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Judgment
Heard finally through video conferencing.
This petition under Article 226 of the Constitution of India has been filed against the order dated 07/09/2019 (Annexure P1) passed by respondent No.2, by which the transfer order dated 10/08/2019 has been cancelled.
It is submitted by the counsel for the petitioner that the petitioner is suffering from serious illness and accordingly, she was transferred by order dated 10/08/2019 on her own request and the said transfer order was duly executed, however, by the impugned order dated 07/09/2019, her transfer order has been cancelled without disclosing any reason except that the petitioner was not entitled to get herself transferred under the transfer policy dated 22/06/2019. It is submitted by the counsel for the petitioner that the impugned order dated 07/09/2019 is bad in law because it is well-established principle of law that an executed transfer order cannot be cancelled.
The respondents have filed their return. It is submitted by the counsel for the respondents that as per the transfer policy, an employee can be transferred on his/her request provided he/she is suffering from serious illness like paralysis, cancer, brain tumor, kidney transplantation, open heart surgery and angioplasty. The petitioner had represented that she is suffering from paralysis and accordingly, she was transferred by order dated 10/08/2019. Thereafter, it was revealed that in fact, the petitioner has not suffered paralysis. On the contrary, she is suffering from Osteo-arthritis of her both knees. Thus, when it was found that the petitioner had obtained the transfer order dated 10/08/2019 by playing fraud on the Department, then, by the impugned order dated 07/09/2019, her transfer order dated 10/08/2019 was cancelled.
The petitioner has filed her rejoinder and in the rejoinder, has once again reiterated that as per Clause 1.5 of the transfer policy, an employee can be transferred if he/she is suffering from serious illness and once the transfer order was executed, then the same cannot be cancelled. However, has not denied that the petitioner is in fact suffering from Osteo-arthritis of her both knees and not paralysis.
Heard the learned counsel for the parties.
According to Clause 1.5 of the transfer policy, an employee can be transferred on his/her own request provided he/she is suffering from serious illness like paralysis, cancer, brain tumor, kidney transplantation, open heart surgery and angioplasty.
In the present case, the petitioner has not claimed that she has suffered paralytic stroke. No document of treatment has been filed. Even in the rejoinder the petitioner has not taken a specific stand that she has suffered paralytic stroke. The petitioner has simply relied upon the certificate issued by an Orthopedic Surgeon, District Hospital Bhind according to which, the petitioner is suffering from ''OA of both knees'' and has 45% loco-motor disability. Even in this certificate, it has not been mentioned that the petitioner has suffered any paralytic stroke. On the contrary, there is a specific mention that the petitioner is suffering from ''OA of both knees''. Thus, it is clear that the petitioner had misrepresented to the Department that her case is covered by Clause 1.5 of the transfer policy, which reads as under:-
क.
शिक्षक संवर्ग के महिला/ पुरूष्
स्थानांतरण में प्राथमिकता क्रम का क्रमानुसार विवरण
महिला वर्ग
स्वयं अथवा परिवार के सदस्य कैंसर, ब्रेन ट्यूमर, गुर्दा प्रत्यारोपण ओपन हार्ट सर्जरी, एन्ज्योप्लास्टी अथवा लकवा ग्रसित। (परिवार से आशय पति, पत्नी एवं आश्रित बच्चों से है)
शासकीय सेवारत पत्नी के कार्यस्थान पर स्थानांतरण
Thus, it is clear that it is not the case of the petitioner that she had ever suffered any paralytic stroke. Merely because, the petitioner is suffering from Osteo-arthritis, would not make her eligible for transfer under Clause 1.5 of the transfer policy. Thus, it is clear that the petitioner had obtained her transfer order dated 10/08/2019 on her own request by playing fraud on the Department.
It is well-established principle of law that fraud vitiates all solemn acts. Kindly see State of Chhatisgarh Vs. Dhirjo Kumar Sengar reported in (2009) 13 SCC 600.
Under these circumstances, even if the transfer order dated 10/08/2019 was executed by the petitioner, still then the petitioner would not get an advantage of the judgment dated 02/02/2018 passed by the Division Bench of this Court in the case of Manmohan Sharma vs. State of MP passed in Writ Appeal No.1249 of 2017.
Accordingly, this Court is of the considered opinion that the respondents did not commit any mistake by canceling the transfer order dated 10/08/2019 on the ground that the same was obtained by giving false information and thus, played fraud on the Department.
Accordingly, this petition fails and is hereby dismissed.