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KUSHAHAR YADAV versus ENGINEER

High Court of Judicature at Allahabad

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Kushahar Yadav v. Engineer-In-Chief, Irrigation Department And Others - WRIT - A No. - 53310 of 2007 [2007] RD-AH 17119 (30 October 2007)

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HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 32

Civil Misc. Writ Petition No. 53310 of 2007

Kushahar Yadav

Vs.

Engineer-in-Chief, Irrigation Department,

U.P. Lucknow & others

Hon'ble S. Rafat Alam, J.

Hon'ble Sudhir Agarwal, J.

Heard Sri Ashok Khare, senior Advocate, assisted by Sri I.R. Singh and perused the record.

Aggrieved by the impugned order of transfer dated 28.7.2007 and relieving order dated 11.10.2007 whereby he has been sought to be transferred from Badh Khand Ballia to Niyojan Evam Pariyojna Khand-2, Lucknow, petitioner has filed this writ petition assailing the same on the ground that he has not completed more than six years at Ballia and, therefore, in the light of the Government policy with respect to transfer, he should not have been transferred. He also contended that the impugned order of transfer has been passed pursuant to a complaint made by one M.L.A. Kedar Nath Verma, belong to the ruling party and, therefore, the impugned order of transfer is vitiated based on extraneous consideration. He further contended that the petitioner is likely to attain the age of superannuation in the year 2010 and therefore at this fag end of service, he should not have been transferred and should have been given posting of his own choice.

Having heard learned counsel for the petitioner, we do not find any force in the aforesaid submission. The Government policy with respect to transfer is not enforceable and provides only guide lines but order of transfer can not be challenged on the ground that it is in violation of Government policy. In the case of Union of India Vs. S.L. Abbas AIR 1993 SC 2444 the Apex Court has considered this aspect and has held as under:

"The said guideline however does not confer upon the Government employee a legally enforceable right." (Para-7)

So far as the alleged letter of M.L.A. is concerned, we find that neither he has been impleaded as one of the respondents nor in the entire writ petition any substantial plea of mala fide has been taken against him except that he has written a letter requesting the respondents to transfer the petitioner from the present place of posting to some other place and initiate enquiry against him. There is nothing to show that order of transfer has been passed taking into account the said letter of MLA.

Moreover, this Court is of the view that if some complaint is made to the departmental authority, that by itself would not be a reason to vitiate a order unless it is shown that the authority has not exercised its independent mind while passing the administrative order in respect to a Government servant. In the case of Narendra Kumar Rai Vs. State of U.P. and others, 2002(1) UPLBEC 369 this Court, considering a similar issue, has held as under :

"We are clearly of the opinion that from the mere fact that in a Government servant is transferred on the basis of a complaint made by a MLA or MP or a leader of the political party, it cannot be held that the same is mala fide and the transfer order cannot be struck down on the said ground alone without there being anything more. A MLA or MP is the representative of the people and common public has access to him. Often it is very difficult for a common man to meet the higher officers and to bring to their notice the misdeeds or the wrong way of functioning of a Government servant at a lower level. It is not possible for a common man to go to the capital of the State namely, Lucknow, and then to meet the higher officers to lodge a complaint against the wrong manner of functioning of a Government servant. The MLA and MP visit their constituency frequently and meet the members of the public. It is far easier for the public to lodge a complaint against the improper functioning of a Government servant with their representative namely the MLA or MP of the area than with the higher officers. If in such circumstances, the MLA or MP takes up the matter and brings to the notice of the higher officers or the minister of the concerned department about the misdeeds of a Government servant, no exception can be taken to such a course of action. The representatives of the people (MLA and MP) hold responsible constitutional position and there is no presumption that whenever they drew attention to the misdeeds of a Government servant they do so with mala fide intention. A transfer order passed soon after a letter or complaint lodged by MLA or MP or a political person cannot be branded as having been done at the dictate of such a person. There is no presumption that the authority passing the transfer orders has not applied his independent mind. It is quite likely that the authority was not aware of the situation and after the full and correct facts were brought to his notice he decides to take appropriate action on objective consideration. We are, therefore, clearly of the opinion that without there being anything more, the mere fact that a transfer order has been passed soon after a complaint has been sent by MLA or MP or a political person to the minister or superior officers of the concerned department, it cannot be branded as having been passed without application of mind or on the dictate of a political person."

This Bench has also reiterated the same view in Special Appeal No. 138 of 2007 Shami Ahmad Vs. State of U.P. & others decided on 1.2.2007.

So far as the contention that the petitioner is likely to retire after two and half years is concerned, that is sufficiently long time and there is no provision that a person cannot be transferred who is likely to retire after two and half years.

We, therefore, do not find any merit in the writ petition. It is, accordingly, dismissed. At this stage, the learned counsel for the petitioner submits that he may be permitted to represent the matter with the State Government against the impugned order of transfer. We make it clear that this order shall not prevent the petitioner from approaching higher authorities raising his grievance with respect to his transfer.

Dt. 30.10.2007

PS


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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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