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MOHD. SHARFARAZ versus THE DEPUTY DIRECTOR (ADMINISTRATION) AND OTHERS

High Court of Judicature at Allahabad

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Mohd. Sharfaraz v. The Deputy Director (Administration) And Others - WRIT - A No. 5255 of 2006 [2006] RD-AH 3366 (14 February 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Hon'ble Rakesh Tiwari, J.

Heard learned counsel for the parties and perused the record.

Since the controversy involved in the two writ petitions involve same question of law and facts, both the petitions are being decided of by this common judgment.

The petitioner in Writ Petition No. 5255 of 2006 is working as Mandi Sahayak (Kamdar) which is a class IV post posted at Krishi Utpadan Mandi Samiti, Bareilly. The appointing authority of Class IV employee of Mandi Samiti  is the Secretary, Krishi Utpadan Mandi Samiti, Bareilly, as the petitioner is a. The petitioner in Writ Petition No. 5259 of 2006 is working as Mandi Inspector which is also a class IV post.  Both the petitioners are class IV employees.

      The services of the petitioners are governed by Uttar Pradesh Agricultural Produce Market Committees (Centralized) Service Regulations, 1984 as amended in the year 1991 (hereinafter referred to as Regulations 1984). Regulation 24 of the Regulations 1984 speaks about transfer of members of the service. Under Regulation 24 (1) the Director, Additional Director and the Deputy Director have been empowered for transfer of members of the service on administrative ground. Regulation 24 (2) provides that the Director or the Additional Director or the Regional Deputy Director (Administration) may transfer any Mandi Sahayak (Kamdar) from one market committee to another market committee within the region or any member of the service holding Group ''D' post other than Mandi Sahayak (Kamdar) from one market committee to another market committee within the district in special circumstances. Regulation 24 (1) & (2) as amended are set out as under:-

"24. (1) A member of centralized service (other than the employees mentioned in sub-regulation (2) may be transferred from one Market Committee to another Market Committee in the region by the order of the Director, or Additional Director or the Regional Deputy Director (Administration) and from one region to another region by the order of the Director or the Additional Director. The transfer traveling allowances of members of the centralized service shall be borne by the Market Committee to which he is transferred.

(2) The Director or the Additional Director or the Regional Deputy Director (administration) may in special circumstances transfer any Mandi Sahayak (Kamdar) from one Market Committee to another Market Committee, within the region or any member of the  service holding Group ''D' post other than Mandi Sahayak (Kamdar) from one Market Committee to another Market Committee within the district."

Regulation 43 of the Regulations 1984 as amended provides procedure for disciplinary proceedings, i.e., rules relating to disciplinary proceedings in respect of an employee of State Government and shall mutatis mutandis apply to the members of the centralized services.

The petitioners are aggrieved by the order of their transfer dated 12.1.2006 passed by the Deputy Director (Administration), Rajya Krishi Utpadan Mandi Parishad, Bareilly- respondent no. 1. By the impugned order, the petitioner in Writ Petition No. 5255 of 2006 has been transferred from Krishi Utpadan Mandi Samiti, Bareilly to Krishi Utpadan Mandi Samiti, Baheri District Bareilly while the petitioner in Writ Petition No. 5259 of 2006 has been transferred from Krishi Utpadan Mandi Samiti, Bareilly to Krishi Utpadan Mandi Samiti, Tilhar District Shahjahanpur.

The order of transfer dated 12.1.2006 has been passed in the background that  Micro Level Information had been received by respondent no. 1 from the Secretary, Krishi Utpadan Mandi Samiti, Bareilly- respondent no. 2 inter alia, that the performance of the petitioners in realization of Mandi fee is poor.

The contention of the learned counsel for the petitioners is that poor performance in realization of Mandi fee by the petitioners for passing the impugned order of transfer does not constitute any misconduct. He submits that the order of transfer in the case of the petitioners on ground of low realization of Mandi fee has been passed without following to the procedure established by law. The order of transfer is, therefore, punitive in nature which is evident from the plain reading of the order also. It is vehemently urged that since the transfer has been passed as a measure of punishment which has been passed in violation of Regulation 43 of the Regulations 1984, without giving any show cause notice or holding any enquiry as such  is prima facie illegal and bad in law on the face of it.

The learned counsel for the petitioners has relied upon the judgments rendered in (1) Writ Petition No. 141 of 1997, Om Prakash Srivastava Vs Deputy Director (Administration) and others, dated 10.1.1997 appended as Annexure 3 to the writ petition (2) Writ Petition No. 27721 of 1996, Shashi Kant and another Vs The Additional Director (Administration), Rajya Krishi Utpadan Mandi Parishad, U.P., Lucknow and others, dated 6.9.1996 contained in Annexure 4 to the writ petition (3) Writ Petition No. 36356 of 2004, Prakash Chandra Saxena Vs The Deputy Director (Administration), Rajya Krishi Utpadan Mandi Parishad, Bareilly and others, dated 12.1.2005 contained in Annexure 5 to the writ petition (4) Writ Petition No. 71420 of 2005, Ram Prakash Gangwar Vs Deputy Director (Administration), Rajya Krishi Utpadan Mandi Parishad, Bareilly and others, dated 21.11.2005 contained in Annexure 6 to the writ petition (5) Writ Petition No. 14733 of 2000, Om Prakash Mawi Vs Director, Rajya Krishi Utpadan Mandi Parishad, Bareilly and others, dated 22.4.2000 contained in Annexure 7 to the writ petition and (6) Writ Petition No. 2757 of 2000, Ram Nayan Verma Vs Deputy Director (Administration), Rajya Krishi Utpadan Mandi Parishad, Bareilly and another, dated 1.2.2000.

It is submitted that the Court in the aforesaid cases was pleased to hold that the order of suspension as well as transfers of the petitioners in the aforesaid cases cannot be sustained on the respective grounds and did not constitute any misconduct and hence the orders of suspension or transfer of the petitioners in those cases was bad.

The counsel for the petitioners submitted that in view of the law laid down in the case of Om Prakash Mawi (supra) the impugned order of transfer of the petitioner dated 12.1.2006 passed by respondent no. 1 is wholly illegal, arbitrary and against law. In the other cases referred to above the Court considered Regulation 24 (2) as amended. It is contended by the learned counsel for the petitioners that as far as the petitioners are concerned their transfer is governed under Regulation 24 (2) of the Regulations 1984 as amended from time to time. Reliying upon the case of Prakash Chandra Saxena (supra) he urged that in that case the Court was pleased to quash the transfer order on the ground that no special circumstances have been assigned for transfer in that case and as similar order has been passed in this case also, the same is liable to be quashed.

 

It is vehemently urged that the order of transfer has been passed without mentioning any special circumstances by the Deputy Director (Administration), Rajya Krishi Utpadan Mandi Parishad, Bareilly who has also travelled beyond jurisdiction in passing the impugned order as the power exercised by him is limited up to the extent that the order of transfer can be passed only in special circumstances. Since the order dated 12.1.2006 has been passed on the ground of unprecedented decline in realization of Mandi Shulk by the petitioners, as such no special circumstance has been brought out in the order of transfer, hence the power exercised by the Deputy Director (Administration) in the instant case was punitive in nature and against Regulation 24 of the Regulations 1984.

In short, the contention of the learned counsel for the petitioners is that the order of transfer dated 12.1.2006 cannot be sustained in law for the following reasons:-  

(1) Because it does not constitute any misconduct in view of the law laid down by this Court in Om Prakash Mawi (supra).

(2) Because the order of transfer has been passed without adhering to the procedure established by law and without granting any show cause notice and without affording any opportunity.

According to the learned counsel for the petitioners, both these grounds are not sustainable in law.

The learned counsel for the respondents relying on the averments made in the Counter-Affidavit submits that in order to augment the market fee and development cess, targets have been fixed for the field staff of the Mandi Samiti for recovery of market fee and development cess. These targets are fixed in a scientific manner by the Samiti taking into account the seasonal as well as climatic changes. It is further submitted by the learned counsel for the petitioners that not only the field staff, namely, Mandi Inspector as well as Supervisors who are assisted by Mandi Sahayaks, but even Secretaries are not left out in attaining the target which is thus achieved with cumulative efforts of the field staff. The secretaries are assisted by the field staff, namely, Mandi Inspectors as well as Supervisors who are in turn assisted by Mandi Sahayaks. Therefore, there is close proximity in the field staff working in market area with the target to be achieved. It is stated that the Deputy Director (Administration) of the region monitors realization of market fee. Since there was great short-fall in the realization of Mandi fee due to the fact that the field staff and Secretaries had become complacent hence action against 11 of the Mandi Inspectors posted in the region was taken and disciplinary proceedings against them were initiated. In order to tone up the functioning of Mandi Samities various transfers had also become imperative looking to the administrative exigencies., the Deputy Director (Administration) after giving careful consideration approved transfer of 13 employees in various Mandi Samitis within the region including the petitioners who were transferred from Bareilly Mandi Samiti to Baheri Mandi Samiti and Tilhar Samiti which are at a distance of about 20 to 25 Km respectively from Bareilly where the petitioners were working.

It is also submitted that remedial measures are being taken without any discrimination and transfers have been made in this back-ground to the nearest possible places. It is vehemently urged that transfer of the petitioners have not been affected as a measure of punishment but only as a remedial measure for toning up the functioning of the Mandis and achieving the targets as action against 11 Mandi Inspectors had been taken, necessitating transfer of some employees.  

In so far as Regulation 24 (1) and (2) are concerned, it is submitted that from a plain reading of the same that transfer of Class IV employees have been made within the district. It is urged that transfer of Class III employees within the region is also not precluded under Regulation 24 (2) except that special reasons have to be given only in case it is not covered by the aforesaid two contingencies mentioned therein.

   

The learned counsel for the respondents submits that transfers of the petitioners is strictly in accordance with Regulations and that it is evident from the order of transfers that special reasons have been assigned for their transfers on administrative grounds. In so far as the judgment rendered in Writ Petition No. 141 of 1997, Om Prakash Srivastava Vs Deputy Director (Administration) and others, is concerned, it is submitted that it is clearly distinguishable from the present case as it was a case of suspension and the Court in that case held that for short fall in target one cannot be suspended which cannot be ipso facto applied to the matter of transfer made in the administrative exigency.

 

It is further urged that Regulation 1984 has come into effect from 1.8.1984 and though no specific duties have been assigned to the post of Inspector or Mandi Sahayak, they are important posts. Mandi Sahayak is attached with Inspector in lending their helping hand in recovery which is also clear from Circular dated 22.2.1984. The achievement of target realization of market fee is done together by the Mandi Inspector and Mandi Sahayak. They are enjoined with the duties of realization of market fee. It is stated that though it is the Secretary who is the appointing authority of Class IV employees, but the Deputy Director (Administration) being higher in hierarchy is not precluded from passing the order under Section 24 (2) and it cannot be said that an order passed by the officer who is higher in rank than the appointing authority is without jurisdiction. He  urged that the case of the petitioners is not an isolated case of transfer is an internal arrangement for the smooth functioning of the department. The management is the best judge to know where to post its employees to get optimum work and efficiency out of them. The petitioners having been transferred within the district, it is not in violation of Regulation 24(2) and there is no illegality in the order as contended by the petitioners.

Conclusions

Having heard the counsel for the parties and after perusal of record it is apparent that the controversy centers around Regulation 24 of 1981 Regulations and the language in which the order of transfer has been couched.  Both the orders are in the same language.  For ready reference, one of the orders dated 12.1.2006 impugned in Writ Petition No. 5255 of 2006, Mohd. Sharfraz Vs Deputy Director (Administration) & others, is being quoted below:-

"Patrank: Pra.Aa./Stha./2006                                        Dinank 12.1.2006

                                                             Adesh

Sachiv, Mandi Samiti, Bareilly dwara patrank: 1759 dinank 9.1.2006 dwara uplabdha karai gai micro level soochana ke adhar par Mandali Nirikshak ke saath sambadha Mandi Sahayak jinke dwara mandi shulk wasooli me kharab pradarshan kiya gaya hai, Sri Mohd. Sarfaraz ko Mandi Samiti, Bareilly se prashasnik adhar par sthantarit karte huwe Mandi Samiti, Baheri me tainat kiya jata hai. Adeshit kiya jata hai ki niyantrak adhikari inko tatkal bina pratisthani ki pratiksha kiye hi karyabhar se mukhta karna sunischit karenge.  

                                                                                               (Sushil Kumar Marya)

                                                                              Sanyukt Upnideshak (Prashasan)"

It is now to be seen whether any special reason has been given for passing of the order in consonance with the provisions of Regulation 24(2) of the 1981 Regulations in the context of the cases cited by the counsel for the petitioners.

In the cases of Om Prakash Srivastava (supra) and Shashi Kant & another (supra) the Court was of the view that no reason was given in the order of transfer and as such they were non-est and no orders in the eye of law.

To the same effect is the case of Prakash Chandra Saxena in which it has been held that no special circumstances have been recorded in the impugned order of transfer. It was a case of transfer of excess number of Mandi Sahayaks posted at Bareilly and therefore the services of Mandi Sahayaks had to be transferred. The court in that case without going into the controversy of the case as to whether the aforesaid circumstances did exist or not passed the order.

Similarly vide judgment dated 21.11.2005 rendered by this Court in Writ Petition No. 71420 of 2005, Ram Prakash Gangwar Vs The Deputy Director (Administration) and others, the Court found that the impugned order of transfer was based on likelihood or probability.

In the case of Om Prakash Mawi (Supra) the allegations made in para 8 of the affidavit filed therein did not find mention in the order of suspension. In these circumstances, the order dated 22.4.2000 was rendered. It was a case of suspension and not of transfer and is clearly distinguishable on facts and law from the instant writ petition.

Thus, the cases cited by the petitioners are clearly distinguishable as in the instant case I find that the order of transfer contains reasons for transfers. Special circumstances are disclosed in the impugned order.

I am of the opinion that respondent no. 1 was competent to transfer the petitioners under Regulation 24 (2) of Regulations 1984 and there were special circumstances existing for passing of the impugned order which have been indicated therein that the transfer is being made on basis of micro level report in respect of working of all the Mandi Samitees.. It may be that every circumstance or the reason may not be elaborately given in the order of transfer, but it is sufficient that there is some disclosure of reason for the transfer of the employee. The impugned order of transfer is not punitive. The petitioners have failed to prove any mala-fide or arbitrariness which cannot be imported in the order of transfer. The order impugned is not without jurisdiction as the counsel for the petitioners has failed to show any rule or law position to the effect that order of transfer cannot be passed except only by the appointing authority and not by an authority higher in rank to the appointing authority.

For the reasons stated above, the writ petitions are dismissed. No orders as to costs.

Dated: 14.2.2006

Rpk/ kkb      


Copyright

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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