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Jaiveer Singh Yadav And Another v. State Of U.P. And Others - WRIT - A No. 28881 of 2007  RD-AH 10921 (2 July 2007)
Court No. 38
Civil Misc. Writ Petition No. 28881 of 2007
Jaiveer Singh Yadav and another
State of U.P. and others
Hon'ble V.K. Shukla, J.
Petitioners, who are two in number, have approached this Court, questioning the validity of order dated 12.06.2007 passed by Deputy Inspector General of Police (Establishment), U.P. Police Head Quarter, Allahabad, transferring the petitioners and subsequent order dated 15.06.2007, by which the petitioners have been directed to be relieved.
Brief background of the case is that petitioners had been performing and discharging duties as Sub-Inspectors of Police in the district of Kanpur Nagar. It has been contended that after Assembly elections were over, one Kamlesh Chandra Diwakar, who has been elected as Member of Legislative Assembly (MLA) from Bilhaur Constituency, District Kanpur Nagar, vide his letter No.346479 dated 18.05.2007, made complaint to Hon'ble the Chief Minister of the State. Said letter contains endorsement of the office of the Hon'ble Chief Minister of the State, Principal Secretary, Government, Principal Secretary, Home and Under Secretary. Thereafter, transfer order has been passed. Petitioners submit that power of transfer has not at all been bona fide exercised and on account of political pressure being exerted, said transfer order has been passed, as such transfer order is liable to be interfered with and quashed.
At this stage the view point of Hon'ble Apex Court qua transfer is also being looked into to know the parameters of interference in transfer matter. 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."
At this juncture the view of Hon'ble Apex Court in the case of Union of India Vs. Ashok Kumar and others reported in [(2005) 8 SCC 760] qua malafides is also being looked into which is as follows:
"21. Doubtless, he who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by the authority of its power. While the indirect motive or purpose, or bad faith or personal ill will is not to be held established except on clear proof thereof, it is obviously difficult to establish the state of a man's mind, for that is what the employee has to establish in this case, though this may sometimes be done. The difficult is not lessended when one has to establish that a person apparently acting on the legitimate exercise of power has, in fact, been acting malafides in the sense of pursuing an illegitimate aim. It is not the law that mala fide in the sense of improper motive should be established only by direct evidence. But it must be discernible from the order impugned or must be shown from the established surrounding factors which preceded the order. If bad faith would vitiate the order, the same can, in our opinion, be deduced as a reasonable and inescapable inference from proved facts. (S Pratap Singh Vs. State of Punjab) reported in [(1964) 4 SCR 733 or AIR 1964 SC 72] It cannot be overlooked that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. As noted by this Court in E.P. Royappa Vs. State of T.N reported in [(1974) 4 SCC 3 or AIR 1974 SC 555] courts would be slow to draw dubious inferences from incomplete facts placed before them by a party, particularly when the imputations are gave and they are made against the holder of an office which has a high responsibility in the administration. (See Indian Rly. Construction Co. Ltd. Vs. Ajay Kumar reported in [(2003) 4 SCC 579.
22. As observed by this Court in Gulam Mustafa Vs. State of Maharashtra reported in [(1976) 1 SCC 800] mala fides is the last refuge of a losing litigant."
On the touchstone of the judgments cited above, claim of petitioners based on the facts and circumstances involved in the present case is being adverted to. This is undisputed fact that petitioners hold transferable post and the order of transfer has been passed by the competent authority. Once, petitioners hold transferable post and the order of transfer having been passed by competent authority, and there being no violation of any statutory Rules or Regulation, there is hardly any scope for interference with the order of transfer.
Much emphasis has been laid on the fact that order of transfer is based on political consideration. In this regard, record has been perused. It is true that local MLA has requested the authorities concerned for taking steps for transferring petitioners. The authorities concerned, after receipt of the complaint, have merely marked the same, as is apparent from the letter and its Xerox Copy at page 27 of the paper book, containing the aforesaid endorsements. It is apparent that none of the authorities have ever directed the Deputy Inspector General of Police (Establishment), Police Head Quarter, Allahabad to exercise and invoke the power of transfer. Merely, because letter has been written to the Hon'ble the Chief Minister and each and every authority has marked the same, without making any recommendation, whatsoever, in respect of petitioners' transfer, it cannot be inferred that power of transfer has been mala fide and colourably exercised, on account of political pressure being exerted. Last endorsement on the complaint has been made on 22.05.2007, whereas order of transfer has been passed much thereafter on 12.06.2007 by the Deputy Inspector General of Police (Establishment), Police Head Quarter, Allahabad. Plea of mala fide, as such, cannot be believed.
Hon'ble Apex Court, in the case of State of Maharashtra v. Public Concern for Governance Trust and others, 2007 (3) SCC 587, wherein application had been made to the Chief Minister of Maharashtra, on the said application, Chief Minister's noting was put up "please put up". Later on said applications were allowed by allotting land. High Court drew inference that said applicants had blessings of Chief Minister. Hon'ble Apex Court took the view, inference drawn from said noting was not at all proper as it was routine notation made in normal course on applications received by Chief Minister. It is true that local MLA had written letter, but this letter itself speaks that it was written in routine manner to the Hon'ble the Chief Minister of the State, but none of the authorities who have marked the said letter, had ever made any recommendation for transfer of petitioners. It may be true that on the basis of the same authorities in the their wisdom have chosen to transfer the petitioners, which is in their domain, and in such circumstances, it cannot be said that the power of transfer has been misused, and the plea of mala fide is not at all substantiated.
Division Bench of this Court, in the case of Natrendra Kumar Rai v. State of U.P., 2002 (1) UPLBEC 369, has taken the view that MLA/MP hold responsible constitutional position,and there is no presumption that whenever, they draw attention to the misdeeds of Government Servant, they do the same with mala fide intention. A transfer order passed soon after a letter of complaint by MLA/MP cannot be branded as having been done at the dictate and directive of said person.
Apart from this, Hon'ble Apex Court, in the case of U.P. Land Development Corporation v. Amar Singh, 2003 (5) SCC 388, took the view that internal notes are prepared for the purpose of Department itself, and how the said notes fell in the hands of petitioners, is a matter of surprise. Here also, entire claim is based on internal notes. The court has failed to understand how the xerox copy of this internal note, came in the hands of petitioners. Moreover, said notes, as discussed above, are not at all turning table in favour of the petitioners.
Petitioners are members of disciplined force and the order of transfer has been passed by competent authority. Petitioners have miserably failed to point out violation of any Rules or Regulations. Petitioners have placed reliance on he judgments of this Court in case of Smt. Gayatri Devi v. State of U.P. and others, (1997) 2 UPLBEC 925 and in case of Bishan Pal Malik and others v. State of U.P. and others (2003) 1 UPLBEC 636. In the facts and circumstances of the case, the said judgments relied on by petitioners will not come to their rescue, as here plea of mala fide is unsustainable.
Consequently, writ petition, as has been framed and drawn, lacks substance and the same is dismissed.
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