Allahabad High Court
Vishal vs State Of U.P. Thru. Prin. Secy. ... on 10 August, 2021
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 7
Case :- SERVICE SINGLE No. - 17256 of 2021
Petitioner :- Vishal
Respondent :- State Of U.P. Thru. Prin. Secy. Medical & Health Dept. &Ors.
Counsel for Petitioner :- O.P. Tiwari
Counsel for Respondent :- C.S.C.
Hon'ble Rajesh Singh Chauhan,J.
Heard Sri O.P. Tiwari, learned counsel for the petitioner and learned Standing Counsel for the State respondents.
By means of this petition the petitioner has assailed the order dated 15.7.2021 passed by the Director, Administration, Medical & Health Services, U.P., Lucknow transferring as many as 984 employees from one place to another place in the State of U.P. The name of the petitioner finds place at serial no. 781 whereby the petitioner who is serving on the post of Junior Assistant has been transferred from the office of Chief Medical Officer, Saharanpur to the office of Chief Medical Officer, Badaun in the same capacity. The ground to assail the transfer order is that two minor children of the petitioner are studying in Class IX and III. In support of his submission he has referred the judgment of Hon'ble Apex Court in re: 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 employer ought to have been heard before transfer. No law requires on 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."
Per contra, learned Standing Counsel has opposed the prayer of the writ petition by submitting that the present petitioner has been transferred as per the policy decision taken by the competent authority of the Medical Department transferring the employees from one place to another place who have completed substantial period of service at a particular place and in the present case the petitioner has completed more than 17 years service at Saharanpur. Learned Standing Counsel has further submitted that if the transfer order is stayed or quashed, the entire chain of the employees who have been transferred shall be disturbed.
Having heard learned counsel for the parties and perused the material available on record, I am of the considered opinion that the transfer being an incident of service, therefore, it should not be interfered ordinarily unless the transfer order has been passed in violation of Rules and in a mala fide manner and both the aforesaid grounds are missing in the writ petition inasmuch as the petitioner has been transferred as he has completed substantial period at the present place of posting i.e. Saharanpur. So far as the grievance of the petitioner regarding the study of his minor children is concernd, particularly in the light of the Hon'ble Apex Court in re: Director of School Education, Madras & Others (supra) the competent authority may very well consider the aforesaid grievance of the petitioner strictly in accordance with law / policy.
Therefore, without entering into the merits of the issue, I hereby provide liberty to the petitioner to prefer a fresh representation to the competent authority taking all pleas and grounds which are available to him enclosing therewith the relevant documents which are necessary for the disposal of the representation including the judgment of Apex Court referred above within a period of seven days and if such a representation is preferred by the petitioner, the competent authority shall take appropriate decision strictly in accordance with law / policy, by speaking and reasoned order with expedition, preferably within a period of three weeks and decision thereof shall be communicated to the petitioner forthwith.
It is also observed that if the petitioner submits his joining at the place of transfer in the meantime even then the representation of the petitioner shall be considered and decided as per the direction of this Court and no prejudice shall be caused to the petitioner for the reason that he has approached this Court assailing the transfer order.
With the above directions, writ petition is disposed of.
Order Date :- 10.8.2021
Om
