Allahabad High Court
Shyam Nath Chaubey vs State Of U.P. Thru Its ... on 17 April, 2013
Author: Anil Kumar
Bench: Anil Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH RESERVED Court No. - 18 Case :- SERVICE SINGLE No. - 1458 of 2013 Petitioner :- Shyam Nath Chaubey Respondent :- State Of U.P. Thru Its Prin.Secy.Deptt.Of Home & Others Petitioner Counsel :- S.N. Bhardwaj Respondent Counsel :- C.S.C. Hon'ble Anil Kumar,J.
Heard Shri S. N. Bhardwaj, learned counsel for the petitioner, Shri Abhinav Narain Trivedi, learned Addl. Chief Standing Counsel and perused the record.
By means of the present writ petition, the petitioner has challenged the impugned orders of transfer as well as relieving dated 5.3.2013 (Annexure Nos.1 and 2) passed by opposite party no.2/Superintendent of Police Railway, Lucknow and opposite party no.3/Reserve Sub-Inspector, G.R.P. Lines, Lucknow respectively.
Facts in brief of the present case are that the petitioner on 8.9.1988 appointed as daily wager class-IV employee in Government Railway Police (hereinafter referred to G.R.P.). In the said capacity, he worked and discharged his duties uptil 30.5.1990 and on 31.5.1990, appointed on the post of orderly peon. By means of the order dated 5.3.2013 transferred from Lucknow to Sultanpur passed by opposite party no.2. In pursuance of the same, relieved from service by order dated 5.3.2013 (Annexure No.2) passed by opposite party no.3. Aggrieved by the said order, the present writ petition has been filed by the petitioner.
Learned counsel for the petitioner submits that the services of the petitioner is governed by the Rules known as U.P. Police Group D Employees Service Rules 2009 (hereinafter referred to Rules 2009) and as per the provision of Rule 21 (3) of Rules 2009, he cannot be transferred from Lucknow to Sultanpur without prior approval of the State Government.
Learned counsel for the petitioner also submits that the impugned orders are in contravention to the transfer policy as his children are studying at Lucknow and their fees have been deposited in the institution and the entire books and copies/notebooks have been purchased by the him so if in the mid session, the petitioner is transferred then in that circumstances, his children who are getting study at Lucknow, they shall suffer irreparable loss in the present era of competition.
Accordingly, Learned counsel for the petitioner requests that the impugned order of transfer as well as relieving being contrary to the provisions of Rule 21 (3) of Rules 2009, liable to be set aside and the writ petition may be allowed.
Shri Abhinav Narain Trivedi, learned Addl. Chief Standing Counsel submits that the petitioner cannot get the shelter of Rule 21 (3) of Rules, 2009 as he has been transferred from Lucknow to Sultanpur in the same establishment i.e. G.R.P. and for transfer an employee from one place to another in the same establishment prior approval of the State Government is not necessary. So, the petitioner who is class IV employee in G.R.P., posted at G.R.P. Lines, Lucknow, transferred to Sultanpur by order dated 5.3.2013 which is another section under the supervision and control of the Superintendent of Police, Railway, Lucknow, passed after taking into consideration the administrative exigency of service to provide food facility to Class IV employees and officer posted at G.R.P. Police Station, Sultanpur. So, there is no illegality or infirmity in the impugned order of transfer, under challenge, in the present writ petition. Hence, the same is liable to be dismissed.
I have heard learned counsel for the parties and gone through the records.
In order to decide the controversy involved in the present case, it is appropriate to go through the provisions as provided under Rule 21 (3) and Sub-rule M of Rule 3 of Rules 2009, on reproduction they reads as under:-
"Rule 21 Appointment - (1) On the occurrence of substantive vacancies the appointing authority shall make appointments from the list of candidates prepared under rule 19 or 20 as the case may be in the order of their names as appears in the common list.
(2)The appointing authority shall also make appointment in officiating and temporary vacancy from the said list, and in the manner referred to in sub-rule (1) (3)A person appointed to a post for a particular district or PAC battalion or unit shall not be transferred to any other establishment in normal case.
Under specific circumstances, transfer may be affected with prior approval of the Government."
Rule (3) of (M) "Unit" means various brandies of police organization like Criminal Investigation Department, Anti Terrorist Squad, Special Task Force, Special Investigation Team, Intelligence, Security, Anti Corruption Organization, etc. The word 'Establishment' is not defined under Rules 2009. However, the word 'Establishment" is defined in "Words and Phrases Permanent Edition 15" at page 205 as under:-
"Physically separate work places can constitute a single "establishment" under the Equal Pay Act [29 U.S.C.A. 206 (d) if there is significant functional interrelationship between work of employees in various locations."
In the same Edition, the same is defined as under:-
"Webster gives, as one of the meanings of the word "institution," "an establishment , especially of a public character, or affecting a community".
Further, the Word "Establishment" has been considered by the Hon'ble Supreme Court in the case of Central Inland Water Transport Corporation Ltd. vs. Their Workmen (1975) 4 Supreme Court Cases 348 held as under:-
"The dictionary meaning of 'establishment' as given in Webster's International Dictionary includes inter alia "an institution or place of business, with its fixtures and organized staff; as, large establishment a manufacturing establishment". 'Establishment' therefore separate identifiable existence."
Hon'ble Supreme Court in the case of Alloy Steel Project v. Workmen (1971) 1 SCC 536 after taking into consideration the provisions of Section 16 of the payment of Bonus Act, interpreted the word "Establishment" and held that the word "establishment" used in Section 16 of the Payment of Bonus Act does not mean the Company itself. When the Hindustan Steel Ltd. Has got alloy steel project besides the Head Office, Rourkela Steel Plant, Bhilai Steel Plant, Durgapur Steel Plant, Coal Washeries Project and Bokaro Steel Project, then all these are separate undertakings or branches controlled by one single Company.
In the case of Ram Kumar Misra v. State of Bihar (1984) 2 SCC 451 Hon'ble Supreme Court held that the word 'establishment' is defined in Section 2 (6) of the Bihar Shops and Establishments Act, 1953, mean an establishment which carries on any business, trade or profession or any work in connection with, or incidental or ancillary to, any business, trade or profession. Now it can hardly be disputed that the Bhagalpur and Sultanganj ferries are establishments which carry on business or trade of plying ferries across the Ganges and they are clearly within the meaning of the word 'establishment' in Section 2 (6) of the Bihar Shops and Establishment Act, 1953 and consequently they would also be establishments within the meaning of that expression as used in the amended Entry 27.
Moreover, transfer is an incidence of service and it does not require the consent of the employee. A public servant has no vested right to seek transfer to a location of his choice. An employee can be transferred on administrative exigencies and in public interest. It is not obligatory on the part of the employer to comply with the principles of natural justice before making an order of transfer. The Government is empowered to transfer a civil servant from one post to another or to an equivalent post in the same cadre or grade or carrying the a lien. No employee can claim to a particular posting as the matter of posting is entirely in the domain of the administration.
No Government employee has any right to be posted at any particular place forever, because transfer is not only an incidence of service, but also a condition of service, and as such it is necessary in public interest and in the interest of efficiency in public administration. There is no hostile discrimination in transfer from one post to another when the posts are of equal status and responsibility. The transfer in posts, which are in the same grade or cadre or considered equivalent can be affected on administrative exigencies.
The general principles in respect to the transfer an employees that can be deducted from various judicial pronouncements and the statutory provisions are as follows: (i) that an employee cannot be transferred out of his cadre or establishment against his wish; (ii) that no transfer can be justified merely because the pay is not affected, when the appointment is made to a specified post or a specified group of posts; (iii) that the Government employee cannot be asked to perform duties which were never expected of him at the time of recruitment; and (iv) that the expectation of future promotion cannot be wiped off by moving a Government employee around.
But, the judicial review of order of transfer can be done, if the order of transfer suffers from the vice of mala fide exercise of power when the transfer is made not in public interest or administrative exigency, but simply to accommodate another employee without any justifiable reason. Unless the order of transfer is shown to be an outcome of mala fide exercise of power or violative of any statutory provision or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with by the courts as a matter of routine for every type of grievance sought to be made.
In the instant case, G.R.P. is a one unit of the police force as per definition of "unit" given in Sub-Rule (M) of Rule 3 of Rules, 2009 and persons who are working in the said police force belong to Group-D Post as mentioned in Rule 5 of Rules 2009 are governed by the said Rules, thus, the present petitioner falls in the category of the persons as mentioned in Rule 5 of Rules 2009 working in the G.R.P., so he can only be transferred after following procedure as provided under Sub-Rule (3) of Rule 21 of Rules, 2009 i.e. with the prior approval of the Government, the said exercise has not been done in the present case which is clearly established from the material and document on record so the impugned order of transfer is in contravention to the Sub-Rule (3) of Rule 21 of Rules, 2009 because State is a model employer and it is required to act fairly giving due regard and respect to the rules framed by it. But in the present case, the State has atrophied the rules.
Hon'ble Supreme Court in the case of Balram Gupta v. Union of India 1987 Supp SCC 228 has observed as under:-
"........ As a model employer the Government must conduct itself with high proity and candour with its employees."
In State of Haryana v. Piara Singh (1992) 4 SCC 118, Hon'ble the Apex Court held that the main concern of the Court in such matters is to ensure the rule of law and to see that the Executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16.
For the foregoing reasons, the impugned order of transfer as well as relieving dated 5.3.2013 (Annexure Nos.1 and 2) passed by opposite party no.2/Superintendent of Police Railway, Lucknow and opposite party no.3/Reserve Sub-Inspector, G.R.P. Lines, Lucknow respectively are set aside and the opposite party no.2/Superintendent of Police Railway, Lucknow is directed to allow the petitioner to work and discharge his duties on the post of orderly peon at G.R.P., Lucknow In the result, the writ petition is allowed.
No order as to costs.
Order Date :- 17.4.2013 Mahesh