Court No. - 39
Case :- WRIT - A No. - 15924 of 2018
Petitioner :- Lt. Colonel Mukul Chauhan Respondent :- Union Of India And 5 Others Counsel for Petitioner :- Shad Khan,Mumtaz Ali Counsel for Respondent :- A.S.G.I.
Hon'ble B. Amit Sthalekar,J. Hon'ble Jayant Banerji,J.
Shri S.K. Shukla, Central Government Standing Counsel has filed Parcha on behalf of the respondents.
Heard Shri Shad Khan, learned counsel for the petitioner.
The petitioner in the writ petition is seeking quashing of the impugned order dated 22.06.2018, whereby, he has been transferred from Farrukhabad to the Sikh Light Regiment Centre. The petitioner submits that Sikh Light Regiment Centre is in Jammu and Kashmir. His grievance is that his transfer order is motivated by malafide as he has made certain allegations of corruption against the Commandant. In para 15 of the writ petition, it is stated that the petitioner is a single parent having been divorced from his wife in 2013 and his son is living with him, who is studying in Class 12 and taking his Board Examinations and that his posting out of Farrukhabad would severely affect his son's studies.
In our opinion, the petitioner has been transferred to Kashmir and he cannot ignore the fact that national interest must take precedence over the personal difficulties of any Government servant or for that matter of any citizen of this country. However, the Supreme Court in the case of Director of School Education, Madras and others Vs. O. Karuppa Thevan and another reported in 1994 Supp (2) SCC 666 has held that if the children of Government servants are undertaking Board Examinations, this factor may be considered by the Department. The relevant paragraph 2 of the said judgement reads as under:-
"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."
We, therefore, dispose of this writ petition with liberty to the petitioner to represent his grievance before the respondent no. 4- AMS-2B, Military Secretary's Branch, Integrated HQ of MoD (Army), South Block, New Delhi-11 within one week from today along with a certified copy of this order raising his grievance as raised in the present writ petition, the respondent no. 4 shall consider the same and pass a reasoned and speaking order in accordance with law within a further period of 15 days.
Order Date :- 27.7.2018
A. V. Singh