Transfer rejection invalid for non-application of mind where authorities ignore child's severe disability, DoPT compassionate guidelines, and departmental policy's personal circumstances clause despite specific judicial direction.

ORDER (ORAL)

Per Hon’ble Mr. Pankaj Kumar, Member-Administrative In this case relating to transfer, the applicant has sought the following reliefs:

“(1) To quash the impugned transfer order dated 04.04.2024 contained as Annexure No. A-1 to this OA) to the extent it relates to the applicant, with all consequential benefits.

1.A To quash the impugned order dated 01.05.2024 contained as Annexure No.A-1A to this OA, with all consequential benefits.

2. To allow the applicant to continue at Lucknow, with all consequential benefits.

3. Any other relief, which this Hon’ble Tribunal may deem fit, just and proper under the circumstances of the case, may also be passed.

4. Cost of the present case.”

2. The facts of the case are that the applicant, working on the post of Director (Geology) at Lucknow under the respondents, was transferred to Jammu vide order dated 04.04.2024 which also included transfer of 45 other officers. The applicant submitted representation dated 05.04.2024 to the respondents requesting for his retention at Lucknow on the grounds that his elder son (age 8 years) was undergoing treatment at Lucknow for cerebral palsy and epilepsy and that his wife, working as teacher under the State Government of Uttar Pradesh, was also posted at Lucknow. Not having received a positive response, the applicant has preferred this OA. When the case came up for hearing on 16.04.2024, this Tribunal stayed the operation of the impugned transfer order dated 04.04.2024 qua the applicant and directed the respondents to dispose of the applicant’s pending representation. The respondents, vide their order dated 01.05.2024, did not accede to the applicant’s request for retention at Lucknow.

3. The applicant states that he has two minor sons aged 8 years and 3 years. The elder son is suffering from cerebral palsy (with 90% disability) and epilepsy, is unable to sit, walk and speak, and is undergoing treatment at Lucknow. Office memorandum (OM) dated 15.02.1991 issued by the Department of Personnel & Training (DoPT) provides that Government servant having mentally retarded children should be given posting of his choice while taking a sympathetic view. Subsequently, vide OM dated 08.10.2018, DoPT has emphasized exempting employees who are main care giver of person with disability from the routine exercise of transfer. The applicant’s wife, an employee under the State Government of UP, is posted at Government Polytechnic, Lucknow. The transfer policy of Geological Survey of India has provision for compassionate transfer. Three other officers (Ajay Kumar, Rakesh Mishra and Om Prakash) who have completed more than 10 years at Lucknow have not been touched while the applicant has been disturbed despite having peculiar circumstances.

4. The respondents, on the other hand, state that transfer is not only an incident but an essential condition of service and the employee does not have any vested right to be posted at a particular place. In terms of FR 11, the whole of a Government servant is at the disposal of the Government which pays him and may be employed in any manner required by the proper authority. The applicant, along with 45 other officers, has been transferred with due approval of the competent authority in consonance with the transfer policy dated 25.07.2016 for Group ‘A’ & ‘B’ officers of GSI as per functional requirement. Paragraph 4.4 of the policy stipulates maximum tenure of 5 years at a single location. As per paragraph 4.8, no officer will be allowed to work at a single station for more than two spells. Out of service period of nearly 20 years, the applicant has served for about 14 years at Lucknow and has completed 8 years during the present stay. He was posted at Jaipur (2004-08), Lucknow (2008-14), Shillong (2014-16) and Lucknow a