1. Heard Sri A.P. Singh, learned Senior Advocate assisted by Sri Amarendra Pratap Singh, learned counsel for the petitioner and Sri Ran Vijay Singh, learned Additional Chief Standing Counsel for the State-respondents.
2. Since by means of the aforesaid writ petitions the transfer order dated 18.12.2018 passed by the Chief Medical Officer, Lucknow has been assailed whereby both the petitioners of the aforesaid writ petitions have been transferred and the grounds to assail the aforesaid impugned order are more or less same and both the writ petitions are being listed by connecting each other, therefore, with the consent of learned counsel for the parties, both the writ petitions are being decided by a common judgment.
3. The brief facts of the aforesaid cases are that the petitioners are serving on the post of Heath Education Officer (Class-III Non-Gazetted). The Appointing Authority for the aforesaid post is the Director General, Family Welfare, U.P. and presently both the petitioners are discharging their duties at Lucknow under the local administrative control of the Chief Medical Officer, Lucknow. The Chief Medical Officer, Lucknow has full administrative control and, as such, he is vested with the authority regarding the transfer and posting of his subordinate officials and officers within the district. However, if the transfer of the Health Education Officer is made out of the district, such authority vests with the Director General, Family Welfare, U.P..
4. In both the writ petitions, mainly two grounds have been taken in assailing the impugned transfer order dated 18.12.2018 i.e. (i) the impugned transfer order has been passed by the Incompetent Authority as the Chief Medical Officer has passed the transfer order whereas it should have been passed by the Director General, Family Welfare, U.P. (ii) the impugned transfer order has been passed to accommodate the private respondent, namely, Smt. Keerti Neha.
5. In the counter affidavit filed by the Chief Medical Officer, Lucknow on behalf of the opposite parties, both the aforesaid grounds have been categorically denied. So far as the ground regarding incompetence of the authority is concerned, the Chief Medical Officer has categorically indicated in para-5 of the counter affidavit that the Chief Medical Officer being highest administrative authority of the district having full administrative control over the subordinates to make transfer and posting within the same district.
6. So far as the ground regarding adjustment of private respondent (Smt. Keerti Neha) is concerned, the Chief Medical Officer has categorically denied this allegation saying that by means of transfer order private respondent has not been adjusted. As a matter of fact, Smt. Sunita Srivastava while posting at Community Health Centre, Chander Nagar committed negligence by not filling up online applications of the beneficiaries under the Pradhan Mantri Swachchha Rastriya Yojna Ayushman Bharat despite the specific directions given by the Superintendent and under the Mission Indra Dhanush Survey and Tikakaran the work was not done by her, therefore, after calling an explanation her salary for the month of August was withheld and again vide letters dated 07.12.2018 and 15.12.2018 she was asked to submit her explanation but she did not submit her explanation, therefore, vide order dated 18.12.2018 she was transferred from Community Health Centre, Chander Nagar to Community Health Centre, Bakshi-ka-Talab. Smt. Rashmi Singh, the petitioner, was transferred from Community Health Centre, Bakshi-ka-Talab to Community Health Centre, Intauja. Accordingly, on the vacant post at Community Health Centre, Chander Nagar the private respondent has been posted.
7. As per the counter affidavit, on 27.06.2016 Smt. Rashmi Singh was transferred from Lucknow to Lakhimpur Kheri by order being passed by the Director General and against that transfer order Smt. Rashmi Singh has filed writ petition bearing Writ Petition No.29624 (S/S) of 2016 (Smt. Rashmi Singh vs. State of U.P. & others), which was disposed of finally vide order dated 15.12.2016 with the direction not to relieve the said petitioner till 07.04.2017. However, Smt. Rashmi Singh has assailed the order dated 04.07.2017 by filing special appeal bearing Special Appeal No.33 of 2017 and the said special appeal was decided finally directing the authority concerned to take appropriate decision on the representation of the petitioner without interfering the order dated 07.04.2017 passed by the Single Judge. Pursuant to the aforesaid order being passed the petitioner retained at Bakshi-ka-Talab, however, some complaint against Smt. Rashmi Singh was received in the office of the Chief Medical Officer, Lucknow, therefore, she was transferred to Bal Mahila Chikitsalaya and Prasooti Grih, Tudiaganj, Lucknow on 02.11.2018. Smt. Rashmi Singh appeared before the Chief Medical Officer and has given her undertaking that she shall not commit any mistake in future so she may be permitted to retain at Bakshi-ka-Talab. Her request was acceded to and vide order dated 13.11.2018 she was permitted to retain at Bakshi-ka-Talab. Thereafter, 49 Asha Bahu and Asha Sangini posted at Community Health Centre, Bakshi-ka-Talat jointly made complaint in writing in Tehsil Diwas before the District Magistrate on 20.11.2018 levelling serious charges against Smt. Rashmi Singh that she has received illegal gratification while making payment of their honorarium and on the said complaint received through the District Magistrate, the petitioner, Smt. Rashmi Singh, has been transferred from Bakshi-ka-Talab to Intauja. As per the counter affidavit Smt. Rashmi Singh was relieved on 26.12.2018 pursuant to the direction being issued by the District Magistrate, Lucknow.
8. The submission of learned Additional Chief Standing Counsel is that the aforesaid transfers have been made due to administrative exigencies and strictly in accordance with law, therefore, these transfer orders may not be interfered with.
9. Replying to the aforesaid contention of learned Additional Chief Standing Counsel, Sri A.P. Singh, learned Senior Advocate for the petitioners has submitted that the law is settled on the point that the transfer order may not be issued as a substitute of punishment as no transfer order should be passed on the complaint.
10. In support of his submission, Sri A.P. Singh, learned Senior Advocate for the petitioners has referred the judgment of Single Judge of this Court rendered in re:-Anil Kumar Srivastava vs. State of U.P. & others reported in [2015 (33) LCD 694] wherein this Court considering various dictum of Hon'ble Supreme Court including the case of Somesh Tiwari vs. Union of India reported in [2009 (2) SCC 592] has held that the transfer order should not be punitive nor stigmatic and if the transfer order is issued on the basis of complaint atleast an opportunity of hearing should be afforded to the employee.
11. Sri A.P. Singh, learned Senior Advocate for the petitioners has also placed reliance upon the judgment of the Division Bench of this Court rendered in re: S.K. Majumdar vs. State of U.P. & others reported in [1996 (14) LCD 887] by submitting that the transfer order can only be passed by the Disciplinary/ Appointing Authority and if any transfer order is passed other than such authority, the same shall be nullity in the eyes of law.
12. Sri A. P. Singh, learned Senior Advocate has also placed reliance upon the Division Bench judgment of this Court rendered in re: Shiv Shanker Ram vs. State of U.P. & others reported in [2007 (25) LCD 1241] by submitting that if the transfer is made on malafide intention accommodating any person, that can be interfered with by this Court.
13. Per contra, learned Additional Chief Standing Counsel has placed reliance upon the judgment of Hon'ble Supreme Court rendered in re: S.C. Saxena vs. Union of India and others reported in (2006) 9 SCC 583 by submitting that the Hon'ble Supreme Court has held that it is the duty of the government servant to comply with the transfer order atonce and after complying with the transfer order he / she may submit his / her representation if there is any grievance. If the employee does not submit his/ her joining on the basis of transfer order, that may be treated as misconduct. In the given cases, both the petitioners have not submitted their respective joining at their transferred places, therefore, necessary departmental actions are required against those employees.
14. Learned Additional Chief Standing Counsel has also placed reliance upon the judgment of Hon'ble Supreme Court rendered in re: State of Haryana and others vs. Kashmir Singh and another reported in (2010) 13 SCC 306 by submitting that the Hon'ble Supreme Court has held that the transfer ordinarily is an incidence of service, and the courts should be very reluctant to interfere in transfer orders as long as they are not clearly illegal. The Hon'ble Supreme Court has further held that the 'Courts should not, in our opinion, interfere with purely administrative matters except where absolutely necessary on account of violation of any fundamental or other legal right of the citizen. After all, the State administration cannot function with its hands tied by judiciary behind its back...'
15. Learned Additional Chief Standing Counsel has also placed reliance upon the Single Judge judgment of this Court rendered in re: Ajay Kumar Mishra vs. Inspector General of Police (Establishment) & others (Service Single No.20789 of 2018); whereby considering the various judgments of Hon'ble Supreme Court, this Court vide order dated 31.07.2018 dismissed the writ petition, wherein the transfer order has been assailed on the ground that such transfer order was passed on the complaint and the same should not be permissible. In the judgment in re: Ajay Kumar Mishra (supra), this Court has considered and followed the various decisions of Hon'ble Supreme Court including Somesh Tiwari (supra) and held that after decision of Somesh Tiwari (supra) two judgments of Hon'ble Supreme Court in re: Registrar General High Court vs. R. Perachi reported in (2011) 12 SCC 137 and Rajendra Singh vs. State of U.P. reported in (2009) 15 SCC 178 have come, therefore, the subsequent decisions of Hon'ble Supreme Court in re: R. Perachi (supra) and Rajendra Singh (supra) have been followed.
16. In the case of R. Perachi (supra), the Hon'ble Apex Court even after considering that the transfer order of the employee concerned was on the basis of report of Registrar (Vigilance) and it had also been informed by the District Judge concerned that the retention of the employee in his district was undesirable from the point of view of the administration, held that the transfer is an exigency of service and one cannot make grievance if the transfer is made on administrative ground without any stigma.
17. On the basis of the aforesaid cases, the learned Additional Chief Standing Counsel has submitted that the impugned transfer order dated 18.12.2018 has been passed due to administrative exigency and no stigma has been casted upon the petitioners, therefore, it should have not been interfered with.
18. Heard learned counsel for the parties and perused the material available on record.
19. The first ground to assail that the impugned transfer order dated 18.12.2018 has been passed by the incompetent authority is not correct inasmuch as the Chief Medical Officer of the district being highest Administrative Authority of the district is vested with the authority regarding transfer and posting of the subordinate officers/ officials within the district for local arrangement. This is not a transfer of the petitioners out of the district, therefore, shifting the petitioners from one Community Health Centre to another Community Health Centre within the district on account of administrative exigency by the Chief Medical Officer is within the competence of the authority and there is no illegality of any kind whatsoever and, therefore, the case cited by Sri A.P. Singh, learned Senior Advocate for the petitioners in re: S.K. Majumdar (supra) would not be applied in these cases.
20. Likewise, the relevant records do not disclose that the impugned transfer order has been passed on account of any malafide intention or to adjust the private respondent, therefore, the case so cited by Sri A.P. Singh, learned Senior Advocate for the petitioners in re: Shiv Shanker Ram (supra) would not be applied in the present cases.
21. So far as the ground that the impugned transfer order is punitive in nature, therefore, an opportunity of hearing should be afforded to the petitioners is concerned, the Hon'ble Supreme Court in re: R. Perachi (supra), Kashmir Singh (supra) and Rajendra Singh (supra) has held that the transfer being exigency of service and if no stigma is casted upon the employee concerned, it should not be interfered with. In the present case, the transfer order is not stigmatic order.
22. In both the aforesaid cases, this Court granted interim protection to both the petitioners inasmuch as Smt. Rashmi Singh was granted an order of status-quo on 04.01.2019 and Smt. Sunita Srivastava was granted an order that no coercive steps shall be taken against her vide order dated 16.01.2019. However, as per learned Additional Chief Standing Counsel before the aforesaid interim protection being granted by this Court, both the petitioners have been relieved ex-parte. Therefore, both the aforesaid petitioners could have not been permitted to discharge their respective duties at the place from where they were transferred. He has also apprised that both the petitioners have not submitted their respective joining at the transferred place, therefore, they may be subjected to departmental inquiry. On being asked as to whether any departmental action has been taken against the petitioners, learned Additional Chief Standing Counsel has submitted that on account of pendency of these writ petition, no departmental action has been initiated against them.
23. However, the impugned transfer order does not suffer from any illegality or arbitrariness, but the fact remains that this Court has granted interim protection in favour of the petitioners and no departmental action against the petitioners have been taken for not submitting their respective joining at the transferred place, therefore, it appears that any appropriate order is required to be passed in the case of the petitioners.
24. The impugned order dated 18.12.2018 is neither stigmatic nor has been passed to accommodate the private respondent, rather, it has been passed by the Competent Authority i.e. the Chief Medical Officer.
25. Further, since no departmental action has yet been taken against the petitioners due to pendency of the writ petition, therefore, in the given circumstances they should not be compelled to face the departmental inquiry for not submitting their respective joining at the transferred place, however for the period they have not submitted their joining at the transferred place despite the fact that before interim protection being granted in their favour they were relieved, the Chief Medical Officer, Lucknow may pass appropriate orders in respect of making payment of salary for that period by affording an opportunity of hearing to the petitioners and seeking explanation if any order involves the civil consequences.
26. The liberty is given to the petitioners to prefer a representation taking all pleas and grounds which are available with them enclosing therewith the certified copy of this order within a period of seven days and the Competent Authority shall pass appropriate orders, strictly in accordance with law, with expedition, preferably within a period of three weeks thereafter.
27. In view of the aforesaid terms, both the writ petitions are disposed of finally.
28. No order as to costs.
Order Date :-December 19th, 2019 Suresh/ [Rajesh Singh Chauhan,J.]