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Sampurnanad Dwivedi v. State Of U.P. Thru' Principal Secretary (Finance) And Others - WRIT - A No. 38116 of 2006 [2006] RD-AH 14702 (29 August 2006)


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Court No.3

Civil Misc. Writ petition No. 38116 of 2006

Sampurnanad Dwivedi Vs. State of U.P. & others



(Hon'ble Mr. Justice Amitava Lala and Hon'ble Mr. Justice V.C. Misra)


For the Petitioner: Sri W.H. Khan

For the Respondents: Addl. Chief Standing Counsel

Amitava Lala, J.:

Heard learned counsel for the parties and perused the record.

The petitioner has been transferred by the impugned order dated 31.5.2006 (Annexure No. 2 to the writ petition) from the office of the District Inspector of Schools, Kushinagar to the office of Basic Shiksha Adhikari, Hamirpur as Account Officer. The contention of the Petitioner is that by complaint of an M.L.C. the transfer order has been issued.

We have called for counter affidavit to verify the position. In the counter affidavit it has been stated that keeping in mind the letter of the petitioner dated 27th May, 2005 and on calculating the periods of appointment of the petitioner in various departments in Gorakhpur regions which is more than ten years, the petitioner has been transferred. In para 11 of the said counter affidavit it has been stated that the transfer was made effective on the basis of transfer policy-2006 and also on the basis of the complaints mentioned in the preceding paragraphs made against the petitioner.

Learned counsel for the petitioner contended that any complaint made by M.L.Cs./ M.Ps./ M.L.As. cannot be ground for the transfer, in view of the judgment rendered by Hon'ble Supreme Court in Sarvesh Kumar Awasthi Vs. U.P. Jal Nigam and others (2003 (11) S.C.C. 740) wherein it has been held that transfer order at the behest of politicians without following any guidelines provided therefore is arbitrary or malafide. He has also relied upon a judgment of the apex Court given in The Collector (District Magistrate), Allahabad Vs. Raja Ram Jaiswal (A.I.R. 1985 S.C. 1622) wherein it has been held that where power is conferred to achieve the purpose which has been repeatedly reiterated that the power must be exercised reasonably and in good faith to effectuate the purpose and in this context in good faith means for legitimate reasons.

The question before this Court is as to whether the order impugned herein was passed in good faith or not. This Court in writ jurisdiction has no measure to investigate the facts and we have to go by the order impugned. The order impugned shows that the same was passed on administrative exigency. That apart from the representation of the petitioner dated 27th May, 2005, it is apparent that the petitioner has already been posted within the Gorakhpur region for more than ten years. Hence such placement within the Gorakhpur region is against the transfer policy 2006. The complaint, if any, made by M.Ps/ M.L.Cs/M.L.As. is not the sole ground. However, the petitioner wanted to placement in Varanasi by such representation dated 27th May, 2005. He made several representations before the authority concerned, the last being dated 15th June, 2006 (Annexure No. R.A.-5  to the rejoinder affidavit). The petitioner's contention is that the petitioner himself has already opted his transfer from Gorakhpur region voluntarily to Varanasi region but what is the interest in sending him to Hamirpur is not known. At this stage, under writ jurisdiction, we cannot investigate the facts only on the basis of such submissions. The order impugned is based on administrative exigency. The balance of convenience will be served if the petitioner joins to transferred post, his representation will be considered and disposed of by the authority concerned upon affording fullest opportunity of hearing to him in the light of the aforesaid judgments of Hon'ble the apex Court as well as of this Court by passing a reasoned and speaking order, in accordance with law, as early as possible preferably within a period of one month from the date of production of a certified copy of this order before him. For the purpose of effective adjudication a copy of the writ petition alongwith its annexures will also be filed by the petitioner before the concerned authority alongwith certified copy of this order, which may be treated to be part and parcel of the representation.

With the above observations/directions the writ petition stands disposed of. No order is passed as to costs.      

                                (Justice Amitava Lala)

         I agree.

(Justice V.C. Misra)

Dt.: 29.08.2006

Kdo/ (38116/06)


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