- (1.) Heard the parties' counsel. With the consent of parties counsel, I proceed to decide the writ petition finally at admission stage. Petitioner has been working on the post of Upper Division Clerk at Lucknow. The submission of the learned counsel for the petitioner is that by the impugned order he has been transferred to Kheri. Further submission of the learned counsel for the petitioner is that epidemic disease may spread at Lucknow hence, it is necessary that he may continue at the present place of posting on account of efficiency and dedicated service. In case, he is transferred, the function of the Department may be adversely affected. Learned counsel for the petitioner had relied upon the interim order passed by this Court, a copy of which has been filed as Annexure No. 9 to the writ petition. I do not think that the interim order passed in another case by this Court, extends any assistance to the petitioner as petitioner has been working in Lucknow since June, 1996.
(2.) It is not for a Government servant to raise a plea that his transfer will adversely affect the functioning of the department. It is for the State Government to take steps for the proper functioning of the department and employee has got no right to claim a particular post on the ground that his transfer will cause hardship to the public.
(3.) It has been settled by the Hon'ble Apex Court that normally, the transfer order may be interfered only in case it has been passed with malice or is in violation of certain rules or regulations. Hon'ble Supreme Court, in a case , State of Rajasthan v. Anand Prakash, 2003 7 SCC 403; Union of India v. S. L. Abbas, 1993 AIR(SC) 2444 and Public Service Tribunal Bar Association v. State of UP, 2003 4 SCC 104. For convenience relevant portion from Apex Court judgment in the case of Public Service Tribunal is reproduced as under : "37. Transfer is an incident of service and is made in administrative exigencies. Normally it is not to be interfered with by the Courts. This Court consistently has been taking a view that orders of transfer should not be interfered with except in rare cases where the transfer has been made in a vindictive manner. 38. From the above quoted decision, it is evident that this Court has consistently been of the view that by way of an interim order the order of suspension, termination, dismissal and transfer etc. should not be stayed during the pendency of the proceedings in the Court." For convenience relevant portion from Apex Court judgment in the case of S.L. Abbas, 1993 AIR(SC) 2444 is reproduced as under - "Para 7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect of his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right. Para 8. The jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Article 226 of Constitution of India in service matters. This is evident from a perusal of Article 323-A of the Constitution. The constraints and norms which the High Court observes while exercising the said jurisdiction apply equally to the Tribunal created under Article 323-A. (We find it all the more surprising that the learned single Member who passed the impugned order is a former Judge of the High Court and is thus aware of the norms and constrains of the writ jurisdiction). The administrative Tribunal is not an appellate Authority sitting in judgment over the orders of transfer. It cannot substitute its own judgment for that of the authority competent to transfer. In this case the Tribunal has clearly exceeded its jurisdiction in interfering with the order of transfer. The order of the Tribunal reads as if it were sitting in appeal over the order of transfer made by the Senior Administrative Officer (Competent authority). Para 9. Shri Goswami, learned counsel for the respondent relies upon the decision of this Court in Bank of India v. Jagjit Singh Mehta, 1992 1 SCC 306 ) rendered by a Bench of which one of us (J.S. Verma, J.) was a member. On a perusal of the judgment, we do not think it supports the respondent in any manner. It is observed therein (para 5 of AIR) :- "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 employer 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 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 spouse 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.";