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Smt. Veena Gupta v. State Of U.P. Thru. Secy. Health & Others - WRIT - A No. 42426 of 2004  RD-AH 1104 (8 October 2004)
CIVIL MISC. WRIT PETITION NO. 42426 OF 2004
Smt Veena Gupta .......... Petitioner
State of U.P. & Ors. ............ Respondents
Hon'ble Dr. B.S. Chauhan, J.
Hon'ble Dilip Gupta, J.
This writ petition has been filed challenging the transfer order dated 19.6.2004 (Annex. 2), by which petitioner has been transferred from Etawah to Kannauj.
The writ petition has been filed at a belated stage contending that the statutory authority itself has passed an order that petitioner would not be relieved up to 30th September, 2004. Thus, she had been working at Etawah. The transfer order has been challenged on personal inconvenience pointing out that the elder brother of the petitioner's husband is a patient of Seizophaeina since 1968. He has been treated in the mental hospital, Agra, Mental Hospital Delhi and in All India Institute of Mental Illness, Banglore and there is nobody to look after him.
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 the instant case, petitioner has also filed a representation against the impugned transfer order which has not yet been disposed of.
The writ petition is disposed of requesting the respondent nos. 1 and 2 to consider the said representation of the petitioner expeditiously, preferably, within a period of three weeks from the date of filing a certified copy of the order before them in accordance with law.
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