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SUSHIL CHAND AGARWAL (ZILAYDAR) versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Sushil Chand Agarwal (Zilaydar) v. State Of U.P. And Others - WRIT - A No. 55714 of 2006 [2006] RD-AH 17417 (9 October 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 38

Civil Misc. Writ  petition No.  55714  of  2006

Sushil Chand Agrawal

Versus

State of U.P. and others

Hon'ble V.K. Shukla, J.

Petitioner has been transferred from Aligarh to Kanpur in public interest. Petitioner being physically handicapped, questioned the validity of the transfer order by preferring writ petition No.41345 of 2006. As the petitioner was alleging violation of transfer policy, this Court gave him liberty to the petitioner to move representation before the Chief Engineer Niyojan, Irrigation Department, U.P. Lucknow, and by way of interim protection said transfer order was asked not to be given effect to till the decision of representation. Thereafter, petitioner moved representation. The Chief Engineer Niyojan, Irrigation Department, U.P. Lucknow, after considering the claim of petitioner  made by way of representation, rejected the same and ratified the earlier decision. At this juncture present writ petition has been filed.

Sri Prabhat Kumar Srivastava, learned counsel for the petitioner, contended with vehemence that in the present case power of transfer has been mala fide exercised, and further claim of petitioner has not at all been adverted to in its correct perspective, as such impugned order is liable to be quashed and writ petition deserves to be allowed.

Sri P. K. Pandey, learned Standing Counsel, on the other hand, contended that petitioner holds transferable post, and pursuant to directive issued by this Court, claim of petitioner has been adverted to and cogent reasons have been given for not accepting the same, as such no interference be made.

After respective arguments have been advanced, it would be relevant to mention that much emphasis has been placed by the petitioner on the fact that power of transfer has been exercised  with mala fide and there is no bona fide exercise of power. In this connection strong reliance has been placed on the documents filed along with the supplementary affidavit to show that petitioner had made complaint against certain influential persons, who had political patronage  and the same has been made foundation and basis for getting the petitioner transferred. It is relevant to mention that plea of mala fide raised on behalf of the petitioner is unsustainable for the simple reason that petitioner has not impleaded any one of the incumbents against whom allegations have been sought to be levelled, as such plea of mala fide in absence of the persons being impleaded is unsubstantiated and is liable to be set aside.

Much emphasis has been laid by the petitioner that transfer policy has been violated. In the case of Mrs. Shilpi Bose v. State of Bihar 1995 (71) F.L.R. 1011, Hon'ble Apex Court has held that a government servant holding 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 other. Transfer order issued by the competent authority do not violate any legal right. Even if transfer order is passed in violation of executive instructions  or orders, the Courts ordinarily should not interfere with the order instead the affected party  should approach the higher authorities in the Department.

In the case of State of U.P. vs. Goverdhan Lal; 2004 (101) FLR 586 (SC) Hon'ble Apex Court has held that unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (Act or Rule)  or passed by an authority not competent to do so, an order of transfer cannot be lightly 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 transfer or containing transfer policies at the best may afford an opportunity to the officer 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.

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.

The aforesaid judgments of the Hon'ble Apex Court are clear and categorical that even in case there is violation of transfer policy, then authorities can look into the grievance of the incumbent. Here, in the present case, authorities have considered the transfer policy and took the view that even a person who is handicapped can be transferred if there is allegation against him/her. Finding of fact has been returned that there are serious allegations against the petitioner and he has been continuing at one place for the last more than eight years, and further as against him no post is vacant. In the present case cogent reasons have been given for transferring the petitioner and as to why transfer of petitioner was necessitated. In view of categorical finding of fact having been returned, there is no scope of interference. Writ petition is devoid of substance and is dismissed.

09.10.2006

SRY

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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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