the order of transfer, the provision contained under the policy referred hereinabove was not taken into consideration and the petitioner vide impugned order has been transferred from District Aligarh to District Bijnor. In regard to the grievances, he has approached the respondent No.2 vide application dated 13.7.2021 (Annexure-5 to the writ petition), which is lying pending consideration and no order whatsoever has been passed till date. He submits that in case direction is issued to the respondent No.2 to pass appropriate order on the pending representation, taking into consideration the policy dated 29.3.2018 within a reasonable period, justice would be met.
6. On the other hand, learned Additional Chief Standing Counsel submits that transfer is exigency of service and to maintain the smooth functioning, employees are transferred from one place to another. In case, there is violation of transfer policy, the same shall be considered and appropriate decision shall be taken by the competent authority, within a reasonable period.
7. In view of the submission advanced, no useful purpose will be served in keeping the writ petition pending.
8. Accordingly, the writ petition is finally disposed of with the liberty to the petitioner to file a fresh comprehensive representation ventilating all his grievances in regard to the order of transfer being contrary to the policy before the respondent No.2 within ten days from the date of receipt of this order.
9. In case such a representation is filed within the aforesaid period, the respondent No.2 shall consider and pass appropriate reasoned speaking order in accordance with law within a further period of three weeks from the date of production of certified copy of this order.
10. For the period of three weeks or till the decision on the representation, the impugned transfer order dated 12.7.2021 shall not be given effect to.
Order Date :- 29.7.2021 Gautam