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SHAILENDRA SRIVASTAVA versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Shailendra Srivastava v. State Of U.P. And Others - WRIT - A No. - 55230 of 2007 [2007] RD-AH 17541 (6 November 2007)

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HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 38

C.M. W.P. No. 55230 of 2007

Shailendra Srivastava Vs. State of U.P. and others

Hon'ble Sudhir Agarwal, J.

Heard learned counsel for the petitioner and perused the record.

Aggrieved by the order of transfer dated 29.06.2007, whereby the petitioner working as Senior Assistant, Rural Engineering Service, Jalaun has been transferred from Jalaun to Jhansi, the present writ petition is filed under Article 226 of the Constitution of India.

Sri Pandey, learned counsel appearing for the petitioner contended that the impugned order has been passed pursuant to a complaint made by Sri Chhote Singh Chauhan, a Member of Legislative Assembly belongs to ruling party, made on 12.06.2007 and therefore, the impugned order has been passed on political consideration. He further contended that he is a handicapped person and as per the Government policy, cannot be transferred out of District. He further contended that he is not feeling well and in this regard he has already made representation.

So far as the first submission is concerned a perusal of the impugned order does not show that it has been passed taking into consideration the alleged complaint of Sri Chhote Singh Chauhan, a Member of Legislative Assembly. Moreover, a perusal of the alleged letter of Sri Chauhan shows that it only mentions that the petitioner belongs to Orai and is working in the present place i.e. Jalaun for the last 20 years and therefore, a request has been made from the minister concern to transfer the petitioner to some other District. The impugned order of transfer has been passed by the Director/Chief Engineer, Rural Engineering Service, Lucknow and not by the minister concern. This Court has already held that unless there is some material to show mala fide on the part of the representative of the people, they are entitled to make recommendations to the Government being the representative of the people, since, it is their duty to bring to these facts to the notice of the Government for taking appropriate action and any order of transfer having been passed on such recommendations, merely on that ground shall not be vitiated in law. A Division Bench of this Court in Narendra Kumar Rai Vs. State of U.P. and others, 2002 (1) UPLBEC 369 while considering transfer made on the representation/complaint of representative of people i.e. M.L.A. or M.P. observed 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."

Another Division Bench of this Court (in which I was a Member) in Special Appeal No. 138 of 2007 (Shami Ahmad Vs. State of U.P. and others) decided on 01.02.2007 has also taken the same view.

In view of the above, the first submission of learned counsel for the petitioner is rejected.

Coming to the second submission, it is not disputed by learned counsel for the petitioner that he is a permanent resident of District Urai and he has worked in the present place for last 20 years. That being so, it cannot be said that the petitioner, has any right to continue for more than two decades at a particular place and on the contrary, it is in public interest that such a persons must be shifted to some other place. Moreover, an order of transfer cannot be interfered on the ground that it violates policy guidelines inasmuch such guidelines do not confer any legally enforceable right upon the employee to challenge the order of transfer. The Apex Court in Union of India Vs. S.L. Abbas, AIR 1993 SC 2444 while dealing with a similar contention clearly held as under:-

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

So far as the personal hardship of the petitioner is concerned, he has already made a representation to the authority concern and it is made clear that this order shall not preclude the competent authority to consider and pass appropriate order on such representation. But this order shall not be construed to have expressed any opinion on the merit of the question of personal hardship of the petitioner as the authorities may pass order independently considering the facts and circumstances of the case.

In view of the aforesaid discussion, I do not find any reason to interfere with the order of transfer. The writ petition, therefore, lacks merit and is accordingly dismissed.

Dt/-06.11.2007

AK


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