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Jog Raj Singh v. State Of U.P. & Others - SPECIAL APPEAL No. - 1514 of 2007 [2007] RD-AH 17859 (15 November 2007)

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Court No. 32

Special Appeal No. 1514 of 2007

Jag Raj Singh


State of U.P. & others

Hon'ble S. Rafat, Alam, J.

Hon'ble Sudhir Agarwal, J.

Heard Sri A.K. Srivastava, learned counsel for the petitioner-appellant and learned standing counsel appearing for the respondents.

This appeal has been filed aggrieved by the order dated 29.10.2007 passed by Hon'ble Single Judge dismissing writ petition no. 52709 of 2007 filed by the petitioner-appellant along with one Sri Dharam Pal Singh mentioning that the learned counsel for the petitioner states that he may be permitted to file amendment application in Special Appeal No. 1073 of 2006 and on the basis thereof permitting the petitioner to file amendment application, the Hon'ble Single Judge has dismissed the writ petition. Learned counsel for the appellant contended that Special Appeal No. 1073 of 2006 was filed by Sri Dharam Pal Singh and Jog Raj Singh was not a party in the aforesaid Special Appeal and, therefore, the statement was only with respect to Dharam Pal Singh and not Jog Raj Singh and the Hon'ble Single Judge erred in dismissing the writ petition with respect to Jog Raj Singh since he has no occasion to file amendment application being not a party therein.

Learned counsel for the appellant further submitted that this appeal may be heard and the writ petition may itself be decided on merits at this stage to which the learned standing counsel has no objection. In this view of the matter, we have permitted learned counsel for the appellant to address the Court on merits and deciding this appeal along with the writ petition of the petitioner-appellant on merits.

The writ petition has been filed by the petitioner-appellant aggrieved by the order dated 14.9.2007 whereby the petitioner-appellant, working a Lekhpal at Tahasil Jalalpur, Area-2 has been transferred and attached to the office of Registrar Kanungo, Tahasil Datagunj. By second order dated 18.9.2007 the Tahasildar Datagunj has directed the petitioner-appellant to handover charge of his earlier office and to join in the office of Registrar Kanungo at Tahasil Datagunj. Learned counsel for the appellant contended that under Rule 21/28 of U.P. Lekhpals Service Rules, 1958 (hereinafter referred to as '1958 Rules'), the appellant could not have been transferred and attached with the office of Registrar Kanungo since attachment is not a transfer and further he cannot be required to handover his charge in view of rule 28 of 1958 Rules. He further contended that the impugned order has been passed on the alleged complaints and, therefore, it is punitive in nature. Lastly he contended that since he has taken certain action with respect to measurement of land, on intervention of land maphias, the impugned order of transfer has been passed. He also pointed out that he lodged a first information report against the land maphias on 1.9.2007 and, thereafter, under the influence of those persons and political persons the impugned orders have been passed.

We have considered the submission and perused the record. Rule 21 of 1958 Rules permits transfer within the District and also within Sub division and reads as under :

"Transfer- (a) The collector may at his discretion transfer a Lekhpal from one halqa to another within the district and the Assistant Collector may similarly transfer a Lekhpal within the sub division.

(b) When any tract is under survey, record or settlement operation or under the operations for consolidation of holdings, the transfer of a Lekhpal outside the area under the aforesaid operations, shall be made by the Collector or the Assistant Collector without consulting the Records of Settlement Officer, or the Settlement Officer of Consolidation, as the case may be."

It is not disputed that within the sub division Dataganj, the Assistant Collector can transfer the petitioner from one place to another and by means of the impugned order, the petitioner has been transferred within the same sub division from Jalalpur to the office of Registrar Kanoongo Tahasil Dataganj. The order of transfer, therefore, has been passed by the competent authority, namely, Assistant Collector, who is competent to pass the same under Rule 21 of 1958 Rules. Rules 28 provides for charge of records as reads as under :

"Charge of Records-When a Lekhpal submits resignation or is ordered to be transferred, he shall before leaving his post make over all his papers and records to the Supervisor Kanungo or to such other person as the Supervisor Kanungo may indicate."

A perusal of the said rule shows that if a person, working as Lekhpal, is transferred, he has to handover all his papers and records to Supervisor Kanungo before leaving his place. In the present case, from the present place of posting the petitioner has been posted and attached with the office of Registrar Kanungo, Tahasil Dataganj, therefore, he has to handover charge of his present place of posting in order to join where he has been transferred under Rule 28 of the 1958 Rules. Therefore, we do not find that the impugned orders are inconsistent in any manner to Rules 21 and 28 of 1958 Rules.

Coming to second submission that the impugned order has been passed on complaints, it is well settled law that the order of transfer can be passed in administrative exigencies. Which employee should be posted where is within the absolute domain of the employer or the competent authority who can transfer and employee from one place to another. Where the transfer has been made after receiving some complaints, but complaint is not foundation of transfer and if it is also not on the basis of any stigma of the employee concerned, the order of transfer itself would neither be punitive in nature nor stigmatic. Where some allegations are levelled against some employee or some complaint are made, in such cases the employer instead of initiating departmental enquiry can transfer employee concerned from one place to another and this is an administrative exigency justifying order of transfer. Such a transfer cannot be termed as by way of punishment or stigmatic in nature.

Coming to the last submission that the impugned order of transfer is on account of mala fide, we find that no person has been impleaded against whom the mala fide is alleged, therefore, the plea of mala fide cannot be accepted. The Apex Court has repeatedly held that the High Court should not even entertain the plea of mala fide against a person who is not a party in the case i.e. not impleaded as co-nominee. In this view of the matter the plea of mala fide cannot be looked into in this appeal. We do not find any illegality in the impugned order of transfer.

Though we have given different reasons but we uphold the ultimate conclusion of the Hon'ble Single Judge that the writ petition has to be dismissed. In the result this appeal lacks merit and is, accordingly, dismissed.

Dt. 15.11.2007



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