Col. Prathibha Rai vs Union Of India & Others

Bipin Chander Negi, J

The present petition has been filed seeking following reliefs:

(i) A writ in the nature of certiorari may kindly be issued setting aside the order dated 18th July, 2023, Annexure P-8 qua the petitioner and also the communications of disagreement contained in Annexure P-4 and Annexure P-10.

(ii) That a writ in the nature of mandamus may also kindly be issued directing the official respondents to grant further extension of tenure to the petitioner at Military Dental Centre, Shimla till completion of her four years tenure in September, 2024 conforming to the Guidelines contained in Para-45 vide Annexure P-11 enabling her said son to complete his academics in the DAV Senior Secondary Public School, Lakkar Bazar, Shimla.

The brief facts giving rise to the petition are that the petitioner had joined on 4th December, 2020 as Officer Commanding (OC) at Military Dental Centre, Shimla. In the month of April 2023, on account of the academic Session of her son which was to commence w.e.f. 27th March, 2023 an application for extension of tenure had been made. The same had been rejected vide Annexure P-4, dated 25.04.2023.

Subsequent to the aforesaid, the present petitioner had been transfered vide order dated 18th July, 2023 i.e. appended alongwith the petition, as Annexure P- 8.

Thereafter, request for deferment of posting was made by the petitioner. The same was rejected vide letter dated 07.08.2023 appended alongwtih the petition, as Annexure P-10.

Heard learned counsel for the parties.

The main grievance of the petitioner is with respect to the transfer order dated 18th July, 2023 appended alongwith petition, as Annexure P-8.

The transfer order was issued by the Competent Authority, in the case at hand, does not violate any legal rights of the petitioner. Since no legal rights of the petitioner is being violated, therefore, the present petition is not maintainable.

At this stage, it would be appropriate to refer to a judgment reported in 1991 Supp (2) SCC 659, titled Shilpi Bose (Mrs) and others vs. State of Bihar and others, decided on 19.11.1990, relevant extract of the same is being reproduced herein below :-

“Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts 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 the administration which would not be conducive to public interest.”

The contention of the petitioner is that her child is studying in School and the transfer could not be affected during mid academic session.

In this respect, it would be appropriate to refer to a judgment reported in 1994 Supp (2) SCC 666, titled Director of School Education Madras and others vs. O. Karuppa Thevan and another, decided on 31.01.1994, relevant extract of the same is being reproduced herein below :-

“Although there is no such rule, we are of the view that in effecting transfer, the fact that the children of an employee are studying should be given due weight, if the exigencies of the service are not urgent. The learned counsel appearing for the appellant was unable to point out that there was such urgency in the present case that the employee could not have been accommodated till the end of the current academic year. We, therefore, while setting aside the impugned order of the Tribunal, direct that the appellant should not effect the transfer till the end of the current academic year. The appeal is allowed accordingly with no order as to costs.”

In this respect, when the matter was listed on 19.12.2023, the respondents had been asked to take into account the personal hardship of the petitioner especially with respect to her son's education. In this respect, respondents have placed on record order dated 20.12.2023. A perusal of the same clearly reflects that on account of petitioner not joining her new duty station an entire chain of transfers has been effected. The other Officers whose transfers have been effected their children education is also being hampered.

Besides the aforesaid, according to the respondents, post graduate training of young Officers is being severely hindered.

At this juncture, it would be appropriate to refer to a judgment reported in (1995) 3 SCC 270, titled State of M.P. and another vs. S.S.Kourav & others, decided on 19.01.1995. The relevant extract of the same is being reproduced herein below :-

“... This court cannot go into that question of relative hardship. It would be for the administration to consider the facts of a given case and mitigate the real hardship in the interest of good and efficient administration.”

In view of the administrative exigency pointed out by the respondents in the order dated 20.12.2023, the impugned transfer order cannot be deferred. Hence, I find no merit in the present petition and the same is dismissed, so also, pending miscellaneous application(s), if any.