IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 1798 of 2008 (O & M) Date of decision: October 3, 2008. Parveen Kumar ..... 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 and 6. Ms. Naina Goyal, Advocate for respondent No.5. *** 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-1) whereby the petitioner who is working as a revenue patwari has been transferred from the Revenue Circle Sarangdev to Fattu Bhila. The petitioner was appointed as Patwari in the revenue department on 21.7.1992 and has been working continuously as such till CWP No. 1798 of 2008 (O & M) -2- date without any break. He was transferred from Patwar Circle Kamal Pura to Sarangdev, Tehsil Ajnala vide order dated 31.5.2006. Since then he had been working at Sarangdev. Thereafter, in terms of the impugned order dated 15.05.2007 (Annexure P-1) he was transferred from Sarangdev to Fattu Bhila, Tehsil Ajnala within about one year of his earlier transfer. It is submitted that the petitioner was serving at Sarangdev, which is very near to his place of residence and now in pursuance of the impugned order, he has been transferred to Fattu Bhila which is about 65 kms from his residence. He had in fact been posted at Sarangdev only in end of May, 2006 i.e. only about a year earlier to his transfer. Besides, the case of the petitioner is covered under the category of couple cases. A reference has been made to the Certificate dated 10.01.2008 (Annexure P2) issued by the Principal, All Saints Convent School (affiliated to I.C.S.E., New Delhi) Catholic Centre, Ajnala, District Amritsar. The Certificate is to the effect that Smt. Chandan Prabha daughter of Mr. Kharaiti Lal wife of Mr. Parveen Kumar (petitioner) is a teacher in the said school from 10.12.2001. 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 P-3) in this regard and it is submitted that in case of couples it was desired to keep them at one station for a period of not more than five years. In terms of the said policy, it is also provided that before considering terms and proposals, every transferring authority must ensure that he has the list of couple cases along with their present postings and also request for preferential places. CWP No. 1798 of 2008 (O & M) -3- In view of the transfer order dated 15.05.2007 (Annexure P-1), the 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 Ajnala been taken into consideration. The petitioner would now in view of the transfer be serving at a distance of 65 kms from his residence whereas, his wife is serving at another place. Therefore, he is required to travel approximately 130 kms daily to serve at the place of his posting which has now been ordered. It is also alleged that the transfer of the petitioner is politically motivated and a pre-planned transfer. The respondents had transferred the petitioner twice in a year and that too to at such a far off place without even considering the guidelines, issued by the respondents themselves for the postings and transfers of its employees. It is also submitted that the petitioner has lost his father and brother and that his old mother is dependent on him as there is no other male member in the family to look after her at this old age. It is submitted that the instructions dated 13.04.2005 (Annexure P-3) inter alia enjoin 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. It is submitted that the spirit of the said instructions are liable to be followed even where the husband is in Government service and the wife is working as a Teacher in a private school. Learned counsel appearing for the respondents No.1 to 4 and 6 CWP No. 1798 of 2008 (O & M) -4- 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 15.05.2007 and the petitioner has approached this Court in February, 2008 i.e. after about eight 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. Learned counsel appearing for respondent No.5 has submitted that in fact the order of transfer passed on 15.05.2007 has been implemented and the petitioner had handed over the charge of his post at Village Sarangdev to respondent No.5. A reference has been made to copy of Rapat (Report) No.482 dated 13.06.2007 (Annexure A1) as recorded in the Roznamcha Wakiati and signed by the petitioner about his handing over the charge. It is also submitted that the wife of the petitioner is employed in a private school and therefore, the policy regarding transfer and posting of couple cases is not applicable in the present case. 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. CWP No. 1798 of 2008 (O & M) -5- 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 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 CWP No. 1798 of 2008 (O & M) -6- 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 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 the present case, the wife of the petitioner is not a Government employee and therefore, the instructions relied upon by the petitioner would not strictly be applicable even if the spirit of the same is to be kept in view. Even otherwise these are in the nature of guidelines. 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 CWP No. 1798 of 2008 (O & M) -7- 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 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 CWP No. 1798 of 2008 (O & M) -8- 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 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 anyone 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. CWP No. 1798 of 2008 (O & M) -9- 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 65 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 it is after the order of transfer was passed on 15.05.2007 (Annexure P-1) that the petitioner has filed the present petition on 5.02.2008 i.e. after about eight months of his transfer. In terms of the Rapat (Report) No. 482 dated 13.06.2007 (Annexure A1) as recorded in the Roznamcha Wakiati the petitioner has handed over the charge and his signatures are there in this regard. 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