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AKHILESH KUMAR PANDEY AND OTHERS versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Akhilesh Kumar Pandey And Others v. State Of U.P. And Others - WRIT - A No. 36629 of 2006 [2006] RD-AH 13586 (18 August 2006)

 

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. 52

Civil Misc. Writ Petition No. 36629 of 2006

Akhilesh Kumar Pandey

&

another

Versus

State of U.P. and others.

Hon'ble V.K.Shukla,J.

Petitioner who are there two in number have approached this Court questioning the validity of the transfer order transferring the petitioner from District Mau to District Ballia.

Both the petitioner are Pharmacists. Petitioners have been performing and discharging duties in District Mau since year 1993. In the year 1997 both the petitioners were sought to be transferred from Primary Health Center to District Combined Hospital Mau and both the petitioners have contended that they joined pursuant thereto and started  performing and discharging their duties. Petitioners have contended that on 05.11.2004 petitioners were ordered to transfer from District Mau to Ballia and in this background both the petitioner filed Civil Misc. Writ Petition No. 51585 of 2004 and 51585 of 2004 before this Court and this Court commanded the respondent to decide the matter and further directives were issued that transfer order would be kept in abeyance i9n the meantime. Pursuant to this order petitioners continued to perform and discharge their duties in District Mau. Petitioners have contended that they filed representation but till date no decision has been taken on the said representation. Petitioners have submitted that on 24.05.2006 Additional Director General, Medical & Health, Azamgarh Region Azamgarh prepared the list of 35 pharmacists  who were to be accorded placement within the District Mau and petitioners submit that their names were not included in the said list when the transfer order qua those 35 persons was sought to be effected. Petitioners have contended that thereafter letter dated 24.05.2006 was sent by Additional Director General, Medical & Health, Azamgarh Region Azamgarh to the Director General Medical and Health and Family U.P. Lucknow mentioning therein name of incumbents who had been performing and discharging duties for more than five years and who were covered by Court's cases. Names of 12 incumbents were mentioned in this list including the name of petitioners.  Thereafter petitioners' submit that  out of all these 12 incumbents whose names were mentioned in the communication dated 24.05.2006 only both  the petitioners were singled out and  both the petitioners have been sought to be transferred to Ballia. It has also been sought to be contended that in place of petitioner no. 1, one Sunil Kumar Rai was sought to be accommodated and adjusted.

Supplementary affidavit has been filed and by means of the same it has also been sought to be contended that impugned order of transfer has been canceled vide order  dated 01.06.2006  but in spite of the same petitioners are being forced to handover the charge.

Sri Rajeshwar Tiwari, Advocate appearing for the petitioners contended with vehemence that in the present case petitioners have been meted with arbitrary treatment, inasmuch as while passing regular transfer order qua 32 incumbents within District Mau their names were deliberately not included and subsequently their names has been included in the list of 12 incumbents who were covered by court case and therein also petitioners were isolated and singled out and were transferred and as such it is amply clear that petitioners have been meted with arbitrary treatment as such transfer order is liable to be quashed by this Court.

Learned Standing Counsel as well as counsel for caveator  on the other hand contended that entire action has been taken pursuant to the order issued by this Court, and petitioners have  stayed for last more than 5 years and have been transferred as such no interference to be made.

Before proceedings to considered the case of the petitioners it would be relevant to note that this Court in Civil Misc. Writ Petition No. 320 of 2002 taking note of the fact of continuance of the incumbents at one particular place and specially qua para medical staff, passed following order which is being quoted below on 10.01.2006:

" Heard Sri Swapnil Kumar learned counsel  for the applicants.

Sri Arun Kumar who alleges that he was patient in B.R.D. Medical College, Gorakhpur and fact serious difficulty in obtaining the medicine due to negligence of the Chief Pharmacist and Pharmacists, who are posted in the medical college for last 20-25 years and have not been released in spite of their transfer orders passed in the year 2002-2003.

In para-10 to 17 the applicant has given the names of the persons who are posted since last two decades and have not been relieved in spite of their transfer orders and the facts that their writ petitions have been dismissed by this Court.

This Court has been time and again and repeatedly directed the State Government to transfer all these para medical staffs who are posted at a particular place for more than five years in the present case, it appears that in spite of transfer order, the Chief Pharmacist and Pharmacists have not been relieved.

Without going into the case of the non the transfer order it will be appropriate that the Director General medical and Health may cause enquiry within a period of one month in case he finds that transfer orders have not been modified and there is no interim order of this Court staying the transfer orders he shall immediately relive them to join at their respective place and if necessary he will pass fresh order of transferring all those para medical staff who are posted at a place for more than five years. It is made clear that these orders are not being made against any individual but are being made to effectuate the government transfer policy and to root out the corruption in the medically college.

Let a copy of this order alongwith application  be served on Chief Standing Counsel U.P. At Allahabad. The Director General Medical and Health shall submits a compliance report of to show cause on or before 21.02.2006.

List on 21.02.2006."

Pursuant to this directives circular dated 13.05.2006 was issued and by means of the same all those Para Medical Staffs who were posted for more than five years at one particular place were to be transferred. As far as petitioners are concerned their names have been included in the list of Para Medical Staff qua whom Additional Director General, Medical & Health, Azamgarh Region Azamgarh on 24.05.2006 prepared list asked for requisite instructions. Name of the petitioners it is true does not find place in the said list dated 24.05.2006 wherein transfer within the District was proposed. Petitioners by means of order dated 30.05.2006 have been transferred from Mau to Ballia. This Court had given categorical directives that inquiry be made qua Para Medical Staffs who are posted at a place for more than five years, as such in terms of the order passed by this Court and policy formulated by the respondents, petitioners in all eventuality are to be transferred and no fault can be found in the same  inasmuch as no one has vested right to stay at one place. The grievance of the petitioner is that various other persons have been accorded choicest  placement and petitioners have been left out. Undisputed position is that petitioners hold transferable post  and as far as transfer and posting is concerned same is within the domain of the authority concerned and authority of this Court to interfere in day to day  matter of transfer and posting is very very narrow and limited. Merely because some persons have been posted in District Mau itself and petitioner had been transferred to district Ballia is not sufficient to infer that power of transfer has been misused or mis utilized. It has also been sought to be contented by the petitioner that transfer policy has not been uniformly applied and petitioners have been meted with arbitrary treatment and various problems which would arise on account of said transfer order.

This is well settled that in case transfer policy has been violated then incumbents should approach the higher authority in the department and this Court should ordinarily not interfere. In this regard  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:

" 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 mala fide 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. "

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].                    

Consequently there being no violation of statutory rule and malafide not been substantiated, no interference is being made with transfer order.

         Here in the present case apart from this petitioners have  brought on record the order dated 01.06.2006 by means of which Additional Director General, Medical & Health, Azamgarh Region Azamgarh has mentioned that entire transfer order issued from his office have been cancelled. Said letter does not indicate as to whether transfer order passed qua the petitioners have also been cancelled or not.

Consequently, as reliance has been place on letter dated 1.6.2006 and various personal inconveniences has been sought to be pointed out by the petitioner, in this background, it would be relevant to mention that as far as conveniences and inconveniences  are concerned the same can be very well looked into by competent authority and not by this Court  but as far as placement of the petitioners at District Combined Hospital, Mau  is concerned same cannot be permitted to continue. It would always be open to the respondents  to consider the claim of the petitioners for being accorded placement at District Mau or to any  other District.

Consequently liberty is given to the petitioners to make  representation  alongwith  certified copy of this order within three weeks from today before Additional Director General, Medical & Health, Azamgarh Region Azamgarh respondent no. 4, who shall consider the claim of the petitioner and take appropriate decision on the same, in accordance with law, preferably  within six weeks from the date of presentation of certified copy of this order. Whatever decision so taken, be communicated to the petitioners.  

With the above direction/observation, present writ petition is disposed of.

18.08.2006

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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