Sunday, 22 January 2017

Whether husband has fundamental or civil right to have his wife transferred near his residence?

 It is trite to state that the petitioner cannot claim that right to have his wife transferred near his residence is a civil or fundamental right. Therefore, the petitioner is not justified in claiming that her non-transference to another place would violate his civil or fundamental right.
In the High Court of Karnataka at Bengaluru
(Before Raghvendra S. Chauhan, J.)
Sri. Shreeshail Mudakappa Ambalanur,
v.
 The Chief Secretary State of Karnataka
Writ Petition No. 53795/2016 (S-TR)
Decided on October 20, 2016
Citation:2016 SCC OnLine Kar 5058

Raghvendra S. Chauhan, J.:— The petitioner has approached this court with the following prayers:-
i) Issue a writ of Mandamus directing the respondents to include the name of the wife of the petitioner in the top of the Final List of Transfer;
ii) Issue a writ of Certiorari and quash the impugned Endorsement, vide Annexure-‘F’ bearing No. C4(7) HS.Tr.Thiddu-02/2016-17 dated 07.09.2016 declaring the same as arbitrary and illegal.
2. Briefly the facts of the case are that the petitioner is working as a Junior Assistant with HESCOM (Hubballi Electricity Supply Company). The petitioner has approached this court seeking directions from this court to include his wife's name in the Final List of Transfer, as his wife Smt. Vijayalaxmi Adavi is working as a Physical Education Teacher (Grade-I) at Government Junior College, Budikote, Bangarpet Taluk, Kolar District. Since the petitioner's wife has completed five years of service, and since she is living at quite a distance from the petitioner, the petitioner submitted a representation to the Commissioner of Public Instructions, wherein he had pleaded that he and his wife should be considered in the category of “husband and wife as Government employees.” Therefore, his wife should be transferred to a place nearby, where the petitioner is residing. Similarly, his wife, Smt. Vijayalaxmi Adavi, had submitted an application raising the same exact grounds. However, in the final provisional priority list, petitioner's wife has been shown at Sl. No. 235, and her name has been pushed down in the said list. Since the petitioner was aggrieved by the said list, he filed another representation before the Director of Public Instructions. However, by an Endorsement dated 07.09.2016, the third respondent has informed the petitioner that the list published by the respondents is correct one. Hence this petition before this court.
3. The court has posed a pointed query to the learned counsel for petitioner, namely whether the petitioner's civil rights or fundamental rights are violated by the non-transference of his wife to a place where the petitioner is residing? To this query, the learned counsel has frankly conceded that the petitioner's civil or fundamental rights are not violated. However, the learned counsel pleads that the respondents have failed to treat the petitioner and his wife as husband and wife in the category of Government employees. Therefore, the present petition has been filed.
4. Heard the learned counsel for petitioner.
5. Even before this court can direct that the petitioner and his wife should be treated as “husband and wife in Government”, the first issue before this court is whether the writ petition is maintainable or not? For, interestingly it is not the wife who has approached the court under Article 226 of the Constitution of India, but it is the husband who has appeared as the petitioner before this court.
6. Needless to say, unless and until the petitioner establishes that his civil or fundamental rights are being violated by the impugned provisional list or by the endorsement dated 07.09.2016, the writ petition is not maintainable before this court.
7. It is trite to state that the petitioner cannot claim that right to have his wife transferred near his residence is a civil or fundamental right. Therefore, the petitioner is not justified in claiming that her non-transference to another place would violate his civil or fundamental right.
8. Thus, clearly this writ petition is not maintainable before this court. It is, hereby dismissed.
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