Rajasthan High Court
Dr. Mini Mathur Wife Of Dr. Anadi Mathur vs Union Of India (2023:Rj-Jp:40700-Db) on 20 December, 2023
Bench: Arun Bhansali, Ashutosh Kumar
[2023:RJ-JP:40700-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Writ Petition No. 20290/2023
Dr. Mini Mathur wife of Dr. Anadi Mathur, aged about 60 years,
Resident of B77 Rajendra Marg Bapu Nagar Jaipur. (The
applicant is working as CMO, NFSG, ESIC, Model Hospital,
Jaipur) Group-A.
----Petitioner
Versus
1. Union of India Ministry of Labour and Employment,
Central Secretariat New Dehli-110001.
2. Director General, Employees State insurance Corporation,
Panchdeep Bhawan , New Delhi 110002.
3. Chairman, Grievance Redressal Cell, Employees State
insurance Corporation, Panchdeep Bhawan New Delhi-
110002.
4. Deputy Director, (Medical Administration), Panchdeep
Bhawan , New Delhi -110002.
5. Medical Superintendent, Employees State insurance
Corporation Model Hospital, Laxmi Nagar, Sodala, Ajmer
Road, Jaipur 302006.
----Respondents
CONNECTED WITH
D.B. Civil Writ Petition No. 20104/2023
Dr. Soma Mathur wife of Dr. Jaideep Mathur, aged about 59
years, Resident of S-20, Shyam Nagar, Jaipur. (The applicant is
working as CMO, NFSG in ESIC Model Hospital, Jaipur) Group
A.
----Petitioner
Versus
1. Union of India through its Secretary, Ministry of Labour
and Employment, Central Secretariat New Delhi-
110001.
2. Director General, Employees State insurance
Corporation, Panchdeep Bhawan, New Delhi 110002.
3. Chairman, Grievance Redressal Cell, Employees State
insurance Corporation, Panchdeep Bhawan, New Delhi-
110002.
4. Deputy Director (Medical Administration), Panchadeep
[2023:RJ-JP:40700-DB] (2 of 10) [CW-20290/2023 A-w connected writs]
Bhawan, New Delhi- 110002
5. Medical Superintendent, Employees State insurance
Corporation Model Hospital, Laxmi Nagar, Sodala, Ajmer
Road, Jaipur- 202006.
----Respondents
D.B. Civil Writ Petition No. 20119/2023
Dr. Rekha Sharma wife of Dr. Achal Sharma, aged about 56
years, Resident of 1 Mansinghpura Tonk Road, Jaipur. (The
applicant is working as CMO, NFSG in ESIC Model Hospital,
Jaipur) Group A.
----Petitioner
Versus
1. Union of India through its Secretary, Ministry of Labour
and Employment, Central Secretariat New Delhi-
110001.
2. Director General, Employees State insurance
Corporation, Panchdeep Bhawan, New Delhi 110002.
3. Chairman, Grievance Redressal Cell, Employees State
insurance Corporation, Panchdeep Bhawan, New Delhi-
110002.
4. Deputy Director (Medical Administration), Panchdeep
Bhawan, New Delhi- 110002
5. Medical Superintendent, Employees State insurance
Corporation Model Hospital, Laxmi Nagar, Sodala, Ajmer
Road, Jaipur- 202006.
----Respondents
D.B. Civil Writ Petition No. 20120/2023
Dr. Vandana Garg wife of Dr. Vinod Kumar Garg, aged about 55
years, Resident of 48 Muktanand Nagar Gopalpura Road,
Jaipur, (The applicant is working as CMO, NFSG in ESIC Model
Hospital, Jaipur) Group A.
----Petitioner
Versus
1. Union of India through its Secretary, Ministry of Labour
and Employment, Central Secretariat New Delhi-
110001.
[2023:RJ-JP:40700-DB] (3 of 10) [CW-20290/2023 A-w connected writs]
2. Director General, Employees State insurance
Corporation, Panchdeep Bhawan, New Delhi 110002.
3. Chairman, Grievance Redressal Cell, Employees State
insurance Corporation, Panchdeep Bhawan, New Delhi-
110002.
4. Deputy Director (Medical Administration), Panchdeep
Bhawan, New Delhi- 110002.
5. Medical Superintendent, Employees State insurance
Corporation Model Hospital, Laxmi Nagar, Sodala, Ajmer
Road, Jaipur- 202006.
----Respondents
D.B. Civil Writ Petition No. 20121/2023
Dr. Monika Dubey wife of Dr. Anil Dubey, aged about 56 years,
Resident of 69, Vidhyut Abhiyanta Colony, C Block, Pradhan
Marg, Malviya Nagar Jaipur. (The applicant is working as CMO,
NFSG in ESIC Model Hospital, Jaipur) Group A.
----Petitioner
Versus
1. Union of India through its Secretary, Ministry of Labour
and Employment, Central Secretariat New Delhi-
110001.
2. Director General, Employees State insurance
Corporation, Panchdeep Bhawan, New Delhi 110002.
3. Chairman, Grievance Redressal Cell, Employees State
insurance Corporation, Panchdeep Bhawan, New Delhi-
110002.
4. Deputy Director (Medical Administration), Panchdeep
Bhawan, New Delhi- 110002.
5. Medical Superintendent, Employees State insurance
Corporation Model Hospital, Laxmi Nagar, Sodala, Ajmer
Road, Jaipur- 202006.
----Respondents
For Petitioner(s) : Mr. Ashok Bansal.
For Respondent(s) : Mr. T.P. Sharma.
[2023:RJ-JP:40700-DB] (4 of 10) [CW-20290/2023 A-w connected writs]
HON'BLE MR. JUSTICE ARUN BHANSALI
HON'BLE MR. JUSTICE ASHUTOSH KUMAR
Order
20/12/2023
1. These writ petitions have been filed by the petitioners
aggrieved of the orders dated 02.12.2023, 05.12.2023 and
08.12.2023 passed by Central Administrative Tribunal, Jaipur
Bench, Jaipur ('Tribunal') whereby Original Applications ['OA(s)']
filed by the petitioners have been dismissed.
2. The petitioners were transferred by various orders from
Jaipur to different places. In terms of the Policy of the
respondents, they made representations seeking reconsideration
of the orders of transfer, which representations came to be
rejected. Feeling aggrieved, the petitioners preferred OA(s) before
the Tribunal, wherein the respondents appeared and contested the
OA(s). The Tribunal, after hearing the parties, came to the
conclusion that in view of various judgments of Hon'ble Supreme
Court, no interference was called for in the orders of transfer and
consequently, rejected the OA(s).
3. Feeling aggrieved, the present writ petitions have been filed
seeking to question the orders of transfer as well as the orders
rejecting OA(s) by the Tribunal.
4. Learned counsel for the petitioners made vehement
submissions that the orders of transfer are contrary to the
guidelines of the Department of Personnel dated 30.09.2009
providing postings of husband and wife at the same station, which
inter-alia, provides that Cadre Controlling Authority may post the
spouse at the same station and despite the fact that the spouse of
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the petitioner/s are presently posted at Jaipur, they're sought to
be transferred out of station for no apparent reason.
5. Submissions have been made that presently no
administrative exigency has arisen to the respondents to effect the
transfer of the petitioners, inasmuch as several posts are lying
vacant at Jaipur. Emphasis was also laid to the fact that the Policy
of the respondents provide for a minimum tenure at the place of
posting and the petitioners have not completed the minimum
tenure. It was indicated that the respondents have taken the
period of tenure from the date they were posted at Jaipur,
whereas it was required of the respondents to take the date from
which the petitioners had opted for All India Seniority and if the
correct date is taken into consideration, they haven't completed
the minimum tenure of six years and on that count, for violation
of the Policy of minimum tenure, the orders impugned deserve to
be quashed and set aside.
6. Submissions have been made that the Policy of the
respondents provide for a schedule, by which the transfers are to
take place, which schedule also has been violated, inasmuch as
the transfers should have taken place in the month of March and
have taken place in the month of May, and the representation(s)
made, which should have been decided within a period of five
days, the respondents have taken six months, and on that count
also, the orders impugned are bad. Submissions have also been
made that the Tribunal didn't call upon the respondents to file
reply to OA(s) and even in the present case also, no response has
been filed and, therefore, the procedure adopted by the Tribunal
also is not justified. Submissions were also made pertaining to
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personal difficulty of the petitioner in executing the transfer, inter-
alia, on the ground of indifferent health of husband of petitioner in
DBCWP No.20290/2023. It was prayed that the orders impugned
transferring the petitioners and the orders impugned rejecting
OA(s), be set aside.
7. Reliance, inter-alia, was place on judgment in SK Nausad
Rahaman & Ors. vs. Union of India & Ors. : (2022) 12 SCC 1.
8. Learned counsel for the respondents supported the orders
impugned. It was submitted that the issues as raised by the
petitioners have all been thoroughly considered by the Tribunal
and no interference is called for.
9. We have considered the submissions made by the counsel for
the parties and have perused the material available on record
including the orders passed by the Tribunal.
10. The entire foundation of the challenge laid by the petitioners
is based on the Office Memorandum dated 30.09.2009 issued by
the Department of Personnel, in relation to posting of husband
and wife at the same station.
11. Clause 4 (iii) and (vii) of the OM dated 30.09.2009, which
are relevant in relation to the present dispute, reads as under:
"4 (iii). Where the spouses belong to the same
Central Service:
- The Cadre controlling authority may post the
spouses to the same station.
xxx
(vii). Where one spouse is employed under the
Central Govt. and the other spouse is employed under the
state Govt: -
- The spouse employed under the Central Govt. may
apply to the competent authority and the competent
authority may post the said officer to the station or if there
is no post in that station to the State where the other
spouse is posted."
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12. A perusal of the above indications made in the Policy
indicates that the Cadre Controlling Authority has been given the
discretion to post the spouse at the same station. The very fact
that the Policy has been formulated for posting of husband and
wife at the same station, only means that while posting the
officers, the aspect of posting of spouse, has to be kept in mind,
however, the said aspect cannot control the decision of the
authorities in case the other considerations, which are relevant for
the purpose of posting, override the said aspect.
13. The submission made that though DoPT's OM dated
30.09.2009 gives the Cadre Controlling Authority the discretion, in
view of the fact that the Policy of the respondents indicates that
said OM 'shall be followed', necessarily means that husband and
wife should be kept posted at the same station, has no substance.
The indication in the respondents' policy that OM dated
30.09.2009 shall be followed, is only by way of incorporation that
the OM dated 30.09.2009 has been adopted and once the OM
dated 30.09.2009 gives discretion to the Cadre Controlling
Authority to post husband and wife at the same station, merely by
using the word 'shall' in respondents' policy, it cannot be claimed
to be mandatory.
14. Coming to the plea regarding minimum tenure at the place
of posting, it is not denied that the petitioners have remained at
Jaipur for more than six years, however, the contention raised is
that six years' tenure should be calculated from the date, they
opted for All India Seniority. The plea raised, has no substance,
neither under any Circulars nor under any law adopting the All
India Seniority by the Officer(s) affect the tenure of the officers'
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posting at a particular place and, therefore, the said aspect also
does not come to the aid of the petitioners.
15. Insofar as the question relating to personal difficulties of the
officer is concerned, the said aspect has to be taken care of by the
authorities based on the representation made by the petitioners.
Once the petitioners have made representations and the same
have been considered by the authorities and not found favour with
them, it is now not open for this Court to re-examine and reach to
a different conclusion.
16. The plea raised that several posts are lying vacant at the
present place of posing, also cannot be made subject matter of
the challenge to the orders of transfer, inasmuch as it is for the
authorities concerned to decide as to whether they want to keep
the posts vacant and/or the post where the petitioners have been
transferred, needs to be filled-up on urgent basis. The competing
interests at two places, have to be decided by the authorities and
not by this Court.
17. So far as the plea raised regarding non-following the
schedule in terms of the Policy and delay in disposal of the
representations is concerned, the same by itself cannot and does
not vitiate the order of transfer made by the respondents.
18. The submissions made pertaining to the Tribunal not seeking
any response from the respondents cannot be faulted as the plea
raised by the petitioners did not raise any factual dispute so as to
require response from the respondents. Rather, not seeking
response from the respondents has expedited the disposal of the
OA(s) filed by the petitioners.
[2023:RJ-JP:40700-DB] (9 of 10) [CW-20290/2023 A-w connected writs]
19. The aspects pertaining to parameters for the purpose of
transfer have been laid down by the Hon'ble Supreme Court in SK
Nausad Rahaman (supra), wherein it has been observed as under:
"23. While analyzing the rival submissions, certain
basic precepts of service jurisprudence must be borne in
mind.
24. First and foremost, transfer in an All India
Service is an incident of service. Whether, and if so where,
an employee should be posted are matters which are
governed by the exigencies of service. An employee has
no fundamental right or, for that matter, a vested right to
claim a transfer or posting of their choice.
25. Second, executive instructions and
administrative directions concerning transfers and postings
do not confer an indefeasible right to claim a transfer or
posting. Individual convenience of persons who are
employed in the service is subject to the overarching
needs of the administration.
26. Third, policies which stipulate that the posting of
spouses should be preferably, and to the extent
practicable, at the same station are subject to the
requirement of the administration. In this context, Justice
JS Verma (as the learned Chief Justice then was) speaking
for a three-Judge Bench of this Court in Bank of India v.
Jagjit Singh Mehta held:
"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
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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. ... 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."
20. In view of above discussion and the law laid down by the
Hon'ble Supreme Court in the case of SK Nausad Rahaman
(supra), no case for interference in the orders of transfer and/or
orders passed by the Tribunal is made out.
21. The writ petitions are, therefore, dismissed.
(ASHUTOSH KUMAR),J (ARUN BHANSALI),J
34, 99 to 102-DJ/-
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