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SMT. RAKESH versus STATE OF U.P. THRU PRIN.SECY. FOOD & 3 ORS.

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Smt. Rakesh v. State Of U.P. Thru Prin.Secy. Food & 3 Ors. - SERVICE BENCH No. - 1015 of 2007 [2007] RD-AH 18107 (20 November 2007)

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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Reserved

IN THE HON'BLE HIGH COURT OF JUDICATURE AT

ALLAHABAD, LUCKNOW BENCH, LUCKNOW.

Writ Petition No. 1015 (SB) of 2007

Smt. Rakesh

Petitioner

State of U.P. and others.

Respondents

Sri Manish Kumar, Advocate

C.S.C

Sri Shree Prakash Singh, Advocate

Sri U. K. Srivatava, Advocate

DATED : 20/11/2007

Hon'ble Pradeep Kant, J.

Hon'ble Rajiv Sharma, J.

JUDGEMENT :

The petitioner, holding the post of District Manager in U.P. State Food and Essential Commodities Corporation Ltd. (hereinafter referred to as the Corporation), challenges the order dated 22.8.07 passed by the State and the order dated 23.8.07 passed by the Managing Director of the Corporation.

By means of order dated 22.8.07 the State Government directed the Managing Director to cancel the transfer of the petitioner posting her at Hardoi and consequently the order dated 23.8.07 has been passed by the Managing Director.

The aforesaid orders have been challenged on the ground that for no justifiable reason, merely under political influence of the Minister of another department, respondent no. 4 has been brought back to Hardoi, though there are serious complaints against his working at that place, for which enquiry is under contemplation.

The undisputed facts are that the petitioner was transferred to Hardoi vide order dated 30.7.07 for working as District Manager, where she joined on 31.7.07; but on 2.8.07, Sri Abdul Mannan, State Minister for Krishi, Videsh Vyapar Evam Krishi Niryat, Government of Uttar Pradesh, wrote a letter to Sri Ram Prasad Chaudhary, Minister for Food and Civil Supplies, Government of Uttar Pradesh, requesting him that the respondent no. 4, who was working as officiating/Incharge District Manager had been performing his duties to utmost satisfaction and that there was no compliant against him to any party office bearers or public representatives and, therefore, his transfer be cancelled and he be allowed to continue at Hardoi. On this letter, on that very date, the Minister for Food and Civil Supplies directed the Managing Director to comply with the request made by the aforesaid Minister. The Managing Director, in turn, on that very date, informed the Principal Secretary, Food and Civil Supplies, in writing, saying that in view of the letter written by the State Minister for Krishi, Videsh Vyapar Evam Krishi Niryat to the Minister for Food and Civil Supplies he has been asked vide letter dated 2.8.07, to comply with the directive issued therein, namely, to cancel the transfer order of the respondent no. 4, it is to be informed that against Arun Kumar Agarwal, serious complaints have been received about irregularities committed by him when he was posted at Hardoi and departmental proceedings are pending and that his transfer from Hardoi was effected because of administrative reasons on the directive issued by the Minister concerned, who had directed for his transfer, on receiving complaints and since the petitioner, Smt. Rakesh had already joined at Hardoi, therefore, decision in this regard be taken at the State Government level.

The Managing Director thus, expressed his disinclination to transfer the respondent no. 4, Arun Kumar Agarwal back to Hardoi because of serious complaints and for the fact that disciplinary proceedings were pending against him, but despite the aforesaid information being sent to the State Government, the Deputy Secretary to the State Government again wrote to the Managing Director on 22.8.07 saying that in view of his letter dated 3.8.07, he has been directed to convey that transfer order of Arun Kumar Agarwal be cancelled. In view of the aforesaid directive issued by the State Government, the order cancelling the transfer has been passed by the Managing Director on 23.8.07. The cancellation order was also given effect to, and the petitioner has joined at Lucknow and respondent no. 4 was allowed to continue at Hardoi.

The record was produced by the State and it is not in doubt, rather it is admitted, both from the pleadings of the parties and also from record, that the respondent no. 4, who was substantively appointed Commercial Inspector i.e. a post lower in rank than the post of District Manager, was allowed to discharge the functions of higher post while he was posted at Hardoi and in view of information given by the Managing Director in Vidhan Parishad and the recommendations made by the State Government, the posting on the post of District Manager and other offices was to be done on the basis of seniority subject to rejection of unfit, and that the petitioner was a regularly appointed District Manager, whereas respondent no. 4 was only a Commercial Manager.

The petitioner's posting on the post of District Manager was thus otherwise also could not have been interfered with as in district Hardoi, the work of the said post was being looked after by a Commercial Manager, namely, respondent no.4 and there cannot be any reason for keeping the said higher post vacant in the presence of the District Manager (petitioner) being available, just to give charge of the higher post to a person holding a lower post.

In regard to the allegation of malafide i.e. the transfer order of the petitioner being cancelled because of the intervention of the Minister of another department and on the direction of the Minister of the department even without looking into the record and against his own previous satisfaction in the presence of existing complaints and departmental proceedings against the respondent no. 4, it would be pertinent to mention that though a public representative and in particular, Minister of the concerned department, if makes any recommendations for transfer, may at times, in public interest, and the appointing authority after being satisfied about the complaint made, effects such transfer and merely because the transfer so made is the outcome of some complaint made by the public representative or Minister, it would not make the transfer bad, but if any such complaint is made by a public representative or Minister of another department, it obliges the Minister of the concerned department and also the appointing authority (Managing Director in this case), at least to verify the contents by making some fact finding enquiry or investigation and only thereafter to proceed as per his own wisdom and discretion, which action should also be in public interest.

Apart from transfer being made in public interest, transfer can also be effected for administrative reasons and if there are complaints against a particular officer, or any departmental proceedings are pending for some irregularities committed by him at that very place, where he is posted, and if he makes a prayer for his retention on that place, there would be little justification or no justification at all, for allowing such an officer to continue at that place. Allowing such an officer at a place where he is charged of serious irregularities and moreso, when departmental proceedings are pending, would create not only indiscipline and will encourage a charged government employee but would also hamper the enquiry proceedings and would demoralise the honest officers in the department giving a wrong message to the entire staff that one can carry on with his activities eve if he is charged of serious irregularities at a particular place.

The State Government has not filed any counter affidavit but had produced the record. Learned Standing Counsel submitted that whatever is in the record, speaks about the manner in which the order of transfer of respondent no. 4 was revoked and how the order of transfer of the petitioner was cancelled.

Main contest has been put in by respondent no. 4. Sri U.K. Srivastava appearing for him who submitted that because the respondent no. 4 was transferred on incorrect fact that there were serious complaints against him, therefore, the Minister rectified the error committed in transferring him, for which no exception can be taken. He also submitted that appointment of the petitioner was wrongly made on compassionate ground, as her husband was a PCS officer, who was working on deputation with the Corporation when he died and, therefore, no appointment could have been given to the petitioner in the Corporation. A further argument was raised that transfer of the petitioner itself was made under political pressure i.e. on the dictates of the Minister concerned and, therefore, also the present order need not be interfered with. Lastly he argued that because the petitioner has been sent back to Lucknow and respondent no. 4 has been allowed to continue at Hardoi, therefore, the writ petition has become infructuous.

In regard to the plea that petitioner's appointment could not have been made on compassionate ground in the Corporation, suffice would be to mention that her appointment was made in the year 1990 and at no point of time, same has been challenged by respondent no. 4 or anyone else and, therefore, in a matter of transfer, the said plea is wholly misconceived nor can be looked into after 17 years. The appointment of the petitioner thus cannot be said to be illegal after such a long time, nor its validity is in issue.

The petitioner, who is a regularly appointed District Manager, if was transferred and posted at Hardoi on the same very post which was lying vacant, the work of which was being looked after by a Commercial Inspector, no ulterior motive can be attributed to such an order. The transfer order of the petitioner to Hardoi was made because serious complaints were received against respondent no. 4 on satisfaction of the Minister of the department and, therefore, it was thought in public interest that he should be posted out of Hardoi and for that matter, his transfer was effected for administrative reasons. Therefore, it cannot be said that the petitioner was transferred under some political pressure or for any extraneous considerations, particularly when there is a clear denial to the fact that the petitioner ever approached the Minister or any person of the department for her transfer and the record also did not show any such request or approach.

It is also on record that Minister of another department wrote a letter to the Minister concerned saying that party workers and party office bearers are having no complaint against the working of respondent no. 4 and that he was satisfied with his work and since he remained posted there only for a short period, therefore, his transfer be cancelled and he be allowed to continue at Hardoi.

The letter of the Minister does not say that there were no complaints against respondent no. 4 or departmental proceedings were not pending or was not in contemplation but what it says is, that his party workers and office bearers were having no complaint against him. This does mean that the information given by the Managing Director that there were serious irregularities committed by respondent no. 4 and enquiry was pending, was not a correct fact and the Minister was not aware of the same. To the utter surprise, the Minister of the department (Minister concerned) to whom this letter was addressed, this time took a different stand and without confirming anything about necessity to repost the respondent no. 4 at Hardoi, when this letter was received by him, directed the Managing Director to act according to the desire of the aforesaid Minister but when the Managing Director was informed, he again expressed his reluctance in re-transferring him to Hardoi, again mentioning that his transfer was effected for administrative reasons and that the transfer orders had already been given effect to, but since it was the State Government's directive, therefore, he mentioned that the matter may be considered at the State Government itself. The State Government did not stay its hands even thereafter and specifically directed the Managing Director vide letter dated 22.8.07 to pass an order cancelling the order of transfer of respondent no. 4. The Managing Director finding no way out, complied with the said directive.

The argument of the counsel for respondent no. 4 that the respondent no. 4 was wrongly transferred as there were no serious complaints against him, need not be enquired into by the Court for the reasons that it is the satisfaction of the Managing Director, who is the appointing authority and that unless something very exceptional and contrary is brought on record by respondent no. 4, there is no reason to enter into this enquiry, when the Managing Director has been reiterating the said fact and transfer of the petitioner was made because the Minister of the department concerned himself has found that such irregularities were committed by respondent no. 4, for which he was to be transferred out of Hardoi. This time the Minister chose not to look into these facts and directed for acting as per the wish of the Minister of another department.

The representation made by the public representative or the Minister in such a manner cannot be treated to have been made in public interest nor any transfer could have been effect on such directive.

The respondent no. 4 was transferred to Headquarters at Lucknow and after 22 days of the joining of the petitioner at Hardoi, the order has been cancelled.

In fact, the officer competent to transfer the petitioner or respondent no. 4 was Managing Director of the Corporation and the State Government had very little role to play in the matter of transfer of the employees of the Corporation. Of course, in some given circumstances and for some exceptional reasons, Minister of the department under whose jurisdiction the Corporation fall, which otherwise are independent autonomous Corporations, may issue any such direction, but ordinarily the Minister would have no say in the matter of transfer and posting of the Corporation staff but even if any such recommendation is made by the Minister concerned, it does not necessarily oblige the Managing Director of the Corporation to follow the same, if he finds that it is not in public interest or for any other good and valid reason, the recommendation for transfer and posting of a particular employee cannot be accepted. Equally true is the fact that if a public representative or Minister of another department makes any such request to the Minister of the concerned department, it obliges the Minister to look and verify the genuineness of the recommendation/complaint and not to issue directive only because recommendation has been made by another Minister by following the principle of brotherhood.

It should not be forgotten that transfer and posting of the employees of the Corporation or for that matter even of government servants, cannot be effected merely under political influence or political pressure and the appointing authorities cannot be subjected to comply and follow the directives, without giving them the opportunity to act independently and on their own discretion, keeping in mind the facts and circumstances, which require transfer and posting.

The fact that the impugned orders have been passed merely on the desire of the Minister of another department, is fully established from the record and from the pleadings of the petitioner as well as from the reply submitted by respondent no. 4 himself.

The defence of the respondent no. 4 that petitioner's appointment was made illegally or that she was transferred under political influence, besides being not substantiated, also cannot be a valid argument to uphold the validity of the impugned orders, cancelling the transfer order of the petitioner and re-transferring the respondent no. 4 to Hardoi, as validity of the two orders impugned is to be judged in the given facts and circumstances of the case and on their own strength.

The impugned orders thus, suffer from malice in law, as decision making process is wholly vitiated, the orders having been passed on extraneous considerations and for no valid reason, rather to give advantage to respondent no. 4 to remain at Hardoi, despite serious complaints being there against him and enquiry being in progress and moreso, when appointing authority himself was not willing to pass the order but was compelled to do so on the directive issued by the State Government. The orders thus being passed contrary to law and in violation of settled norms of transfer and posting, stand vitiated and are liable to be set aside.

The plea of respondent no. 4 that since the impugned orders have already been given effect to, namely, petitioner has joined at Lucknow and respondent no. 4 has joined at Hardoi, therefore, the writ petition has become infructuous, need not detain us any further, as by mere joining and complying with the orders issued by the Managing Director, the writ petition would not become infructuous nor the orders would become valid. The petitioner as an obedient employee of the Corporation rightly joined at the place where she was required to join and has challenged the order, because she was aggrieved by said orders.

In case the argument of counsel for respondent no. 4 is accepted, it would mean that in every case of transfer, a public servant must first disobey the transfer order i.e. he must avoid joining and then approach the Court and till the matter is decided by the Court, he or she should not comply with the orders. This situation would create indiscipline, besides would render the public servant open to disciplinary proceedings. If a public servant, who is under transfer, joins at the transferred place and challenges the order of transfer, still legality and validity of the transfer orders can be questioned and the parties can be restored to their position, for which relief is claimed. By mere joining, transfer petition does not become infructuous.

Before parting, we would like to observe that in a matter where respondent no. 4 was charged of serious irregularities having been committed, while he was posted at Hardoi, there could not have been any reason for cancelling the transfer order of the petitioner and restoring the respondent no. 4 at Hardoi, moreso, when the petitioner is a District Manager and the respondent no. 4 is only a Commercial Inspector and was allowed to officiate and look after the work of District Manager i.e. of the higher post.

For the reasons stated above, the orders impugned dated 22.8.07 and 23.8.07 are hereby quashed.

The petitioner shall be allowed to continue at Hardoi with immediate effect and the respondent no. 4 shall join at Headquarters at Lucknow forthwith, failing which it will be open to the Corporation to initiate appropriate proceedings against respondent no. 4.

The writ petition is allowed. No orders as to costs.

November 20th,2007

MFA


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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