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GULSHER ALI versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Gulsher Ali v. State Of U.P. & Others - WRIT - A No. 16501 of 2007 [2007] RD-AH 5582 (29 March 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 39

Civil Misc. Writ Petition No. 16501 of 2007

Gulsher Ali

Versus

State of U.P & others

Hon'ble V,K. Shukla,J.

Petitioner had been performing and discharging duties as Assistant Teacher at Uchch Primary Vidhyalay Malpur Block Akola District Agra. Petitioner was promoted as Headmaster vide order dated 06.07.2006 and has request for being accorded placement as Headmaster at Uchch Primary Vidhyalay, Pipalkhaeda Block Khairgarh, District Agra was accepted  vide order dated 07.07.2006 and he was asked to join at said institution within one week. Sri Gulsher Ali petitioner did not join at the said institution and to the contrary on 18.07.2006 requested that he be accorded placement at Navin Uchch Primary Vidhyalay, Gamari Block Akola, District Agra. Request of petitioner was accepted vide order dated 25.11.2006 and he was accorded placement at Navin Uchch Primary Vidhyalay, Gamari Block Akola, District Agra as Headmaster. Gram Pradhan of Gram Panchayat of Gamari made application on 05.12.2006 to the effect that petitioner Gulsher Ali is resident of said Gram Panchayat and his wife if member of Gram Panchayat he indulgs in political activities of the said area and on account of his continuance, development work would be effected. On this complaint being made Gulsher Ali was sought to be sent to different institution in the same Block of the same District namely Navin Uchch Primary Vidhyalay, Ikram Nagar Block Akola, District Agra. Gulshar Ali not being satisfied with the order of placement preferred Civil Misc. Writ Petition No. 4012 of 2007 before this Court and this Court on 13.02.2007 asked the authority concerned to consider the matter. Thereafter matter has been decided and representation of the petitioner has been rejected by asking the petitioner to join at Navin Uchch Primary Vidhyalay, Ikram Nagar Block Akola, District Agra. At this juncture present writ petition has been filed.

Learned counsel of the petitioner Sri J.K. Srivastava, contended with vehemence that in the present case on the complaint being made petitioner has been transferred to different institution as such transfer is punitive in nature and further personal hardship has not at all been considered as such same is liable to be quashed.

From the side of the respondents, Sri Vijai Pratap and Sri H.P. Singh, Advocates contended that valid reason have been assigned for transferring/according placement to the petitioner and further petitioner holds transferable post;  transfer of the petitioner has been made by competent authority; petitioner has failed to show and substantiate as to whether any statutory rules and regulations have been violated or not  while transferring him and coupled with this plea of malafide is not at all available to the petitioner as none of the incumbents qua whom allegations have been levelled have been impleaded in personal capacity in the writ petition, as such petition as it has been framed and drawn is liable to be dismissed,and coupled with this transfer is within the Block as such no interference is required.  

In order to appreciate respective argument which has been advanced the view point of Hon'ble Apex Court qua transfer is being looked into. 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."  

On the touchstone of the judgment quoted above, facts of present case is being adverted to.  Petitioner on being promoted as Headmaster was given placement at  Uchch Primary Vidhyalay, Pipalkhaeda Block Khairgarh, District Agra. Petitioner did not join at the said place and requested that he be accorded placement at Navin  Uchch Primary Vidhyalay, Gamri Block Akola , District Agra. Said request of petitioner was accepted and thereafter as petitioner is residence of the same Gram Panchayat complaint was made that petitioner was more interested in politics in stead of discharging duties as Headmaster. In view of this  background  decision was taken as petitioner is resident of said Gram Panchayat petitioner be sent to Navin Uchch Primary Vidhyalay, Ikram Nagar Block Akola, District Agra in the same Block.  Thus for valid reasons order of transfer has been passed by the competent authority; petitioner holds transferable post and no statutory rules and regulations have been violated in the present case and plea of malafide has not at been substantiated in the present case as none of the incumbent qua whom allegations have been levelled has been impleaded and arrayed as respondents as such this Court on the yardsticks settled by Hon'ble Apex Court refuses to exercise its jurisdiction under Article 226 of the Constitution of India specially when transfer is within the same Block.

At last it has been contended by petitioner that he has not been paid his remuneration of January and February, 2007. In case petitioner has functioned then certainly he is entitled for remuneration.

In this background liberty is given to the petitioner to approach District Basic Education Officer, Agra for redressal of his grievance and District Basic Education Officer, Agra shall decide the said grievance, in accordance with law within next eight weeks from the date of presentation of certified copy of this order.  

In term of above, writ petition is dismissed.

Dated: 29th March, 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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