IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Court’s order whether the case is or not approved for reporting (Chapter VIII, Rule 32(2)(b) Description of Case W.P. No. 1264 (S/S) of 2006 Date of decision :- 25-9-2006 A.F.R. (Approved for Reporting) Not approved for reporting Date:- 25-9-2006 Initials of Judge Note :- Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. HIGH COURT OF UTTARANCHAL, AT NAINITAL Civil Writ Petition No.1264 (S/S) of 2006 Smt. Bhagirathi Pathak W/o Sri D.K. Pathak R/o Officers Colony Quarter No. 39, Type-II Narsing Bari (Dubkia), Almora ………Petitioner Versus 1. State of Uttaranchal Through Secretary Medical & Health Services Dehradun 2. Additional Director, Medical Health & Family Welfare Kumaon Mandal, Nainital 3. The Chief Medical Officer, Almora 4. Chief Medical Superintendent, Base Hospital, Almora 5. The Incharge Medical Officer Primary Health Centre, Halwalbag, Almora ……Respondents Dated :-25th September, 2006 Mr. A.D. Tripathi learned counsel for the petitioner. Mr. N.P. Shah learned Standing Counsel. Hon’ble J.C.S. Rawat, J. 1. By means of writ petition under section 226 of the Constitution of India, the petitioner has sought the following reliefs:- (i) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 01.08.2006, 14.08.2006 and 07.09.2006 (contained in Annexure No.1, 4 & 5 respectively to the petition) passed by the respondent no. 3 & 5. (ii) Issue a writ order or direction in the nature of mandamus commanding and directing the respondent no.3 to release the arrear of pay of the petitioner for the last four months. 2 (iii) Issue a writ order or direction in the nature of mandamus directing the respondent no.3 to modify the order dated 1.8.2006 and pass another order transferring the petitioner to her previous place of posting at Lodhia or any other or suitable place at district hospital Almora. (iv) Issue a writ order or direction which the Hon’ble Court may deem fit and proper in the facts and circumstances of the case. (v) Award the cost of the petition to the petitioner. 2. The petitioner’s case is that she was posted as A.N.M. at Lodhia, Hawalbag, Almora from where she was transferred to the Base Hospital, Almora vide order No.28/2004 dated 17.08.2004 passed by the Additional Director, Medical Health & Family Welfare, Kumaon Mandal, Nainital. The petitioner is continuously working there. Vide impugned order dated 14.08.2006 the petitioner was transferred from Base Hospital Almora to Janikhan and Dhaneswari Sah, A.N.M. was given additional charge in the Base Hospital in place of the petitioner. Feeling aggrieved by the transfer order, the petitioner filed her representation before the higher authorities and the same was rejected on 07.09.2006. Feeling aggrieved by this, the present petition has been filed before this Court. The petitioner has challenged the transfer order on three grounds. Firstly, she has undergone two major surgical operations and under the transfer policy it is provided that if an employee is 3 suffering from any medical disability he/she would be accommodated at the place of his/her convenience. The second ground is that the approval of Chairman of Nagar Panchayat has not been taken which is required under the transfer policy and the third ground is that the petitioner has not completed three years of service at the present place of working and as such she should not have been transferred prematurely. 3. Heard learned counsel for the petitioner and Sri N.P. Sah learned Standing Counsel. 4. Perusal of the order dated 07.09.2006 by which the representation of the petitioner was rejected clearly reveals that the petitioner was only attached in the Base Hospital where no regular post was available. Order dated 17.08.2006 (Annexure 2 of the writ petition) itself reveals that the petitioner was attached to the Base Hospital and it was not an order of transfer. Perusal of the Annexure II also reveals that the petitioner herself insisted the respondents to post her at Base Hospital, Almora. The last para of the order clearly reveals that the said attachment was made on the request of the petitioner. The transfer order itself reveals that the petitioner was attached to the Base Hospital from Lodhia. Thereafter, she was transferred to Jalikhan in the public interest. Therefore, it cannot be said that the petitioner had been repeatedly transferred from one place to another place. It is well settled position of law that the government servant has no right to contend that he may be appointed or posted in a particular place or position or he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident of inherent in the terms of appointment but also implicit as an essential condition of 4 service in the absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory rule, an order of transfer cannot be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even the administrative guidelines for regulating the transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redressal but cannot have the consequence of depriving or denying the competent authority to transfer a particular employee to any place in public interest and as is found necessitated by the exigencies of service as long as the official status is not affected adversely. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the courts as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. The Court while making judicial review of the transfer order would not exercise the power as an appellate authority. The court while exercising the jurisdiction under Article 226 of the Constitution of India would not reappreciate the facts on the basis of which the employee had been transferred. The transfer order cannot be challenged on the ground that there was a violation of guidelines contained in the government policy or the transfer order cannot be challenged before the Court on the medical ground of the petitioner or any other person. The guidelines, however, does not confer upon the government employee a legally enforceable right. 5 5. In the case of Shilpi Bose Vs. State of Bihar AIR 1991 SC 532, the lady teachers of primary schools were transferred on their requests to places where their husbands were posted. The contesting respondents, who were displaced by the teachers, challenged the validity of the transfer orders before the High Court by filing a writ petition under Article 226 of the Constitution, which was allowed and the transfer orders were quashed. The Hon’ble Supreme Court has allowed the appeal and set aside the judgment of the High Court by observing as follows:- “4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department.” 6. There is no malafide or violation of statutory rules in the case in hand. In the case of Union of India Vs. S.L. Abbas (1993) 4 SCC 357, the respondent-Abbas was working at Shillong in the office of the Botanical Survey of India and his wife was also working there in a Central Government office. He was transferred from Shillong to Pauri in the hills of U.P. (now in Uttaranchal). He challenged the transfer order before the Central Administrative Tribunal on medical ground and also on the ground of violation of guidelines contained in the 6 Government of India OM dated 3.4.1986. The Tribunal allowed the petition and quashed the transfer order. When the matter came before the Hon’ble Supreme Court, the Hon’ble Supreme Court set aside the order of the Tribunal and observed as under: “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 to 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.” 7. It was further contended that the approval of the Chairman of the Nagar Panchayat has not been taken prior to the passing the transfer order. Learned counsel for the petitioner has relied upon a G.O. dated 11.02.2004 (Annexure 7 to the writ petition). The said G.O. does not specifically provide that the approval of the Chairman must be sought. It is also pertinent to mention here that the G.O. cannot supercede the provisions of the law and the rules. There is no such rule or law which provides that the Chairman would give the permission for transfer an any official. Perusal of the petition reveals that the petitioner is always insisting to be posted at Almora. When she was posted at Lodhia a request was made to remain at Almora and on her request the said attachment was affected by the authorities. Again she was transferred after a lapse of 7 two years and now she wants to remain in her previous place of posting at Lodhia or Almora. Transfer being the element of service it is imperative for the government employee to remain different parts of the State or the District where he/she is posted. The government servant cannot claim to remain at one place on one pretext or other. When the petitioner would join the new place of posting she can make the representation to the authorities and thereafter the authorities will consider her request in accordance with rules. 8. In view of the foregoing discussion, I am of the view that I do not find any force in the contentions of the learned counsel for the petitioner. Therefore, the petition is devoid of merit and is liable to be dismissed. 9. The petition is dismissed accordingly. No order as to costs. (J.C.S. Rawat, J.) Dated 25.09.2006 LSR 8