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AKASH SHARMA versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Akash Sharma v. State Of U.P. And Others - WRIT - A No. 33378 of 2006 [2007] RD-AH 8744 (9 May 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

RESERVED

CIVIL MISC. WRIT PETITION NO.33378 OF 2006

Akash Sharma   Vs.     State of U.P. and others

                     -------------------------  

Hon'ble Tarun Agarwala, J.

The citizens have a fundamental right to good governance which is  possible only if government servants are politically neutral and are not transferred or otherwise victimised at the instance of a political party or politician.  

Transfer is an exigency of service. A government employee has no choice in the matter of posting. Transfers are to be done only in  administrative exigencies and in public interest. No  rules have been framed as to how and when a government servant is to be transferred. However, the State Government, from time to time, comes out with a policy, for transfer of government servants.

The latest  transfer policy announced by the State Government is dated 11.5.2006 for the year 2006-07  which contemplates transfer on administrative ground, transfer on account of promotion, termination and retirement. Transfer can also be made on account of personal reason of a government servant such as medical aid, education, transfer on mutual consent  of the employees,  transfer to post husband and wife together. The transfer policy indicates that an employee who has completed six years in a district and ten years in a Division has to be transferred away from that district or division, as the case may be.

The policy further contemplates that not more than 10% of the total employees would be transferred. Where an employee has completed six years in a district or ten years in a division, and in case the transfer of the employees exceeds 10%, in that event, prior approval from the concerned Minister of the Department or the Chief Minister is required to be obtained. The policy further contemplates that transfer made after the prescribed date would require approval from the Chief Minister/Minister or from a high ranking officer, depending  on  the  category  of  the  employee. The  policy  further

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indicates that in case of any deviation, the transfer would required approval from the Chief Minister.

The aforesaid policy indicates that a detailed procedure has been evolved as to how and when and under what circumstances a government employee could be transferred. But the whole question is, whether the policy is being followed ? Are the transfers made in accordance with the policy ? Is the State Government following its own policy ?

No doubt, the transfer policy will have its plus points as well as its minus points. No transfer  policy is perfect in the world. Therefore, even if there is some difficulty or irregularity or lapse in passing orders of transfer the same has to be ignored.

It must be remembered that if an organisation has to run efficiently, sufficient flexibility is required to be given to the authority in matters of transfer of its employers, otherwise the administrative machinery may collapse. Necessary adjustments and accommodation for keeping administrative machinery in smooth gear is required at times.

In this light, the courts have been consistent in their observations that the transfer policy are only guidelines without statutory force. It is not necessary that the State Government should follow its policy strictly but it should be followed as far as possible. In certain situation, the policy may not be followed and therefore, certain flexibility is given to the appropriate authority, having regard to the exigency of administration.

In Union of India and others Vs. S.L. Abbas, JT 1993 (3) SC 678, the Supreme Court held that the guidelines does not confer the government employee a legally enforceable right and that the authority would keep in mind the guidelines issued by the Government.

Consequently, the courts normally does not  interfere in the transfer orders even if there was a violation of the transfer policy/guidelines framed by the State Government.

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In Union of India Vs. S.L. Abbas, JT 1993(3) SC 678, Rajendra Roy Vs. Union of India, AIR 1993 SC 1236, and in Union of India Vs. M.P. Thomas, AIR 1993 SC 1605, the Supreme Court held that the Government should not interfere  with the transfer orders unless there is a violation of some statutory rules or where the transfer order was malafide.

In N.K. Singh Vs. Union of India, 1994(6) SCC 98, the Supreme Court observed

"Unless the decision is vitiated by malafide or infraction of any professed norm or principle governing the transfer, which alone can be scrutinised judicially, there can be no judicially manageable standards for scrutinising  all transfers."

In Smt. Gayatri Devi Vs. State of U.P., 1997(2) UPLBEC 925, a single Judge of this Court held that a transfer order could be set aside on three grounds namely :

  a) Violation of a statutory rule,

b) malafides, or

c)      infraction of any professed norm or principle     governing transfers.

The said view was reiterated by a division bench of this Court in Rajendra Prasad Vs. Union of India, 2005(2) ESC 1224. The Court held :

"In view of the above, it is evident that transfer is an incident of service. An employee working on a transferable post cannot claim a right to be posted at a particular place. It is the choice of the employer to determine as on what place and for how long, the services of an employee are required. The Court cannot interfere with the transfer order, unless it is found to be in contravention of statutory rules or passed on malafides. Transfer policy does not create legal right justiciable in the Court of law. Transfer order does not affect any of his legal rights and Court cannot interfere with a transfer/posting, which is made in public interest or on administrative exigency. However, if the power of transfer is abused or transfer not made in public interest, but for collateral purposes and with oblique motive, the order would stand vitiated."

In State Bank of India Vs. Anjan Sanyal and others, (2001)5 SCC 508, the Supreme Court held :

" An order of transfer of an employee is a part of the service conditions and such order of transfer is not required to be interfered with  lightly  by  a  court  of  law  in  exercise  of  its  discretionary

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jurisdiction unless the court finds that either the order is malafide or that the service rules prohibit such transfer or that the authorities, who issued the order, had not the competence to pass the order."

In view of the settled law on transfer of a government servant, the matter relating to the petitioner's transfer has to be viewed. The petitioner contends that he was appointed on the post of Deputy Jailor in the year 1995 and by an order dated 22.6.2005, the petitioner was transferred from District Jail Fatehgarh to District Jail Muzaffarnagar on the same post. Within one year, the petitioner was again transferred from District Jail Muzaffarnagar to District Jail Varanasi. It was alleged that in District Jail Muzaffarnagar three persons were working as Deputy jailors, since 2002, 2003, 2004 and the petitioner had only joined in 2005. Whereas, the petitioner has been transferred, the other three had been retained at Muzaffarnagar for vested reasons It is alleged that two of these persons were transferred by an order dated 26.5.2006, but within four days, their transfer orders were cancelled by an order dated 31.5.2006 and the petitioner was transferred in order to accommodate them at Muzaffarnagar. It is alleged that those who are close to power get their transfer orders modified or cancelled but an employee who has no stomach for a legal battle  or has no godfather, has to suffer the brunt of the transfer order which are issued in colourable exercise of power.

The counter affidavit initially revealed that the cancellation order were passed on the basis of the representation made by the employee and that the cancellation orders was passed keeping in mind their personal difficulties as well as on administrative reasons.

The Court felt that the government was not coming out with a clear stand and was evading certain issues and therefore,  directed  the State Government to produce the entire transfer list, the modification orders, the cancellation orders and the orders attaching an employee at a particular place. An affidavit of compliance was filed by the State Government which revealed startling facts,  namely :

In the State of U.P, there are in all 297 Deputy Jailors,  out of which, 79 Deputy jailors were transferred in the year 2006-07. Out of 79, 19  transfer  orders  were  cancelled  for  various  reasons  and  six

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Deputy Jailors were attached at the same place, though on paper, they stood transferred to another place. Not only this, 13 transfer orders were amended. The record reveals that 35 Deputy Jailors had completed more than six years in a district or ten years in a Division and out of these 35 Deputy Jailors, six of them were not transferred at all, while 14 were transferred, but their transfer orders were subsequently cancelled and they were allowed to stay at the same place and six transfer orders were subsequently amended/modified. The net result is that initially, 79 transfer orders were issued which eventually increased  to 118 transfer orders out of which, 39 orders were issued either cancelling /modifying or amending the original transfer order. Eventually, approximately, 20% of the transfer orders were made effective.

A perusal of Annexures-1 and 2 of the affidavit of compliance indicate that most of the transfer orders were cancelled at the instance of the Minister. The transfer orders which were cancelled shows that most of these Government Servants had put in more than 6 years  of service at the same place. A perusal of Annexure-2, indicates that one government servant who had been posted at Lucknow since 1994 has not been issued a transfer order.

During the pendency of the writ petition, the respondents issued an order dated 4.9.2006, cancelling the transfer order of the petitioner and permitting him to remain at Muzaffarnagar and, on this basis, the learned Additional Chief Standing Counsel submitted that the writ petition had been rendered infructuous and should be dismissed as such.

Since, the Court had noticed gross irregularity committed by the respondents, it became necessary for the Court to interfere. Its time to turn the searchlight on the State Government and remind them that the transfer policy should not be taken lightly and should not be made a mockery of its own transfer policy. Its high time that the State Government makes a little introspection and examine what it had being doing for the last decade or so in using the transfer policy as a tool to transfer government employees on the whims and fancy of the

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politicians.

In State of U.P. and others Vs. Gobardhan Lal , JT 2004(5) SC 454, the Supreme Court held :

"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 lone 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 service. Unless the order of transfer is shown to be an outcome of a malafide exercise of power or violative of any statutory provisions (an Act or Rule ) or passed by an authority not competent to do so, an order of 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 policies at best may afford  an opportunity to the officer 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 as 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 often 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 malafides or is made in violation of any statutory provision."

The State Government has framed a transfer policy. It is the duty of the State Government to implement the policy. Even if the Government servant disagrees with the policy, nonetheless, the same has to be implemented. The policy has been framed so that the transfer of an employee is implemented. The policy has not been framed  to enable the employee or the State Government to misuse it with impunity. In the opinion of the Court, the transfer and posting of a government employee should not be made at the behest of Minister. Transfer has to be made on administrative grounds or in public interest. Transfer should not be made on political considerations, or on the policy of pick and choose or on the ground of favouritism.

In Pradeep Kumar Agrawal Vs. Director, Local Bodies, U.P. IV, Lucknow and others, (1994)1 UPLBEC 189, a Division Bench of this Court held :

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"It would be appropriate to observe here that in a democratic set up like ours, bureaucrats are expected to act and discharge their executive functions impartially and strictly in accordance with the Rules and Regulations. No doubt, as of right no Government servant can claim to be posted either on a particular station or post, therefore the transfers are to be done only in administrative exigencies and in public interest, but in the instant case the letter written by the aforesaid M.P. Addressed to Minister for Urban Development bearing endorsement of the officers of the State Government, indicates that instant transfer has neither been made in administrative exigency nor in public interest. It is not only a matter of surprise but highly objectionable that bureaucrats are dancing at the tunes of such letters ignoring the well settled norms meant for transfer."

In view of the aforesaid, it is clear that the State Government has not acted in accordance with the transfer policy and has violated it own transfer policy with impunity. The transfer orders has been amended, cancelled at the whims of the local politician who did not want the government employee to be transferred. The cancellation, modification or amendment in the transfer orders was not in public interest or on administrative grounds, but on account of personal interest of the politician or of the government employee itself.

From a perusal of the record, the transfer orders have been cancelled because of the interference of a Minister or an M.L.A. The transfer order has been cancelled or modified on account of flimsy ground being raised by the employee. In most of the cases, it is seen that there is a nexus between the local M.L.A or M.P. with the employee and every effort was made to ensure that the employee remained  posted at the same station.

The Supreme Court has time and again held that an employee has no choice in the mater of transfer or place or posting. Consequently, cancellation of a transfer order, or modification because a Government employee does not want to go to a particular place or want to stay at the same station is not only arbitrary, but violative of the condition of transfer which is an integral part of the condition of service of an employee.

The policy clearly indicates that a government servant who stays in one district for six years or ten years in a division  has to be transferred. This is a salutary provision and should be implemented

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mandatorily. There cannot be any relaxation to this norm for the simple reason that if the government employee overstays at a particular station he develops local links and vested interest, which is detrimental  to public interest. On the other hand, in B. Varadha Rao Vs. State of Karnataka and others,  (1986) 4 SCC 131 the Supreme Court held :

" However this power must be exercised honestly, bonafide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique motive it would amount to malafide and colour able exercise of power. Frequent transfers, without sufficient reasons to justify such transfers, cannot, but be held as malafide. A transfer is malafide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purposes, that is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration, that even administrative actions should be just and fair."

And again held :

"But, at the same time, it cannot be forgotten that so far as superior or more responsible posts are concerned, continued posting at one station or in one department of the government is not conductive to good administration. It creates vested interest and therefore we find that even from the British times the general policy has been to restrict the period of posting for a definite period."

Even though, the grievance of the petitioner has become infructuous, nonetheless, before consigning the matter to the records, this Court directs the State Government to ensure that in future no government employee would remain in one place for more than six years. After six years, it would be mandatory for the State government to transfer the Government employee to another place. The transfer must take place and that it would not be sufficient compliance that a government employee is transferred to another place on paper, but is attached at the same place where he was posted prior to his transfer. This direction would come with immediate effect from the year 2007-08 onwards. Any transfer policy made or modified would include the above direction. The writ petition is accordingly disposed off with the aforesaid direction.

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The Registrar General is directed to ensure that a certified copy of this order is sent to the Chief Secretary within ten days for necessary compliance.

Dt.May 9 ,2007

Ak/


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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