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BADRI PRASAD CHAUDHARY versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Badri Prasad Chaudhary v. State Of U.P. And Others - WRIT - A No. 32045 of 2007 [2007] RD-AH 12194 (18 July 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court no. 38

Civil Misc. Writ Petition No. 32045 of 2007

Badri Prasad Chaudhary

Versus

State of U.P.and others

Hon'ble V.K. Shukla,J.

Petitioner has approached this Court questioning the validity of the order dated 29.06.2007 passed by the Director, Fishery Department, U.P. Lucknow, respondent no. 2 transferring the petitioner in administrative exigency from Sonbhadra to Shravasti.

Brief background of the case as disclosed by the petitioner in the writ petition is that by the order dated 14.06.2006 petitioner was transferred from Sonbhadra to Bhadohi in public interest and thereafter he requested for being transferred back to Sonbhadra which was duly accepted and he was sent back to sonbhadra. On 14.07.2006 one Shushil Ram, Matsya Nirikshak has refused to perform duties of Matsya Nirikshak, on account of said fact petitioner who was functioning as Matsya Nirikshak additional charge of Mukhya Karyakari Adhikari was given to him. Petitioner has contended that due to good satisfactory work of the petitioner the Chief Development Officer/Adhishashi Nideshak Matsya Palak Vikas Adbhikaran Sonbhadra by order dated 17th August, 2006 gave power of drawing and disbursing Officer also to the petitioner. Petitioner has further contended that  Chief Development Officer/Adhishashi Nideshak Matsya Palak Vikas Adbhikaran Sonbhadra under whose supervision the petitioner was working while assessing the petitioner's performance for the year 2006-07 awarded outstanding entry. Petitioner has further contended that a public auction-cum-tender was held on 15.02.2007 for awarding the contract from 2006-07 to 30.06.2009 of Dhandraula Jalashya in which Sri Raj Kumar Nishad was declared higher bidder and his highest bid of Rs. 9,01,120/- (Rupees Nine Lacs one thousand one hundred twenty only) per year with an increase of 10% per year was accepted by the order dated 29.03.2007 passed by respondent no. 2. Petitioner has further contended that said order was communicated to the petitioner by respondent no. 3 vide letter dated 02.04.2007 directing the petitioner to get the agreement on requisite stamp paper executed within fifteen days. Petitioner has further contended that in compliance of the order dated 02.04.2007 the petitioner wrote a registered letter on 11.04.2007 to the contractor Raj Kumar Nishad stating that he should deposited Rs. 1,50,000/- (one lac fifty thousand) as security and execute the agreement by presenting requisite stamp paper for the same within two weeks. Petitioner has further contended that when the contractor did not comply with the letter dated 11.04.2007 the petitioner wrote another registered letter on 19.04.2007 to contractor Raj Kumar Nishad mentioning therein that he should deposit Rs. 1,50,000/- (one lac fifty thousand) as security and submit the requisite stamp paper for getting the agreement executed. Petitioner has further submitted that he also sent reminder to the contractor that he has to deposit 1/3rd  of the 3/4th   bid amount amounting to Rs. 2,25,280/- by 30.04.2007 and to arrange the money for seeds. Petitioner has further contended that the contractor again did not comply with the letters dated 11.04.2007 & 19.04.2007 the petitioner wrote another letter on 30.04.2007 to deposit the security and requisite stamp paper for executing the agreement and further deposit Rs. 2,25,280/- failing which necessary action for cancelling the contract would be taken. Petitioner has further contended that the petitioner received a letter dated 08.05.2007 from respondent no. 3 referring to petitioner's letter dated 30.04.2007. It was mentioned that Tkhkedar has deposited security amount of Rs. 1,50,000/- (one lac fifty thousand) in his office and the petitioner should get the agreement executed from the contractor on requisite stamp papers and also get the instalment of contract amount deposited. Thereafter wrong report has been submitted against the petitioner before respondent no. 2 on the basis of which impugned order in question has been passed.  

Sri W.H. Khan, learned counsel for the petitioner contended with vehemence that petitioner is an honest officer and as he has not scummed to desire of respondent no. 3 as such illegal recommendation has been made and he has been unnecessarily transferred without there being any real reason, as such power of transfer has not been bonafidly exercised and same is liable to be quashed.  

Learned Standing Counsel on the other hand contended that this is not isolated case of transfer and various other incumbents have been transferred alongwith the petitioner and unnecessarily plea of malafide has been set up, which is neither here nor there, as such writ petition deserves to be dismissed.  

After respective arguments have been advanced, the view point of Hon'ble Apex Court qua transfer matter is being looked into.

Hon'ble Apex Court 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:

"9............................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].

14. The allegations made against the respondents are of serious nature, and the conduct attributed is certainly unbecoming. Whether there was any misbehaviour is a question which can be gone into in a departmental proceeding. For the purposes of effecting a transfer the question of holding an enquiry to find out whether there was misbehaviour or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirement, as submitted by learned counsel for the respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. The question whether the respondents could be transferred to different division is a matter for the employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration. It is not for this Court to direct one way or the other."  

Hon'ble Apex Court, in the case of S.C. Saxena Vs. Union of India and others reported in 2006(9) SCC, page 583 has held as follows:

"In the first place, a Government Servant cannot disobey a transfer order  by not reporting at the place of posting and then go to court to ventilate his grievances. It is his duty first to report for work, where he is transferred and make representation as to what may be his personal problems. This tendency of not reporting at the place of posting and indulging in litigation needs to be curbed."

On the dictum noted above case of the petitioner is being adverted to. In the present case impugned order of transfer reflects that petitioner has not been singled out rather by the order dated 29.06.2007, seven Matsya Nirikshaks and seven Matsya Vikas Adhikari have been transferred on one ground or other. Petitioner has been transferred on administrative ground. Motives have been imputed to respondent no. 3 for being instrumental in the aforesaid passing of transfer order. Plea of malafide in the present case has not at all been substantiated, inasmuch as merely because two letters had been written asking the petitioner to show cause, and the same problem was solved, pursuant to negotiation dated 31.05.2007, it can not be inferred that power of transfer has been exercised malafidely.

Petitioner has reliance on the judgement in the case of Arvind Dattatraya Dhande Vs. State of Maharashtra and others reported in AIR 1997 SC 3067. Said judgement will not come to the rescue of the petitioner, inasmuch as here there is nothing on record that transfer is at the behest of the aggrieved contractor to suit his objectives.

Transfer in the present case has been made in administrative exigency and the authority who has passed the order has competence to pass order of transfer, there is no violation of any statutory rules and regulations and qua the said authority who has passed the order of transfer no malafide has been alleged as such plea of malafide is neither here nor there.

Consequently writ petition lacks substance and is dismissed.

18th July 2007

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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