DR. SHIV KUMAR versus STATE OF U.P. THRU. SECY. MEDICAL & HEALTH & OTHERS

High Court of Judicature at Allahabad

Indian Supreme Court Cases / Judgements / Legislation

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Dr. Shiv Kumar v. State Of U.P. Thru. Secy. Medical & Health & Others - WRIT - A No. 42597 of 2004 [2004] RD-AH 1093 (8 October 2004)

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO. 34

CIVIL MISC. WRIT PETITION NO. 42597 OF 2004

Dr. Shiv Kumar       -------------    Petitioner              

Versus.

State of U.P. & Ors.        -------------  Respondents

_________

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble Dilip Gupta, J.

(By Hon'ble Dr. B.S. Chauhan, J.)

This writ petition has been filed for quashing the impugned transfer order dated 16.8.2004, by which the petitioner has been transferred from Jhansi to Banda.

The impugned transfer order is under challenge on a large number of grounds, particularly, that petitioner has not completed 10 years of service at Jhansi, nor he has yet been regularised. The petitioner's son is studying in Jhansi in Intermediate. His daughter is also a student of B.Sc. Pt. I in Jhansi. His father is 85 years of age and suffering from ailments, who is being treated in the Medical College, Jhansi, and there is no one to look after him. His mother is 75 years of age, not physically fit, suffers from high blood pressure and Arthritis. She is also being treated in Medical College, Jhansi.

Though the transfer policy might have provided for ten years stay at one place for doctors, but it does not create any legal right which can be enforced through the Court of law. Other grievances are personal in nature. A writ does not lie against the transfer order, unless the Court is satisfied that the transfer order has been passed in contravention of the statutory provisions or on mala fides.

The issue of transfer and posting has been considered time and again by the Apex Court and entire law has been settled by catena of decisions. It is entirely upon the competent authority to decide when, where and at what point of time a public servant is to be transferred from his present posting.  (Vide Union of India Vs. S.L. Abbas, AIR 1993 SC 2444; Shilpi Bose Vs. State of Bihar, AIR 1991 SC 532; Union of India Vs.  N.P.  Thomas, AIR 1991 SC 1605; Chief Manager (Tel.) N.E.  Telecom Circle Vs.  Rajendra Ch.  Bhattacharjee,  AIR  1995 SC 813;  State  of U.P.  Vs.   Dr.  V.N.  Prasad, 1995 (Suppl) 2  SCC 151;  Union  of  India  & ors.  Vs.   Ganesh  Dan Singh, 1995  (Suppl) 3 SCC 214;  N.K.  Singh  Vs. Union of India & ors., (1994) 6 SCC 98;  and Abani Kante Ray  Vs.   State of Orissa, 1995 (Suppl)  4 SCC 169).

An employee holding a transferable post cannot claim any  vested  right  to  work  on  a particular  place as the transfer order does  not affect any  of his legal rights and Court  cannot interfere  with a transfer/posting which is  made in public interest or on administrative exigency. In Gujarat Electricity Board Vs.   Atma  Ram Sungomal  Poshani, AIR 1989 SC 1433, the  Hon'ble Supreme Court has observed as under:-

"Transfer of a Government servant appointed to a  particular  cadre  of transferable  posts from one place to the another  is  an incident of service.   No Government  servant or employee of public undertaking  has  legal right  for  being posted at any particular place.  Transfer from  one  place to other is generally  a condition of service and the employee has no  choice in the matter. Transfer from one place to other is necessary in public interest  and  efficiency in  the  public administration."

Similar view has been taken by the Apex Court in Chief General Manager  (Telecom) N.E. Telecom Circle (supra).

In Union of India Vs.  H.N. Kirtania, AIR 1989 SC 1774, the Hon'ble Apex Court observed as under:-

"Transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and  pressing grounds  rendering  the   transfer  order illegal  on  the ground of  violation  of statutory   rules   or   on   ground   of malafide."

The Supreme Court, in Bank of India Vs. Jagjit Singh Mehta, AIR 1992 SC 519 and Union of India Vs. S.L. Abbas (supra), has observed that the Government instructions  on  transfer  are  mere guidelines  without  any statutory force and  the Court or Tribunal cannot interfere with the order of transfer  unless the said order is alleged  to have been passed by malice or where it is made in violation of the statutory provisions.

Thus, it is clear that the transfer policy does not create any legal right in favour of the respondent- employee.

It is settled law that writ petition under Article 226 of the Constitution  is  maintainable for  enforcing  the statutory  or  legal  right or when there  is  a complaint  by the employee that there is a breach of the statutory   duty  on  the   part  of   the employer.   Therefore,  there must be  judicially enforceable  right  for the enforcement of  which the writ  jurisdiction  can be resorted to.   The Court can enforce the performance of a statutory duty by public    bodies    through    its   writ jurisdiction at the behest of a person, provided such person satisfies the Court that he/ she has a legal right to insist on such performance.  The existence of the said right is the condition precedent to invoke the writ jurisdiction.  (Vide State of  Kerala Vs.  K.G.  Madhavan Pillai,  AIR 1989 SC 49;  State of Kerala Vs.  Smt.  A.  Laxmi Kutty, AIR  1987 SC 331;  Mani Subrat Jain & ors. Vs.  State  of  Haryana,  AIR 1977 SC  276;   and Calcutta  Gas Company (Propriety Ltd.) Vs.  State of West Bengal & ors., AIR 1962 SC 1044).

In Shilpi Bose (supra), the Apex Court has held that order of transfer/posting  "issued by the competent authority did not violate any of her legal   right."

The   employee holding   a transferable post cannot claim any vested right for his/her posting at a particular place.

The next submission made on behalf of the employee is that the transfer  order would cause  great hardship to him and he  would be forced to have a second establishment at a far distant place. It has also been submitted that the grievances raised by the petitioner as mentioned above, if not resolved, he would suffer an irreparable loss and would not be able to manage his affairs and to look after his family. This aspect was also considered by the Apex Court in State of M.P. Vs. S.S. Kaurav, AIR  1995  SC 1056, wherein it  has  been held that  it is not permissible for the Court to go into the  relative  hardship.  It is for the administration to consider the facts of a given case and mitigate the real   hardship in the interest of good and efficient administration. Thus, the Court is not inclined to consider this submission at all.

In view of the above, we are not inclined to interfere in the matter. Petition is dismissed. However, as the petitioner has already filed a representation, we request the authority to decide the same expeditiously.

8.10.2004

AKSI

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