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BIRENDRA MISHRA versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Birendra Mishra v. State Of U.P. And Others - WRIT - A No. 5530 of 2007 [2007] RD-AH 1679 (2 February 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 38

Civil Misc. Writ Petition No. 5530 of 2007

Birendra Mishra

Versus

State of U.P. And others

Counsel for the petitioner Sri Ajay Sengar

Counsel for the respondents Standing Counsel

Hon'ble V.K. Shukla,J

Petitioner has been performing and discharging duties as Senior Assistant Provincial Division, P.W.D. Orai. Petitioner has contended that son of the petitioner namely Anup Mishra was married with Shailja Mishra D/o Shri Kant Dwivedi. Said marriage had not worked and resulted into divorce. Petitioner has contended that First Information Report was lodged by Sri Kant Dwivedi on 07.07.2004 under Section 498A,420, 504 IPC read with section 3/4 Dowry Prohibition Act. Petitioner has contended that he was arrested and released on bail. Petitioner has contended that thereafter for same set of charges adding some more allegation another First Information Report under Sections 498A 495, 147, 148, 307, 323, 504,506 and 115 IPC &  3/4 Dowry Prohibition Act was lodged on 12.10.2005. Petitioner has contended that he filed Criminal Misc. Application (under Section 482 Cr.P.C) No. 6870 of 2007 and therein further proceedings have been stayed. Petitioner has contended that he was being harassed by all means and earlier pressure was built up by Ex. M.L.A Kaushal Kishore and thereafter inquiry was conducted and none of the charges were found to be correct. Petitioner has contended that thereafter complaint was made through Dr. Arun Kumar Mehrotra, Local M.L.A., respondent no. 5 on 22.04.2006 and on the said complaint being made letter has been written on 07.09.2006 by Special Secretary of the Government for transferring the petitioner. Thereafter another letter has been sent on 28.09.2006, and same has been followed by transfer order dated 25.01.2007. At this juncture present writ petition has been filed.

Learned counsel for the petitioner has contended with vehemence  that in the present case power of transfer has not at all been bonafidly exercised rather pressure has been exerted through local M.L.A. thereafter said  power of transfer has been exercised, as such in fact and circumstances of the case present order of transfer is liable is quashed.

Learned Standing counsel on the other hand contended that Local M.L.A merely recommended the matter and there is no personal animosity of the said M.L.A with petitioner and competent authority in its wisdom has chosen to transfer the petitioner as such there is no scope of interference with the impugned order of transfer.

After respective arguments have been advanced factual position which is emerging is to the effect that inter se son of the petitioner and daughter of Sri Kant Dwivedi divorce proceedings has taken place and on account of this criminal proceedings have been initiated against  petitioner and his family members.  In the past also complaint has been made and on 28.01.2006 report has been submitted in favour of the petitioner. On 20.04.2006 Dr. Arun Kumar Mehrotra, M.L.A had written a letter addressed to Principal Secretary, P.W.D. mentioning therein that documentary evidence which has been filed is speaking for itself and petitioner by his  presence is removing the evidence as such in this background petitioner be transferred and matter be inquired at higher level. Pursuant to letter dated 20.04.2006, Special Secretary, State Government letter dated 07.09.2006 addressed to Chief Engineer, P.W.D mentioning therein to take entire evidence in respect to complaint and further petitioner be transferred to another place. Thereafter another letter has been followed on 28.09.2006 as nothing was being done and thereafter order dated 25.01.207 has been passed, transferring the petitioner.

Series of events clearly reflects that as far as local M.L.A is concerned whatever material was supplied to him qua the misconduct of the petitioner, same has been supplied by him to the Principal Secretary, P.W.D. Principal Secretary P.W.D vide letter dated 07.09.2006 has asked the Chief Engineer, Jhansi Region P.W.D. Jhansi to collect entire material from M.L.A. and to take steps for transferring the petitioner. On 28.09.2006 another letter has been sent for forwarding follow up action and thereafter order of transfer dated 25.01.2007 has been passed in administrative exigency.

This fact has not been disputed that local M.L.A has written letter to Principal Secretary, P.W.D. and therein specific mention has been made in his letter that document which has been produced is speaking for itself Principal Secretary, P.W.D of State of U.P. after more than four months of the writing of letter dated 20.04.206 has written letter dated 07.09.2006 which clearly reflects that political pressure has not played dominant role and in normal course of business matter has been taken up on 07.09.2006 and when no action was taken then on 29.09.2006 direction has been given and ultimately action has been taken after more than two months, when order of transfer has been passed on 25.01.2007. The time gap in between writing of letter of local M.L.A and the action taken is clearly reflective of the circumstance, that action has been taken is normal course of business and political pressure has no role to play in the same.  

Division Bench of this Court in the case of Narendra Kumar Rai Vs. State of U.P. and others reported in 2002 (1) UPLBEC 369 has taken the view that it is bounden duty of the M.Ps. and M.L.As to refer the complaint as they are the representative of the public as it is difficult for ordinary citizen to approached the high up. Once complaint has been made to the local M.L.A and local M.L.A in its turn has referred the same to the State  Government, then it cannot be said that this is a case of exerting political pressure rather these are cases wherein the representative of public after receiving the complaint qua the conduct of Government servant has referred the matter to the competent authority for taking necessary action.

Here authority concerned on the said compliant being received in his wisdom has chosen to take action against the petitioner and has  not chosen to retain the petitioner at the said place and order of transfer has been passed. In the facts and circumstances of the present case, no political pressure has been exerted and further there is no personal animosity with Dr. Arun Kumar Mehrotra, local M.L.A and what benefit said M.L.A was going to derive has also not been mentioned  rather after receiving complaint the said M.L.A, referred the same to the State Government, and State Government has chosen to take cognizance.

Counsel for the petitioner has placed reliance on the judgement in the case of Pradeep Kumar Agarwal Vs. Director Local Bodies reported in 193 ACJ, 332; Jagvir Singh Talan Vs. State of U.P. and others reported in 1997 (2) ESC 762; Pradap Naryan Srivastva Vs. State of U.P. and others reported in 1995 (1) ESC 509;Harish Chandra Tiwari Vs. Upper Shiksha Nideshak (Uttrakhand) U.P. Lucknow and other; Nabi Ahmad Khan Vs. State of U.P. and others report 1996 (1) and Sarita Saxena Vs. State of U.P. and others in Civil Misc. Writ Petition No. 45830 of 2002 decided on 14th February, 2003. All these judgment cited by petitioner will not come the rescue of the petitioner for the simple reasons that in the present case letter dated 20.04.2006 has been written and therein no political pressure has been exerted rather request has been made and authority in its wisdom has accepted the same, and that too after satisfying itself on said score.

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 malafide 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].                                                                      

   

Here petitioner holds transferable post; transfer order has been passed by competent authority; no statutory rules or regulations have been flouted; plead of malafides has not at all been substantiated against the authority concerned who has exercised and invoked the power of transfer.

Consequently for the reasons stated above, no interference is warranted.  

Consequently Writ petition is dismissed.

No orders as to cost.            

2nd February, 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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