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Virendra Kumar Srivastava v. State Of U.P. And Others - WRIT - A No. 42461 of 2006  RD-AH 13708 (18 August 2006)
Reserved on 11.08.2006
Delivered on 18.08.2006
Civil Misc. Writ Petition No. 42461 of 2006
Virendra Kumar Srivastava
State of U.P. and others
Civil Misc. Writ Petition No. 42462 of 2006
State of U.P. and others
Civil Misc. Writ Petition No. 42464 of 2006
Shiv Chandra Chauhan
State of U.P. and others
Civil Misc. Writ Petition No. 42467 of 2006
Rajendra Kumar Vyas
State of U.P. and others
Hon'ble V.K. Shukla,J.
Petitioners in the present writ petitions are Junior Engineer/ Water Works Engineer of Jal Sansthan, Jhansi. Petitioner are assailing before this Court transfer order dated 28.07.2006 transferring the petitioner from Jal Sansthan Jhansi to different Nagar Palikas.
Common and identical question of law and fact being in each one of the writ petition as such all the writ petitions are being taken up together and as such Civil Misc. Writ Petition 42661 of 2006 is being treated as leading writ petition.
Sri R.L. Sharma, Advocate has assailed the validity of the transfer order on following grounds:- Firstly, State Government has got no authority or jurisdiction to pass order of transfer in term of Section 27(A) (3) of U.P. Water Supply and Sewerage Act 1975 as it is only the Director who is authorized to pass order of transfer or any other officer authorised by the State Government and here the Director has not passed the order of transfer and further State Government has not made any authorization in favour of any other officer consequently State Government has over stepped and exceeded its jurisdiction; Secondly power of transfer has been exercised malafidly on account of political pressure being exerted by one Rakesh Pal, President, Zila Panchayat, Jhansi, vide letter dated 02.07.2006 therein name of all four petitioners have been mentioned for transferring and pursuant to the same transfer order has been passed, consequently, the power of transfer has been admittedly misused in the present case; Thirdly, Transfer policy in the present case has been violated and breached with impunity, inasmuch as, for Bundlekhand Region in the transfer policy there is categorical mention that only when reliever comes and joins then only incumbent be relieved and here in the present case without any reliever being there directives have been issued for relieving the petitioners which clearly shows that power of transfer in fact has been colorably exercised.
Sri C.B. Yadav, learned Chief Standing Counsel appearing for respondents contended that in the present case power of transfer has been bonafidly exercised by the State Government as petitioners are staying at Jal Sansthan Jhansi since last more than fifteen years and further State Government is fully competent to pass order of transfer qua member of Centralized Service as the State Government is the appointing authority of the member of Centralized Service and repository of power of power of transfer and further in the present case earlier petitioners had filed writ petition against the transfer order and petitioner had succeeded in obtaining interim order which was ultimately vacated and writ petition were dismissed and against the same time barred Special Appeal has been filed wherein no interim order has been passed but in spite of the same petitioners are illegally continuing to perpetuate themselves at Jhansi Jal Sansthan as such conscious decision has been taken to transfer the petitioners, without there being any breach of the transfer policy, inasmuch as in consonance with transfer policy due permission has been taken from the concerned Minister and thereafter petitioners have been transferred as such no interference be made.
First argument which has been raised by Sri R.L. Sharma, Advocate qua the competence of the State Government to pass order of transfer is being looked into. At this juncture Section 27 (A) of U.P. Water Supply and Sewerage Act 1975 are being quoted below:
27 -A Centralisation of Service - (1) Notwithstanding anything contained in Section 27 or in any other provision of the Act, the State Government may at any time, by rules, provide for the creation of one or more services of such officers and servants as the State Government may deem fit common to Jal Sansthans or to the Jal Sansthans, Nagar Mahapalikas and Nagarpalikas in the State and prescribe the method of recruitment and conditions of service of persons appointed to any such service.
(2) Where any such service in created, employees serving on the posts included in the service as well as, officers and servants performing duties and functions of those posts may, if found suitable, be absorbed in the service, provisionally or finally, and the service of other shall be determined in the prescribed manner.
(3) On the creation of such service it shall be lawful for the Director or Local Bodies or any other officer authorised by the Government in this behalf to transfer an employee serving on any post in any Jal Sansthan or Water works to any other Jal Sansthan or Waterworks.
(4) Without prejudice to the generality of the provisions of sub-sections (1) and (2), such rules may also provide for consultation with the State Public Service Commission in respect of any of the matters referred to in the said sub-sections]
A bare perusal of the provisions as contained in Section 27 (A)(1) of 1975 Act would go to show that same starts with none abstante clause i.e. irrespective of the provisions as contained under Section 27 of 1975 Act, empowering the State Government at any time, by rules, for the creation of one or more services of such officers and servants as the State Government deem fit common to Jal Sansthans or to the Jal Sansthans, Nagar Mahapalikas and Nagarpalikas in the State. Section 27 A(2) of 1975 Act provides that where any such service in created, employees serving on the posts included in the service as well as, officers and servants performing duties and functions of those posts may, if found suitable, be absorbed in the service, provisionally or finally. Sub section 3 of Section 27-A authorizes the Director of Local Bodies or any other officer authorised by the Government in this behalf to transfer an employee serving on any post in any Jal Sansthan or Water works to any other Jal Sansthan or Water works.
In exercise of power vested under sub-section (1) of Section 27-A of U.P. Water Supply and Sewerage Act 1975 State Government has framed rules creating centralized service common to Jal Sansthan; Nagar Mahapalikas and Nagar Palikas know as U.P. Palika and Jal Sansthan Jal Kal Abhiyantran (Centralized) Service Niyamawali 1996. The said Rules have been published in gazette on 23.12.1996. Rule 2 which deals with definition clause provides appointing authority being referable to the State Government. Rule 27 of the aforesaid rules clearly categorically authorizes and empowers State Government to transfer member of centralized service from one Palika or Jal Sansthan to another Palika or Jal Sansthan.
Rule 27 of the aforementioned 1996 Rules is being quoted below:
"27- LFkkukUrj.k- 1 jkT; ljdkj dsUnzhf;r lsok ds fdlh vf/kdkjh dks ,d ikfydk ;k ty laLFkku ls nwljh ikfydk dk ty laazLFkku es LFkkukUrfjr dj ldrh gS"
In the light of the provisions quoted above, now the claim of the petitioners is being adverted to as to whether in the present case State Government had authority to pass order of transfer or not. This fact has not at all disputed by the petitioners that they are member of centralized service. In term of Section 27-A (3) of 1975 Act Director has been vested with the authority to transfer an employee serving on any post to any other Jal Sansthan. Said power of transfer can also be exercised by any other officer authorised by the State Government in this behalf. Thus, authority of Director, qua exercise power of transfer under Section 27-A (3) and of another officer authorised by the Government to transfer an employee serving on the post from one Jal Sansthan to another in not at all disputed. It would be preposterous to conceive, that once State Government is competent to authorize any other officer to exercise power of transfer from one Jal Sansthan to another, said power cannot be exercised by the State Government itself. However, this particular provision is limited to affecting transfer from one Jal Sansthan to another Jal Sansthan and not from one Jal Sansthan to Nagar Palika. In exercise of power vested under 1996 Rules, Under Rule 27 State Government is empowered to transfer member of centralized service from one Palika or Jal Sansthan to another Palika or Jal Sansthan. The authority of State Government power to transfer member of centralized service flows from Rule 27 of 1996 Rules.
Here in the present case petitioner of each one of the writ petition are unnecessarily placing reliance on the provisions as contained in sub-section 3 of Section 27-A of U.P. Water Supply and Sewerage Act 1975 which authorizes the Director Local Bodies or any other officer authorised by the State Government to transfer an employee serving in any posts from one Jal Sansthan to another Jal Sansthan. Here in the present case Virendra Kumar Srivsatava has been transferred from Jal Sansthan, Jhansi to Nagar Palika Devband; Mohd. Yunis has been transferred from Jal Sansthan Jhansi to Nagar Palika Siddarthnagar; Rajendra Kumar Vyas has been transferred from Jal Sansthan Jhansi to Nagar Palika Tilhar and Shiv Chandra Chauhan has been transferred from Jal Sansthan Jhansi to Nagar Palika Ganj Dundwara. Thus, all these four petitioners in different writ petitions have been transferred by the State Government in exercise of power vested under Rule 27 of 1996 Rules from Jal Sansthan to Nagar Palika. As far as provision of Sub-Section 3 of Section 27-A of 1975 Act is concerned same is not at all applicable or attracted in the fact of the present case as transfer in question is not from one Jal Sansthan to another and thus, arguments which has been advanced on this score is misconceived and unsustainable.
Much capital has been sought to be made by Sri R.L. Sharma Advocate by contending and relying on the fact that in the present case transfer order has been passed on account of letter dated 02.07.2006 being written by one Rakesh Pal President Zila Panchayat, Jhansi and in order to substantiate this argument reliance has been placed on Annexure No. 5 to the writ petition which bears endorsement of Mohd. Azam Khan, Minister of concerned department addressed to Special Secretary, Nagar Vikas and on account of this letter it has been suggested that political consideration has prevailed followed by transfer order dated 28.07.2006 and same can not be termed to be bonafide exercise of power.
On this point being pressed Sri C.B. Yadav, learned Chief Standing Counsel appearing for respondents contended that large scale manipulation and maneuvering has been done qua the said letter and forgery is reflected even from naked eye and further power of transfer has been bonafidly exercised.
On this objection being raised, learned counsel for the petitioner was confronted with the situation as to where from aforesaid letter has been obtained and Sri C.B. Yadav, learned Chief Standing Counsel was directed to produce original record on 11.08.2006. On 11.08.2006 supplementary affidavit has been filed and in paragraph 2 and 3 of the supplementary affidavit following statement of fact has been mentioned:
"That the aforesaid writ petition was filed as a fresh matter on 04.08.2006 and was taken up as a fresh matter in Court No. 52 on 08.08.2006 and during the course of arguments Hon'ble Justice V.K. Shukla of the Hon'ble made a query from counsel for the petitioner as to wherefrom the complaint-letter filed as Annexure No. V to the writ petition was obtained and the counsel for petitioner replied that the petitioner anyhow procured the same from some source but the specific reply to the aforesaid query of the Hon'ble Court could not be given by the counsel for the petitioner and hence this supplementary affidavit.
3. That after coming to know about the impugned order dated 20.07.2006 of his transfer the petitioner was very curious to know as to why he has been so transferred in the mid-session 2006-07 and consequently he went to Secretariat, Lucknow on 24.07.2006 and on the tea stall besides the Secretariat Building he was saw Shri Sunil Pandey, the Section Officer of Anubhag-3 Nagar Vikas and also Shri Bind Gopal Dwivedi the Upper Division Assistant/Review Officer of Anubhag-3 Nagar Vikas and that on the query made by the petitioner about the reason of his transfer in the mid session 2006-07, they told the petitioner that he was transferred due to some complaint-letter and the aforesaid Shri Sunil Pandey offered to given the photostat copy thereof to the petitioner and directed his aforesaid Assistant Shri Bind Gopal Dwivedi to give the photostat copy of the complaint letter concerned to him(Sunil Pandey) and told the petitioner to have the photostat copy thereof at 5.30 P.M. that day on the same tea stall after the Secretariat his closed at the end of the work of that day and consequently the copy of the aforesaid complaint-letter filed as Annexure No V to the writ petition as procured by the petitioner from the aforesaid Shri Sunil Pandey accordingly."
After this supplementary affidavit has been filed original record has been produced by Sri C.B. Yadav, learned Chief Standing Counsel. Said record prima facie clearly suggests that large scale tampering, manipulation and maneuvering has been done in Annexure No. 5 to this Writ Petition filed before this Court. Annexure No. 5 to the Writ petition in its current from shows that letter was written by Rakesh Pal President Zila Panchayat, Jhansi dated 02.07.2006. Said letter contains endorsement No 4899 of the office of Minister concerned. General Register maintained in the office of Minister Parliamentary Affairs and Nagar Vikas U.P. Government starting with effect from 08.07.2004 upto 31.07.2004 has been produced. In the said Register registration No. 4899 is dated 03.08.2004 and same deals with letter dated 22.07.2004 sent by Rakesh Pal President Zila Panchayat, Jhansi and subject matter mentioned therein is in respect to transfer of Assistant Junior Engineer. Said letter has been marked to Principal Secretary, Nagar Vikas. This letter with registration no. 4899 dated 22.07.2004 written by Rakesh Pal President Zila Panchayat, Jhansi prima facie has been sought to be manipulated before approaching this Court by altering and tampering the date 03.08.2004 as 03.08.2006 in order to bring the same in line with purported letter dated 02.07.2006. It has been informed that at no point of time any such letter dated 02.07.2007 which has been filed as Annexure No. 5 to the writ petition with registration no. 4899 had ever been received in the year 2006 and this particular letter is dated 02.07.2004 and forwarded by Minister concerned on 03.08.2004, to Special Secretary, Nagar Vikas. On preliminary inquiry which has been made by this Court qua the genuineness of the letter dated 02.07.2006 (Annexure No. 5) prima facie this Court is of the opinion that deliberately and willfully in order to make ground and paint picture that political consideration prevailed while effecting transfer in letter dated 22.07.2004 with registration no. 4899 in the office of Minister concerned forwarded on 3rd August 2004 tampering has been done. This offence has been prima facie committed before approaching this Court. Hon'ble Apex Court in the case of I.S. Marwah Vs. Mecnakshi Marwah reported in AIR 2005 SC 2119 has taken the view that once document has been prepared before institution of claim then provisions of Section 195 (1) (b) (ii) Cr.P.C would not be attracted as it is attracted only when offence has been committed when document has been produced or is given evidence in proceeding i.e. during the time when document was in custodia legis. The document which has been given is prima facie, tampered document which is an offence under the provisions of Indian Penal Code. Petitioners have tried to disown responsible of tampering by placing its burden on concerned clerk by means of supplementary affidavit. This Court is of the considered opinion that in Annexure no. 5 prima facie tampering has been done in order to use the same for painting picture that real consideration was not there for transfer rather political considerations prevailed. Consequently the Appointing Authority of the petitioners is directed to lodge First Information Report against all four petitioners qua tampering of the said document forthwith and it would also be open to Appointing Authority/Disciplinary Authority to take disciplinary action in accordance with law.
Apart from this much hue and cry has been raised that transfer policy has been violated. Here in the present case each one of the petitioner has been transferred in the past in the year 1998 each one of the petitioner had preferred Writ Petition before this Court and on the strength of the interim order passed by this Court each one of the petitioner continued to function and thereafter each one of the petition preferred by each one of the petitioner was dismissed by this Court as infructuous on 17.11.2003. Thereafter belated appeal has been preferred against the aforesaid order but at no point of time any interim order was passed. In between qua the functioning of the petitioner issue was raised and thereafter as authorities were under the impression that there was an interim order operating petitioner were permitted to continue and thereafter as interim order has been vacated then steps were undertaken for transferring the petitioners. There were total 14 Assistant Engineers working in Jal Sansthan Jhansi and each one had been transferred except for petitioners and as each one of the petitioner had stayed for more than 15 years, as such steps were undertaken and thereafter petitioners have been transferred. Original Record reveals that concurrence has been taken from the Minister concerned on 18.07.2006 pursuant to note which was prepared by the Joint Secretary Nagar Vikas Department U.P. As per transfer policy in case transfer was to be made after 30.06.2006 then permission was to be taken by the concerned Minister as such concerned Minister comes in picture when permission is being accorded by him. Staying at one particular place is not vested right of an incumbent specially when he holds transferable post. Here this fact is undisputed that petitioner are member of centralized service and have stayed at Jal Sansthan Jhansi since last more than 15 years and transfer order has been affected after 30.06.2006, in consonance with the transfer policy after requisite permission has been obtained by the concerned Minister. Complaint qua breach of transfer policy on this Count is thus, unsustainable.
Much capital has also been sought to be made by the petitioner on the fact that incumbent who are posted in Bundlekhand Region they are not be relieved till their reliever comes and joins the post and as here no reliever has been provided for as such malice is clearly reflected as petitioners have been directed to be relieved forthwith. 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 in the present case as noted above neither power of transfer has been exercised malafidly nor same is in violation of the statutory provision, as such writ petitions are dismissed with cost assessed at Rs. 10,000/- each to be deposited by the petitioners within a period of one month from the date of judgment with High Court Legal Aid Services Authority. In the event of default said amount be deducted from the salary of the petitioners and deposited.
Dated: 18th August, 2006
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