Vandana Bharti vs Higher Education Department

They are heard.

By this intra court appeals the appellant Dr. (Smt.) Vandana Bharti is challenging the order dated 2.1.2016 whereby, learned writ court dismissed the W.P. No. 939/2015 and W.P. No. 3868/2015.

Brief facts of the case are that appellant Dr. (Smt.) Vandana Bharti is serving on the post of Asstt. Professor in Govt. MLB Girls P.G. College, Kila Bhavan, Indore, from last 22 years. She is having daughter suffering from ''Spastic Cerebral Plasy''. Her daughter is undergoing treatment of the same at Indore.

Writ Petition No. 935/2015, has been filed by her against the order dated 22.8.2014 whereby, she was transferred from Indore to Shajapur, as also the order dated 30.1.2015, rejecting her representation and the relieving order dated 5.2.2015. The transfer order and relieving order were stayed by the learned writ court and subsequently the fresh order dated 15.6.2015 was passed transferring her to Barwani. She challenged the said transfer order by filing W.P. No. 3868/2015. In both the writ petitions, the sole contention of the appellant that her daughter is suffering from Spastic Cerebral Plasy and the treatment is available only at Indore and therefore, she cannot be transferred outside Indore. Her transfer order was supported on the ground that she has remained at Indore for last 22 years and using the illness of her daughter as shield to avoid the transfer orders. The learned writ court considering the arguments of the learned counsel for the parties, dismissed the writ petition (s) by passing the following order :--

"Having heard the learned counsel for parties and on perusal of the record, it is noticed that undisputedly petitioner is posted at Indore for last 22 years. The reply of respondents reveals that earlier upto the year 2012 the petitioner was not transferred keeping in view the illness of the petitioner''s daughter. Now petitioner''s daughter is aged about 26 years. The additional documents which have been handed over by the petitioner contain an affidavit of petitioner''s daughter herself dated 20/2/15 revealing that her condition has improved significantly.

Though this court has full sympathy with the petitioner''s daughter but petitioner being working on the post of assistant professor the interest of students is also required to be taken into account. The petitioner cannot be permitted to remain at one place of posting during her entire tenure taking the plea of illness of her daughter. The documents handed over today also reveal that petitioner has tried to mislead this court by enclosing photograph of childhood of her daughter.

That apart the record reveals that prayer of petitioner has been considered by respondents in last three years repeatedly and in the administrative interest that has been rejected. The petitioner was earlier transferred by order dated 13/7/12 from Indore to Khandwa which was challenged in writ petition No. 6948/12 disposed of vide order dated 13/8/13 by quashing the transfer order with liberty to pass fresh order keeping in view the transfer policy issued by the state government and also directing the respondents to keep in mind the factum of physically challenge child of petitioner while passing appropriate order of transfer. Thereafter vide order dated 13/5/14 the petitioner was transferred to Shajapur but said order was also not acceptable to the petitioner. Writ petition No. 4372/14 was dismissed by the writ court on 20/6/14 and in writ appeal No. 598/14 vide order dated 25/7/14 petitioner was permitted to submit recent medical papers about the ailment and treatment of her daughter and respondents were directed to pass fresh order considering the administrative exigency as also the ailment of appellant''s daughter. The petitioner''s case was also again considered by the state government and by order dated 22/8/14 keeping in view the administrative exigency petitioner''s transfer at Shajapur was maintained. The petitioner had again filed writ petition No. 6543/14 which was disposed of by this court with direction to the respondents to take fresh decision. The respondents thereafter have considered the petitioner''s case again and by order dated 30/1/15 keeping in view the administrative exigency and educational interest of students, maintained the order of transfer to Shajapur. This order was not also acceptable to the petitioner. Hence she has filed the present writ petition and WP No. 935/15 in which ex parte stay was granted on 11/2/15. The respondents thereafter have re-considered the petitioner''s case and have passed the transfer order dated 15/6/15 transferring the petitioner to Barwani but this order is again challenged in WP No. 3868/15.

The aforesaid sequence of events reveal that respondents have repeatedly considered the petitioner''s difficulty as also the administrative exigency and on each occasion they have found that in the interest of administration, the petitioner is required to be transferred outside Indore. Personal difficulty arising as a consequence of transfer is a matter which is to be considered by the authorities and same does not furnish any ground to interfere in the order of transfer.

The Supreme court in the matter of Rajendra Roy v. Union of India reported in , AIR 1993 SC 1236 has held as under:

"7. ............ it is true that the order of transfer often causes a lot of difficulties and dislocation in the family set up of the concerned employees but on that score the order of transfer is not liable to be struck down. Unless such order is passed mala fide or in violation of the rules of service and guidelines for transfer without any proper justification, the Court and the Tribunal should not interfere with the order of transfer. In a transferrable post an order of transfer is a normal consequence and personal difficulties are matters for consideration of the department......... "

The reply of respondents also reveals that at Barwani proper facilities for treatment of petitioner''s daughter are available. After joining at Barwani, if she finds that the transferred place is lacking in any manner in respect of such facilities then there is adequate provision in clause 9.18 of the transfer policy annex.P-6 which provides as under:

Hence in such a case it would be open to the petitioner to file an appropriate representation before the concerned respondent giving the list of places where the adequate treatment is available for illness of petitioners daughter. Needless to say that on such an eventuality if such an application is filed by petitioner, the concerned respondent will expeditiously consider such an application and take appropriate decision.

The very fact that in last four years no application has been filed by petitioner under clause 9.18 of transfer policy reveals that petitioner on the pretext of the illness of her daughter is somehow making an attempt to continue at Indore.

The reply of State also reveals that there are surplus Assistant Lecturer in Indore and therefore, petitioner cannot be accommodated at Indore forever.

The Division Bench of this Court in the matter of Kushal Singh Dodve v. Santram Chouhan & Ors, passed in WA No. 234/2015, by the order dated 30.06.2015 has held as under:

"9. The scope of judicial review is very limited and this court would not interfere with the order of transfer lightly, because the courts do not substitute their own decision in the matter of transfer and if we allow to continue the impugned order, the same may cause prejudice to the administrative functioning of the Municipal Council, Barwani and also loss to the Government Exchequer. The writ petition is still pending. No reply has been filed by the State and Municipal Council, Barwani.

It is well settled that even if a transfer order is passed in violation of executive instructions or orders, the Court ordinarily should not interfere with the order, instead affected party should approach the higher authorities in the department. If the Courts continue to interfere with day-to-day transfer orders issued by the Government and its subordinate authorities, there will be complete chaos in administration, which would not be conductive to public interest."

In the aforesaid circumstances I do not find any merit in the writ petitions. The signed order be placed in the record of WP No. 935/15 and copy whereof be placed in the record of connected writ petition.

Writ petitions are accordingly dismissed."

Writ Petition No. 6948/2012 (s) against her transfer order dated 13.7.2012 was decided on 13.8.2013. The learned writ court disposed of the writ petition by directing the respondents to pass an appropriate order, keeping in view the transfer policy issued by the State Government and the fact of appellant having physically challenged daughter. The Department by order dated 13.5.2014, transferred her to Government College, Shajapur and relieved her on 22.5.2014 to join at the transfer place. This action was challenged by filing W.P. No. 4372/2014 (s). The learned writ Court relying upon circular dated 30.8.2010 passed the following order :--

"Counsel for petitioner has placed reliance upon circular dated 30th August, 2010. The said circular permits the employees having mentally effected children to apply for their transfer and posting at the place where the treatment is available on the condition of production of the certificate of the treatment and education from a recognized institute. The documents of the medical treatment filed alongwith the petition are very old and mostly of the year 1991. No recent document has been filed about the treatment or education of the petitioner''s physically effected daughter. No such document from the recognized institution has also been pointed out. In these circumstances, no ground for interference in the impugned order is made out. The writ petition is accordingly dismissed. The dismissal of this writ petition will not come in way of petitioner in filing the appropriate application in terms of circular dated 30th August 2010 enclosing therewith all relevant documents and praying for posting in accordance with the said circular."

She challenged the aforesaid order by filing Writ Appeal No. 598/2014. The writ appeal was disposed of by the Division Bench with a direction to the respondents to consider the matter taking into consideration the administrative exigency as also the ailment of the appellant''s daughter. The respondents by order dated 22.8.2014, rejected the representation. Against the aforesaid Writ Petition No. 6543/2014 was filed. The same was disposed of on 4.9.2014 on the following direction :--

"Since the concerned respondent has failed to comply with the direction issued by the Division Bench and the issue relating to ailment of the petitioner''s daughter has not been considered while passing the impugned order dated 22.8.2014, therefore, the impugned order cannot be sustained. Though no return has been filed by the respondents but since the direction of this Court and the impugned order passed on the basis of the direction is before this Court and it is undisputed that the direction issued by the Division Bench has not been considered while passing the order dated 22.8.2014, therefore, the impugned order is set aside with direction to the concerned respondent to decide the petitioner''s representation dated 2.8.2014 (Annexure P/14) afresh keeping in view the directions issued by the Division Bench in the Writ Appeal No. 598/2014. The concerned respondent while passing the fresh order will also take into account the communication dated 11.7.2014 sent by the Principal of the Shajapur College stating that there is no post for Home Science sanctioned in the college, nor there is any facility of teaching the Home Science available in the college. Let the fresh decision be taken by the concerned respondent within a period of 4 weeks from the date of receipt of certified copy of this order.

The petitioner is directed to submit a certified copy of this order along with the necessary documents to the concerned respondent within a period of 10 days from today. The petitioner will be allowed to continue on her original place of posting till the representation is decided.

Writ petition is accordingly disposed of."

Thereafter, the order dated 30th June, 2015, was passed whereby her representation was rejected.

Learned counsel for the appellant has submitted that no proper facilities for treatment of her daughter are available at the transfer place and as per Clause 9.18 of the transfer policy, she can be transferred where the facilities for treatment of her daughter are available.

From the date of events and number of writ petitions filed by the appellant, it is not in dispute that from last four years no application has been filed by the appellant under Clause 9.18 of transfer policy before the respondent (s) to transfer her to some other place, where the treatment facilities are available.

The Apex Court in the case of Rajendra Roy v. Union of India reported as , AIR 1993 SC 1236, has held that the order transfer often causes a lot of difficulties and dislocation in the family set up of the concerned employees but on that score the order of transfer is not liable to be struck down. Unless such order is passed mala fide or in violation of the rules of service and guidelines for transfer without any proper justification. Thus, only in the case of mala fide or if the transfer order has been passed in violation of the statute then, only the transfer order can be set aside/quashed by the Court.

Here in the present case, looking to the difficulty of the appellant, we by order dated 10.3.2016, directed the Director, Medical Health Service, Govt. of M.P, Bhopal, to examine the medical papers of the daughter of the appellant and point out to this Court about the treatment facilities available at any other place or not. Office of Director of Medical Health Services, examined the medical papers and vide communication dated 18.3.2016, pointed out to this Court that for treatment of ''Spastic Cerebral Plasy'' ailment specialised Physiotherapist, Speech therapist are required and the said facilities are available at Bhopal, Jabalpur and Gwalior.

While examining the enforce-ability of the guidelines issued by the Bank of India for adjusting the couple cases, in the light of Bank of India (Officers) Service Regulations, 1979, the Apex Court in the case of Shilpi Bose (Mrs) & Ors. v. State of Bihar & Ors., reported as , 1991 Supp (2) SCC 659, observed 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 accordance with administrative needs.

A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he/she is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal right. Even if a transfer order is passed in violation of executive institutions or orders, the Courts ordinarily should not interfere with the order, instead affected party should approach the higher authorities in the Department.

Considering the aforesaid, so also the fact that the transfer is an exigency of service and the appellant has been transferred on administrative ground and there is nothing on record to prove that the transfer order is passed in violation of the Rules, we are of the view that the learned writ court considered each and every aspect of the matter and rightly dismissed the writ petition. She is directed to join at the transferred place and thereafter file her representation for consideration of her case at the place where treatment facilities of daughter are available. In case, such a representation is filed after submission of joining report, the same shall be decided within a period of six weeks from the date of it''s filing on merit in terms of letter issued by the Directorate, Medical Services, Govt. of M.P. vide letter No. 4/M.R/Sell-2/16/381 dated 18.3.2016. If the appellant refused to join at the place of her transfer then, appropriate action will be taken as per Rules.

W.A. No. 39/2016 and W.A. No. 41/2016, have no merit and are accordingly, dismissed. The interim order (s) passed earlier by the Court stands vacated.