Hi, you have to approach administrative tribunal and stay the order of transfer.
How to challenge a transfer order by a govt employee
Respected all, My brother is Govt. Primary school teacher in Himachal. Recently some of local persons who are our Having bad Relations with my family from a long time with the help of a political leader got released the transfer order to a very distant place with the intension of harrasment. Please advise how we can defend this order. Earlier these persons had Make an physical attack over my brother and on his wife which resulted into serius injuries to both of them and till now they are still physically unfit. So will it can be a reason to defend the transfer order. Thanks Gurmeek
Asked 9 years ago in Civil Law
12 Answers
Hello,
You can file a petition to the District Educational Officer requesting to cancel the transfer order citing family reasons of your brother and at the same time send copy of the request letter to the Ministry of Education.
Was a police complaint made by your brother after they were physically assaulted by the goons? Do you also have medical reports of their treatment? If you have do attach them with the request for cancellation of the transfer order .
You need to act promptly and if the response is not favourable from the concerned department you can approach the High Court and file a writ petition to challenge the transfer order that was influenced by the politician.
You will then need to engage a lawyer.
1)As per the policy laid down by Department of Personnel and Training vide Office Memorandum No. A-B 14017/41/90-Estt.(RR) dated 10.5.90 and Office Memorandum No. AB 14017/16/2002-Est(RR) dated 13.3.2002 physically handicapped Government servants, may be given posting, as far as possible, subject to administrative constraints, at or near their native places.
Requests from physically handicapped employees of all groups for transfer to or near their native places are also given preference. The aforesaid Office Memoranda were circulated to all Ministries/Departments. These instructions apply only to the Government of India and State Governments may have their own policies on transfer and postings.
2)Supreme court has held that An order of transfer is an incidence ofGovernment service. Who should be transferred where is a
matter for the appropriate authority to decide. Unless the
order of transfer is vitiated by malafides or is made in
violation of statutory provisions, the Court cannot
interfere with it. There is no doubt that, while ordering
the transfer the authority must keep in mind the guidelines
issued by the Government on the subject. Similarly, if a
person makes any representation with respect to his
transfer, the appropriate authority must consider the same
having regard to the exigencies of administration.
3) you can make representation on grounds that your are not physically fit and that order of transfer is discriminatory as health grounds have not been considered while passing order
1. There are two issues in your query which are to be dealt with seperately. One is assault on your brother & his wife injuring themselves and the other is arranging to transfer your brother to a remote place to harass him,
2. For assualting your brother & sister in law, I hope police complaint was filed and the matter was followed up,
3. As regards the transfer, examine the concerned transfer policy &/or circulars in connection with the transfer of primary school teachers of govt Schools of the state of Himachal pradesh,
4. File an application before the transferring authority to reallocate his transferred place of posting on the gound of his being temporarily handicapped/injured,
5. Attach medical certificate issued by govt Hospital,
6. If application for reallocation is rejected, file a fresh application for defering your joining date till you recover from your injury,
7. If both of your applications are rejected, you can file Writ Petition before the High Court challenging the said transfer order.
In my views, Mr. Ajay Sethi's advice is perfect and you should act accordingly.
You must file a writ by mentioning all these facts in detail in the high court and seek direction to cancel the transfer saying that it was due to personal grudge
Dear how to challenge a transfer order by a govt employee
Since the transfer has been made on grounds which are ultra vires to the existing laws, it will be termed as a punishment transfer. In that case, you can challenge the same in SAT and also cite the attack by the local people against you. However, you must remember that local people attacked you but did not transfer you. The transfer was done under influence, hence you have to establish the fact that the person responsible for the transfer has done so under influence from the local people which will be a tad bit difficult to prove. Keep you CCR (if your CCR has no red ink) ready which will be a vital evidence in quashing the said order and which will also prove that the person who has transferred you was under influence and his actions were not justified. Further, also produce your physical unfit certificates and Doctor's prescriptions and other related documents during filing of the case.
Again I agree with my colleague Advocate Ajay Sethi on the Supreme Court Decision but to provide malafide motive yo at least need the aforementon3ed documens
file writ of mandamus in high court against said transfer.
file a writ petition before high court against the transfer or file a complaint before administration tribunal.
1. You can challenge the transfer order. but to succeed in your challenge you need to show the complicity of District Education Officer (DEO) and those who are not having good relations with your brother and his family.
2. A transfer order is not cancelled at the throw of a hat by the court. Very compelling reasons must exist before a court of law to cancel the order of transfer of a government employee.
3. Your brother should make a representation to the education minister of the state that the transfer order be withdrawn since he is physically unfit. If the order is still not withdrawn then he can challenge it in the High Court.
According to judgment of Alka Chakor vs State of H.P. 2012, the hon'ble High Court of H.P. held that a government employe with 60 % or more physical disability should be given stations of his choice, if it is not possible due to any exceptional circumstances he should atleast be given posting on road heads near to his residence. Normal posting period for all categories of employees will be three years.
No government employee can claim his transfer or posting as a matter of right. It will be prerogative of the state government to post/transfer any employee anywhere in the state keeping in view the administrative convenience.
But you can send an application to the Head of your department for reconsideration of transfer order in the light of special condition like your medical unfitness, physical disability etc. and that officer is bound to take decision within 2 months regarding transfer order.
move representation for transfer to nearby being medically unfit as provisioned in gov policies.
