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ANIL KUMAR CHAUDHARY versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Anil Kumar Chaudhary v. State Of U.P. And Others - WRIT - A No. 62856 of 2006 [2006] RD-AH 20285 (30 November 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved on 27.11.2006

Delivered on 30.11.2006

Civil Misc. Writ Petition No. 62856 of 2006

Anil Chaudhary

Versus

State of U.P. and others

Hon'ble V.K. Shukla,J.

Petitioner, Anil Chaudhary has been performing and discharging duties as Inspector at Police Station Achhanera District Agra.  Petitioner was transferred from Aligarh and joined at Agra on 11.08.2006. Petitioner has contended that he was accorded placement in election duties of Municipal Corporation Agra held in three phases, on 28th October 2006, 31st October 2006 and 3rd November, 2006 respectively. Election result were declared on 6th/7th November, 2006 and in the said election wherein ruling party candidate  has been defeated, concerned police personals have been transferred.  Petitioner has contended that territory where petitioner was posted for election duty therein also candidate of Samajwadi Party lost the election, as such by way of punitive measure petitioner has been transferred from  District Agra to Kumbh Mala, Allahabad. Petitioner has submitted that power of transfer has been colorably exercised without there being any administrative exigency at the behest of Minister as such transfer order pass is liable to be quashed.

On the presentation of present writ petition, learned Standing Counsel was directed to obtain necessary instructions in the matter. Today matter has been taken up and requisite instructions has been received. Copy of the same has been produced before this Court and same has also been passed on to the counsel for the petitioner for perusing the same and thereafter matter has been taken up for final hearing and disposal with the consent of the parties.

Sri Hemendra Kumar learned counsel for the petitioner contended with vehemence that in the present case transfer order is unreasoned order and circumstances which have been narrated in the body of the writ petition makes it clear that power of transfer has been colorably exercised without there being any real and genuine reason for the same, as such transfer order in the present case is liable to be quashed.

Sri Shashank Shekher, learned counsel representing State on the other hand contended that at Allahabad Kumbh Mela is going to be held, as such petitioner has been posted at Allahabad  and the moment said Kumbh Mela would be over then requisite orders of his placement be accorded to the petitioner, as such no interference is warranted by this Court and writ petition deserves to be dismissed.

After respective arguments have been advanced factual position which is emerging is to the effect that petitioner has been transferred from District Agra to Kumbh Mela, at Allahabad. It is true that elections have taken place and immediately after the election transfer has been implemented and given effect to. This may give apprehension in the mind of the petitioner but mere apprehension does not establish mala fides, inasmuch as for establishing of mala fides there has to be concrete material indicating mala fides and pointing out the mala fides. The allegations of malafides, made has to inspire confidence in Court and should be based on concrete materials and not ipse dixe. Here allegations have been leveled that Minister had written leter on 04.11.2006 for transferring. Record produced does not indicate, decision of transfer being based on letter of Minister. Consequently plea of malafide in the facts of present case is unsustainable.

Kumbh Mela is one of the biggest human congregation in the entire world held at Allahabad on the bank of river Yamuna and Ganga and for maintaining law and order, large number of police personals are to be posted. Said posting is a temporary posting, as said Mela starts from second week of January, 2007 and comes to an end in somewhere second week of March. Posting at Kumbh Mela, by all means is a posting in administrative exigency.  

At this juncture the view point of Hon'ble Apex Court qua transfer is being looked into. In the case of Mrs. Shilpi Bose and others Vs. State of Bihar and others reported in 1995 (71) FLR 1011 (SC) the Hon'ble Apex Court held as under:

"A Government servant holding a transferable post has no vested right to remain posted at one place or the other he is liable to be transferred from one place to the other. Transfer order issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department. If the Courts continue to interfere with day to day transfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration, which would not be conducive to public interest. The High Court over looked these aspects in interfering with the transfer orders."

In the case of State of U.P. Vs. Gobardhan Lal reported in 2004 (101) FLR 586 (SC) Hon'ble Apex Court has held as under:

"7. it is too late in the day for any government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra in the law governing or conditions of services. Unless the order if transfer is shown to be an outcome of a malafide exercise of power or violative of any statutory provision (an Act or rule) or passed by an authority not competent to do so, an order or transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer polices at the best may afford an opportunity to the office or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with as they do not confer any legally enforceable rights, unless as noticed supra shown to be vitiated by malafide or is made in violation of any statutory provisions.

8. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirement of the situation concerned. This is for the reason that Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of Competent Authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer.

9. The very questions involved, as found noticed by the High Court in these case being disputed questions of facts, there was hardly any scope for the High Court to generalise the situations based on its own appreciation and understanding of the prevailing circumstances as disclosed from some write ups in journals or newspapers reports. Conditions of service or rights, which are personal to the parties concerned, are to be governed by rules as also the inbuilt powers of supervision and control in the hierarchy of the administration of State or any authority as well as the basis concepts and well-recognised powers and jurisdiction inherent in the various authorities in the hierarchy. All that cannot be obliterated by sweeping observations and directions unmindful of the anarchy which it may create in ensuring and effective supervision and control and running of administration merely on certain assumed notions of orderliness expected from the authorities effecting transfers. Even as the position stands, avenues are open for being availed of by anyone aggrieved, with the concerned authorities, the Courts and Tribunals, as the case may be to seek relief even in relation to an order of transfer or appointment or promotion or any order passed in disciplinary proceedings on certain well-settled and recognised grounds or reasons, when property approached and sought to be vindicated in the  manner known to and in accordance with law. No such generalised directions as have been given by the High Court could ever be given leaving room for an inevitable impression that the Courts are attempting to take over the reigns of executive administration. Attempting to undertake an exercise of the nature could even be assailed as an onslaught and encroachment on the respective fields or areas of jurisdiction earmarked for the various other limbs of the State. Giving room for such an impression should be avoided with utmost care and seriously and zealously Courts endeavour to safeguard the rights of parties."    

Hon'ble Apex Court in case of Union of India and others Vs. Janardhan Debanath and another reported in [(2004) 4 Supreme Court Cases 245 has taken the view that transfer order should not be interfered unless same is in violation of statutory provisions or order passed is malafide. Relevant extract is being quoted below:

"The High Court while exercising jurisdiction under Article 226 of the Constitution of India had gone into the question as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon the peculiar facts and circumstances of the case concerned. No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident but a condition of service. Necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corpn. Ltd. Vs. Shri Bhagwan reported in [(2001) 8 SCC 574].                                                                      

The caution given by Hon'ble Apex Court qua transfer matters of members of Force has been given in the case of Major General, J.K. Bansal Vs. Union of India reported in 2005(107) FLR 37 in following terms.

" It will be noticed that these decisions have been rendered in case of civilian employees or those who are working in Public Sector Undertakings. The scope of interference by Courts in regard to members of armed forces is far more limited and narrow. It is for the higher authorities to decide when and where a member of the armed force should posted. The Courts should be extremely slow in interfering with an order of transfer of such category of persons and unless and exceptionally strong case is made out no interference should be made."    

Consequently in the fact of the present case and keeping in view that transfer of petitioner is of temporary nature and the caution given by Hon'ble Apex Court no interference is warranted by this Court with the impugned order of transfer.

Consequently this Court on the yard stick settled by Hon'ble Apex Court refuses to exercise its jurisdiction under Article 226 of the Constitution of India.

In term of observations made above, both writ petitions are dismissed.

Dated: 30th November, 2006

Dhruv


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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