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SAMAR JEET SINGH versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Samar Jeet Singh v. State Of U.P. And Others - WRIT - A No. 50779 of 2006 [2006] RD-AH 16383 (19 September 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 38

Civil Misc. Writ Petition No. 50779 of 2006

Samarjeet Singh

Versus

State of U.P. and others

Hon'ble V.K. Shukla,J.

Petitioner is questioning the validity of the order dated 07.09.2006 passed by Deputy Inspector General (Establishment) P.H.Q U.P. Allahabad transferring the petitioner from district Varanasi to Meerut Zone. Petitioner has contended that one Gajendra Singh history sheeter was shot dead in encounter. Qua Gajendra Singh, it has been contended that he had made reign of terror in the Varanasi Region and it has been contended that on 09.11.2005 at around 8.25 PM police party got information of whereabouts of Gajendra Singh and accordingly apprehended him to make arrest but in retaliation the said criminal fired back on the police party and said Gajendra Singh as well as one Vinod Goswami were killed. It has been contended that on account of said bravery of police party there was sense of relief among the business community, and they expressed their gratitude towards the police department and their faith in police department was sought to be re instated. First Information Report was lodged on behalf of one relative of Gajendra Singh alleging therein that Gajendra Singh was picked up and thereafter killed. In the said Crime No. C-17 of 2006 final report was submitted on 04.02.2006 after investigation. Criminal Writ Petition No. 2733 of 2006 was filed before this Court and requesting therein for quashing of the investigation being conducted and request was made for transferring the investigation to CBCID or CBI. This Court directed the Director General of Police U.P. Lucknow to consider the matter within stipulated period. Thereafter Contempt petitioner has also been preferred. Thereafter it has been contended that petitioner has been illegally transferred. At this juncture present writ petition has been filed contending therein that there is no occasion for the respondents to transfer the petitioner and this transfer order will demoralize the police force.

On presentation of present writ petition learned Standing Counsel was directed to obtain necessary instructions in the matter. Necessary instructions have been received. Instructions in question reflects that criminal case wherein petitioner has been arrayed an accused has been transferred to CBCID as Case No. CB-643 of 2006 and as to whether the transfer of petitioner and others would be conducive for fair and impartial investigation, qua the same comments had been asked for from CBCID and the CBCID for the purposes of impartial investigation has recommended the transfer of petitioner from Varanasi and only qua one R.K. Shukla no recommendation was made. In view of opinion furnished by the CBCID in public interest petitioner has been transferred.

Sri T.P. Singh, Advocate assisted by Sri P.C. Pathak, Advocate contended that authority is succumbed to the pressure of brother of complainant and the transfer order has not at all been passed in public interest as in the present case public at large desired staying of the petitioner at Varanasi, as such transfer is clearly misuser of the authority and the same is liable to be quashed.

Learned Standing Counsel on the other hand contended that free and fair investigation is one of the basic requirement of fair trial and for ensuring fair investigation petitioner has been transferred as such public purpose is being served as such no interference be made.

At this juncture the view point of Hon'ble Apex Court qua transfer is being looked into. 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].                  

The caution given by Hon'ble Apex Court qua transfer matters of members of Force has been given in the case of Major General, J.K. Bansal Vs. Union of India reported in 2005(107) FLR 37 in following terms.

" It will be noticed that these decisions have been rendered in case of civilian employees or those who are working in Public Sector Undertakings. The scope of interference by Courts in regard to members of armed forces is far more limited and narrow. It is for the higher authorities to decide when and where a member of the armed force should posted. The Courts should be extremely slow in interfering with an order of transfer of such category of persons and unless and exceptionally strong case is made out no interference should be made."

On the touch stone of the law laid down by the Hon'ble Apex Court the fact of the present case has been perused. Petitioner is member of police force and holding transferable post. Petitioner claims that valid encounter took place wherein notorious criminals were killed. Family member of the deceased have set up their own story and they have lodged First Information report against the petitioner and other police personals for kidnapping and murder. This is undisputed position that in said criminal case local police has submitted final report. Now the matter has been transferred to CBCID for investigation. CBCID has also recommended the transfer of the petitioner for purposes of fair and impartial investigation and thereafter order of transfer has been passed. This clearly servers public purposes.

Once competent authority has exercised power of transfer and reasons are there for transferring the petitioner then it is not for this Court to see as to where petitioner should be accorded placement and where his services should be best utilized.

Consequently no interference is warranted, as such present writ petition is dismissed.

Dated 19.09.2006

Dhruv

 


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