Heard Shri O.P. Tiwari, learned counsel for the petitioner.
This writ petition has been filed challenging the transfer order dated 26.7.2021 passed by the Director (Administration), Medical and Health Services, respondent no.3 herein, in so far as it relates to the petitioner The petitioner is at serial no.21 in the said list.
On 15.7.2021, respondent no.3 passed an order of transfer whereby a large number of employees were transferred from their present place of posting to the places mentioned against their names. The petitioner was at serial no.180 in the said list. At the relevant time, the petitioner was working as Senior Assistant in the office of the Chief Medical Officer, Meerut. She was transferred to the office of the Chief Medical Officer, Moradabad. Aggrieved by her transfer the petitioner made a representation on 17.7.2021 before the respondent no.3. On 24.7.2021, the order impugned in the present writ petition was passed by respondent no.3, whereby the transfer of the petitioner from Meerut to Moradabad was modified and the petitioner was transferred from Meerut to Muzaffarnagar.
In the meantime, the petitioner preferred a writ petition bearing Service Single No.15623 of 2021, Smt. Geeta Dhingra v. State of U.P. and others, before this Court challenging the transfer order dated 15.7.2021 and praying for cancellation of her transfer to Moradabad on the ground that her daughter was studying in Class XII and her ailing mother aged about 80 years, would suffer in case the petitioner was subjected to transfer. The said writ petition was disposed of on 26.7.2021 with a direction to respondent no.3 to decide the representation of the petitioner dated 17.7.2021. It is relevant to note that when the order dated 26.7.2021 was passed by this Court the transfer order dated 15.7.2021 had already been modified and the petitioner was transferred from Meerut to Muzaffarnagar. However, this fact was not brought to the notice of this Court by the petitioner.
Shri O.P. Tewari has submitted that the husband of the petitioner is working as Senior Assistant in the office of the Nagar Nigam, Meerut and as per the transfer policy of the State Government in case both husband and wife are Government Servants, they should be posted in the same district. The counsel submits that the transfer order of the petitioner has been passed in gross violation of the transfer policy and is liable to be set aside.
Shri Pradeep Kumar Singh, learned Additional Chief Standing Counsel appearing for the State-respondents on the basis of instruction has submitted that the representation of the petitioner was considered and her transfer to Moradabad, which was about 180 kms away from Meerut, has been modified and she has now been transferred to Muzaffarnagar, which is about 57 kms away from Meerut. It is further submitted that since 1999 the petitioner is continuing at Meerut. Learned counsel has submitted that at the time the order dated 26.7.2021 was passed by this Court deliberately the fact that the transfer dated 15.7.2021 had been modified was not brought to the notice of this Court.
Transfer is an incidence of service. 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. The scope of judicial review in the matters of transfer of a Government servant is very limited. Unless the order of transfer is found to be in violation of any statutory rule or is found to be an outcome of mala fide exercise of power, no interference is called for. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order. In matters of transfer the Courts do not sit as a court of appeal and they cannot substitute their own decisions for that of the competent authorities.
In Shilpi Bose (Mrs) v. State of Bihar, 1991 Supp (2) SCC 659 the Apex Court has held as under: -
"4. In our opinion, 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. 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 authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. 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 overlooked these aspects in interfering with the transfer orders."
(emphasis supplied) It is settled that no one has indefeasible right to remain posted at one place or the other. In Bank of India v. Jagjit Singh Mehta, (1992) 1 SCC 306 the Apex Court has held as under: -
5. 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. In the case of all-India services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other's posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an all-India service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, they cannot as of right claim to be relieved of the ordinary incidents of all-India service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places. In addition, in the present case, the respondent voluntarily gave an undertaking that he was prepared to be posted at any place in India and on that basis got promotion from the clerical cadre to the officers' grade and thereafter he seeks to be relieved of that necessary incident of all-India service on the ground that his wife has to remain at Chandigarh. No doubt the guidelines require the two spouses to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees.
(emphasis supplied) In Union of India v. S.L. abbas, (1993) 4 SCC 357 the Apex Court has held as under: -
"7. 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."
(emphasis supplied) In Union of India v. H.N. Kirtania, (1989) 3 SCC 447 the Apex Court has held that when the transfer order is legal and not vitiated by any unfairness and mala fides the Courts have no jurisdiction to issue any direction.
In the present case it cannot be said that the transfer of the petitioner from Meerut to Moradabad is in violation of any statutory rule or that the transfer order suffers from any mala fide. The petitioner is holding a transferable post and she has no vested right to remain posted at Meerut itself. The petitioner has already been relieved in pursuance of the order impugned in the present writ petition and she has joined at her transferred place. The petitioner has continued to remain at Meerut since 1999.
In view of the discussions made above, no good ground to interfere with the impugned order of transfer is made out.
The writ petition is devoid of merit and is, accordingly, dismissed.
Order Date :- 13.8.2021 Anupam