Courts Update Allahabad HC asks State Government to consider the matter...

Allahabad HC asks State Government to consider the matter of transfers of employees in the Medical Department in accordance with law

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Allahabad Aug 13(ILNS): The Lucknow Bench of the Allahabad High Court on Tuesday asked the State Government to consider the representations relating to the matter of transfers of employees in the Medical Department.

A Single Bench comprised of Justice Rajesh Singh Chauhan passed this order while hearing a Petition filed by Ashish Kumar Singh and others.

In this Petition, the Petitioners have assailed the order dated July 15, 2021, passed by the Director (Administration), Medical & Health Services, U.P., Lucknow transferring the employees from one place to another place in the State of U.P.

The Petitioners have also assailed the subsequent orders dated July 24, 2021, and July 31, 2021, passed by the same authority canceling the transfer order of some employees and adjusting some employees on their own request ignoring the grievance of the petitioners. The names of the petitioners find their place in all the transfer orders.

H.G.S. Parihar, Senior Advocate submitted that while passing the order of transfer the authority concerned has adopted the pick and choose method. He has canceled the transfer order of some employees on the basis on his sweet-will and adjusted some employees at the place of their choice again as per his sweet-will.

However, the Petitioners have also approached either for cancellation of transfer or for adjustment but no proper decision has been taken, rather, some of the petitioners have been adjusted away from the earlier place for no cogent reasons, therefore, the petitioners have been discriminated against by the authority concerned.

As per H.G.S. Parihar, Senior Advocate even the guidelines, so indicated in the transfer policy, have not been adhered to in its letter and spirit. Even the nature of prayer has not been indicated in the transfer order as it cannot be understood as to whether the transfer order has been issued in the public interest or on administrative exigencies of administrative reasons etc. The nature of transfer must be reflected so as to understand the reason for transfer.

There is no dispute that the guidelines of the transfer policy may not be executed by means of issuing writs but at the same time, the transfer policy is formulated to adhere to. If the competent authority does not follow the transfer policy being issued by the State Government it is disrespectful to the Highest Executive Authority of the State i.e. the Chief Secretary, who has issued the Transfer Policy.

Parihar said that if a conscious decision has been taken to transfer those employees, who have completed a substantial period at a particular place, in that case, such a conscious decision should be followed in its letter and spirit. If some employees, who have completed less period, have been transferred and the employees who have completed more periods have been retained, it would be a glaring violation of such a conscious policy decision. Besides, there may be bonafide grievances of the employees e.g. their children are studying in Class-X or Class-XII standard and they are to appear in the forthcoming Board Examination; there may be the health ground of the employees or their family members, etc.

Parihar, Senior Advocate further said that the corrective measure should be taken by the competent authority if any factual mistake has been made by issuing the transfer order and if the bonafide grievance of any employee is still unredressed, the same should be redressed with compassion as per the transfer policy.

Kuldeep Pati Tripathi, Additional Advocate General has submitted that the Petitioners are not entitled to the reliefs, as prayed for, in the Petition because by means of this writ petition the petitioners have assailed the transfer order which has been passed on the basis of policy decision being taken by the department transferring those employees who have completed more than ten years of service at a particular place.

In this case, the Petitioners have completed more than ten years of service either at the district or in the division. Besides, the transfer being an incidence of service, therefore, the Petitioners should submit their joining at the transferred place inasmuch as if the transfer of the petitioners is stayed or canceled, the entire chain of employees shall be affected/ disturbed adversely.

The Court said that the Additional Advocate General has assured that if any Petitioner places his bonafide grievance as per the transfer policy, the competent authority shall consider the same and pass appropriate orders even if the petitioners submit their joining at the transferred place. Be that as it may, since the transfer is an incidence of service, therefore, it should not interfere normally unless the transfer order is passed in violation of rules or in a malafide intention.

However, no such ground is available in the case. So far as the bonafide grievances of the petitioners are concerned, as referred above, it is needless to say that the competent authority shall consider the same with compassion and in terms of transfer policy and shall pass appropriate orders, strictly in accordance with the law, the Court said.

“I hereby dispose of the writ petition at the admission stage and without interfering with the transfer orders the liberty is given to the petitioners to prefer a separate representation to the Competent Authority taking all pleas and grounds which are available with them enclosing therewith the relevant documents in support of their claim which are necessary for the disposal of the representation within a period of seven days and if such representation is preferred, as directed above, the authority competent shall consider and decide the representation of the petitioners, strictly in accordance with law and policy with compassion by passing a speaking and reasoned order within a period of three weeks from the date of presentation of a certified/ computerized copy of this order along with the representation and the decision thereof be intimated to the Petitioners forthwith”, the Court ordered.

It is also provided that if any petitioner submits his/ her joining at the transferred place pursuant to the impugned transfer orders, even then, his/ her representation shall be considered and dispose of in view of the terms as directed above and no prejudice shall be caused to any of the petitioners for the reason that they have approached the Court assailing their transfer order. In view of the aforesaid observations and directions, the instant writ petition is disposed of finally”, the order reads./ILNS/AP/SNG

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