IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 1275 of 2008 (O & M) Date of decision: October 3, 2008. Nirbair Singh ..... Petitioner Versus State of Punjab & Ors. …. Respondents CORAM: HON’BLE MR. JUSTICE S.S. SARON. HON’BLE MR. JUSTICE RAJAN GUPTA. Present: Mr. Arun Bansal, Advocate for the petitioner. Mr. B.S. Chahal, Deputy Advocate General, Punjab for respondents No.1 to 4. *** S.S. SARON, J. This writ petition under Articles 226/227 of the Constitution of India has been filed by the petitioner seeking quashing of the order dated 15.05.2007 (Annexure P-2) whereby the petitioner who is working as a revenue patwari has been transferred from the Revenue Circle Dial Bhatti to Ranike as also the order dated 31.05.2007 (Annexure P-3) whereby he has been further transferred from Ranike to Devidass Pura. The petitioner was appointed as Patwari in the revenue department on 31.12.1996 and has been working continuously as such till CWP No. 1275 of 2008 (O & M) -2- date without any break. He was transferred from Patwar Circle Razia to Dial Bhatti, Tehsil Ajnala vide order dated 30.11.2004 (Annexure P-1). Thereafter, in terms of the impugned order dated 15.05.2007 (Annexure P-2) he was transferred from Dial Bhatti to Ranike, Tehsil Ajnala within two and a half years of the earlier transfer . Within about fifteen days, thereafter, he has been transferred vide order dated 31.05.2007 (Annexure P-3) from Ranike to Devidasspura, Tehsil Amritsar. It is submitted that the petitioner was serving at Dial Bhatti, which is very near to his place of residence and now in pursuance of the impugned order, he has been transferred to Devidaspura which is 40 kms from his residence. He had in fact been posted at Ranike only in end of November 2004 i.e. only two and a half years earlier to his transfer. Besides, the wife of the petitioner namely Smt. Harjinder Kaur is serving as a Teacher at Government High School, Jagdev Khurd, District Amritsar. Learned counsel for the petitioner at this stage has prayed that he may be granted one day’s time to argue the matter. In view of the stay that has been granted, learned Counsel for the respondent opposes the adjournment. We are of the view that this matter does not warrant any further delay. The stay was granted by this Court on 07.02.2008 and grant of any further time in the facts and circumstances is unwarranted and is, therefore, declined. It is submitted by the learned Counsel for the petitioner that being a couple case, the petitioner is liable to be posted at a place near the place where both the husband and the wife can live together. A reference has been made to the instructions dated 13.04.2007 (Annexure P5) in this regard. In view of the transfer order dated 31.05.2007 (Annexure P-3), the CWP No. 1275 of 2008 (O & M) -3- said instructions, it is alleged, have been infringed. It is submitted that the respondents failed to call for option from the petitioner as regards his preferential place of posting nor the fact that his wife is serving as a Teacher in a school at Jagdev Khurd been taken into consideration. The petitioner is serving at a distance of 35-40 kms from his residence whereas, his wife is serving at another place. Therefore, he is required to travel approximately 80 kms daily to serve at the present place of his posting. It is also alleged that the transfer of the petitioner is politically motivated and a pre-planned transfer. The respondents had transferred the petitioner thrice in three years and that too to at a far off place without even considering the guidelines, issued by the respondents themselves for the postings and transfers of its employees. Learned counsel for the petitioner has placed strong reliance on the instructions dated 13.04.2007 (Annexure P-5) relating to policy of transfer. A particular reference has been made in respect to para 2 ( c ) of the instructions relating to the postings of husband and wife at a convenient and preferential station. It is submitted that the instructions inter alia enjoins that in case where both husband and wife are in Government service, it is desirable to keep the couple at one station for a period of not more than five years and thereafter, he/she should be transferred as per policy. Even, in case, where the wife is in Government service and husband is under a private employment, the same attitude may be adopted. Para 3 (d) of the said instructions, it is submitted, provides that before considering terms for proposals, every transferring authority must ensure that record of list of couple cases, unmarried girls, widows, handicapped persons and employees having mentally retarded children along with their present CWP No. 1275 of 2008 (O & M) -4- postings and also requests for preferential places are available in the office. Learned counsel for the petitioner has also emphasized that the transfer of the petitioner is mala fide and is not for any professed purpose. Learned counsel appearing for the respondents has submitted that the State does not want to file any reply and in any case there is no element of disrupting the petitioner from service inasmuch as the petitioner is being transferred within same district. Besides, the transfer order was passed on 31.05.2007 and the petitioner has approached this Court in January, 2008 i.e. after about seven months of the order of transfer. It is also submitted that the petitioner does not have any vested right to seek transfer at a particular station. We have given our thoughtful consideration to the contentions of the learned counsel appearing for the parties and with their assistance, perused the record. The guidelines laid down by the State for the transfer of its employees from one place to another are for the guidance of officers and are not enforceable for the purposes of assailing their transfer. These do not vest any immunity in an employee from transfer in Government service. Besides, transfer of an employee from one station to another is a normal feature and incidence of service which does not, in any manner, alter the conditions of his service. No Government servant can claim to remain at a particular post or a station of his choice. The Supreme Court in B. Varadha Rao v. State of Karnataka and Ors., AIR 1986 SC 1955 has inter alia held as follows:- “It is well understood that transfer of a government servant who is appointed to a CWP No. 1275 of 2008 (O & M) -5- particular cadre of transferable posts from one place to another is an ordinary incident of service and therefore does not result in any alteration of any of the conditions of service to his disadvantage. That a government servant is liable to be transferred to a similar post in the same cadre is a normal feature and incident of government service and no government servant can claim to remain in a particular place or in a particular post unless, of course, his appointment itself is to a specified, non-transferable post. As the learned Judges rightly observe: The norms enunciated by government for the guidance of its officers in the matter of regulating transfers are more in the nature of guidelines to the officers who order transfers in the exigencies of administration than vesting of any immunity from transfer in the government servants.”It is no doubt true that if the power of transfer is abused, the exercise of the power is vitiated. But it is one thing to say that an order of transfer which is not made CWP No. 1275 of 2008 (O & M) -6- in public interest but for collateral purposes and with oblique motives is vitiated by abuse of powers, and an altogether different thing to say that such an order per se made in the exigencies of service varies any condition of service, express or implied, to the disadvantage of the concerned government servant.” The claim of the petitioner on the ground that it is a couple case is also without merit. In Bank of India v. Jagjit Singh Mehta, AIR 1992 SC 519 it was observed by the Supreme Court that 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 employers 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 CWP No. 1275 of 2008 (O & M) -7- 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 spouses thereby would be posted at different places. In addition, in the said case, the respondent therein voluntarily gave an undertaking that he was prepared to be posted at any place in India and on that basis got promotion from the clerical cadre to the officers’ grade and thereafter he sought to be relieved of that necessary incident of all-India service on the ground that his wife has to remain at Chandigarh. 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. Therefore, the petitioner cannot as a matter of right claim any right to be posted at any particular station and neither is the administration under any obligation to give him the right to choose the place of his posting although it is desirable that the instructions and policy issued by the government for the transfer of its employees are adhered to but these nevertheless do not confer any right on the petitioner so as to claim a legally enforceable right. As regards the allegation of mala fide or that the transfer CWP No. 1275 of 2008 (O & M) -8- is politically motivated and a pre-planned transfer, it is not in dispute that an order of transfer may be assailed on the ground of mala fide. In the present case, however, there is no mala fide alleged against any person. It is not alleged as to whether any has been ill disposed towards the petitioner so as to see that he is transferred and that too in a pre-planned and politically motivated manner. Therefore, in the absence of any allegation against any particular official and in the absence of impleading such person eo nominee so as to enable him to answer the charge, it is evident that there is no allegation of mala fide, which would warrant interference of this Court. It is then submitted by the learned counsel for the petitioner that in a similar matter i.e. CWP NO.1106 of 2008, the writ petition has been admitted. However, a perusal of the order dated 24.01.2008, which has been submitted before us, would show that only notice of motion has been issued and operation of the order of transfer has been stayed. It is then submitted that in fact the said writ petition was admitted on 22.05.2008. Be that at it may. Mere admission of a writ petition does not amount to enunciation of any law which would operate as a binding precedent in the present case. Each case is to be considered and decided in its own facts and circumstances. In the present case, it may be noticed that the petitioner has been transferred within the district. It is stated that his transfer is at a distance of approximately 40 kms from the residence of the petitioner. The petitioner may, therefore, for such purposes approach the departmental authorities for the redressal of his grievances as held in Bank of India v. Jagjit Singh Mehta (supra). Besides, it may be noticed that after the order of transfer was passed on 31.05.2007 (annexure P-3) and the CWP No. 1275 of 2008 (O & M) -9- petitioner has filed the present petition 25.01.2008 i.e. after about 7 months. In view of the above, we find no merit in this petition and the same is accordingly dismissed. (S.S. SARON) JUDGE (RAJAN GUPTA) JUDGE 03.10.2008 amit