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SANJEEV KATIYAR versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Sanjeev Katiyar v. State Of U.P. And Others - WRIT - A No. 71019 of 2006 [2007] RD-AH 66 (2 January 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                                 Court No. 38

Civil Misc. Writ Petition No. 71019 of 2006

Sanjeev Katiyar

Versus

State of U.P. and others.

Hon'ble V.K. Shukla,J.

Petitioner is posted   Special Group Operation in Superintendent of Police (SOG). Petitioner has contended that on 1.7.2006 Member of Zila Panchayat Kalyanpur, Kanpur Nagar made complaint that petitioner was working against the interest of Samajwadi Party. On 28.7.2006 petitioner was transferred by Deputy Inspector General of Police, (Establishment) from Kanpur Nagar to Lucknow Zone. Senior Superintendent of Police, Kanpur Nagar on 30.7.2006 made  request for canceling the transfer of petitioner. On 25.11.2006 order has been passed asking  petitioner to be relieved, at this juncture present writ petition has been filed.

Sri Sanjay Kumar Yadav, Advocate, learned counsel for the petitioner contended with vehemence that in the present case power of transfer has been colourably exercised on political pressure being exerted, as such transfer order is liable to be interfered with.

Learned Standing Counsel on the other hand contended that in administrative exigency petitioner had been transferred, as such writ petition be dismissed.

Before proceeding to consider the claim of petitioner,at this juncture 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 generalize 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-recognized 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 recognized grounds or reasons, when property approached and sought to be vindicated in the  manner known to and in accordance with law. No such generalized 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 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].

The caution given by Hon'ble Apex Court qua transfer matters of members of Force has been given in the case of Major General J.K. Bansal Vs. Union of India reported in 2005(107) FLR 37 in following terms.

"It will be noticed that these decisions have been rendered in case of civilian employees or those who are working in Public Sector Undertakings. The scope of interference by Courts in regard to members of armed forces is far more limited and narrow. It is for the higher authorities to decide when and where a member of the armed force should posted. The Court should be extremely slow in interfering with an order of transfer of such category of persons and unless and exceptionally strong case is made out no interference should be made."

On the touchstone of the fact mentioned above,  undisputed, factual position, which is emerging is that petitioner holds transferable post and petitioner has been transferred by competent authority and there is no violation of any statutory rules. Petitioner has contended that on account of political pressure being exerted he has been transferred. Though allegations have been leveled that said incumbents have not been impleaded and arrayed as party in the present writ petition in order to rebut the statement of fact mentioned by  petitioner. The authority, who has passed order of transfer has also not been impleaded  in personal capacity to rebut the statement of fact that he has exercised power of transfer on pressure being exerted politically.

Consequently, writ petition lacks substance and same is dismissed.

Dt. 2.1.2007

T.S.

   


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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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