Case Note & Summary
Background: The writ petition under Article 226 of the Constitution of India arose from a challenge by an Auxiliary Nurse Midwife (ANM) employed by the Nanded Zilla Parishad to her transfer from a non-tribal area to a tribal area. The employee had joined service in 1994 and had served the Parbhani Zilla Parishad for sixteen years before moving to Nanded Zilla Parishad on account of marriage and couple arrangement. She was posted at Martala sub-centre under Primary Health Centre, Kapsi, Taluka Loha, and was transferred by order dated 06.06.2019 to Umari (Ba.), Taluka Kinwat, a tribal area. She challenged that order and the appellate decision dated 05.12.2019, seeking posting within thirty kilometres of her husband's workplace at Kaudgaon, Taluka Loha. Facts: The petitioner contended that the transferred location did not figure in the list of villages of Taluka Kinwat, she had not completed ten years at Kapsi, no vacancy existed at Umari, and she was not due for transfer. She also claimed exemption as the elected treasurer of the Maharashtra Zilla Parishad Nurses Sanghatana from 27.01.2019 under Government Resolution dated 15.05.2014. The Zilla Parishad, in its affidavit-in-reply, stated that out of 406 ANMs in Nanded district, 112 were working in Kinwat and Mahur Talukas; as per seniority list which was not objected to, the petitioner was the senior-most employee at Kapsi and had never worked in tribal or naxalite areas for twenty-six years; only four categories of employees were exempt from tribal posting, and the petitioner did not fall within any; only four elected office bearers of authorised/approved associations were exempt under Government Resolution dated 02.01.2017, and her union was newly registered and unrecognized; and her husband, an Assistant Teacher in the same Zilla Parishad, could request couple arrangement within thirty kilometres from her posting. Legal Issues: The core issues were whether the transfer order and appellate decision were liable to be quashed for lack of vacancy, non-listing of the village, and non-completion of ten years; whether the petitioner was exempt as a union office-bearer; whether she was entitled to posting within thirty kilometres of her husband's workplace; and whether judicial interference was warranted absent mala fides. Arguments: The petitioner argued that she was not due for transfer, the transfer was to a non-existent village, no vacancy existed, and her union office-bearer status granted her exemption. The respondents argued that Government Resolution dated 15.05.2014 mandated posting in tribal/naxalite areas, the petitioner was senior-most with no prior tribal service, she did not fall in exempted categories, and her union was unrecognized so no protection applied. They relied on precedents to show transfers should not be interfered with absent mala fides. Court's Analysis: The court noted that transfer is a normal incident of service and that the Bombay High Court had issued orders in suo motu Writ Petition No.3278/2010 directing a policy for deployment in tribal/naxalite areas, leading to Government Resolution dated 15.05.2014. The petitioner's prior service with Parbhani Zilla Parishad did not mean her Nanded service was a fresh stint; she had worked in non-tribal/non-naxalite areas for twenty-six years. The court held that being an office-bearer of a union did not place an employee in a special category, relying on Blue Star Ltd. v. Blue Star Workers' Union. The court found no mala fides or laches attributable to the Zilla Parishad and that administrative exigencies justified posting the senior-most ANM in a tribal area for the first time. Precedents including State of U.P. v. Siya Ram, Yogesh Pratap Singh, and Mohd. Masood Ahmad supported limited judicial interference. Decision: The High Court dismissed Writ Petition No.789 of 2020, discharged the rule, and upheld the transfer order dated 06.06.2019 and the decision dated 05.12.2019. The request for posting within thirty kilometres of the husband's workplace was rejected, though the court noted the husband could seek couple accommodation within thirty kilometres from the petitioner's posting.
Headnote
A) Service Law - Transfer - Normal Incident of Service - Constitution of India, 1950, Article 226 - Transfer of a public servant is a normal incident of service and courts interfere only in rarest of rare cases where the transfer is shown to be mala fide or without administrative exigencies - The petitioner, an Auxiliary Nurse Midwife, challenged her transfer from a non-tribal to a tribal area as senior-most ANM who had not served in tribal/naxalite areas for 26 years - Held that the transfer was justified by administrative exigencies and no mala fides or laches were attributable to the respondents; petition dismissed (Paras 7, 11-13). B) Service Law - Transfer to Tribal/Naxalite Areas - Mandatory Posting Policy - Constitution of India, 1950, Article 226; Government Resolution dated 15/05/2014 - The Government Resolution dated 15/05/2014, issued in pursuance of Bombay High Court's suo motu Writ Petition No.3278/2010 orders, mandated deployment of health service employees in tribal and naxalite areas - The petitioner did not fall within the four exempted categories (handicapped employees, widows/divorcees/cancer/paralysis patients, those above 53 years, drivers/draftsmen), and being senior-most with no prior tribal posting, her transfer to Umari (Ba.), Tq. Kinwat was valid - Held that absence of vacancy or village non-listing did not vitiate the transfer (Paras 6-8, 12-13). C) Service Law - Union Office Bearers - No Exemption from Transfer - Constitution of India, 1950, Article 226; Government Resolution dated 02/01/2017 - Only four elected office bearers of authorised/approved associations are exempt from transfer; a treasurer of a newly registered unrecognized union is not exempt - Court relied on Blue Star Ltd. v. Blue Star Workers' Union, 1996(3) Bom.C.R. 480, holding that an employee is first an employee and union office is a matter of choice without special category - Held that petitioner's election as treasurer of Maharashtra Zilla Parishad Nurses Sanghatana did not insulate her from transfer (Paras 6, 9). D) Service Law - Spouse/Couple Posting - Accommodation of Spouse on Request - Constitution of India, 1950, Article 226; Government Resolution dated 15/05/2014 - If the petitioner's husband, an Assistant Teacher in the same Zilla Parishad, requested couple arrangement, he could be accommodated within 30 kms from the petitioner's posting, but the petitioner could not demand posting near her husband as a right - Held that couple accommodation could operate in the husband's favour and did not render the transfer illegal (Paras 6(j), 10-13). E) Service Law - Writ Jurisdiction - Judicial Review of Transfer Orders - Constitution of India, 1950, Article 226 - Transfer orders should not be interfered with under writ jurisdiction unless there is proven mala fide intention or absence of administrative exigencies - The court followed State of U.P. v. Siya Ram, Yogesh Pratap Singh, and Mohd. Masood Ahmad; held that even a transfer on M.L.A. recommendation does not vitiate the order - Held that the petition was devoid of merits and the rule was discharged (Paras 10-13).
Issue of Consideration
Whether the transfer order dated 06.06.2019 and the decision dated 05.12.2019 were liable to be quashed; whether the petitioner was exempt from transfer to a tribal area as an elected union treasurer; whether she was entitled to posting within 30 kms of her husband's workplace; and whether judicial interference in transfer orders was warranted.
Final Decision
The High Court dismissed Writ Petition No.789 of 2020, holding that the transfer of the petitioner from Martala under Primary Health Centre, Kapsi, Tq. Loha to Umari (Ba.), Tq. Kinwat was valid and justified by administrative exigencies. Rule discharged. The request for posting within 30 kms of her husband's workplace was rejected; however, the Zilla Parishad was not precluded from considering a request by her husband for couple arrangement within 30 kms from her posting.
Law Points
- Transfer is a normal incident of service
- judicial interference in transfer orders is permissible only in rarest of rare cases
- transfer can be interfered only if mala fide or without administrative exigencies
- Government Resolution dated 15/05/2014 mandates posting of health service employees in tribal and naxalite areas
- only four categories are exempt from tribal posting
- only four elected office bearers of authorised/approved associations are exempt under Government Resolution dated 02/01/2017
- a union treasurer of an unrecognized union is not exempt
- an employee is first an employee and union office is a matter of choice
- spouse accommodation can be considered if husband requests couple arrangement
