Sunita vs State Of U.P. And 3 Others
2022 Latest Caselaw 1881 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 33
 

 
Case :- WRIT - A No. - 1618 of 2022
 

 
Petitioner :- Sunita
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Shyam Shankar Mishra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mrs. Manju Rani Chauhan,J.

Heard Mr. Shaym Shanker Mishra, learned counsel for the petitioner and Mr. S.C. Upadhyay, learned Counsel for the State-respondents.

By means of the present writ petition, petitioner has made following relief:

"a. Issue a writ, order or direction, in the nature of certiorari setting aside of transfer order dated 30.07.2021 of the petitioner whereby the petitioner has been transferred from police training centre Moradabad to I.G. Zone Meerut.

b. Issue a writ, order or direction, in the nature of mandamus directing the respondent to permit the petitioner for discharging her duty at Police Centre Moradabad or any other adjacent place at Moradabad till the academic session of her son.

c. Issue a writ, order or direction, in the nature of mandamus directing the respondent No.2 to decide the representation dated 17.12.2021 of the petitioner within stipulated period which may be fixed by this Hon'ble Court.

.........."

It is the case of the petitioner that the petitioner was initially appointed on the post of Constable (female) in Civil Police of the State of Uttar Pradesh on 23rd October, 1998. Thereafter the petitioner was performing her duty with full devotion and dedication without any complaint. On the basis of her proper functioning, the petitioner was promoted on the post of head constable as per the departmental rules and regulations. In the year 2014, the petitioner was posted at Police Training Centre, Moradabad on the post of Head Constable and since then she has been working there to the utmost satisfaction of her superior authority. The husband of the petitioner is also a government employee and he has been posted outside the Moradabad. The petitioner has a son, who is studying in Class-X in P.M.S. Public School, Moradabad. Further, it is the case of the petitioner that examination of Class-X of her son was scheduled to be held from 24th March, 2022 but without realizing the personal difficulty as faced by the petitioner, she has been transferred from Police Training Centre, Moradabad to the Meerut Zone, Meerut under the order dated 30th July, 2021 passed by the Additional Superintendent of Police/Deputy Superintendent of Police, Establishment, Director General of Police Headquarter, U.P. at Lucknow in compliance of the order of the Police Establishment Board dated 30th July, 2021. It is against this order of transfer that the present writ petition has been filed.

The impugned order of transfer has been challenged on behalf of the petitioner on the ground that as the examination of Class-X of her son was scheduled to be held from 24th March, 2022, it is impossible for the petitioner to shift her son along with herself with bag and baggage at her transferred place of posting. For the said grievance, the petitioner has also made her representation before respondent no.2 but the same has gone unheard. On the cumulative strength of the aforesaid, learned counsel for the petitioner submits that the impugned order of transfer is illegal, therefore the same is liable to be quashed.

On the other-hand, Mr. Mr. S.C. Upadhyay, learned counsel for the State respondents submits that the petitioner has posted at Police Training Centre, Moradabad from the year 2014 and she has completed the requisite period of posting at one place, therefore, the order impugned is legal and valid. He further submits that the examination of Class-X of the son of the petitioner, which was scheduled to be held from 24th March, 2022 must have have been over, therefore, no relief as prayed on behalf of the petitioner can be granted. Lastly, Mr. Upadhyay submits that since the petitioner has disobeyed the order of his superior authorities like the order impugned by not joining at the transferred place of posting in compliance of the same after more than nine months from the date of impugned order of transfer to be precise on 30th July, 2021, therefore, she is not entitled for any relief. On the cumulative strength of the aforesaid, learned counsel for the State submits that there is no illegality or infirmity in the order impugned.

This Court has considered the submissions made by the learned counsel for the petitioner and has carefully scanned the records of the present writ petition. This Court can consider the submission made by the learned counsel for the petitioner that seeing the personal difficulties as faced by the petitioner, her request for permitting her to continue at Police Training Centre, Moradabad by quashing the order of transfer dated 30th July, 2021, be granted by this Court, but seeing the fact that the petitioner has not joined at the transferred place of posting till date after lapse of a period of more than nine months from the date of order impugned to be precise on 30th July, 2021, this petition, at the behest of a person like the petitioner, who does not comply the administrative order of his superior officer after a period of more than three months, cannot be entertained by this Court in exercise of powers under Article 226 of the Constitution of India.

The Apex Court in the case of Union of India & Others Vs. S.L. Abbas, reported in (1993) 4 SCC 357, has held that the guideline in respect of transfer does not confer upon the Government employee a legally enforceable right. The relevant part of the judgment reads 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."

In the case of N.K. Singh Vs. Union of India & Others reported in (1994) 6 SCC 98, the Apex Court after referring a large number of previous judgments has held as under:

"6. Shri Ram Jethmalani, learned counsel for the appellant did not dispute that the scope of judicial review in matters of transfer of a Government servant to an equivalent post without any adverse consequence on the service or career prospects is very limited being confined only to the grounds of mala fides and violation of any specific provision or guideline regulating such transfers amounting to arbitrariness. In reply, the learned Additional Solicitor General and the learned counsel for Respondent 2 did not dispute the above principle, but they urged that no such ground is made out; and there is no foundation to indicate any prejudice to public interest."

The Apex Court in Rajendra Singh & Others Vs. State of Uttar Pradesh & Others, reported in (2009) 15 SCC 178, has held that a Government servant has no right to remain posted at the place of his choice. Relevant part of the judgment reads thus:

"8. A government servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. No Government can function if the government servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires (see State of U.P. Vs. Gobardhan Lal;(2004) 11 SCC 402: 2005 SCC (L&S) 55, SCC p. 406, para 7)."

In the case of S.C. Saxena v. Union of India & Others reported in (2006) 9 SCC 583, the Apex Court has observed that a Government servant cannot disobey the transfer by not reporting at the place of posting. It is his duty to first report for work and if he has some difficulty / personal problem, he can make a representation after joining at his new place of posting. The Supreme Court has deprecated the practice of not reporting at the place of posting and indulging in litigation. The Apex Court held as under:

"6. We have perused the record with the help of the learned counsel and heard the learned counsel very patiently. We find that no case for our interference whatsoever has been made out. In the first place, a government servant cannot disobey a transfer order by not reporting at the place of posting and then go to a court to ventilate his grievances. It is his duty to first report for work where he is transferred and make a representation as to what may be his personal problems. This tendency of not reporting at the place of posting and indulging in litigation needs to be curbed. Apart therefrom, if the appellant really had some genuine difficulty in reporting for work at Tezpur, he could have reported for duty at Amritsar where he was so posted. We too decline to believe the story of his remaining sick. Assuming there was some sickness, we are not satisfied that it prevented him from joining duty either at Tezpur or at Amritsar. The medical certificate issued by Dr. Ram Monohar Lohia Hospital proves this point. In the circumstances, we too are of the opinion that the appellant was guilty of the misconduct of unauthorisedly remaining absent from duty."

(Emphasis added)

In view of the aforesaid, this Court finds no good ground to interfere in the present matter, while exercising its powers under Article 226 of the Constitution of India.

Accordingly, this petition is dismissed.

However, it will always be open for the petitioner to represent her grievance before the authority concerned after her joining at the transferred place of posting.

(Manju Rani Chauhan, J.)

Order Date :- 4.5.2022

Sushil/-