Writ Appeal No.704/2010
03.08.2010
Shri Vijay Nayak, learned counsel for the appellant.
Shri Kumaresh Pathak, learned Deputy Advocate
General for the respondents on advance notice.
Heard on the question of admissio.
This intra-court appeal preferred against the order
dated 19.7.2010 passed by learned Single Judge in Writ
Petition No.9206/2010 (S), by which the writ petition has
been dismissed.
The appellant has been posted as a Head Master in
Government Primary School, Panwari (Girls-Ghuwra),
District Chhatarpur. He has been transferred to Middle
School Bilhar, Bachon in the same district. The appellant
challenged the order of transfer in a writ petition on the
ground that his wife is working as Assistant Teacher in
Government Primary School, Bhagwa which is 8 Kms. away
from the present place of posting and, therefore, transfer
order has been passed in violation of the policy framed by
the State Government.
Learned Single Judge by order dated 19.7.2010 held
that merely because there is violation of transfer policy that
itself would not be a ground for interference in the order of
transfer.
We have heard learned counsel for the parties. Learned
counsel for the appellant contended that the order of transfer
has been passed in violation of the transfer policy framed by
the State Government which provides that as far as possible
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the husband-wife should be posted at the same place.
Learned counsel further submitted that in violation of policy
the appellant has been posted 250 Kms. away from his
present place of posting. He further contended that nobody
has been posted in place of the appellant.
We are afraid that the fact that order of transfer is
violative of transfer policy, cannot be a ground for
interference with the order of transfer. It is well settled in law
that transfer is an incident of service. Which employee
should be posted where is a matter for the appropriate
authority to decide until and unless the transfer is vitiated by
malafide or is made in violation of any statutory provisions,
the Court cannot interfere with the order of transfer. [See:
Union of India and others vs. S.L.Abbas, (1993) 4 SCC
357]
Similarly, in Public Services Tribunal Bar
Association vs. State of U.P. and another, (2003) 4 SCC
104, once again dealing with the scope of judicial review in
the matter of transfer, Supreme Court reiterated that transfer
is an incident of service and normally should not be
interfered with by the Court. If any administrative guidelines
recalling transfer of an employee are violated, at best the
same confers the right on the employee to approach the
higher authorities for redressal of their grievance. Transfer
made contrary to policy can also not be interfered with.
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In view of the aforesaid well settled legal position, it is
apparent that if the order of transfer of the appellant has been
passed in violation of the policy, the appellant would be at
liberty to submit a representation to the competent authority.
We do not find any ground to interfere with the view
taken by the learned Single Judge. At this stage, learned
counsel for the appellant submitted that he may be permitted
to submit representation within a week before the respondent
No.2 and the respondent No.2 be directed to consider the
representation submitted by the appellant expeditiously.
Accordingly, it is directed that if the appeal is submitted
within a period of one week from today before the
respondent No.2, the respondent No.2 shall decide the
representation submitted by the appellant within a period of
two weeks from the date of filing of representation. Since
nobody has been posted in place of the appellant, therefore,
in the peculiar facts of this case we direct the respondents, till
the representation submitted by the appellant is decided, they
shall not insist the appellant to submit his joining at his
transferred place for a period of three weeks from today. It is
made clear that this order shall not be treated as a precedent
as it is passed in the peculiar facts of this case.
With the aforesaid direction the writ appeal stands
disposed of.
C.C. as per rules.
(S.R.Alam) (Alok Aradhe)
Chief Justice Judge
RM
