Allahabad High Court
Purushottam Prasad Shukla vs State Of U.P. & Others on 19 July, 2010
Author: A.P. Sahi
Bench: A.P. Sahi
1
A.F.R.
Court No.30
Civil Misc. Writ Petition No.37058 of 2008
Purushottam Prasad Shukla Vs. State of U.P. and others
connected with :
Civil Misc. Writ Petition No.44938 of 2008
Ashok Babu Tiwari and another Vs. State of U.P. and others
AND
Civil Misc. Writ Petition No.44713 of 2008
Maan Singh and another Vs. State of U.P. and others
AND
Civil Misc. Writ Petition No.48339 of 2008
Chandrika Prasad Lekhpal Vs. State of U.P. and others
****
Hon'ble A.P. Sahi, J These writ petitions arise out of an action taken by the Commissioner, Chitrakoot Dham Division, who has intervened in the matter of transfers of Lekhpals governed by the Uttar Pradesh Lekhpals Service Rules 2006. The challenge is to the order passed by the Commissioner, who has reversed his action exercising his power for transferring Lekhpals from district Banda to district Chitrakoot and vice- versa. A learned single Judge of this Court passed an interim order in Writ Petition No.44938 of 2008 on 9.9.2008 staying the impugned order. A Division Bench of this Court in a Special Appeal filed against the said interim order stayed the effect and operation of the said order of the learned single Judge on 15.10.2008. The order of the learned single Judge dated 9.9.2008 and that of the Division Bench dated 15.10.2008 are quoted below:-
"Learned Standing Counsel has accepted notice for the respondents no. 1 to 5 and Sri Rakesh Prasad and Sri Abhay Raj for the newly added respondent no. 6. They are granted a month's time to file counter affidavit. The petitioner shall have two weeks thereafter to file rejoinder affidavit. List immediately thereafter.
The short facts of this case are that the petitioners were working as Lekhpals in district Banda. By an order dated 19.6.2008 passed by the Commissioner, Chitrakoot 2 Dham Division, Banda they were transferred on their own request from Banda to Chitrakoot. Then by subsequent order dated 19.7.2008 the said transfer order has been cancelled by another Commissioner, Chitrakoot Dham Division, Banda primarily on the ground that there is no provision for transfer of Lekhpals outside the district.
Learned counsel for the petitioners states that the matter with regard to transfer of Lekhpals outside the district made on their own request is to be governed by the Government Order dated 29.1.1991 (Annexure-7 to the writ petition) which states that in such a case the Lekhpal who is transferred to another district will not get seniority of the earlier place of work and would be treated as if freshly appointed. It is further submitted that the petitioners have been transferred to Chitrakoot on the vacant posts of Lekhpals.
The said question of transfer of Lekhpals outside the district has also been considered by the Division Bench of this Court in the case of Prabhu Nath Vs. State of U.P. 1995 Revenue Decisions 43 and the then existing Rules in this regard were also considered and confirming the view of the learned Single Judge, the Division Bench held that since the Rules do not contain any specific provision regarding transfer, the general rule relating transfer of a Government servant will apply and under the general law they could be transferred from one district to another.
On the other hand, Sri Rakesh Prasad has stated that the Rules have been framed in this regard and in case if the provision of transfer from one district to another was to be made, the Government ought to have made provision for it as the same was within the domain of the rule making power of the State Government. In support of his submission, he has relied on a decision of the Apex Court in the case of Home Secretary Vs. Darshjit Singh Greval (1993) 4 S.C.C. 25.
Since the question relating to transfer of Government servant was under consideration before the Division Bench, which after considering the relevant Rules, as exiting then, (which are similar in the new Rules of 2006 also) has held that the transfer of a person can be made from one district to another, hence, I am of the view that the petitioners have made out a prima-facie case for grant of interim protection.
Accordingly, it is directed that the operation of the impugned order dated 19.7.2008 passed by the Commissioner, Chitrakoot Dham Division, Banda shall remain stayed.
Sd/- Hon. Vineet Saran, J Dt/-9.9.2008"
3"We have heard Sri A.R. Yadav, learned counsel for the appellant, learned Standing Counsel appearing for respondents No.1 to 5 and Sri Rahul Sahai, learned counsel appearing for respondents No.6 and 7 who pray for and are allowed three weeks time to file counter-affidavit. Learned counsel for the appellants shall file rejoinder-affidavit within two weeks.
List this appeal after expiry of the aforesaid period for final disposal.
Admit.
Learned counsel for the appellants has urged that by interim order final relief had been granted which is not permissible. He urged that specific provision has been made with regard to transfer of Lekhpal under the U.P. Lekhpal Service Regulations, 2006. The government order of 1991 has exhausted itself after Regulation 2006 has been enforced. It is further urged that Regulation 24 provides for transfer of Lekhpal within the district by the Collector or the Assistant Collector, as the case may be. but the Lekhpal cannot be transferred outside the district. He has urged that rule making authority was conscious of the fact that transfer of Lekhpal has to be made within the district and for transfer of Lekhpal from one district to another district, there is no provision. But the rule making authority had not provided for transfer of Lekhpal outside the district. It is further urged that help of the provisions of Regulation 28 cannot be taken. He has lastly urged that under the Rules the Commissioner, Chitrakoot Dham Division, Banda, has no power to transfer the Lekhpal even on their own request from Banda to Chitrakoot. It has further been urged that in the disciplinary proceedings initiated against the appellants even if the appellants are exonerated or some punishment is awarded and the appellants are retained in service then also they have to work outside the district at Banda as junior most employees which will amount to double jeopardy. The argument of learned counsel for the appellants, prima facie, has force which has been rebutted by the Standing Counsel and Sri Rahul Sahai. However, we are prima facie satisfied that the appellants are entitled for interim order.
Until further orders of this Court, the effect and operation of the impugned order dated 9.9.2008 passed by learned Single Judge in Civil Misc. Writ Petition No.44938 of 2008 shall remain stayed. However, the learned single Judge may decide the writ petition on merits as per his Lordship's convenience.
Sd/- Hon. V.M. Sahai, J Sd/- Hon. Sanjay Misra, J Dt. 15.10.2008"4
Aggrieved against the stay order of the Division Bench, Mata Badal and another preferred Special Leave to Appeal before the Apex Court, which was dismissed on 7.1.2009 by the following order:-
"We are not inclined to entertain the special leave petition, having regard to the liberty granted by the Division bench to the learned Single Judge to dispose of the writ petition and decide it on merits. The learned single Judge is requested to dispose of the writ petition as expeditiously as possible, but preferably within three months from the date of communication of this order.
The Special Leave Petition is dismissed."
Resultantly, all the petitions, raising the same issue, have been listed before this Court to be heard and disposed of finally.
The only question rather the legal question that arises for consideration is as to whether the Commissioner of the Division has been empowered under the 2006 Rules aforesaid to pass any order of transfer of a Lekhpal from one district to another.
Learned counsel Sri Harish Chandra Singh contends that the Commissioner has the power to proceed to pass an order of transfer in view of the Government Order dated 29.1.1991 and the Government Order dated 14.4.1998. He submits that the said Government Orders read together would indicate that the Commissioner is the authority for approving an order for transfer of Group-C employees from one district to another. Supplementing the said submission, Sri Singh further points out to Rule 28 of the Rules, to contend that in such matters for which the Rules do not make any provision, the aforesaid Government Order will continue to apply and, therefore, an order of transfer can be passed for giving effect to from one district to another. He has further relied on a Division Bench judgment of this Court in the case of Prabhu Nath Vs. State of U.P. and others, 1995 RD 43, to contend that such a power has to be read into the hands of the Commissioner of the division.
Sri Chaturvedi, who appears for the petitioner in Writ Petition No.48339 of 2008, contends that the power of the Commissioner cannot 5 be diluted by any clarificatory letter issued by the Board of Revenue and as a matter of fact the petitioners in the writ petition, in which he has advanced his submission, had been transferred on their own request keeping in view their personal difficulties.
Sri Abahi Raj Yadav, who has appeared for the contesting respondent in the petitions, contends that in the absence of any express provision in the Rules, there was no occasion for the Commissioner to have either passed the order or withdrawn the same. He submits that withdrawal of the earlier order passed restores the correct position and, therefore, this Court need not intervene in the matter keeping in view the Rules which are clear enough to indicate that there is no such power vested in the Commissioner.
Learned Standing Counsel has invited the attention of the Court to the Counter-affidavit filed in these writ petitions as well as the Rules aforesaid, and also the letter of the Board of Revenue dated 10.7.2008 to contend that there is neither any Circular of the Board of Revenue nor is there any other executive instruction which may empower the learned Commissioner to pass orders relating to the transfer of Lekhpals from one district to another. The contents of the aforesaid letter are reproduced herein for convenience:-
"isz"kd] vk;qDr ,oa lfpo] jktLo ifj"kn] m0iz0] y[kumA lsok esa] vk;qDr] fp=dwV/kke e.My] caWknkA la[;k&9420@4&58,@08(13) fnukad 10 tqykbZ] 2008 fo"k; % e.Myk;qDr Lrj ls ys[kikyksa dks ,d tuin ls nwljs tuin esa LFkkukUrj.k ds lEcU/k esaA egksn;] mi;qZDr fo"k;d vkids i= la[;k& 467@7&,y0vkj0,0@2008&09 ds lanHkZ esa eq>s ;g dgus dk funsZ'k gqvk gS fd m0iz0 ys[kiky lsok fu;ekoyh&2006 ds vUrxZr ys[kikyksa dk LFkkukUrj.k ,d tuin ls nwljs tuin esa fd;s tkus dk dksbZ izkfo/kku ugha gS vkSj u gh bl vk'k; dk dksbZ ifj"knkns'k gh gSA vr,o rnkuqlkj 6 fu.kZ; ysus dk d"V djsaA Hkonh;
(vjfoUn dqekj f}osnh) vij Hkwfe O;oLFkk vk;qDr] d`rs vk;qDr ,oa lfpoA"
Having considered the aforesaid submissions, it is to be pointed out that the Division Bench judgment in the case of Prabhu Nath's case was in relation to the then Consolidation Lekhpals Service Rules 1978 and is nowhere concerned with the service Rules of Lekhpal which have now been framed in 2006. The ratio of the aforesaid judgment would, therefore, not be applicable at all.
The jurisdiction, which is being claimed by the petitioner in the hands of the Commissioner, does not even flow from the Government Order of 1991. The general executive instructions in the Government Order dated 14.4.1998 are in relation to the policy of transfer for that particular year in relation to government servants. The said policy empowers the transfer of Group-C employees from one district to another district after taking approval from the Commissioner.
In the instant case, there are specific Statutory Rules of 2006 and once the field is occupied by Statutory Rules, there is no occasion for this Court to infer any power on the strength of the aforesaid two Government Orders. The contention of the petitioner is, therefore, unsustainable in law.
A perusal of the Rules indicates that it is the Collector who is empowered to transfer a Lekhpal from one sub-division to another and the Sub-Divisional Officer of the sub-division is empowered to transfer a Lekhpal from one Halka to another. Beyond this, the Rules do not specify any such power in relation to transfer of a Lekhpal from one district to another either as a matter of Rule or on their own request. Apart from this, the Rules make a provision empowering the State Government to remove any difficulty in case it so arises for carrying out the purpose of the Rules. No such executive instruction or Government Order has been pointed out by the learned Standing Counsel, which may 7 indicate that the State Government has exercised any such powers. The question of applying the residuary clause as contained in the said Rule does not arise once the field is occupied in relation to transfer of a Lekhpal to another district.
It is by now well settled right from the decision in the case of Taylor Vs. Taylor, 1876 Ch. Div. which has been consistently followed by our Court and the Apex Court (for reference see 2007 ESC (4) 2338 Para 27) that the manner provided has to be followed alone and no other procedure can be adopted. In my opinion, the Commissioner had clearly violated the aforesaid principles of law and, therefore, he was right in correcting his own error. This Court cannot legislate or read into the Rules any such power in favour of the Commissioner. The Commissioner cannot assume a power which he otherwise does not possess. This position is also conceded by the State in its counter- affidavit.
In view of the aforesaid conclusions drawn, there is no reason to interfere with the order of the Commissioner by which he rescinded the earlier order.
All the writ petitions are dismissed. No order as to costs.
Dt. 19.7.2010 Irshad