Heera Lal Tewari vs State of U.P. and Another

Heard the learned Counsel for the Appellant Sri Y.P. Yadav and Sri Mukund Tiwari, learned Additional Chief Standing Counsel.

The Appellant while posted at Kursath, Unnao made a request for his transfer to Faizabad or Sultanpur through his wife, who was ailing with some heart disease. On the request aforesaid, the Appellant was first transferred to Antoo, Pratapgarh vide order dated 30.6.2007 and soon thereafter vide order dated 26.7.2007, the aforesaid order was modified and he was transferred to Sitapur. The writ petition filed by the Appellant has been dismissed by the learned Single Judge after observing that there appears to be some dispute between the Appellant and the Chairman, Nagar Panchayat, Antoo and, therefore, for smooth functioning of the department, the transfer has been effected.

Sri Y.P. Yadav, learned Counsel for the Appellant assailing the aforesaid order, submits that transfer on compassionate ground if was accepted by the State Government, then he ought to have been posted at the place asked for or the prayer could have been rejected in toto.

The compassionate transfers lie strictly within the domain of the State Government or the competent authority, where Courts hardly interfere. Once a request is made by the Government servant for transferring him to a particular place on some genuine and compassionate ground, the State Government has the discretion to verify the correctness of such a claim and if satisfied, and finds it reasonable and feasible to accept such a request, such Government servant can be transferred and posted at the place, for which he has requested.

In case State Government is not satisfied about the plea of compassionate transfer, it has full authority to reject the same. But once having accepted the request, the Government can hardly have any power, unless there are some exceptional reasons and some cogent ground to transfer such Government servant to any other place, under the pretext that he has asked for a transfer himself. It is a different matter that any Government servant can be transferred at the time of annual transfers, in the exigency of service and for administrative reasons during any period throughout the year.

The compassionate transfer can be made only if the State Government is satisfied about the claim so made, which transfer is not dependent either on the annual transfers or on administrative reasons. May be, that for any good reason, the prayer of compassionate transfer be rejected.

We are take note of the fact that despite the orders passed by this Court that the prayer for transfer on compassionate ground should only be entertained on the own request of the Government servant, applications still moved by the relations of the Government servant, including wife, are being entertained, as has happened in the Instant case also.

In the instant case, though the order impugned says that the Appellant has been transferred on his request, we find that there was no request of the Petitioner for transfer.

Learned Counsel for the Appellant also says that the Appellant had not made any representation and it was made by the wife alone.

We thus, find that there was no proper representation by the Appellant for transferring him on compassionate ground and, therefore, the application could not have been entertained by the State. In such a situation, the State Government was also not competent to pass the order of transfer and it would have been better if the Petitioner was continued at his place of posting i.e. Unnao, instead of transferring him to Sitapur.

Since the transfer order has been passed on irrelevant consideration and also against the wish of the Appellant''s wife, who was otherwise not having any locus standi to move such a representation, we set aside the order of transfer and also the order passed by the learned Single Judge under appeal.

The State Government is directed either to post the Appellant at his original place of posting i.e. Unnao, if vacancy still exists there or may post him at any other place and preferably if any vacancy is available in the district of Faizabad. This shall be done within a maximum period of ten days from the date of receipt of a certified copy of this order.

Subject to the aforesaid observations, the appeal is allowed.