Dismissed

Dr. Soma Mathur Wife of Dr. Jaideep Mathur v. Union of India

Rajasthan HC20 Dec 2023CW/20104/2023

Case brief

AI extract

What is this about?

This D.B. Writ Petition challenged transfer orders and Tribunal dismissals regarding four Group-A CMO petitioners. The High Court held that transfer is an incident of service subject to administrative exigencies, rejecting claims that spouses must be posted together or that tenure calculation affects posting validity.

What did the court decide?

The writ petitions seeking to quash transfer orders and the rejection of Tribunal appeals were dismissed.

Dr. Soma Mathur Wife of Dr. Jaideep Mathur Vs Union… — Service and Employment | Rajasthan HC (2023)

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[2023:RJ-JP:40700-DB]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. Civil Writ Petition No. 20290/2023

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Dr. Mini Mathur wife of Dr. Anadi Mathur, aged about 60 years, Resident of B77 Rajendra Marg Bapu Nagar Jaipur. (The applicant is working as CMO, NFSG, ESIC, Model Hospital, Jaipur) Group-A.

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----Petitioner

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Versus

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Union of India Ministry of Labour and Employment, Central Secretariat New Dehli-110001.

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Director General, Employees State insurance Corporation, Panchdeep Bhawan , New Delhi 110002.

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Chairman, Grievance Redressal Cell, Employees State insurance Corporation, Panchdeep Bhawan New Delhi110002.

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Deputy Director, (Medical Administration), Panchdeep Bhawan , New Delhi -110002.

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Medical Superintendent, Employees State insurance Corporation Model Hospital, Laxmi Nagar, Sodala, Ajmer Road, Jaipur 302006.

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----Respondents

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CONNECTED WITH

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D.B. Civil Writ Petition No. 20104/2023

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Dr. Soma Mathur wife of Dr. Jaideep Mathur, aged about 59 years, Resident of S-20, Shyam Nagar, Jaipur. (The applicant is working as CMO, NFSG in ESIC Model Hospital, Jaipur) Group A.

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----Petitioner

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Versus

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Union of India through its Secretary, Ministry of Labour and Employment, Central Secretariat New Delhi110001.

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Director General, Employees State insurance Corporation, Panchdeep Bhawan, New Delhi 110002.

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Chairman, Grievance Redressal Cell, Employees State insurance Corporation, Panchdeep Bhawan, New Delhi110002.

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Deputy Director (Medical Administration), Panchadeep

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(2 of 10)

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[2023:RJ-JP:40700-DB]

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[CW-20290/2023 A-w connected writs]

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Bhawan, New Delhi- 110002

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Medical Superintendent, Employees State insurance Corporation Model Hospital, Laxmi Nagar, Sodala, Ajmer Road, Jaipur- 202006.

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----Respondents

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D.B. Civil Writ Petition No. 20119/2023

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Dr. Rekha Sharma wife of Dr. Achal Sharma, aged about 56 years, Resident of 1 Mansinghpura Tonk Road, Jaipur. (The applicant is working as CMO, NFSG in ESIC Model Hospital, Jaipur) Group A.

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----Petitioner

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Versus

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Union of India through its Secretary, Ministry of Labour and Employment, Central Secretariat New Delhi110001.

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Director General, Employees State insurance Corporation, Panchdeep Bhawan, New Delhi 110002.

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Chairman, Grievance Redressal Cell, Employees State insurance Corporation, Panchdeep Bhawan, New Delhi110002.

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Deputy Director (Medical Administration), Panchdeep Bhawan, New Delhi- 110002

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Medical Superintendent, Employees State insurance Corporation Model Hospital, Laxmi Nagar, Sodala, Ajmer Road, Jaipur- 202006.

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----Respondents

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D.B. Civil Writ Petition No. 20120/2023

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Dr. Vandana Garg wife of Dr. Vinod Kumar Garg, aged about 55 years, Resident of 48 Muktanand Nagar Gopalpura Road, Jaipur, (The applicant is working as CMO, NFSG in ESIC Model Hospital, Jaipur) Group A.

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----Petitioner

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Versus

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Union of India through its Secretary, Ministry of Labour and Employment, Central Secretariat New Delhi110001.

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(3 of 10) [CW-20290/2023 A-w connected writs]

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[2023:RJ-JP:40700-DB]

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Director General, Employees State insurance Corporation, Panchdeep Bhawan, New Delhi 110002.

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Chairman, Grievance Redressal Cell, Employees State insurance Corporation, Panchdeep Bhawan, New Delhi110002.

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Deputy Director (Medical Administration), Panchdeep Bhawan, New Delhi- 110002.

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Medical Superintendent, Employees State insurance Corporation Model Hospital, Laxmi Nagar, Sodala, Ajmer Road, Jaipur- 202006.

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----Respondents

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D.B. Civil Writ Petition No. 20121/2023

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Dr. Monika Dubey wife of Dr. Anil Dubey, aged about 56 years, Resident of 69, Vidhyut Abhiyanta Colony, C Block, Pradhan Marg, Malviya Nagar Jaipur. (The applicant is working as CMO, NFSG in ESIC Model Hospital, Jaipur) Group A.

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----Petitioner

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Versus

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Union of India through its Secretary, Ministry of Labour and Employment, Central Secretariat New Delhi110001.

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Director General, Employees State insurance Corporation, Panchdeep Bhawan, New Delhi 110002.

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Chairman, Grievance Redressal Cell, Employees State insurance Corporation, Panchdeep Bhawan, New Delhi110002.

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Deputy Director (Medical Administration), Panchdeep Bhawan, New Delhi- 110002.

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Medical Superintendent, Employees State insurance Corporation Model Hospital, Laxmi Nagar, Sodala, Ajmer Road, Jaipur- 202006.

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----Respondents

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For Petitioner(s) : Mr. Ashok Bansal. For Respondent(s) : Mr. T.P. Sharma.

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(4 of 10)

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[2023:RJ-JP:40700-DB]

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[CW-20290/2023 A-w connected writs]

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HON'BLE MR. JUSTICE ARUN BHANSALI HON'BLE MR. JUSTICE ASHUTOSH KUMAR

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Order

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20/12/2023

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These writ petitions have been filed by the petitioners aggrieved of the orders dated 02.12.2023, 05.12.2023 and 08.12.2023 passed by Central Administrative Tribunal, Jaipur Bench, Jaipur (‘Tribunal’) whereby Original Applications [‘OA(s)’] filed by the petitioners have been dismissed.

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The petitioners were transferred by various orders from Jaipur to different places. In terms of the Policy of the respondents, they made representations seeking reconsideration of the orders of transfer, which representations came to be rejected. Feeling aggrieved, the petitioners preferred OA(s) before the Tribunal, wherein the respondents appeared and contested the OA(s). The Tribunal, after hearing the parties, came to the conclusion that in view of various judgments of Hon’ble Supreme Court, no interference was called for in the orders of transfer and consequently, rejected the OA(s).

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Feeling aggrieved, the present writ petitions have been filed seeking to question the orders of transfer as well as the orders rejecting OA(s) by the Tribunal. 4. Learned counsel for the petitioners made vehement submissions that the orders of transfer are contrary to the guidelines of the Department of Personnel dated 30.09.2009 providing postings of husband and wife at the same station, which inter-alia , provides that Cadre Controlling Authority may post the spouse at the same station and despite the fact that the spouse of

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(5 of 10) [CW-20290/2023 A-w connected writs]

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[2023:RJ-JP:40700-DB]

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the petitioner/s are presently posted at Jaipur, they’re sought to be transferred out of station for no apparent reason.

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Submissions have been made that presently no administrative exigency has arisen to the respondents to effect the transfer of the petitioners, inasmuch as several posts are lying vacant at Jaipur. Emphasis was also laid to the fact that the Policy of the respondents provide for a minimum tenure at the place of posting and the petitioners have not completed the minimum tenure. It was indicated that the respondents have taken the period of tenure from the date they were posted at Jaipur, whereas it was required of the respondents to take the date from which the petitioners had opted for All India Seniority and if the correct date is taken into consideration, they haven’t completed the minimum tenure of six years and on that count, for violation of the Policy of minimum tenure, the orders impugned deserve to be quashed and set aside. 6. Submissions have been made that the Policy of the respondents provide for a schedule, by which the transfers are to take place, which schedule also has been violated, inasmuch as the transfers should have taken place in the month of March and have taken place in the month of May, and the representation(s) made, which should have been decided within a period of five days, the respondents have taken six months, and on that count also, the orders impugned are bad. Submissions have also been made that the Tribunal didn’t call upon the respondents to file reply to OA(s) and even in the present case also, no response has been filed and, therefore, the procedure adopted by the Tribunal also is not justified. Submissions were also made pertaining to

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(6 of 10) [CW-20290/2023 A-w connected writs]

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[2023:RJ-JP:40700-DB]

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personal difficulty of the petitioner in executing the transfer, interalia , on the ground of indifferent health of husband of petitioner in DBCWP No.20290/2023. It was prayed that the orders impugned transferring the petitioners and the orders impugned rejecting OA(s), be set aside.

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Reliance, inter-alia , was place on judgment in SK Nausad Rahaman & Ors. vs. Union of India & Ors. : (2022) 12 SCC 1. 8. Learned counsel for the respondents supported the orders impugned. It was submitted that the issues as raised by the petitioners have all been thoroughly considered by the Tribunal and no interference is called for.

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We have considered the submissions made by the counsel for the parties and have perused the material available on record including the orders passed by the Tribunal.

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The entire foundation of the challenge laid by the petitioners is based on the Office Memorandum dated 30.09.2009 issued by the Department of Personnel, in relation to posting of husband and wife at the same station.

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Clause 4 (iii) and (vii) of the OM dated 30.09.2009, which are relevant in relation to the present dispute, reads as under:

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“4 (iii). Where the spouses belong to the same Central Service:

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The Cadre controlling authority may post the spouses to the same station.

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xxx

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(vii). Where one spouse is employed under the Central Govt. and the other spouse is employed under the state Govt: -

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The spouse employed under the Central Govt. may apply to the competent authority and the competent authority may post the said officer to the station or if there is no post in that station to the State where the other spouse is posted.”

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(7 of 10) [CW-20290/2023 A-w connected writs]

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[2023:RJ-JP:40700-DB]

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A perusal of the above indications made in the Policy indicates that the Cadre Controlling Authority has been given the discretion to post the spouse at the same station. The very fact that the Policy has been formulated for posting of husband and wife at the same station, only means that while posting the officers, the aspect of posting of spouse, has to be kept in mind, however, the said aspect cannot control the decision of the authorities in case the other considerations, which are relevant for the purpose of posting, override the said aspect.

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The submission made that though DoPT’s OM dated 30.09.2009 gives the Cadre Controlling Authority the discretion, in view of the fact that the Policy of the respondents indicates that said OM ‘shall be followed’, necessarily means that husband and wife should be kept posted at the same station, has no substance. The indication in the respondents’ policy that OM dated 30.09.2009 shall be followed, is only by way of incorporation that the OM dated 30.09.2009 has been adopted and once the OM dated 30.09.2009 gives discretion to the Cadre Controlling Authority to post husband and wife at the same station, merely by using the word ‘shall’ in respondents’ policy, it cannot be claimed to be mandatory.

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Coming to the plea regarding minimum tenure at the place of posting, it is not denied that the petitioners have remained at Jaipur for more than six years, however, the contention raised is that six years’ tenure should be calculated from the date, they opted for All India Seniority. The plea raised, has no substance, neither under any Circulars nor under any law adopting the All India Seniority by the Officer(s) affect the tenure of the officers’

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(8 of 10) [CW-20290/2023 A-w connected writs]

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[2023:RJ-JP:40700-DB]

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posting at a particular place and, therefore, the said aspect also does not come to the aid of the petitioners.

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Insofar as the question relating to personal difficulties of the officer is concerned, the said aspect has to be taken care of by the authorities based on the representation made by the petitioners. Once the petitioners have made representations and the same have been considered by the authorities and not found favour with them, it is now not open for this Court to re-examine and reach to a different conclusion.

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The plea raised that several posts are lying vacant at the present place of posing, also cannot be made subject matter of the challenge to the orders of transfer, inasmuch as it is for the authorities concerned to decide as to whether they want to keep the posts vacant and/or the post where the petitioners have been transferred, needs to be filled-up on urgent basis. The competing interests at two places, have to be decided by the authorities and not by this Court.

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So far as the plea raised regarding non-following the schedule in terms of the Policy and delay in disposal of the representations is concerned, the same by itself cannot and does not vitiate the order of transfer made by the respondents. 18. The submissions made pertaining to the Tribunal not seeking any response from the respondents cannot be faulted as the plea raised by the petitioners did not raise any factual dispute so as to require response from the respondents. Rather, not seeking response from the respondents has expedited the disposal of the OA(s) filed by the petitioners.

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(9 of 10)

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[2023:RJ-JP:40700-DB]

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[CW-20290/2023 A-w connected writs]

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The aspects pertaining to parameters for the purpose of transfer have been laid down by the Hon’ble Supreme Court in SK Nausad Rahaman ( supra ), wherein it has been observed as under:

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“23. While analyzing the rival submissions, certain basic precepts of service jurisprudence must be borne in mind.

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First and foremost, transfer in an All India Service is an incident of service. Whether, and if so where, an employee should be posted are matters which are governed by the exigencies of service. An employee has no fundamental right or, for that matter, a vested right to claim a transfer or posting of their choice.

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Second, executive instructions and administrative directions concerning transfers and postings do not confer an indefeasible right to claim a transfer or posting. Individual convenience of persons who are employed in the service is subject to the overarching needs of the administration.

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Third, policies which stipulate that the posting of spouses should be preferably, and to the extent practicable, at the same station are subject to the requirement of the administration. In this context, Justice JS Verma (as the learned Chief Justice then was) speaking for a three-Judge Bench of this Court in Bank of India v. Jagjit Singh Mehta held:

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“5. There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with the administrative needs. In the case of all-India services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other's posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an all-India service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, they cannot as

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(10 of 10) [CW-20290/2023 A-w connected writs]

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[2023:RJ-JP:40700-DB]

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of right claim to be relieved of the ordinary incidents of all-India service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places. … No doubt the guidelines require the two spouses to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees.”

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In view of above discussion and the law laid down by the Hon’ble Supreme Court in the case of SK Nausad Rahaman ( supra ), no case for interference in the orders of transfer and/or orders passed by the Tribunal is made out.

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The writ petitions are, therefore, dismissed.

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(ASHUTOSH KUMAR),J

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(ARUN BHANSALI),J

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34, 99 to 102-DJ/-

Dr. Soma Mathur Wife of Dr. Jaideep Mathur v. Union of India

Case brief

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Dr. Soma Mathur Wife of Dr. Jaideep Mathur v. Union of India

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