WA 26/2010 BEFORE THE HON’BLE MR. JUSTICE IA ANSARI THE HON’BLE MR. JUSTICE AC UPADHYAY :: J U D G M E N T & O R D E R :: :: O R A L :: We have heard Mr. N Dutta, learned Senior counsel, for the appellant, and Mr. D Saikia, learned Standing Counsel, Health Department, appearing on behalf of the respondent Nos. 1, 2 and 3. We have also heard Mr. PC Deka, learned Government A dvocate, appearing on behalf of the respondent Nos. 4 and 5. 2. While working as Medical & Health Officer No. I, Buragohainthan PHC, Kam rup, under the Health Department, Government of Assam, the service of the appell ant was placed at the disposal of Home (B) Department, by his parent Department, namely, Health and Family Welfare Department, Government of Assam. By way of a writ petition, which gave rise to WP(C) No. 235 of 2010, the appellant herein, n amely, Dr. Utpal Bora, assailed the order, dated 05-01-2010, whereby he was reve rted from Home (B) Department to his parent department and posted at Medical & H ealth Officer No. I, Central Training Institute, Civil Defence & Home Guard, Pan ikhaiti, Kamrup. 3. The appellant challenged the transfer order, dated 05-01-2010, on the gr ound, inter alia, that the said order of transfer was panel in nature inasmuch a s a signature campaign, by making some allegiants, had been initiated against hi m, at the behest of respondent No. 6 herein, seeking the appellant’s transfer to some other place and it was acting upon the allegations, so made against him, t hat the order of transfer aforementioned was made. By order, dated 29-01-2010, a learned Single Judge of this Court has dismissed the writ petition and it is ag ainst the dismissal of his writ petition that the appellant has preferred this a ppeal. 4. On careful perusal of the order, dated 29-01-2010, whereby the writ peti tion has been dismissed, we notice that the learned Single Judge had perused the relevant record and noted that though the process for change of place of postin g of the appellant was initiated on the basis of a complaint made against him, i t came to the notice of the respondents concerned that the appellant had been on deputation, with the Home (B) Department, for about 8 years, whereas he could n ot have remained, on deputation, beyond 3 years, which was extendable, at best, to a period of 5 years. In such circumstances, the impugned order of transfer ca nnot, according to the learned Single Judge, be held to be bad in law and the im pugned order, therefore, needed no interference. On the basis of the conclusion so reached, the learned Single Judge has dismissed the writ petition. 5. Appearing on behalf of the appellant, Mr. Dutta, learned Senior counsel, has, now, submitted that the order, dated 01-08-2001, whereby the appellant’s s ervice was placed at the disposal of Home (B) Department, was not an order of de putation inasmuch as the appellant was never paid any deputation allowance. At a ny rate, submits Mr. Dutta, there was no grave urgency to withdraw the service o f the appellant from Home (B) Department, particularly, when the respondents/aut horities have not taken into account the immense difficulties of the appellant i nasmuch as the appellant’s elder daughter is a student of Class-IV, pursuing her course of study under Central Board of Secondary Education, and the impugned tr ansfer was made during the middle of the academic session. In short, what Mr. Du tta submits is that until the time the academic session of the appellant’s said daughter is over, the appellant ought to have been allowed to remain with Home ( B) Department. 6. Mr. Dutta also submits that the appellant agrees to be transferred from Home (B) Department if he is allowed to remain there until the end of the curren t academic session of his elder daughter. Mr. Dutta further submits that in the meanwhile, the respondents/authorities concerned may also be directed to explore the possibility of transferring the appellant to a place, where his said daught er can pursue CBSC course. In support of his submission, Mr. Dutta refers to the case of Director of School Education, Madras and others -vs- O. Karuppa thevan and another, reported in 1994 Supp (2) SCC 666, wherein the Supreme Court held a s follows: Although there is no such rule, we are of the view that in effecting transfer, the fact that the children of an employee are studying should be given due weigh t, if the exigencies of the service are not urgent. The learned counsel appearin g for the appellant was unable to point out that there was such urgency in the p resent case that the employee could not have been accommodated till the end of t he current academic year. We, therefore, while setting aside the impugned order of the Tribunal, direct that the appellant should not effect the transfer till t he end of the current academic year. 7. Resisting the prayer made on behalf of the appellant, Mr. D Saikia, lear ned counsel, submits that the appellant’s transfer by the order, 01-08-2001, was , in effect, placing of the service of the appellant by his parent Department wi th Home (B) Department and such an act of placing of service of the appellant, w ith Home (B) Department, by the Department of Health and Family Welfare, amounte d to his deputation and an employee, according to the relevant policy of the Gov ernment, cannot be allowed to remain on deputation, at any rate, longer than fiv e years. Mr. Saikia also points out that the appellant has remained for a period of more than eight years with Home (B) Department and, in such circumstances an d, particularly, when the order of transfer was not based on the allegations rec eived against the appellant, but on noticing the fact that the appellant had bee n with Home (B) Department for the last eight years, the impugned transfer order may not be interfered with. Mr. Saikia, however, submits that if this Court is inclined, the appellant may be allowed to remain with Home (B) Department until the end of the current academic session of his elder daughter and, thereafter, t he appellant may be directed to join the place of posting in terms of the order, dated 05-01-2010, aforementioned. 8. Without entering into the controversy as to whether the appellant has or has not been serving in Home (B) Department on deputation, what we notice is th at the appellant has already been with Home (B) Department for a period of more than eight years and he may not have, therefore, been allowed by the respondents /authorities concerned to continue to remain with Home (B) Department. As noted by the learned Single Judge, the appellant’s present transfer was not based on t he complaint received against him, but on noticing the fact that the appellant h ad been with the Home (B) Department for the last eight years. 9. Considering the fact that the appellant’s transfer was not based on comp laint, though the process of transfer might have been initiated on the basis of the complaint received against him, we are of the view that the appellant’s tran sfer was neither penal nor mala fide and that the respondents/authorities concer ned were within the ambit of their powers, when they decided to transfer the app ellant from Home (B) Department. 10. What is, however, necessary to note is that while transferring an employ ee, except when the transfer is urgent, the employ’s inconvenience or difficulti es should be taken note of by the employer. In the present case, on coming to no tice that the appellant ought not to have been continued with Home (B) Departmen t any longer, the respondents/authorities concerned had decided to transfer him. This action cannot be said to be illegal. However, while transferring the appel lant, when there was apparently no grave urgency, his order of transfer could ha ve been made effective with the end of the current academic session of his said daughter. This aspect appears to have not been taken not of by the respondents/a uthorities concerned. 11. In the light of the decision in Director of School Education, Madras (su pra), it is clear that though the Government has the power to transfer its emplo yee at any point of time, the Government shall ensure that unless transfer is, i n exigencies of the service of an employee, urgent, the fact that the employee’s children are studying and their transfer, during the middle of the session, may uproot them and disrupt their course of study, are relevant factors and need to be borne in mind. In the present case, except the fact that the appellant had b een with Hone (B) Department, for a period of 8 years, there was no other ground of his transfer. Hence, in such circumstances, when giving effect to the impugn ed order of transfer was not urgent, his order of transfer could have been made effective coinciding with the end of the current academic session of his elder d aughter. Had the transfer of the appellant been urgent, because of exigencies of service, the matter would have been a little different. 12. In the backdrop of the position of law pointed out above and the fact of the present case, we are of the view that the impugned transfer order, dated 05 -01-2010, shall come into force with effect from the end of the academic session 2009-2010 of the CBSC course and till then, the appellant shall be allowed to r emain with Home (B) Department. It is further made clear that the appellant shal l, on completion of the academic session aforementioned, join his place of posti ng as has been directed by the impugned order, dated 05-01-2010, unless the said order is, in accordance with law, modified either at the initiative of the resp ondents/authorities themselves or on the basis of any representation, which the appellant may make. 13. With the above modification in the impugned order, dated 05-01-2010, thi s writ appeal shall stand disposed of. 14. No order as to costs.