सुप्रीम कोर्ट का सरकारी सेवा पति पत्नी को एक ही स्थान पर पोस्टिंग करने का नजीर भरा आदेश , और इस आदेश ने मुसीबतें झेल रहे तमाम कपल्स की मदद की - Union Of India And Ors vs S.L. Abbas on 27 April, 1993

सुप्रीम कोर्ट का  सरकारी सेवा पति पत्नी को एक ही स्थान पर पोस्टिंग करने का नजीर भरा आदेश , और इस आदेश ने मुसीबतें झेल रहे तमाम कपल्स 
की मदद की  - Union Of India And Ors vs S.L. Abbas on 27 April, 1993

Supreme Court of India

Union Of India And Ors vs S.L. Abbas on 27 April, 1993

Equivalent citations: 1993 AIR 2444, 1993 SCR (3) 427

Author: B Jeevan Reddy

Bench: Jeevan Reddy, B.P. (J)

           PETITIONER:
UNION OF INDIA AND ORS.

 Vs.

RESPONDENT:
S.L. ABBAS

DATE OF JUDGMENT27/04/1993

BENCH:
JEEVAN REDDY, B.P. (J)
BENCH:
JEEVAN REDDY, B.P. (J)
VERMA, JAGDISH SARAN (J)

CITATION:
 1993 AIR 2444    1993 SCR  (3) 427
 1993 SCC  (4) 357   JT 1993 (3) 678
 1993 SCALE  (2)718


ACT:
%
Civil Services:
Fundamental  Rules  11 and  15-Transfer  of  a   Government
servant-When   can  be questioned  in  a   Court/Tribunal-
Guidelines  issued  by Government-Whether  have   statutory
force.
Constitution of India,1950/Central Administrative  Tribunals
Act, 1985:
Article    323-A/Section    14-Jurisdiction    of    Central
Administrative Tribunal-Exercise  of-Whether  Tribunal  can
interfere with an order of Transfer.



HEADNOTE:
The  respondent,  a  Central Government  employee,  who  was
transferred from one place to another, challenged the  order
of transfer on the grounds that: his wife was also  employed
at  the  same  place in a  Central  Government office;  his
children  were also studying there; he himself had  suffered
backbone  fracture  injuries some time ago;  the  guidelines
contained in Government of India O.M. dated 3.4.1986 had not
been  kept in mind while ordering his transfer;  some  other
officials,  who  had been serving at the same  place  for  a
longer period than  the respondent  had  been  allowed  to
continue  and  his transfer was due to the mischief  of  his
Controlling Officer.
In  the  counter-affidavit filed by the appellants,  it  was
submitted  that the transfer was ordered  on  administrative
grounds and was unexceptionable.,
A  Single  Member  of the  Central  Administrative  Tribunal
quashed  the order of transfer on the ground that the  power
of transfer was not an unfettered one, but was circumscribed
by   various   circulars/  guidelines contained   in  the
administrative instructions issued by the Government and  an
order of   transfer  could  be  interdicted  if   it  was
discriminatory,  that in the matter of considering  transfer
of  an individual  officer,  the  Office  Memorandum  dated
3.4.1986, educational dislocation of the children and health
ground,if  present deserved special consideration  and that
in  view  of  the facts and circumstances of  the  case  the
transfer order in question in respect of the respondent  was
mala fide.
428
Allowing  the  appeal, preferred by the Union of  India  and
others, this Court,
HELD:   1.1  An  order  of transfer  is  an  incidence  of
Government  servie.   Who should be transferred where  is  a
matter for the appropriate authority to decide.  Unless  the
order  of  transfer is vitiated by malafides or is  made  in
violation   of statutory  provisions, the   Court   cannot
interfere  with it.  There is no doubt that, while  ordering
the transfer 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, the husband and  the
wife must be posted at the same place. The said  guideline,
however,  does not confer upon the  government  employee  a
legally enforceable right.  Executive instructions issued by
the Government are in the nature of guidelines.  They do not
have statutory force. [430-C-E]
1.2. There  is no dispute that the respondent is  liable  to
transfer  anywhere  in India. It is not the  case  of  the
respondent  that the order of his transfer was vitiated  by
mala  fides on the part of the authority making  the  order,
though  the  Tribunal says  so,  merely  because   certain
guidelines  issued  by the  Central  Government  were  not
followed.   The  immediate superior of unit,  against whom
mischief had been attributed by the respondent, has  nothing
to do with his transfer. [430-F]
2.1. The jurisdiction of the Central Administrative Tribunal
is akin to the jurisdiction of the High Court under  Article
226  of the Constitution of India in service matters, as  is
evident  from  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  323A.  The  Administrative
Tribunal  is not an Appellate Authority sitting in  judgment
over  the order; of transfer.  It cannot substitute its  own
judgment  for that of the authority competent  to  transfer.
[430-H,431 -A]
2.2. In  the instant case, the Tribunal has dearly  exceeded
its jurisdiction in interfering with the order of  transfer.
The  order  of the Tribunal reads as if it were  sifting  in
appeal over  the  order  of transfer  made  by  the  Senior
Administrative Officer (competent authority). [431-B]
Bank  of India v. Jagjit Singh Mehta, [1992] 1 S.C.C. 306,
explained.
429



JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2348 of 1993. From the Judgment and Order dated 13.7.1992 of the Central Administrative Tribunal, Guahati in O.A. No. 33/91. Ms. K. Amareswari, B.P. Sarathy and C.V. Subba Rao for the Appellants.

P.K. Goswami, Kailash Vasdev, Ms. Lira Goswami and Ms. Alpana Poddar for the Respondent.

The Judgment of the Court was delivered by B.P. JEEVAN REDDY, J. Heard counsel for the parties. Leave granted.

Respondent is a Garden Curator in the Office of the Scientist-SE, Botanical Survey of India, Eastern Circle, Shillong. By order dated January 29, 1991 he was transferred from Shillong to Pauri (Uttar Pradesh) by the Senior Administrative Officer, office of the Director, Botanical Survey of India, (Ministry of Environment and Forests, Government of India). As many as 19 persons were transferred under the said order including the respondent. The respondent has been working in Shillong since the year 1979.

The respondent approached the Gauhati Bench of the Central Administrative Tribunal (Original Application No. 33 of 1991) questioning the order of his transfer. He submitted that his wife is also employed at Shillong in and off-ice of the Central Government, that his children are studying at Shillong and further that he himself had suffered back-bone fracture injuries some time ago. He submitted that the guidelines contained in Government of India O.M. dated 3.4.1986 have not been kept in mind while ordering his transfer. tie complained that some other officials who have been serving at Shillong for a longer period, have been allowed to continue at Shillong. He attributed 'mischief' to his Controller Officer, Shri B.M. Wadhwa (third respondent in the O.M.).

In the counter affidavit filed by the respondents, they submitted that the transfer was ordered on administrative grounds and is unexceptionable.

The learned Single Member of the Central Administrative Tribunal quashed the order of transfer on the following reasoning: the decisions of the Courts establish that the power of transfer is not an unfettered one but is circumscribed by various circulars/guidelines contained in the administrative instructions issued by the Government. An order of transfer can be interdicted if it is discriminatory. The said principles are applicable to the case of the respondent. Further "in the matter of considering transfer of an individual officer, the Office Memorandum dated 3.4.1986, educational dislocation of the children and health ground, if all present, deserve special consideration not to pass the order." Having said so the learned Member recorded the following finding: "In view of the above facts and circumstances and findings it is held unhesitatingly that the transfer order no. BSI. 80/5/80- Estt. dated 29.1.1991 in respect of applicant S.L.Abbas was malafide and liable to be quashed." The Union of India has preferred this appeal.

An order of transfer is an incident of Government Service. Fundamental Rule 11 says that "the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority". Fundemental Rule 15 says that "the President may transfer a government servant from one post to another". That the respondent is liable to transfer anywhere in India is not in dispute. It is not the case of the respondent that order of his transfer is vitiated by mala fides on the part of the authority making the order,- though the Tribunal does say so merely because certain guidelines issued by the Central Government are not followed, with which finding we shall deal later. The respondent attributed"mischief"to his immediate superior who had nothing to do with his transfer. All he says is that he should not be transferred because his wife is working at shillong, his children are studying there and also because his health had suffered a set-back some time ago. He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafides 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.

The jurisdication of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Article 226 of the constitution of India in service matters. This is evident from a persual 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 constraints 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). Shri Goswami, learned counsel for the respondent relies upon the decision of this Court in Bank of India v. Jagjit Singh Mehta [1992] 1 S.C.C.306 rendered by a Bench of which one of us (J.S. VermaJ.) was a member. On a perusal of the judgment, we do not think it supports the respondent in any manner. It is observed therein:

"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 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............................................ No doubt the guidelines requires the two spouses to he posted at one pi" 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."

(emphasis added) The said observations in fact tend to negative the respondent's contentions instead of supporting them. The judgment also does not support the Respondents' contention that if such an order is questioned in a Court or the Tribunal, the authority is obliged to justify the transfer by adducing the reasons therefor. It does not also say that the Court or the Tribunal can quash the order of transfer, if any of the administrative instructions/guidelines are not followed, much less can it be charactrised as malafide for that reason. To reiterate, the order of transfer can be questioned in a court or Tribunal only where it is passed malafide or where it is made in violation of the statutory provisions.

For the above reasons, the appeal is allowed. The judgment under appeal is set aside. There shall be no order as to costs.

N.P.V.         Appeal Allowed.

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सुप्रीम कोर्ट के आदेश की महत्वपूर्ण पक्तियां जी सभी कोर्ट अक्सर पति पत्नी ट्रांसफर मामले में उल्लेख करती हैं , ये सही जरूरतमंद ट्रांसफर चाहने वालों के राहत भरे भी हैं साथ ही प्रशासन / समाज के लिये भी :-

सुप्रीम कोर्ट के आदेश की महत्वपूर्ण पक्तियां जी सभी कोर्ट अक्सर पति पत्नी ट्रांसफर मामले में उल्लेख करती हैं  , ये सही जरूरतमंद ट्रांसफर चाहने वालों के राहत भरे भी हैं साथ ही प्रशासन / समाज  के लिये  भी  राहत भरे  हैं:-



In the case of Union of India -Vs- S.L. Abbas, reported in (1993) 4
SCC 357, have observed that “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. The order of
transfer can be questioned in a court or tribunal only where it is passed mala fide or where it is made in violation of the statutory provisions.”

In Sarvesh Kumar Awasthi -Vs- U.P. Jal Nigam, reported in (2003) 11 SCC 740, Hon’ble Supreme Court have observed that – 

“In our view, transfer of officers is required to be effected on the basis of set norms or guidelines. The power of transferring an officer cannot be wielded arbitrarily, mala fide or an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned. For better administration the officers concerned must have freedom from fear - 14 - W.P. (C) No. 6492 of 2015 Page 14 of 17 of being harassed by repeated transfers or transfers ordered at the instance of someone who has nothing to do with the business of administration.”

Source: http://www.ghconline.nic.in/Judgment/WPC64922015.pdf

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Transfer News - अगर पति पत्नी एक जिले में पोस्टिंग को इस जजमेंट को आधार बना कर लड़ा होता तो शायद सभी कपल को एक ही जिले में पोस्टिंग मिल जाती , इस निर्णय में कोर्ट ने साफ साफ़ यह भी कहा की छठा वेतन आयोग तो कपल पोस्टिंग को चाइल्ड केयर आदि के आधार पर मेंडेटरी कर रहा था , और चाइल्ड केयर लीव का प्रावधान दर्शाता है की जितना संभव हो कपल को निकटस्थ कार्यस्थल पर पोस्टिंग दी जाये , देखें आदेश -

Transfer News - अगर पति पत्नी एक जिले में पोस्टिंग को इस जजमेंट को आधार बना कर लड़ा होता तो शायद सभी कपल को एक ही जिले में पोस्टिंग मिल जाती , इस निर्णय में कोर्ट ने साफ साफ़ यह भी कहा की छठा वेतन आयोग तो कपल पोस्टिंग को चाइल्ड केयर आदि के आधार पर मेंडेटरी कर रहा था , और चाइल्ड केयर लीव का प्रावधान दर्शाता है की  जितना संभव हो कपल को निकटस्थ कार्यस्थल पर पोस्टिंग दी जाये , देखें आदेश  - 

इस आदेश में कोर्ट ने कड़े शब्दों में कहा की अक्सर देखा गया है की कुछ भी कारण जो विभागों को अच्छा लगे बताकर कपल को एक जगह पोस्टिंग न देकर  परेशान किया जाता है 


Central Administrative Tribunal - Allahabad
Original Application ... vs Jagdish Kaur 2013 (2) Scc (L&S) ... on 18 September, 2014
      
 RESERVED 

CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD

(THIS THE        DAY OF SEPTEMBER, 2014)

Present
HON BLE MS. JASMINE AHMED, MEMBER (J)

Original Application No.330/01090 OF 2014 
(U/S 19, Administrative Tribunal Act, 1985)
Gyan Chandra Sharma, aged about 54 years, S/o Sadanand Sharma, R/o House No.3, Village-Bholepur, PS-Fatehgarh, District-Farukhabad.
Applicant  
         
V E R S U S

1. Union of India through the General Manager, Eastern Railway, Gorakhpur.
2. The Divisional Railway Manager (P), Eastern Railway, Izzatnagar.
3. The Sr. Divisional Personnel Officer, Eastern Railway, Izzatnagar.
4. The Sr. Section Engineer (Sig.), Eastern Railway, Fatehgarh.

 ..Respondents

Advocates for the Applicant:- Shri L.M. Singh 
Advocate for the Respondents:- Shri  A. Tripathi


O R D E R
DELIVERED BY HON BLE MS. JASMINE AHMED, MEMBER (J) Shri L.M. Singh, learned counsel for the applicant and Shri Avnish Tripathi, learned counsel for the respondents.

2. The applicant was initially appointed as a Telephone Operator on 16.9.1997 with the Railway. In the year 2002 due to administrative reason the post of Telephone Operator got surrendered and due to that circumstances the applicant was absorbed against the post of TCM-III on 26.7.2002 but the applicant did not accept the post as similarly situated persons were absorbed against Group C post i.e. Assistant Clerk. Consequently, the applicant was also absorbed against the post of Assistant Clerk and was posted at Fatehgarh during the year 2005.

3. This is the second round of litigation. The applicant preferred OA No.330/00777/2014 challenging the transfer order dated 23.4.2014 whereby he was transferred from Izzatnagar to Mathura. After getting the transfer order the applicant preferred a representation dated 1.5.2014. The OA was disposed of on 24.6.2014 with a direction to the respondents to consider and decide the representation of the applicant dated 1.5.2014 as expeditiously as possible by a reasoned and speaking order. The court also granted an interim measure of status-quo as on date in favour of the applicant till the time the representation is decided, and directed not to disturb the applicant. In pursuance of the order dated 24.6.2014 the respondents have passed an order dated 4.8.2014 rejecting the request of the applicant which resulted the present original application.

4. The counsel for the applicant is challenging the legality and validity of the transfer order dated 23.4.2014 passed by the respondent no.2 as well as the rejection of representation dated 4.8.2014 passed by respondent no.3. The applicant states that his wife is a working lady who is working as Assistant Teacher in the Education department under the State Government in Prathamik Vidyalaya, Chawki, Mahmudpur, Kamalganj, Farrukhabad. Prior to posting at Farrukhabad the wife of the applicant was posted at Lalitpur and taking into consideration the spouse ground she was posted at Farrukhabad from Lalitpur vide transfer order dated 12.10.2000 and on 13.10.2000 she joined her duty. Now the applicant has been transferred from Fatehgarh (Farrukhabad) to Mathura.

5. The contention of the counsel for the applicant is that taking into consideration that the wife of the applicant is posted at Farrukhabad he should not be transferred out from Farrukhabad as the O.M dated 30.9.2009 issued from Department of Personnel and Training in respect of posting of husband and wife at the same station says that to enhance the status of women in all walk of life and to enable them to lead a normal family life, also at the same time, to ensure education and welfare of the children till the children attain the age of 18 years husband and wife may be posted at the same station. While bringing in this O.M., Government even thought of making the provision of posting at the same station mandatory. While reviewing the issue of posting of husband and wife at same station Government has taken into considerations the 6th CPC Report, where Govt. Servants have already been allowed the facility of child care Leave which is admissible till the children attain 18 years of age. Adhering with this principle of Care , on the similar lines, consolidated guidelines of provisions about posting of the working spouse has been formulated. The counsel for the applicant also stated that in absence of statutory rules, relevant government orders would hold good and in this regard he places reliance on the judgment passed by Hon ble Apex Court in the case of State of Punjab & Others Versus Jagdish Kaur 2013 (2) SCC (L&S) 257. And he states that the O.M. dated 30.9.2009 shall be followed and adhered in its letter and spirit while passing transfer orders.

6. In the similar line of the O.M. from the DOP&T dated 30.9.2009 respondent no.2 has already issued a letter dated 1.6.2006 with the same principle in respect of posting of husband and wife at the same station with a clear stipulation/intention to ensure the posting of working couples in Grade C & D in the same station.

7. The counsel for the respondents vehemently opposes the contention of the applicant and says that if this is so, then the respondents would be restrained to transfer the applicant anywhere anytime from the present place of posting where he is enjoying a stay of long 17 years i.e. Fatehgarh/Farrukhabad. He also states that this will hamper in the routine/periodical transfer and this type of problems will be there with other government employees also. As the transfer is an incidence of service hence the applicant every time cannot take shelter of the spouse ground.

8. Heard the rival contentions of the parties, perused the documents and pleadings available on record.

9. Though the Hon ble Apex Court in catena of judgments has held that as transfer is an incidence of service hence generally it should not be interfered into, unless until the order is arbitrary, punitive, against the statutory provisions or in exercise of colorable powers, irrespective of that, transfer orders are challenged and assailed time and again before the courts of law and orders have been passed taking into consideration facts and circumstances of each case. With the changing scenario, when more and more ladies are joining the bigger world leaving the comfort of their cozy home, the government as a model employer and a welfare state taking into consideration this advancement, provided some facilities for working women just to help them to lead a normal healthy family life and also to ensure that the children who are the future of the world/society shall not be deprived of the affection and care of the mother till they are attaining the age of 18 years. It cannot be said that while making this provision the government was not aware about the catena of judgments not to interfere in the transfer order. Instead of that, the government has made special provisions for working spouses by O.M. dated 30.09.2009 to encourage the increase of representations of women in every walk of life especially in government jobs. The government has made and categorized certain provisions for the working spouses in O.M. dated 30.9.2009. The subject, theme and the spirit in the overall guidelines for posting of husband and wife as envisaged is very categorical:

Subject:Posting of husband and wife at the same station.

The subject itself equivocally without any ambiguity speaks about posting of husband and wife in a same station. The Railway Board by their letter dated 1.6.2006 had already issued direction about posting of husband wife in group C and D category Railway employees in the same station. In a very clear term, it also stated that even if the categories of the employees are changed, it shall be ensured (,d LFkku ij iRuh vkSj ifr dh rSukrh lqfuf pr dh tk;A) that the husband and wife are posted at the same station.

10. While rejecting the representation of the applicant, the respondents have taken three pleas.

(i) The applicant is posted at Fatehgarh almost for 17 years. .

(ii) To make time bound transfers and adjustments.

(iii) The wife may request her employer for her transfer.

The above stated reasons are seems to be vague and unsubstantiated ground, showing no administrative exigency. When the post is there, and the work of the applicant is also satisfactory, only on the ground that he is there for a long time or to make time bound periodical transfers, the applicant needs to be transferred hold no justification. Nor does the wife need to request for her transfer to the place where her husband has been transferred. None of these reasons seem to be very urgent administrative nature which cannot be done away otherwise without transferring the applicant.

11. The motive behind the O.M. dated 30.9.2009 though not very categorically transcribed as mandatory but the theme & spirit behind the issuing of this O.M. is almost mandatory in nature. Clause 4(vii) categorically prescribes how to deal with the issue of transfer when one spouse is employed under the central Government and the other spouse is employed under the State Government:-

The spouse employed under the Central Government may apply to the competent authority and the competent authority may post the said officer to the station or if there is no post in that station to the State where the other spouse is posted.

12. In clause 5 of the O.M. dated 30.09.2009 government has also dealt into about unaccomodative attitude of employers at times, and directed as under:-

5.Complaints are sometimes received that even if posts are available in the station of posting of the spouse, the administrative authorities do not accommodate the employees citing administrative reasons. In all such cases, the cadre controlling authority should strive to post the employee at the station of the spouse and in case of inability to do so, specific reasons, therefore, may be communicated to the employee.

13. The reasons given by the respondents rejecting the request do not reflect that kind of administrative exigencies which cannot be mete out without transferring the applicant.

14. In Deepa Vaishistha Versus State of U.P. 1996(1) ESC 148 (All-DB) it has been categorically held that:-

If the administrative exigencies or public interest so requires, certainly husband and wife may be transferred to different places but only in exceptional cases i.e. in respect of rare cases, for which no illustration can be given.

But now a days it is invariably seen that for the reasons best known to the department, this kind of transfers are being made disturbing the couple. In the opinion of this court, as such practice needs to be deprecated.

15. In view of the entire above discussions the transfer order dated 23.4.2014 in respect of the applicant and the rejection order dated 4.8.2014 of his representation is quashed and set aside. Accordingly, the OA is allowed. No Costs.

[Jasmine Ahmed] Member-J /ns/ ??



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UP Teacher Transfer - पुरुष शिक्षकों को भी विशेष परिस्थिति में 5 वर्ष से पहले तबादला मिलेगा की नहीं , कोर्ट ने सचिव ने 3 महीने के अंदर इस पर विशिष्ट ऑर्डर देने को कहा

UP Teacher Transfer  - 

पुरुष शिक्षकों को भी विशेष परिस्थिति में 5 वर्ष से पहले तबादला मिलेगा की नहीं , कोर्ट ने सचिव ने 3 महीने के अंदर इस पर 
विशिष्ट ऑर्डर देने को कहा 


HIGH COURT OF JUDICATURE AT ALLAHABAD 

?Court No. - 6 

Case :- WRIT - A No. - 13862 of 2018 

Petitioner :- Chandan Kumar Singh 
Respondent :- State Of U.P. And 2 Others 
Counsel for Petitioner :- Dinesh Pratap Rao Dixit, Rishi Kant Rai 
Counsel for Respondent :- C.S.C.,Pranesh Dutt Tripathi 

Hon'ble Ashok Kumar,J. 
Heard learned counsel for the petitioner,Sri Prem Shankar, Advocate holding brief of Sri P.D. Tripathi and learned Standing Counsel for the State. 
With the consent of learned counsel for the parties, the writ petition is finally disposed of. 
The issue involved in the present case is whether a Male Assistant Teacher appointed in a primary school run by Basic Shiksha Parishad could be transferred from one district to another, even before completing 05 year term, is the short question that arises for consideration in this Matter. 
Considering the facts of the case, this writ petition stands disposed of permitting the petitioner to represent in the matter before the Secretary, Basic Shiksha Parishad, U.P. Allahabad, by way of a representation together with certified copy of this order, within two weeks from today. Petitioner shall be at liberty to annex all material in support of his plea that there exists exceptional circumstances justifying his transfer even before completion of his 05 year term. The Secretary of the Basic Shiksha Parishad, U.P. Allahabad shall examine as to whether the ground on which petitioner is seeking his transfer would fall within the exceptional circumstances or not? A specific order, in that regard, shall be passed within a further period of three months, thereafter. No order as to costs. 
Order Date :- 21.6.2018 

A.Kr.* 




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बेसिक शिक्षक स्थानांतरण नीति में पिस गए - वास्तविक विशेष परिस्थिती की पात्रता रखने वाले , सामान्य कैंडिडेट्स को ट्रांसफर में पॉइंट आदि के आधार पर विशेष परिस्थिति से ऊपर रख दिया , जबकि जिस ट्रांसफर नीति को कोर्ट में बताया गया , उसमे सामान्य अभ्यर्थियों के मेरिट पॉइंट का कोई पैमाना नहीं

बेसिक शिक्षक स्थानांतरण नीति में पिस गए - वास्तविक विशेष परिस्थिती की पात्रता रखने वाले , सामान्य कैंडिडेट्स को ट्रांसफर में पॉइंट आदि के आधार पर विशेष परिस्थिति से ऊपर रख दिया , जबकि जिस ट्रांसफर नीति को कोर्ट में बताया गया , उसमे सामान्य अभ्यर्थियों के मेरिट पॉइंट का कोई पैमाना नहीं  

जब विशेष परिस्थिति से कोई मतलब ही नहीं , तो ट्रांसफर नीति सिर्फ यही होती की विवाहित महिलाओं  को पति /ससुराल के नजदीक तैनाती के लिए 5 वर्ष सेवा अवधि से छूट दी जाती है | 
सामान्य कैंडिडेट्स को ट्रांसफर में पॉइंट आदि के आधार पर विशेष परिस्थिति से ऊपर रख दिया , जबकि जिस ट्रांसफर नीति को कोर्ट में बताया गया , उसमे सामान्य अभ्यर्थियों के मेरिट पॉइंट का कोई पैमाना नहीं दिया | 

कुछ केसेस :
1. किसी अभ्यर्थी ने 20 साल सर्विस कर ली और वह किसी जिले में अपने परिवार के साथ रह रहा है , उसने ट्रांसफर का मौका मिलने पर आवेदन कर दिया | 

2. एक तरफ ऐसा परिवार है , जिसमे पति किसी और जिले में सरकारी नौकरी कर रहा है , और पत्नी किसी और जिले में , दोनों के बच्चे भी हैं , जिनकी देखभाल भी करनी है | 

लेकिन ट्रांसफर मूल्याङ्कन में केस नंबर 1 आगे है , और केस नंबर 2 पीछे | 
दूसरी तरफ ये भी बताया गया है की सरकारी सेवा में कार्यरत पति पत्नी को यथा संभव एक ही जगह तैनाती की जाएगी 

विशेष परिस्थिति के लिए कोई पैमाना नहीं होने पर वर्किंग कपल जो विशेष परिस्थिति में बिलकुल फिट बैठते हैं , वे ट्रांसफर मूल्याङ्कन में सभी महिला केस के बराबर आ गए , और नार्मल परिस्थिति वाले ट्रांसफर से भी पीछे रह गए | 

जबकि केंद्र व राज्य सरकार के नियम सरकारी सेवा में कार्यरत पति पत्नी को एक ही जिले में यथा संभव स्थानांतरण की अनुसंशा करते हैं ,
और कोर्ट भी इस तरह के कई फैसले दे चुका है की पति पत्नी को साथ रखा जाये , बच्चों की समुचित शिक्षा व्यवस्था प्रभावित न हो | 
चाइल्ड केयर लीव का नियम है , लेकिन पति पत्नी साथ नहीं रह पाएंगे तो कैसी चाइल्ड केयर होगी | 

अगर नियुक्ति कार्य क्षेत्र  जिला संवर्ग का है तो फिर अंतर्जनपदीय ट्रांसफर ही क्यों , अगर अंतर्जनपदीय ट्रांसफर हो रहे हैं चाइल्ड केयर , पति पत्नी वर्किंग जैसेविशेष प्रावधानों को कितना ध्यान में रखा जा रहा है 



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अगर ट्रांसफर नहीं हुआ तो शिक्षिकायें कर सकती हैं 2 साल लगातार चाइल्ड केयर लीव की याचिका

अगर ट्रांसफर नहीं हुआ तो शिक्षिकायें कर सकती  हैं 2 साल लगातार चाइल्ड केयर लीव की याचिका 


बहुत सी महिला शिक्षिकाएं पति / ससुराल के पास ट्रांसफर न मिलने की सम्भावना को देखते हुए अब लगातार 2  साल चाइल्ड केयर लीव की याचिका 
दायर करने की चर्चा कर रही हैं , उनका कहना है कि चाइल्ड केयर लीव बच्चे के पालन पोषण के लिए  है और पति / ससुराल से दूर अकेले काम करने के 
कारण बच्चे के पालन पोषण में कठिनाइयों का सामना करना पड़ता है | 

फिलहाल चाइल्ड केयर लीव बच्चों की परीक्षा / बीमारी पर ही मिलती है या किसी विशिष्ट कारण से 



हालाँकि एक महत्वूर्ण निर्णय में अदालत फैसला दे चुकी है :-
छठे वेतन आयोग की रिपोर्ट में चाइल्ड केयर लीव का विशेष प्रावधान और हस्बेंड वाइफ पोस्टिंग एक ही प्लेस पर करने हेतु डी ओ पी टी गाइड लाइंस 2009 को समग्र रूप से देखते हुए , कोर्ट ने हस्बेंड वाइफ को एक जगह पोस्टिंग न देने वाले ऑर्डर को रद्द कर पति पत्नी को एक जगह पोस्टिंग देने को ेलौ किया 

CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD

(THIS THE        DAY OF SEPTEMBER, 2014)

Present
HON BLE MS. JASMINE AHMED, MEMBER (J)

Original Application No.330/01090 OF 2014 
(U/S 19, Administrative Tribunal Act, 1985)
Gyan Chandra Sharma, aged about 54 years, S/o Sadanand Sharma, R/o House No.3, Village-Bholepur, PS-Fatehgarh, District-Farukhabad.
Applicant  
         
V E R S U S

1. Union of India through the General Manager, Eastern Railway, Gorakhpur.
2. The Divisional Railway Manager (P), Eastern Railway, Izzatnagar.
3. The Sr. Divisional Personnel Officer, Eastern Railway, Izzatnagar.
4. The Sr. Section Engineer (Sig.), Eastern Railway, Fatehgarh.

..Respondents

Advocates for the Applicant:- Shri L.M. Singh 
Advocate for the Respondents:- Shri  A. Tripathi


O R D E R
DELIVERED BY HON BLE MS. JASMINE AHMED, MEMBER (J) Shri L.M. Singh, learned counsel for the applicant and Shri Avnish Tripathi, learned counsel for the respondents.

2. The applicant was initially appointed as a Telephone Operator on 16.9.1997 with the Railway. In the year 2002 due to administrative reason the post of Telephone Operator got surrendered and due to that circumstances the applicant was absorbed against the post of TCM-III on 26.7.2002 but the applicant did not accept the post as similarly situated persons were absorbed against Group C post i.e. Assistant Clerk. Consequently, the applicant was also absorbed against the post of Assistant Clerk and was posted at Fatehgarh during the year 2005.

3. This is the second round of litigation. The applicant preferred OA No.330/00777/2014 challenging the transfer order dated 23.4.2014 whereby he was transferred from Izzatnagar to Mathura. After getting the transfer order the applicant preferred a representation dated 1.5.2014. The OA was disposed of on 24.6.2014 with a direction to the respondents to consider and decide the representation of the applicant dated 1.5.2014 as expeditiously as possible by a reasoned and speaking order. The court also granted an interim measure of status-quo as on date in favour of the applicant till the time the representation is decided, and directed not to disturb the applicant. In pursuance of the order dated 24.6.2014 the respondents have passed an order dated 4.8.2014 rejecting the request of the applicant which resulted the present original application.

4. The counsel for the applicant is challenging the legality and validity of the transfer order dated 23.4.2014 passed by the respondent no.2 as well as the rejection of representation dated 4.8.2014 passed by respondent no.3. The applicant states that his wife is a working lady who is working as Assistant Teacher in the Education department under the State Government in Prathamik Vidyalaya, Chawki, Mahmudpur, Kamalganj, Farrukhabad. Prior to posting at Farrukhabad the wife of the applicant was posted at Lalitpur and taking into consideration the spouse ground she was posted at Farrukhabad from Lalitpur vide transfer order dated 12.10.2000 and on 13.10.2000 she joined her duty. Now the applicant has been transferred from Fatehgarh (Farrukhabad) to Mathura.

5. The contention of the counsel for the applicant is that taking into consideration that the wife of the applicant is posted at Farrukhabad he should not be transferred out from Farrukhabad as the O.M dated 30.9.2009 issued from Department of Personnel and Training in respect of posting of husband and wife at the same station says that to enhance the status of women in all walk of life and to enable them to lead a normal family life, also at the same time, to ensure education and welfare of the children till the children attain the age of 18 years husband and wife may be posted at the same station. While bringing in this O.M., Government even thought of making the provision of posting at the same station mandatory. While reviewing the issue of posting of husband and wife at same station Government has taken into considerations the 6th CPC Report, where Govt. Servants have already been allowed the facility of child care Leave which is admissible till the children attain 18 years of age. Adhering with this principle of Care , on the similar lines, consolidated guidelines of provisions about posting of the working spouse has been formulated. The counsel for the applicant also stated that in absence of statutory rules, relevant government orders would hold good and in this regard he places reliance on the judgment passed by Hon ble Apex Court in the case of State of Punjab & Others Versus Jagdish Kaur 2013 (2) SCC (L&S) 257. And he states that the O.M. dated 30.9.2009 shall be followed and adhered in its letter and spirit while passing transfer orders.

6. In the similar line of the O.M. from the DOP&T dated 30.9.2009 respondent no.2 has already issued a letter dated 1.6.2006 with the same principle in respect of posting of husband and wife at the same station with a clear stipulation/intention to ensure the posting of working couples in Grade C & D in the same station.

7. The counsel for the respondents vehemently opposes the contention of the applicant and says that if this is so, then the respondents would be restrained to transfer the applicant anywhere anytime from the present place of posting where he is enjoying a stay of long 17 years i.e. Fatehgarh/Farrukhabad. He also states that this will hamper in the routine/periodical transfer and this type of problems will be there with other government employees also. As the transfer is an incidence of service hence the applicant every time cannot take shelter of the spouse ground.

8. Heard the rival contentions of the parties, perused the documents and pleadings available on record.

9. Though the Hon ble Apex Court in catena of judgments has held that as transfer is an incidence of service hence generally it should not be interfered into, unless until the order is arbitrary, punitive, against the statutory provisions or in exercise of colorable powers, irrespective of that, transfer orders are challenged and assailed time and again before the courts of law and orders have been passed taking into consideration facts and circumstances of each case. With the changing scenario, when more and more ladies are joining the bigger world leaving the comfort of their cozy home, the government as a model employer and a welfare state taking into consideration this advancement, provided some facilities for working women just to help them to lead a normal healthy family life and also to ensure that the children who are the future of the world/society shall not be deprived of the affection and care of the mother till they are attaining the age of 18 years. It cannot be said that while making this provision the government was not aware about the catena of judgments not to interfere in the transfer order. Instead of that, the government has made special provisions for working spouses by O.M. dated 30.09.2009 to encourage the increase of representations of women in every walk of life especially in government jobs. The government has made and categorized certain provisions for the working spouses in O.M. dated 30.9.2009. The subject, theme and the spirit in the overall guidelines for posting of husband and wife as envisaged is very categorical:

Subject:Posting of husband and wife at the same station.

The subject itself equivocally without any ambiguity speaks about posting of husband and wife in a same station. The Railway Board by their letter dated 1.6.2006 had already issued direction about posting of husband wife in group C and D category Railway employees in the same station. In a very clear term, it also stated that even if the categories of the employees are changed, it shall be ensured (,d LFkku ij iRuh vkSj ifr dh rSukrh lqfuf pr dh tk;A) that the husband and wife are posted at the same station.

10. While rejecting the representation of the applicant, the respondents have taken three pleas.

(i) The applicant is posted at Fatehgarh almost for 17 years. .

(ii) To make time bound transfers and adjustments.

(iii) The wife may request her employer for her transfer.

The above stated reasons are seems to be vague and unsubstantiated ground, showing no administrative exigency. When the post is there, and the work of the applicant is also satisfactory, only on the ground that he is there for a long time or to make time bound periodical transfers, the applicant needs to be transferred hold no justification. Nor does the wife need to request for her transfer to the place where her husband has been transferred. None of these reasons seem to be very urgent administrative nature which cannot be done away otherwise without transferring the applicant.

11. The motive behind the O.M. dated 30.9.2009 though not very categorically transcribed as mandatory but the theme & spirit behind the issuing of this O.M. is almost mandatory in nature. Clause 4(vii) categorically prescribes how to deal with the issue of transfer when one spouse is employed under the central Government and the other spouse is employed under the State Government:-

The spouse employed under the Central Government may apply to the competent authority and the competent authority may post the said officer to the station or if there is no post in that station to the State where the other spouse is posted.

12. In clause 5 of the O.M. dated 30.09.2009 government has also dealt into about unaccomodative attitude of employers at times, and directed as under:-

5.Complaints are sometimes received that even if posts are available in the station of posting of the spouse, the administrative authorities do not accommodate the employees citing administrative reasons. In all such cases, the cadre controlling authority should strive to post the employee at the station of the spouse and in case of inability to do so, specific reasons, therefore, may be communicated to the employee.

13. The reasons given by the respondents rejecting the request do not reflect that kind of administrative exigencies which cannot be mete out without transferring the applicant.

14. In Deepa Vaishistha Versus State of U.P. 1996(1) ESC 148 (All-DB) it has been categorically held that:-

If the administrative exigencies or public interest so requires, certainly husband and wife may be transferred to different places but only in exceptional cases i.e. in respect of rare cases, for which no illustration can be given.

But now a days it is invariably seen that for the reasons best known to the department, this kind of transfers are being made disturbing the couple. In the opinion of this court, as such practice needs to be deprecated.

15. In view of the entire above discussions the transfer order dated 23.4.2014 in respect of the applicant and the rejection order dated 4.8.2014 of his representation is quashed and set aside. Accordingly, the OA is allowed. No Costs.


[Jasmine Ahmed] Member-J /ns/ ??blo




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