Dr. Sunita Gupta vs The Secretary, Ministry Of Hrd And ...
2004 Latest Caselaw 421 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Petitioner challenges the order dated 17.2.2004 alleging that the same is arbitrary, mala fide and a result of colourable exercise of power.

2. Petitioner states that in the year 1982, she was married to Mr. Lalit Kumar Gupta, a practicing Advocate. On 26.12.1995 she got appointed as a Research Assistant under respondent No.2 and was posted at Jammu. Petitioner states that her husband developed serious neurological problem in the year 1995. She made a representation for being transferred to Delhi since her husband was undergoing medical treatment at AIIMS. Her request was duly considered. She was transferred to Delhi on deputation. Petitioner states that office order dated 29.8.1997 transferring her to Delhi would reveal that the post itself is transferred to Delhi. As per the petitioner, on 4.1.2001, she was transferred to the Examination Section with immediate effect. Petitioner states that office nothings exist on the file that the petitioner, in view of her excellent work, be not posted out from the Correspondence Course Section.

3. Petitioner alleges that the condition of her husband has deteriorated and posting her at Jammu would seriously dislocate the family. The petitioner states that there is nobody to look after the husband who cannot be taken far away from Delhi as he is undergoing medical treatment at AIIMS.

4. Ground on which mala fide is alleged is that knowing the family circumstances of the petitioner, senior officers pressurise the petitioner to act as per their whims and fulfilll their demands which cannot be disclosed in the petition. Petitioner alleges that she was denied honorarium for the extra work done. She made a grievance and as a retaliation, the impugned order has been issued.

5. As per the respondent, a project known as Kashmir Shaiva Darshan Project is being implemented at Sri Ranbir Sanskrit Vidyapeetha at Jammu. The project pertains to translation of holy scripts from Sharda script to Devnagri for which work, facility is only available at Jammu and nowhere else in the country. A Research Assistant was required for the said project. Petitioner applied for the same in the year 1995. Petitioner was appointed. After being appointed, petitioner made a request that in view of the family circumstances she be posted at Delhi. Purely on humanitarian grounds, notwithstanding that the petitioner was specifically employed for the project at Jammu, she was posted at Delhi and was given some other work. It is stated that in the letter of appointment and even as per the service rules, employees of respondents are liable to be transferred anywhere in India where establishment of the Sansthan is being maintained.

6. Justifying the decision, it is stated that the progress of the work of translation at Jammu was very slow. Out of 121 Granths (Holy Books), work was completed only of 17 Granths in the last 12 years. Numerous letters were received for expediting the work from the Ministry of Human Resource Development and in that view of the matter, considering the fact that the petitioner was employed for the project at Jammu, in public interest she was transferred back to Jammu so that work could proceed with pace at Jammu. It is specifically stated in the counter affidavit that facility to carry out the translation work is only available at Jammu as the scripts cannot be removed to any other place.

7. CM.No.3806/2004 was filed by the respondents seeking permission of the Court to place on record supplementary affidavit. As per the supplementary affidavit filed, it is stated that the petitioner had applied for the post of Lecturer advertised by the University of Jammu in the year 2002 which would reveal that the petitioner has no problem to work at Jammu. It is stated that the petitioner is trying to play on the illness of her husband.

8. In response to the additional affidavit, it is stated by the petitioner that she has a fundamental right to further her career prospects and her seeking employment as a Lecturer in Jammu does not mean that she cannot claim a right to be retained at Delhi.

9. Order dated 17.2.2004, transferring the petitioner to Jammu reads as under :

"Dr. (Smt.) Sunita Gupta, Research Assistant is transferred from HQ office of the Sansthan to Rashtriya Sanskrit Sansthan (Deemed University) Sri Ranbir Campus, Jammu in the same capacity along with post to handle the work of Kashmir Shaiv Darshan Kosha Project in the Public interest with immediate effect. She is hereby relieved from her present duty today in the afternoon 17.2.2004 to enable her to join in Jammu Campus. This issues with the approval of competent authority.

She is entitled TTA & Joining time as per rules."

10. Letter of appointment dated 15.12.1995 would show that the petitioner was appointed to the post of Research Assistant in Sri Ranbir Kendriya Sanskrit Vidyapeetha Jammu under Kashmir Shaivism, a unit of Rashtriya Sanskrit Sansthan. Vide clause No.(iii) of the letter of appointment, it was clearly indicated that: "the post carries the liability of transfer to any of the Vidyapeethas under the Sansthan".

11. The respondent has framed service bye-laws called Rashtriya Sanskrit Sansthan (Services) Bye-Laws. As per bye-law 34, all the employees of the Sansthan are liable for transfer to any of the Sansthan's establishment anywhere in India. No doubt, vide bye-law 36, the Sansthan has the power to relax the bye-laws to relieve an employee of any undue hardship arising from the operation of bye-laws, but that would not mean that an employee would have a right to claim, as a matter of right, relaxation of the bye-laws.

12. Petitioner did not dispute that the work of translation of the Granths of Sharda to Devnagri script could be performed only at Jammu. Merely because the petitioner's work at Delhi was appreciated and that her superior officers at Delhi have recommended petitioner's retention at Delhi would not mean that in the interest of the organization petitioner cannot be posted at Jammu.

13. It is to be noted that petitioner's initial appointment was as a Research Assistant for the project at Jammu. Her services were utilised for translation work at Jammu. Due to domestic problems faced by the petitioner occasioned by the medical status of her husband, on humanitarian grounds, petitioner was posted at Delhi in the year 1997. The department accommodated the petitioner to the extent she could be accommodated. Record would reveal that the Ministry of Human Resource Development is repeatedly writing to the respondents to expedite the translation work at Jammu. Manpower is needed at Jammu. It cannot be said that the decision to re-post the petitioner at Jammu is mala fide. Though, the respondents need not have justified its decision to post the petitioner at Jammu and it is within the power of this Court to go into the justifiability of a transfer, but I find that on facts, adequate justification for transfer of the petitioner has been laid.

14. Save and except, a challenge on the ground of mala fide or that a transfer is by way of penalty, the transfer order cannot be challenged.

15. Transfer is incidental to every employment. Every transfer cause some hardship. It dislocates the family, but it cannot be helped. In the decision reported as AIR 1981 SC 1577, Shanti Kumari Vs. Regional Deputy Director, Health Services, Patna Division, Patna & ors., a transfer of Auxiliary Nurse Mid-Wife was not interfered by the Supreme Court holding that the transfer of a Government servant due to exigencies of service or due to administrative reasons cannot be interfered under judicial review. Similarly, in 1991 Supp (2) SCC 659, Shilpi Bose (Mrs.) & ors. Vs. State of Bihar & ors., it was held that 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 are the outcome of mala fide. It was held that 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. In the decision reported as , Rajendra Roy Vs. Union of India & anr., it was held that the order of transfer often causes a lot of difficulties and dislocation in the family set up of the employees concerned, but on that score the order of transfer is not liable to be struck down unless it is passed mala fide or in violation of the rules of service. On mala fides, it was held that no mala fide could be deduced on the basis of insinuations and vague suggestions.

16. It may be a hard case for the petitioner but since the work for which the petitioner was engaged remains uncompleted at Jammu, petitioner must proceed to Jammu.

17. I find no infirmity in the decision of the respondents to transfer the petitioner to Jammu. The writ petition is accordingly dismissed. No costs.