WASIF AKHTAR Vs. STATE OF U P

JUDGEMENT

(1.) PRADEEP Kant, J. Counter-affidavit has been filed by opposite party No. 5 to which a rejoinder-affidavit has been filed by the petitioner. The State has not filed any counter-affidavit till date despite the time granted to it. However, the record is available with the learned State Counsel and he has produced the record before this Court and has consented that the writ petition be disposed of finally.

(2.) THE petitioner, who has been working as Dental Hygienist, was posted at Community Health Centre, Ikauna, District Shravasti and while being posted there a request was made for his transfer to Lucknow, as his wife Smt. Nafees Fatima was suffering from Rheumatoid Arthritis and was under the treatment of Dr. S. K. Dass at King George's Medical College, Lucknow. This application appears to have been moved on 30-5-2001. On consideration of the request of the petitioner for transfer of the petitioner to Lucknow, the State Government issued an order on 7-6-2001 directing the Director General, Medical and Health Services, Lucknow to accommodate the petitioner on the newly created post of Dental Hygienist in Community Health Centre, Sarojininagar, Lucknow. Certain correspondence took place between the Government and the Director General for compliance of the directions issued by the State Government for making the transfer of the petitioner. After various correspondence and the representation made by his wife also, an order of transfer was issued on 21st July, 2001 posting the petitioner at Community Health Centre, Sarojininagar, district Lucknow on his request. THE petitioner, however, was not allowed to join the duties and in between the Chief Medical Officer on 24-7-2001 required the confirmation of the transfer order from the Director (Admn.) which fact was confirmed by letter dated 28-7-2001 and thereafter the petitioner submitted his joining report to the Chief Medical Officer, Lucknow on 28-7-2001. Again the Chief Medical Officer, Lucknow sought confirmation about the transfer of the petitioner from the Director (Admn.) though earlier the confirmation had already been sent by the Director (Admn. ). However, the petitioner was allowed to resume duties at Community Health Centre, Sarojininagar, Lucknow on 1-8-2001. In the meantime, it appears that opposite party No. 5 also made a representation on 2-7-2001, as informed by the learned Counsel for opposite party No. 5, Sri D. K. Upadhyaya, for his transfer to Community Health Centre, Sarojininagar, Lucknow on the ground of his wife's illness. In the counter-affidavit filed by opposite party No. 5 illness of the wife has not been disclosed. On a specific query being put to the learned Counsel representing him, he expressed his ignorance in the matter and stated that in the representation also no specific illness of the wife has been mentioned. Be that as it may, the question for determination is as to whether in a case where on request of a particular Government servant, his transfer order has been passed filling up the vacancy which existed at the time of his transfer can be upset for accommodating another person, who has also made request for his transfer for any reason whatsoever. It is undisputed that accepting request of the Government servant of transfer on bona fide and genuine grounds and for reasons which may appeal to the transferring authority lies within full discretion of such authority but that discretion should be exercised judiciously and honestly. It is always open for the transferring authority to consider the respective claims of Government servants, if there are two or more than two in number claiming their transfer for personal reasons no compassionate grounds to a particular place but once the order has been passed accepting the request of a particular Government servant unless there are very strong and exceptional reasons for accommodating another person at that very place, it shall not be open for the authority concerned to cancel the earlier transfer order and to accommodate another Government servant in his place.

(3.) THE writ petition is allowed. THE order of cancellation of transfer of the petitioner dated 7-8-2001 is hereby quashed. THE petitioner shall be allowed to continue at Community Health Centre, Sarojininagar, Lucknow. THE opposite party No. 5 is restrained from functioning as such at the aforesaid place. Petition allowed. .