Transfer as an incident of public service and the employer's prerogative to decide transfers based on administrative exigency.

JUDGMENT

1. By instituting this writ petition dated 9th May, 2022, the petitioner takes exception to the order dated 7th April, 2022, issued by the Deputy Chief Executive Officer, (Accounts), Haj Committee of India (hereafter 'HCoI', for short) as well as the order dated 14th April, 2022, issued by the same officer. The first of the impugned orders dated 7th April, 2022 transferred the petitioner, an Upper Division Clerk working under the HCoI, from Mumbai and required him to report, latest by 11th April, 2022, to the Liaison office of HCoI at Dariyaganj, New Delhi and to work under the supervision of Mr. Mohammed Sultan Khan, In-charge, Liaison Office, New Delhi till further orders. Immediately after receipt of the transfer order, the petitioner by his representation dated 8th April, 2022 had requested the Chief Executive Officer, HCoI to keep the order of transfer in abeyance for at least 20-25 days on the ground that his mother, aged about 75 years, was suffering from various ailments and weaknesses and that his three children are due to appear in ensuing examinations. The representation of the petitioner dated 8th April, 2022 stood rejected by the second of the impugned orders dated 14th April 2022.

2. This writ petition was moved during the summer vacation before a co-ordinate bench of this Court on 11th May, 2022. The bench restrained the respondents from taking any coercive steps against the petitioner till 22nd June 2022 and posted the writ petition for hearing before the regular court, while directing exchange of affidavits by the parties in the meanwhile. Interim relief was expressly granted by the bench, considering grounds (i) and (j) urged in support of the relief claimed in the writ petition.

3. Interim relief was extended on June 20, 2022 by one week, whereafter the writ petition was heard finally in the presence of Mr. Marne, learned advocate for the petitioner and Mr. Shukla, learned advocate for the respondents.

4. Before we proceed to notice the contentions advanced by the learned advocates for the parties, we consider it proper to set out below grounds (i) and (j) of the petition, which impressed the coordinate bench to grant interim relief to the petitioner. The same read as under: -

i) The petitioner is physically disabled person. The Petitioner suffers from Post-Polio Residual Paralysis. A copy of Disability Certificate of the Petitioner is annexed hereto and marked as Exhibit-K. By OM dated 13-03-2002 read with OM dated 10-05-1990 issued by the DoPT, disabled employees are required to be given postings at native places, copies whereof are annexed hereto and marked as Exhibit-L. Now the protection from transfers is extended even to government employees who have disabled dependents vide OM dated 08-10-2018, a copy whereof is annexed hereto and marked as Exhibit-M. Rather than extending the same protection to the Petitioner, he is sought to be unceremoniously thrown out of Mumbai.

j) The impugned transfer would create extreme difficulties for the Petitioner and his family members. The Petitioner's family consists of his mother aged 75 years, wife and 3 children. The Petitioner's mother is often ill and requires medical care. Petitioner's children are aged 18, 16 and 10 years. They are taking education at Mumbai in College/Schools. In such situation the Petitioner cannot leave his responsibilities and report at New Delhi, that too when not required administratively. The Petitioner will also not able to manage two establishments in a meagre salary of about Rs.54000/- per month. It is therefore necessary in the interest of justice that the impugned transfer of the Petitioner is set aside.

5. Appearing in support of the writ petition, Mr. Marne raised the following contentions: -

a) The service of the petitioner is not transferable; hence he should not have been transferred to New Delhi.

b) HCoI has no regular establishment in New Delhi and it is only a Liaison Office that is operational and, therefore, the petitioner