पति पत्नी को एक स्थान पर पोस्टिंग देने का इलाहबाद हाई कोर्ट का स्पष्ट आदेश देखें , अगर कोई प्रशासनिक अड़चन , नियम क़ानूनी अड़चन न हो तो
ट्रांसफर देने में कोई समस्या नहीं,
Husband Wife Posting at Same Place, Good Order
DEEPA VASHISHTHA V. STATE OF U.P. AND ORS.
CASE NO.
Civil Misc. W. P. No. 31810 of 1995
JUDGES
Mr. Justice B.M. Lal
Mr. Justice R.K. Mahajan
ADVOCATES
R.G.Padia
Prakash Padia
ACTS
article 226 of the constitution of india,
22 NOV 1995 | ALLAHABAD HIGH COURT
B. M. Lal, J.-
By this petition under article 226 of the constitution of india, petitioner-Salt. Deepa Vashistha challenges an order dated 26-9-1995, passed by the Director, Higher Education, U.P., Allahabad (respondent No. 2) contained in Annexure 28 to this petition.
2. By the order impugned, while rejecting petitioner's representations dated 6-8-1995, 25-8-1995 and 28-8-1995, she is directed to join at Ranikhet, district Almora where she has been transferred vide order dated 4-6-1994 (Annexure 2).
3. For brevity of the case, few facts which are necessary to be stated for the purpose of this case, are thus :
4. Petitioner Smt. Deepa Vashistha, is a Lecturer (Vocal Music) presently posted at Government Post Graduate Degree College, Rampur,
5. Petitioner's husband-Dr. S. C. Vashistha is also in Government service and presently posted at Project Officer, Non-Formal Education, at Rampur. Thus, husband wife both are at Rampur.
6. The order dated 4-6-1994 transferring the petitioner from Rampur to Ranikhet referred to above, was challenged by the petitioner in Writ Petition No. 674 of 1994 before Lucknow Bench of this Court, and that petition was finally disposed of vide order dated 1-7-1994 (Annexure 5) whereby the respondents were directed to decide petitioner's representation and in the meantime not to compel her to join at Ranikhet.
7. Accordingly, the petitioner's representation was disposed of, but the same did not find favour by order dated 22-7-1995 (Annexure 7).
8. Thereafter, successive representations were made, but of no avail.
9. Therefore, the petitioner filed second petition being Writ Petition No. 22620 of 1995 before this Court against the said transfer order dated 4-7-1994 as well as the order dated 22-7-1994 rejecting the representation.
10. This Court presided over by Hon'ble Mr. Justice Paritosh K. Mukherjee and Hon'ble Mr. Justice Shitla Pd. Srivastava vide order dated 21-8-1995 directed the respondents to decide petitioner's representation within two months and further directed that till disposal of the representation the transfer order shall not be given effect to.
11. The order of this Court dated 21-8-1995 is reproduced herein below in verbatim :-
"By means of the instant petition, the petitioner has challenged the order of transfer, dated 22-7-1994, set out at Annexure 7 to the writ petition.
Against the said order, the petitioner has filed two representations dated 30-8-1994 and 10-4-1995 (Annexures 8 and 13 to the writ petition) which are pending before (Higher Education), Directorate of Higher Education, Allahabad respondent No. 2.
Annexure-14 is a communicate dated 17-5-1995 which has been sent to respondent No. 2 by the Chancellor of the Universities i. e, Governor of the State. The relevant portion of the said communication is quoted :
"Nirdeshanusar amodh hai ki Kripya Smt. Deepa Vashistha ke sthanantran ko nirast kar ki gayi karwahi se kulpati mahodaya ke suchanarth mujhe avgat karane ka kast Karen. Yadi is sambandh men koi kathinai ho to use avgat karey koanki yeh prakaran kafi samai aapke vibhag me Iambi thai or kai baar patra likhne ke baad bhi koi karwahi nahin ki gayi hai. Yadi aap Lucknow aa rahen hon to kripya vaktigat roop se maha-mahitn se milkar unhen sthit se avgat kara den."
Thus, it will appear from the aforesaid observations of the Chancellor of the Universities that a direction was issued to the respondent to give suitable posting at the same place to both the petitioner and her husband, but he did not comply the said direction.
That being the factual position, we direct that aforesaid representations filed by the petitioner shall be decided by respondent No. 2 within two months from the date of production of a certified copy before him in the light of the directions issued by the Chancellor of the Universities and relevant Government Orders operating in the field.
In the meantime, the impugned order dated 22-7-1994 shall not be given effect to until the representations of the petitioner is dig-posed of by respondent No. 2.
With the aforesaid directions/observation, the writ petition is disposed of."
12. The Director Higher Education (respondent No. 2) in pursuance of the order of this Court dated 21-8-1995, has passed the order dated 26-9-1995, which is under challenge in this petition.
13. It is submitted on behalf of the petitioner that direction issued by this Court on 21-8-1995 referred to above, has not been complied with. The petitioner's representation has been disposed of in a cursory manner and not in consonance with the Court's order dated 21-8-1995.
14. It is further submitted that instant transfer is contrary to various Government Orders/guidelines/instructions issued time to time in this regard which specifically speak that the spouses (husband and wife) may be posted at the same station.
15. In respect of transfer of employees, law is well settled. Time and again the Courts have ruled that transfer of Government employee is a concomitant of service. Since transfers are made for administrative reasons or in public interest, therefore, no interference with the same is called for in the writ jurisdiction, save in exceptional cases where ex facie it is demonstrated that $he transfer is contrary to any statutory mandatory provisions of law or it is vitiated on the ground of mala fide or it has been made in colourable exercise of power such as frequent transfers within a short span of period resulting into harassment of the employee on the one hand and unnecessary loss to the public exchequer on the other or transfer is made during mid academic session resulting into disturbance and discontinuation of studies of the children of transferee.
16. But, if transfer is made against any guidelines or instructions having no statutory force of law, that cannot attract right of the employee to challenge the same in the writ jurisdiction. At the most what the employee could do in this regard is that he may represent the matter to the higher departmental authority apprising him of his problems and difficulties, and it is for the authority to consider the1 plight of the transferee. See AIR 1991 SC 532 -Mrs. Shilpi Rose v. State of Bihar, JT 1993 (3) SC 678-Union of India v. S. L. Abbas and 1994 (2) Supp SCC 666-Director of School Education, Madras v. O. Katuppa Thevan.
17. However, in a recent pronouncement of the Apex Court rendered in Home Secretary, U. T. Chandigarh v. Darshjit Singh Grewal, JT 1993 (4) SC 387, Their Lordships have ruled that policy guidelines are relatable to the executive power of the administration, and having enunciated a policy of general application and having communicated it to all concerned, the Administration is bound by it. It can, no doubt, change the policy but until that is done, it is bound to adhere to it.
18. Now, coming to the case in hand, the Government Orders/guidelines/policy said to have not been adhered to, are contained in Annexures 16, 17 and 18 to this petition and they lay down thus :
(1) If the couple is in education department, they both should be kept at one station at the time of appointment and transfer.
(2) If one of the husband and wife, belongs to education department and another to different department, even then efforts should be made to transfer one of them to that place where the other is posted.
(3) Husband and wife posted at the same station should not be transferred.
(4) On account of their postings to different places, husband and wife suffer difficulties, therefore, as far as possible they should be kept at one place.
19. Thus, the guidelines in respect of couple in Government service, have taken care of that husband and wife should be placed at one station. Placing the words "as far as possible", it is couched not in negatives form and accordingly the same is interpreted by the Apex Court.
20. Taking into account the human considerations and social needs, the aforesaid guidelines have been framed and the basic idea behind it is that whole set up of the family may not be disturbed notwithstanding the fact that said guidelines are not in imperative form. Thus, it needs consideration with positive approach till the policy is not changed or amended in view of the decision in Home Secretary, V. T. Chandigarh's case (supra), and if it is not possible to keep husband and wife at one place, cogent reasons in such cases are excepted to be assigned so that transferee husband or wife, as the case may be, able to know the reasons. If any policy has been framed and still operative, the executive actions are excepted to be in conformity with the same and not to negate it.
21. In other words, in the garb of public interest or administrative exigencies, it is not at the whims of the authority to disturb the family by transferring one of the husband and wife to a different place since the guidelines are not in imperative form or they have no force of law. 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. rarest of rare cases, for which no illustration can be given.
22. 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, such practice needs to be deprecated.
23. What kind of perplexities and difficulties, a spouse could confront with in the event of another being posted at a different place, can easily be imagined by anyone by putting himself/herself in that situation and then it would be realised that now torturous and painful it really is, to leave husband and children at one place and to lead a solitary life at the transfer place. Therefore, to avoid such disturbance and mental agony, the aforesaid guidelines are framed.
24. Thus, from the discussion aforesaid, the order impugned dated 26-9-1995 (Annexure 28) being not in consonance with the earlier order passed by this Court on 21-8-1995, therefore, we direct the authority concerned to reconsider the order impugned in the light of what we have said above and decide the petitioner's representation afresh expeditiously, to say, within a period of 15 days from the date of presentation of a certified copy of this order.
25. With the above direction, this petition is finally disposed of.
Petition disposed of.
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ट्रांसफर देने में कोई समस्या नहीं,
Husband Wife Posting at Same Place, Good Order
DEEPA VASHISHTHA V. STATE OF U.P. AND ORS.
CASE NO.
Civil Misc. W. P. No. 31810 of 1995
JUDGES
Mr. Justice B.M. Lal
Mr. Justice R.K. Mahajan
ADVOCATES
R.G.Padia
Prakash Padia
ACTS
article 226 of the constitution of india,
22 NOV 1995 | ALLAHABAD HIGH COURT
B. M. Lal, J.-
By this petition under article 226 of the constitution of india, petitioner-Salt. Deepa Vashistha challenges an order dated 26-9-1995, passed by the Director, Higher Education, U.P., Allahabad (respondent No. 2) contained in Annexure 28 to this petition.
2. By the order impugned, while rejecting petitioner's representations dated 6-8-1995, 25-8-1995 and 28-8-1995, she is directed to join at Ranikhet, district Almora where she has been transferred vide order dated 4-6-1994 (Annexure 2).
3. For brevity of the case, few facts which are necessary to be stated for the purpose of this case, are thus :
4. Petitioner Smt. Deepa Vashistha, is a Lecturer (Vocal Music) presently posted at Government Post Graduate Degree College, Rampur,
5. Petitioner's husband-Dr. S. C. Vashistha is also in Government service and presently posted at Project Officer, Non-Formal Education, at Rampur. Thus, husband wife both are at Rampur.
6. The order dated 4-6-1994 transferring the petitioner from Rampur to Ranikhet referred to above, was challenged by the petitioner in Writ Petition No. 674 of 1994 before Lucknow Bench of this Court, and that petition was finally disposed of vide order dated 1-7-1994 (Annexure 5) whereby the respondents were directed to decide petitioner's representation and in the meantime not to compel her to join at Ranikhet.
7. Accordingly, the petitioner's representation was disposed of, but the same did not find favour by order dated 22-7-1995 (Annexure 7).
8. Thereafter, successive representations were made, but of no avail.
9. Therefore, the petitioner filed second petition being Writ Petition No. 22620 of 1995 before this Court against the said transfer order dated 4-7-1994 as well as the order dated 22-7-1994 rejecting the representation.
10. This Court presided over by Hon'ble Mr. Justice Paritosh K. Mukherjee and Hon'ble Mr. Justice Shitla Pd. Srivastava vide order dated 21-8-1995 directed the respondents to decide petitioner's representation within two months and further directed that till disposal of the representation the transfer order shall not be given effect to.
11. The order of this Court dated 21-8-1995 is reproduced herein below in verbatim :-
"By means of the instant petition, the petitioner has challenged the order of transfer, dated 22-7-1994, set out at Annexure 7 to the writ petition.
Against the said order, the petitioner has filed two representations dated 30-8-1994 and 10-4-1995 (Annexures 8 and 13 to the writ petition) which are pending before (Higher Education), Directorate of Higher Education, Allahabad respondent No. 2.
Annexure-14 is a communicate dated 17-5-1995 which has been sent to respondent No. 2 by the Chancellor of the Universities i. e, Governor of the State. The relevant portion of the said communication is quoted :
"Nirdeshanusar amodh hai ki Kripya Smt. Deepa Vashistha ke sthanantran ko nirast kar ki gayi karwahi se kulpati mahodaya ke suchanarth mujhe avgat karane ka kast Karen. Yadi is sambandh men koi kathinai ho to use avgat karey koanki yeh prakaran kafi samai aapke vibhag me Iambi thai or kai baar patra likhne ke baad bhi koi karwahi nahin ki gayi hai. Yadi aap Lucknow aa rahen hon to kripya vaktigat roop se maha-mahitn se milkar unhen sthit se avgat kara den."
Thus, it will appear from the aforesaid observations of the Chancellor of the Universities that a direction was issued to the respondent to give suitable posting at the same place to both the petitioner and her husband, but he did not comply the said direction.
That being the factual position, we direct that aforesaid representations filed by the petitioner shall be decided by respondent No. 2 within two months from the date of production of a certified copy before him in the light of the directions issued by the Chancellor of the Universities and relevant Government Orders operating in the field.
In the meantime, the impugned order dated 22-7-1994 shall not be given effect to until the representations of the petitioner is dig-posed of by respondent No. 2.
With the aforesaid directions/observation, the writ petition is disposed of."
12. The Director Higher Education (respondent No. 2) in pursuance of the order of this Court dated 21-8-1995, has passed the order dated 26-9-1995, which is under challenge in this petition.
13. It is submitted on behalf of the petitioner that direction issued by this Court on 21-8-1995 referred to above, has not been complied with. The petitioner's representation has been disposed of in a cursory manner and not in consonance with the Court's order dated 21-8-1995.
14. It is further submitted that instant transfer is contrary to various Government Orders/guidelines/instructions issued time to time in this regard which specifically speak that the spouses (husband and wife) may be posted at the same station.
15. In respect of transfer of employees, law is well settled. Time and again the Courts have ruled that transfer of Government employee is a concomitant of service. Since transfers are made for administrative reasons or in public interest, therefore, no interference with the same is called for in the writ jurisdiction, save in exceptional cases where ex facie it is demonstrated that $he transfer is contrary to any statutory mandatory provisions of law or it is vitiated on the ground of mala fide or it has been made in colourable exercise of power such as frequent transfers within a short span of period resulting into harassment of the employee on the one hand and unnecessary loss to the public exchequer on the other or transfer is made during mid academic session resulting into disturbance and discontinuation of studies of the children of transferee.
16. But, if transfer is made against any guidelines or instructions having no statutory force of law, that cannot attract right of the employee to challenge the same in the writ jurisdiction. At the most what the employee could do in this regard is that he may represent the matter to the higher departmental authority apprising him of his problems and difficulties, and it is for the authority to consider the1 plight of the transferee. See AIR 1991 SC 532 -Mrs. Shilpi Rose v. State of Bihar, JT 1993 (3) SC 678-Union of India v. S. L. Abbas and 1994 (2) Supp SCC 666-Director of School Education, Madras v. O. Katuppa Thevan.
17. However, in a recent pronouncement of the Apex Court rendered in Home Secretary, U. T. Chandigarh v. Darshjit Singh Grewal, JT 1993 (4) SC 387, Their Lordships have ruled that policy guidelines are relatable to the executive power of the administration, and having enunciated a policy of general application and having communicated it to all concerned, the Administration is bound by it. It can, no doubt, change the policy but until that is done, it is bound to adhere to it.
18. Now, coming to the case in hand, the Government Orders/guidelines/policy said to have not been adhered to, are contained in Annexures 16, 17 and 18 to this petition and they lay down thus :
(1) If the couple is in education department, they both should be kept at one station at the time of appointment and transfer.
(2) If one of the husband and wife, belongs to education department and another to different department, even then efforts should be made to transfer one of them to that place where the other is posted.
(3) Husband and wife posted at the same station should not be transferred.
(4) On account of their postings to different places, husband and wife suffer difficulties, therefore, as far as possible they should be kept at one place.
19. Thus, the guidelines in respect of couple in Government service, have taken care of that husband and wife should be placed at one station. Placing the words "as far as possible", it is couched not in negatives form and accordingly the same is interpreted by the Apex Court.
20. Taking into account the human considerations and social needs, the aforesaid guidelines have been framed and the basic idea behind it is that whole set up of the family may not be disturbed notwithstanding the fact that said guidelines are not in imperative form. Thus, it needs consideration with positive approach till the policy is not changed or amended in view of the decision in Home Secretary, V. T. Chandigarh's case (supra), and if it is not possible to keep husband and wife at one place, cogent reasons in such cases are excepted to be assigned so that transferee husband or wife, as the case may be, able to know the reasons. If any policy has been framed and still operative, the executive actions are excepted to be in conformity with the same and not to negate it.
21. In other words, in the garb of public interest or administrative exigencies, it is not at the whims of the authority to disturb the family by transferring one of the husband and wife to a different place since the guidelines are not in imperative form or they have no force of law. 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. rarest of rare cases, for which no illustration can be given.
22. 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, such practice needs to be deprecated.
23. What kind of perplexities and difficulties, a spouse could confront with in the event of another being posted at a different place, can easily be imagined by anyone by putting himself/herself in that situation and then it would be realised that now torturous and painful it really is, to leave husband and children at one place and to lead a solitary life at the transfer place. Therefore, to avoid such disturbance and mental agony, the aforesaid guidelines are framed.
24. Thus, from the discussion aforesaid, the order impugned dated 26-9-1995 (Annexure 28) being not in consonance with the earlier order passed by this Court on 21-8-1995, therefore, we direct the authority concerned to reconsider the order impugned in the light of what we have said above and decide the petitioner's representation afresh expeditiously, to say, within a period of 15 days from the date of presentation of a certified copy of this order.
25. With the above direction, this petition is finally disposed of.
Petition disposed of.
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