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Akhilesh Tiwari v. State Of U.P. And Others - WRIT - A No. 24728 of 2006 [2006] RD-AH 9968 (22 May 2006)


This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).


Reserved Judgment

Civil Misc. Writ Petition No. 24672 of 2006

Arvind Kumar Chauhan Vs. Addl. Director of Education (Basic)

and others


Hon'ble A.P. Sahi, J

The petitioner has challenged the transfer order dated 19.4.2006 Annexure-1 to the writ petition on the ground that it has not been passed for any administrative exigency and is the out come of a severe political interference at the behest of Respondent No.4 to accommodate him against the post held by the petitioner.

The dispute is with regard to the post of a Junior Clerk in the office of the District Basic Education Officer, Moradabad. By the impugned order, the petitioner has been shifted to the post of Office Superintendent in the office of Deputy Director of Education, Moradabad, from where the Respondent No.4 has been brought to the post occupied by the petitioner. This inter change of posts has been brought about interestingly by the interference of the Secretary to the  Chief Minister of the State; a State Minister of the Cabinet of the Government of Uttar Pradesh and a Member of Parliament. This is reflected from the endorsement made in the impugned order at serial nos. 5 and 6 of the copies of the order dispatched to the Addl. Director of Education and the Director of Education (Basic). The said endorsement at serial nos. 5 and 6 refers to the D.O. letter dated 20.3.2006 issued by the Addl. Director of Education (Basic) and the order dated 4.4.2006 of the Director of Education which are on record. The order of the Director dated 4.4.2006 is endorsed on the letter head of Sri Shafiqur Rehman Beg, another Member of Parliament involved in this matter. A photostat copy of the letter has been provided  by the learned Chief Standing Counsel Sri Brijendra Singh.

The letter dated 20.3.2006 of the Addl. Director of Education (Basic) is appended as Annexure-2 to the writ petition. The said letter quotes the order of the Secretary to the Chief Minister endorsed on a letter of one Sri Gopal Singh Yadav, Advocate, making a request for the transfer of the Respondent No.4. The document further records that in view of the aforesaid letter of Sri Gopal Singh Yadav with the endorsement of the Secretary to the Chief Minister and in view of the letter of Sri Atiq Ahmad, Member of Parliament, the Respondent No.4 should be transferred against the post of Junior Clerk in the event the said post is vacant. The letter of Sri Atiq Ahmad, Member of Parliament, is appended as Annexure-3 which clearly recites that the request was being made for accommodating the Respondent No.4 in view of the request of Sri Iqbal Mahmood, State Revenue Minister. The aforesaid facts, therefore, clearly certify and substantiate the extent of political interference that was taken shelter of for the posting of the respondent no.4 as a Junior Clerk in the office of the Basic Shiksha Adhikari, Moradabad. The nature and manner of approach as indicated herein above leaves no room for doubt that the order of transfer is the out come of the aforesaid directions.

Sri Ashok Khare, learned Senior Counsel for the Respondent No.4, has passed on a letter dated 24.8.2004 issued from the office of the Regional Joint Director of Education, Moradabad, signed by Sri A.K. Upadhyay. The said letter indicates the arrival of Respondent No.4 from Rampur where he was posted in the office of the District Inspector of Schools, Moradabad. The letter clearly indicates that one Sri Achal Bhatnagar had been posted as a Junior Clerk in the office of the Deputy Director of Education, Moradabad. The post of Junior Clerk in the office of Deputy Director of Education was, therefore, not vacant. The Respondent No.4, upon his transfer from Rampur, came to be adjusted against the Office of Office Superintendent which is a higher post, as no post of Junior Clerk was available. It is in this way that the Respondent No.4 landed up in the office of the Deputy Director of Education and was continuing against the higher post of Office Superintendent which was vacant. The Respondent No.4 was, however, drawing the salary of a Junior Clerk only.

It is not disputed that there is only one post of Junior Clerk in the office of the Basic Education Officer. Sri Khare contends that the petitioner for all practical purposes has been continuing on the said post for the past almost 14 years with a short interval in between when he managed  the posting of his real brother against the said post. It is urged by Sri Khare that in view of this, the petitioner cannot claim any right of continuance and that he has no vested right to continue against the said post.

In reply to the aforesaid contentions on behalf of the Respondent No.4, Sri P.S. Baghel, learned counsel for the petitioner, has urged that the Respondent No.4 has been transferred on account of his high political approach as demonstrated herein above; and that the transfer order is not in any administrative exigency and is a malafide exercise of power. He further contends that the order having been passed at the behest of persons who had no role to play, the impugned order is vitiated as it does not reflect an objective independent application of mind by the concerned authority. It is also urged that the impugned order has been passed at the behest of the Director of Education (Basic) and the Addl. Director who in turn have issued the letters on the dictates of their political masters and, as such, the impugned order is vitiated.

The law on transfers by now is fairly well settled. The scope of interference in matters of transfer have been indicated in the latest decision of the Apex Court in the case of  State of U.P. and others Vs. Gobardhan Lal, reported in AIR 2004 SC 2165, wherein it has been held that a transfer order can be interfered with in the event it is in violation of Rules or there are established malafides. Learned counsel for the petitioner Sri Baghel relying on the decision reported in the case of Pradeep Kumar Agrawal Vs. Director, Local Bodies, (1994) 1 UPLBEC 189, and the case of Bhanu Pratap Singh Vs. Secretary, Minor Irrigation, reported in (1998) 2 UPLBEC 1054, has urged that an order passed at the behest of a Member of Parliament who has no role to play in such matters and where no public interest is involved, then such an order amounts to a colourable exercise of power.

Sri Khare, relying on the celebrated decisions of the Apex Court has urged that the petitioner has no right to continue on the post where he has remained for 14 years and he has no vested right the violation whereof can be looked into in the present petition. It is urged that the petition is not maintainable and further the impugned order of transfer is in administrative exigency and does not cause any prejudice to the petitioner. He has further urged that the transfer is within the same campus from one table to another and, therefore, there is no scope for interference.

I heard learned counsel for the petitioner and learned Standing Counsel as well who has supported the impugned order. What appears to be is that the post of Junior Clerk in the office of the Basic Shiksha Adhikari is some sort of a lucrative post for which the petitioner and the Respondent No.4 are vying with each other. The petitioner appears to have succeeded in retaining himself for such a long time whereas the Respondent No.4 succeeded in dislodging the petitioner under the circumstances indicated herein above. Both the issues deserve to be dealt with. It is no doubt true that the petitioner does not have any vested right to claim continuance against the post where he has remained for almost 14 years. On the question of the orders being passed at the behest of the superior authorities, it is worthwhile to note the Full Bench decision of our Court in the case of Tara Prasad Mishra Vs. State of U.P. and others, (1990) 2 UPLBEC 105. It was held therein that it can hardly be disputed that a government servant has sufficient interest in the matter of transfer from one place to another. Regarding transfers, the State Government has laid down executive instructions and which are to be followed by the State Government in order to meet any administrative exigency but such a transfer order can be challenged in case the order is not passed in public interest and is passed in colourable exercise of powers. The Full Bench found support from the decision in the case of B. Verdha Rao Vs. State of Karnataka, (1986) 4 SCC 131. The Apex Court in paragraph 5 of the said decision has stated that it is no doubt true that if the power of transfer is abused the exercise of power is vitiated but it is one thing to say that an order of transfer which is not made in public interest but for collateral purpose and with/motive is vitiated by abuse of power, and an altogether different thing to say that such a order per se made in the exigency of service where any condition of service expressed or implied is to the disadvantage of the concerned government servant. The Apex Court took notice of another Bombay High Court judgment in the case of Shesh Rao Nago Rao Umap Vs. State of Maharastra, 1985 (2) LLJ 73 (Bombay) and held that if the power is exercised malafide then obviously the order of transfer is liable to be struck down. The High Court of Bombay while allowing the writ petition which was founded on the ground that the transfer order had been passed to accommodate a person, observed that it was no doubt true that the government has power to transfer its employees but this power has to be exercised bonafidely to meet the exigencies of administration. In another decision by a learned single Judge of this Court in P.L. Gautam Vs. State of U.P. and others, reported in (1999) 3 UPLBEC 2002, has held that a transfer matter can be initiated at the instance of the representative of the people in order to bring to the notice of the higher authorities about the complaint and misdemeanor of their subordinate employees and in such a situation the authority concerned if satisfied that the continuance of the employee is not in public interest, then transfer can be resorted to. In such circumstances, the transfer order cannot be termed as malafide merely on the complaint of a public representative.

In the instant case, the letter produced by Sri Khare dated 24.8.2004 clearly indicates that the Respondent No.4 was transferred from Rampur to Moradabad without there being a post available of a junior Clerk as a result whereof he was accommodated against the higher post of Office Superintendent in the office of the Deputy Director of Education. The letter dated 20.3.2006 by which the orders were issued by the Addl. Director of Education (Basic) also recites that the Respondent No.4 should be transferred in the event of a vacant post of Junior Clerk being available. There is nothing in the impugned orders to indicate that there was a available vacancy as on 20.3.2006 for posting the Respondent No.4. The order also does not indicate that the same was being passed in any administrative exigency. It is, thus, established that the Joint Director of Education has passed the orders simply on account of the directions issued by the higher authorities which in turn were actuated by the directions of the Chief Minister's Office, a State Minister's request followed by the recommendation of the Member of Parliament. The Joint Director of Education has nowhere applied her independent mind for giving effect to the transfer requested for by the respondent no.4. The argument on behalf of the Respondent No.4 that it is only a change of table equally applies to the Respondent No.4 himself. The respondent no.4 was continuing against the post of Office Superintendent within the same campus. It is not understandable as to what was the administrative exigency which brought about the change of table except for the letters that have been referred to herein above.

The impugned order, therefore, does not appear to be a bonafide exercise of power in public interest to meet any administrative exigency.

Sri Khare contends that there were a large number of complaints against the petitioner and since he had continued for 14 long years, therefore, it was necessary to shift him from the table held by him. The said contention of Sri Khare is not reflected in any of the letters or orders impugned in the present writ petition. The Joint Director of Education ought to have dealt with the matter objectively and independently and should not have passed the order which simply amounts to pleasing the superior officers and obeying their political masters blindfoldedly.

In view of the aforesaid circumstances, the impugned order cannot be said to have been passed on an independent application of mind and to that extent the order stands vitiated. The Joint Director of Education has failed to indicate any occasion or administrative exigency for the passing of the impugned order which in the opinion of the Court could have been done by exercising an independent mind. The Joint Director of Education should have first identified a vacant post as directed in the letter dated 20.3.2006 which does not appear to have been done. The petitioner has been dislodged to accommodate  the respondent no.4 who was also working in the same compass. Accordingly, the order impugned is unsustainable in law keeping in view the facts as stated herein above.

At the same time, the petitioner's continuance for almost 14 years on the same table also deserves to be taken notice of. In such circumstances, the petitioner cannot claim a right to continue on the post. This aspect, however, has not been examined nor commented upon in any of the recommendations relied upon by the Respondent No.4 or in the impugned order.

In such circumstances, justice would be made by issuing directions to the Principal Secretary, Basic Education, to independently apply his mind and pass an order afresh in accordance with Rules and guidelines framed by the State Government as in the opinion of the Court routine transfer orders are also likely to be passed as happens every year in the month of May and June. Since the posting is in respect of a Junior Clerk in the office of the Basic Education Officer, therefore, the matter is being remitted to the Principal Secretary (Basic Education) and not to the Respondent No.3. The said authority shall pass appropriate orders by 30th June 2006 and the parties shall make their requests to the said authority along with a certified copy of this order for resolving the said dispute.

In view of the findings and conclusion arrived at herein above, it would be appropriate that the impugned order dated 19.4.2006 shall remain in abeyance till the orders are passed by the authority concerned as directed herein above. The learned Standing Counsel shall intimate this order to the Principal Secretary (Basic Education) within a reasonable period for necessary compliance.

With the aforesaid directions, the writ petition is disposed of.

Dt. May          2006



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