Heard learned counsel for the petitioner and learned Standing Counsel representing the respondents.
The petitioner is a Nurse working in the Moti Lal Nehru District Allahabad. She has challenged the order dated 24.05.2012 transferring her from Allahabad to Pratapgarh.
Learned counsel for the petitioner submits that the elder brother of the husband of the petitioner is suffering from mental disability and undergoing treatment at Allahabad. In support of the contention, attention of the Court has been drawn to the medical prescriptions filed as Annexure '3' to the writ petition. It is further submitted that the transfer policy dated 22.03.2012 provides that parents of mentally retarded children may be posted at a place where proper medical facility is available after obtaining their option. It is pointed out that Pratapgarh is a district with no proper medical facility. It is further submitted that the transfer order being in violation of the transfer policy is bad in law.
I have considered the submission made by the learned counsel for the petitioner and perused the record.
It is not in dispute that the petitioner holds a transferable post. It is well settled legal position that transfer is an incident of service and normally the same is not interfered with unless found to be malafide or in violation of any statutory provision or by way of punishment.
In the instant case, there is no such allegation nor any such ground has been raised in the writ petition. The only point raised is that the impugned order of transfer is in violation of transfer policy dated 22.03.2012. It is well settled legal position that such Government Orders providing instruction for transfer of an employee are in the nature of guidelines or policy without having any statutory force and, therefore, violation thereof does not confer any legally enforceable right. It is merely an executive instruction. In the matter of transfer judicial review is permissible only where it is found to be arbitrary or in violation of any statutory rules or where it amounts to reduction in rank or loss of emoluments or affected on account of malafide. Reference may be made to the judgment of Apex Court in the case of Mrs. Shilpi Bose and others Vs. State of Bihar and others, AIR 1991 SC 532 wherein in para 4 of the judgment, it has been observed as under :
"Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affect party should approach the higher authorities in the Department." (Para 4).
Their Lordships in para 4 of the aforesaid judgment further observed as under :-
"A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent do not violate any of his legal rights................................ If the Courts continue to interfere with day-to-day transfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration, which would not be conducive to public interest. The High Court over looked these aspects in interfering with the transfer orders." (Para 4).
Similar view was reiterated in the case of Union of India and others Vs. S. L. Abbas, AIR 1993 SC 2444 wherein their Lordships have held that such guidelines of Government Orders have no statutory force and who should be transferred and posted where is the matter to be considered by the appropriate authority, and observed as under :
"Who should be transferred where is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly, if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline, however, does not confer upon the Government employee a legally enforceable right."
In any view of the matter, personal inconvenience or inconvenience to family member can also not constitute a ground to interfere with the transfer order.
In view of the aforesaid facts and circumstances of the case and the law laid down by the Hon'ble Apex Court, there is no illegality in the impugned order which may require any interference by this Court.
The writ petition accordingly fails and stands dismissed.
However, since the petitioner alleges that her transfer has been made in violation of the transfer policy dated 22.03.2012, liberty is given to her to make a representation before the respondent no. 2, Director General, Medical & Health Services, U. P., Lucknow, ventilating all her grievances along with a certified copy of this order within a week from the date of receipt of a certified copy of this order and in case any such representation is made, the same shall be considered and decided by the concerned authority in accordance with law by means of a reasoned and speaking order expeditiously, preferably, within a further period of three weeks from the date of making the representation.
Order Date :- 21.9.2012 Dcs