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Modification of transfer order on the medical ground of spouse

Shivendra Pratap Singh

Advocate

07/07/2020

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Can I seek a modification of transfer order on the medical ground of spouse? My husband works in a PSU bank. He has transferred to a remote area 250 km away from the place we are living in. I am also a central govt employee and expecting our first child with some medical complication. My husband applied for a modification of transfer order on wife’s health condition. Moreover, there are no administrative exigencies for such a posting order.

My husband’s application for modification of transfer order is still pending for 30 days. Meanwhile, his salary has been stopped, request for leave rejected and concerned authority has issued a warning letter for disciplinary action. Due to medical ground of spouse, it is not possible to travel 250 km away to a place without any medical facility. Can you please advise us what should we do? Can bank initiate disciplinary action? Is there any law or policy to help us so that my husband can get a modification of posting and stay with me?

Question from: Bihar

Your husband should send a representation to the competent authority who has the power to modify the transfer order. The representation must contain a request along with relevant grounds to take quick decision on the modification application. The health condition of wife is a reasonable ground to modify the current posting order. Posting of the employee is purely an administrative order. Thus, the competent authority can modify its order in the interest of the employee.

Transfer order

The employer has exclusive power to transfer the employee from one place to another fo smooth function of the administration. However, the employee has no right to interfere in the order but he can request to modify the transfer order. The grounds of request should be genuine and exist when he requests for that modification. If his transfer not extremely urgent he can request to relook the order of transfer.

How to exercise the power of transfer?

The power to transfer the employee from one place to another is purely an administrative power. There is a fixed principle or procedure towards how to exercise this power? Thus, the authority exercises its power as per his discretion and service rule.

When he exercises his discretionary power then, he has to follow the principle of fairness. The transfer order should be just, fair and reasonable. The order must reflect the administrative exigencies. In devoid of such exigency the employee can challenge that transfer order in court if the department does not take any action on his request.

In B. Varadha Rao v. the State of Karnataka, (1986) 4 SCC 131, the Supreme Court held that the employer must exercise this power honestly and reasonably. If the transfer order is influenced by extraneous considerations or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power.

Challenge the transfer order

If the employer does not dispose of your modification application with reasoned and speaking order then you can challenge that order before the High Court under Article 226 of the Constitution of India. You should file a writ of Mandamus and challenge the veracity of that order. The court can quash the order on any of these grounds.

  • If the transfer order does not meet the administrative exigencies.
  • The employer has sufficient reason to stay at the place of the current posting.
  • Any other employee can be transferred to that place.
  • The competent authority did not take a thoughtful decision on the modification application.

In Commissioner, Kendriya Vidyalaya Sangathan v. Central Administrative Tribunal, Allahabad (2004) 3 UPLBEC 2391; Union of India v. Sri. Janardhan Debanath (2004) (100) FLR 1015 SC; the Supreme Court held that:

  • The transfer is a condition of service and employee must follow the transfer order.
  • The posting should be in the public interest and efficiency in the public administration.
  • If your posting order shows the mala-fide exercise of a power or in violation of statutory provisions then the court has the power to interfere with such an order.
  • If the transfer order reflects a way of punishment the court will take it into consideration for quashing of such an order.

Stay of transfer on the medical ground of spouse

Stay of the transfer order on the medical ground of wife’s health condition is not a legal ground but a reasonable ground. The employer must take it into consideration while he exercises his discretionary power. There is no fixed principle regarding the transfer of an employee. An employer can transfer on the administrative necessities and smooth function of administration. Therefore, the employer should exercise his discretion and consider the prevailing circumstances of the employee in order to pass the transfer order.

There are enough grounds to modify the current posting order. Health condition of a wife is also a reasonable ground. The employer has stopped the salary in violation of service rule because the modification application is still pending. He cannot stop the salary without giving a show-cause notice. Stopping salary is a penal consequence of not obeying the transfer order.

On those grounds, the High Court will stay the order as an interim measure. It may also direct the employer to give a salary until the further order of the court. You can get immediate relief from the High Court through a mandamus writ.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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