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AFR
Special Appeal No. 21(S/B) of 2008
Bhupendra Kumar
Vs.
State of U.P. & others
Hon'ble C.K. Prasad, C.J.
Hon'ble Y.K.Sangal, J.
Writ Petitioner-appellant, aggrieved by order dated 11.12.2007
passed by a learned Single Judge in Writ Petition No. 7896(S/S) of 2007,
has preferred this Appeal under Rule 5 Chapter VIII of the High Court
Rules.
Short facts giving rise to the present Appeal are that the writ
petitioner-appellant, (hereinafter referred to as ‘the petitioner’), is Forest
Guard and by order dated 19th September, 2007 he was directed to join at
Dudhwa National Park after he had undergone training w.e.f. 01.01.2008.
He challenged the aforesaid order, inter alia, contending that his transfer
from Lakhimpur Kheri to Dudhwa National Park is bad in law, as he was
transferred to Lakhimpur Kheri earlier on 08.01.2005 on the ground of
illness of his wife. The aforesaid submission did not find favour with the
learned Single Judge and he dismissed the writ application inter alia
observing as follows :
“The order of transfer passed on compassionate ground does
not mean that the employee has got right to remain posted at a
2particular place for unlimited period . Already two years have elapsed
after the petitioner was posted on transfer on compassionate ground
at Lakhimpur Kheri and the authorities have got right to transfer
him.”
Mr. A.M. Trapthi appearing on behalf of the appellant submits that
once the petitioner was transferred on compassionate ground, he ought not
to have been transferred again and directed to join at Dudhwa National
Park. In support of the submission, he placed reliance on a judgement of
this Court dated 12.10.2007 passed in Special Appeal No. 849(S/B)/2007
Sripati Yadav Yadav vs. State of Uttar Pradesh & others. Our attention has
been drawn to the following passage from the said judgement.
“Here in the instant case on compassionate ground the
petitioner has been transferred only on 15.12.2005 in pursuance of
which he had joined the transferred place on 25.01.2006 but in a
decision taken to the effect that all the employees who were working
earlier in Dudhwa National Park be posted there he has also been
transferred to that place. We find that the order appears to have been
passed without considering the plea that he was transferred on
compassionate grounds. We, therefore, set aside the order dated
24.09.2007 passed by learned Single Judge and quash the order of
transfer dated 29.06.2007. Appellant shall be allowed to remain at the
present place of posting at least for a period of one year and
thereafter as the case may be, and if, his transfer required, in
exigencies of services, the same be considered, but not without taking
into account, that the petitioner has been posted at the present place,
on compassionate ground.”
We do not find any substance in the submission of the learned
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counsel for the appellant and the decision relied on is clearly
distinguishable. Petitioner was transferred to Lakhimpur Kheri on
08.01.2005. He has been asked to join at the transferred place w.e.f Ist
January, 2008, therefore, he has not been directed to join at the transferred
place immediately after he was transferred on compassionate ground to
Lakhimpur Kheri. We are of the opinion that once an employee is
transferred on compassionate ground at a particular place, he does not have
the right to continue at that place of posting till perpetuity. It cannot be
said as an absolute proposition of law that once an employee is transferred
on compassionate ground, he cannot be transferred. However, we hasten to
add that if the request of transfer of an employee has been accepted unless,
overriding reasons exist he may not be transferred immediately. In our
opinion, exigency of service may demand his transfer from the place where
he was posted on compassionate ground. We are entirely in agreement with
the view of the learned Single Judge that authorities shall not be precluded
from transferring an employee when on an earlier occasion, he was
transferred on compassionate ground.
Now referring to the decision of this Court in the case of Sripati
Yadav (Supra) relied on by the learned Counsel for the petitioner the same
is clearly distinguishable. In the said case immediately after the employee
was transferred on compassionate ground, another order of transfer was
passed which in the facts and circumstances of the case, was found to be
illegal by this Court. However, at the same time court observed that the
employee shall remain at the present place of posting for a period of one
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year and thereafter his case for transfer may be considered, in case, the
exigency of service so requires. Aforesaid observation of this Court clearly
goes to suggest that there is no prohibition of transfer of a person from one
place to another, when earlier he was transferred on compassionate ground.
We are of the opinion that the consideration of the matter by the
learned Single Judge does not suffer from any error calling for interference
in this appeal.
We do not find any merit in the appeal and it is dismissed
accordingly.
(C.K.Prasad,C.J.)
(Y.K.Sangal,J.)
Date: 21.01.2010
Kaushal