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Shiv Kumar Sharma v. State Of U.P. And Others - WRIT - A No. 42122 of 2006 [2006] RD-AH 15305 (4 September 2006)


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Court No. 38

Civil Misc. Writ Petition No. 42122 of 20056

Shiv Kumar Sharma


State of U.P.  and others

Hon'ble V.K. Shukla, J.

Vide order dated 15.06.2006, petitioner was transferred from his present place of posting, Sirsi Bandh Prakhand, Mirzapur. Petitioner moved representation dated 19.06.2006 seeking recall of transfer order dated 15.06.2006. When no action was taken on the same, petitioner filed writ petition No.33758 of 2006, and this Court on 03.07.2006 passed order that the matter be reconsidered within three weeks and till then the order of transfer was directed not be given effect to. Petitioner submitted representation, and thereafter, order dated 21.07.2006 has been passed.

Counter affidavit has been filed, and therein it has been contended that the petitioner is posted as store keeper at the store in question since 1996 and thus has completed about 10 years of his service at one and the same place. It has been contended that respondent No. 5 moved application on 16.05.2006 for his transfer to Mirzapur Head Quarter on personal ground. Employees Union also recommended for his transfer. In this background, the petitioner, who remained posted at one place approximately for the last 10 years, was transferred and request of respondent No. 5 for transferring him to Mirzapur Head Quarter was accepted, and petitioner has been transferred within the district from one store to another in public interest. It has also been disclosed that there have been complaints against petitioner, in respect of which, Superintending Engineer, Tube Well Circle, Mirzapur, vide letter dated 16.06.2006 asked report from respondent  No. 3 on the points stated in the said letter within one week. In this background, it has been contended that petitioner has been validly transferred in public interest.

Rejoinder affidavit has also been filed, and therein the averments made in counter affidavit have been disputed and those of writ petition have been reiterated.

After pleadings aforementioned have been exchanged, present writ petition has been taken up for final hearing and disposal with the consent of the parties.

Sri Rahul Sahai, learned counsel for petitioner contended with vehemence that in the present case this Court on 03.07.2006 had given categorical direction that public interest and self interest were not compatible  with each other, and therefore, the same deserved to be re-examined, and as no re-examination has been done, the impugned order is liable to be quashed, and the writ petition is liable to be allowed.

Sri Brijendra Singh, learned Chief Standing Counsel, on the other hand, contended that here in the present case, petitioner has been staying at one store approximately for the last 10 years, and there were complaints against him, and as such in public interest he has been transferred, and accepting the personal request, respondent No. 5 has been accorded placement on the said store. The request of respondent No. 5 has been accepted keeping in view his personal difficulty, as such no interference be made.

After respective arguments have been advanced, the undisputed position, which emerges is to the effect that this Court on 03.07.2001 had given a categorical direction to the authority concerned to re-examine the matter, and the observations clearly indicated that public interest and self interest were to be looked into. In the impugned order, which has been passed, no such exercise has been undertaken. The said exercise ought to have been undertaken by the authority concerned as per directives issued by this Court.  As no such exercise had been undertaken, this Court on 07.08.2006 had asked the respondent No. 2 to be personally present in Court on 04.09.2006. In compliance of the said directive, he is present in Court with counter affidavit, which has been referred to above. In normal course of business, the said impugned order would have been quashed for noncompliance of the directives issued by this Court, but  the series of facts, which have been brought in the counter affidavit, reflect that quashing of the aforementioned order would result into restoring another illegal order. Here, in the present case, this fact has not been disputed that approximately for the last ten years the petitioner is posted at one store and qua his functioning complaints have also been made, on which comments have been asked for. This is well settled that when an incumbent holds transferable post, he has no right to stay at one place for all times to come, and authority concerned has full discretion to transfer and accord placement to incumbent, where his services can be best utilized. Here, in the present case, admittedly, petitioner has been staying   approximately for the last ten years at one store, then he cannot insist that he be further permitted to stay on the said store. There have been complaints against the petitioner and authorities  in their wisdom  have chosen not to take disciplinary action but to shift petitioner from the above mentioned place. Hon'ble Apex court in the case of Union of India vs. Janardan Debanath, 2004 (4) SCC 245 has taken the view that no government servant has any legal right to be posted  for ever at one particular place, and such transfer order shall not be interfered with unless the power of transfer has been exercised mala fide or statutory Rules have been violated. Apart from this when there is prima satisfaction on contemporary reports being received about the conduct of incumbent, instead of taking recourse to regular disciplinary proceeding, incumbent can be transferred. Here all the ingredients of bona fide exercise of power of transfer are there. As such impugned order of transfer warrants no interference.

Consequently, writ petition fails and is dismissed. Personal appearance of the officer concerned is exempted.

No order as to costs.




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