Allahabad High Court
Constable 316 Cp Dinesh Chandra Mishra vs State Of U.P. And 6 Ors. on 10 January, 2020
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 36 Case :- WRIT - A No. - 60324 of 2016 Petitioner :- Constable 316 Cp Dinesh Chandra Mishra Respondent :- State Of U.P. And 6 Ors. Counsel for Petitioner :- Rajesh Kumar Singh,Aishwarya Kumar Singh Counsel for Respondent :- C.S.C. Hon'ble Mahesh Chandra Tripathi,J.
Heard learned counsel for the petitioner and Shri Sanjay Kumar Singh, learned Addl. Chief Standing Counsel along with Shri Piyush Shukla, learned Standing Counsel and Ms. Uttara Bahuguna, learned Standing Counsel for the State respondents.
The petitioner is before this Court assailing the validity of the termination order dated 20.05.2015 passed by Disciplinary Authority i.e. S.P. Baghpat and confirmed by D.I.G., Meerut Range, Meerut (Appellate Authority) and also confirmed by I.G. Meerut Zone Meerut (Revisional Authority) vide order dated 4.7.2016 and 22.10.2016 respectively. The petitioner has also prayed for direction to the respondents to provide him Voluntary Retirement Benefit w.e.f. 1.4.2011.
The petitioner, who was working as Constable in police department, being aggrieved with the transfer order dated 24.3.2011 from Ambedkar Nagar to Baghpat, challenged the same before Lucknow Bench of this Court by means of Service Single No.1848 of 2011, which was dismissed on 6.4.2011, with following observations:-
"Notice on behalf of opposite party nos. 1 to 4 has been accepted by Chief Standing Counsel.
Heard learned counsel for the petitioner as well as standing counsel and perused the record.
It is submitted by the learned counsel for the petitioner that by impugned order dated 24.03.2011 the petitioner has been transferred in public interest from district Ambedkar Nagar to Bagpat. The petitioner was posted at district Ambedkar Nagar in the year 2009 and he was not due for transfer. The impugned transfer order has been passed by way of punishment and the petitioner had requested for voluntary retirement which was although accepted but not given effect to.
It is further submitted by the learned counsel for the petitioner that the children of the petitioner are studying at Chhatrapati Shahuji Maharaj Nagar and in case the petitioner is transferred the eduction of the children would be adversely affected.
Learned standing counsel on the other hand submits that the impugned order does not show that it has been passed as a measure of punishment. It clearly indicates that the petitioner has been transferred in public interest. There is no illegality in the impugned order.
I have considered various submissions made by the counsel for the parties and I am of the considered opinion that the petitioner is working on a transferable post. He is liable to be transferred within the State of U.P. as he belongs to Disciplinary Force and it is expected that the petitioner shall work at the transferred place where he is transferred. The order impugned does not indicate that the petitioner has been transferred as a measure of punishment. Argument of the learned counsel for the petitioner in this regard has no force. In case petitioner has any grievance he is at liberty to move a representation before the competent authority which in the present case is Deputy Inspector of Gneral (Establishment) U.P. Police Headquarter, Allahabad, who shall consider the same and decide it in accordance with law expeditiously.
At this stage, learned counsel for the petitioner submits that he will move a fresh representation against the transfer order 24.03.2011.
In view of above, this Court is of the considered opinion that no interference is required in exercise of powers under Article 226 of Constitution of India.
The writ petition being devoid of merit is dismissed However, it is provided that in case petitioner makes a fresh representation against the transfer order dated 24.03.2011 within seven days from today, the same shall be considered and decided by the Deputy Inspector of Gneral (Establishment) U.P. Police Headquarter, Allahabad, in accordance with law, relevant rules and regulations and government orders, expeditiously, say within a period of four months from the date a certified copy of this order is produced before him.
The joining of the petitioner at the transferred place shall be subject to the decision so taken on the representation of the petitioner."
In response to the aforesaid order, the petitioner made detailed representation on which a High Power Three Member Committee rejected the representation of the petitioner for transfer on 22.7.2011 but observed that if the petitioner is willing to take voluntary retirement w.e.f. 1.4.2011, the Superintendent of Police, Ambedkar Nagar may take decision, if the petitioner makes a representation before him in this regard. Pursuant to the aforesaid order the petitioner made representation before the Superintendent of Police, Ambedkar Nagar on 5.9.2011 requesting to give him voluntary retirement w.e.f. 1.4.2011. On the said representation the Superintendent of Police, Ambedkar Nagar directed the petitioner to produce the affidavit of his family members for giving consent for voluntary retirement and the same has also been produced by the petitioner. Consequently, the Superintendent of Police, Ambedkar Nagar vide letter dated 9.2.2012 asked the petitioner to produce joint photograph of his wife and thereafter voluntary retirement may be given w.e.f. 29.2.2012. Thereafter, the petitioner again made a representation dated 15.2.2.012 requesting to grant voluntary retirement w.e.f. 1.4.2011 and not from 29.2.2012. Thereafter, the Superintendent of Police, Ambedkar Nagar vide letter dated 27.2.2012 informed the D.I.G. Establishment that the petitioner is not willing to voluntary retirement. In this backdrop, the petitioner preferred Service Single No.7717 of 2013, which was dismissed on 23.7.2015 with following observations:-
"................By means of the impugned order dated 22/23.07.2011 passed by the opposite party no.2, the representation of the petitioner has been rejected.
After hearing the learned counsel for the parties and going through the record, the points, which has to be considered and decided in the present case, are as under:
(1) whether the order dated 22/23.07.2011 passed by the opposite party no.2 thereby rejecting the petitioner's representation is correct or not? (2) whether the petitioner is entitled for VRS as claimed by him w.e.f 01.04.2011 or not?
(3) whether the impugned order dated 15.04.2011 passed by Superintendent of Police, Ambedkar Nagar is valid or not?
So far as the point no.1 is concerned, from the perusal of the impugned order dated 22/23.07.2011 passed by the opposite party no.2, the position which emerges to the effect is that while passing the said order, the opposite party no.2 has considered the entire material on record and has came to the conclusion that in pursuance to the order dated 24.03.2011, the petitioner has been transferred from Ambedkar Nagar to Baghpat in the administrative exigency of service and in the interest of the department. So far as the grievance of the petitioner that he and his family are getting specialized treatment at Ambedkar Nagar is concerned, the same is also available to the petitioner and his family at Baghpat and he will receive the same salary and allowances there which is received by him at Ambedkar Nagar.
Thus, keeping in view the abovesaid facts as well as the fact that 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.
I do not find any illegality or infirmity in the impugned order dated 22/23.07.2011 passed by opposite party no.2 thereby rejecting the petitioner's representation.
So far as the point no.2 is concerned, after hearing the learned counsel for the parties, the position which emerge to the effect is that by the representation dated 11.04.2011, the petitioner has requested that the his transfer to Baghpat may be modified and be placed at Allahabad, Varanasi, Lucknow or Kanpur Nagar. If it is not possible then his application for VRS w.e.f. 01.04.2011 may be considered.
In response to the said relief and as per the direction/ observation made in the order dated 22/23.07.2015, the same is under consideration.
Thus, keeping in view the abovesaid facts and the fact that till date, the petitioner has not joined at transfer place i.e. Baghpat in pursuance to the transfer order dated 22/23.07.2011 as well as the law laid down by Hon'ble the Apex Court in the case of S. C. Saxena vs. Union of India (2006) 9 SCC 583 and in the case of State of U.P. v. Gobardhan Lal 2004 (101) FLR 586 (SC), the petitioner is directed to join his transfer place and after joining, he is at liberty to make fresh representation/reminder to the authority concerned for consideration of his case for VRS and if the same is made, it is expected to the authority concerned to decide the same expeditiously in accordance with law.
Lastly, so far as the point no.3 is concerned, the petitioner has an alternative remedy against the order dated 15.04.2011 to file appeal under Rule 20 of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991. As such, the present writ petition so far as it relates to the challenge of the order dated 15.04.2011 is concerned, the same is not maintainable. As such the same is dismissed on the said ground with a direction that if the petitioner files an appeal after three weeks from the date of his joining at Baghpat, the same may be considered and decided by the appellate authority in accordance with law on merit.
With the aforesaid observations/ directions, the writ petition is dismissed."
Learned counsel for the petitioner, in this backdrop, states that the disciplinary action was initiated under the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (in short "the Rules of 1991") on the ground of absence and overstaying and his services were also dismissed vide order dated 20.05.2015 and as such in response to the aforesaid writ Court order dated 23.7.2015, there was no occasion to join at the transferred place. Unfortunately this aspect could not be brought into notice to the learned Single Judge prior to passing of the said order while giving the aforesaid leave. The order dated 23.7.2015 was assailed in Special Appeal No.381 of 2015, which was dismissed on 25.8.2015 with following observations:-
"Heard learned counsel for parties.
This special appeal has been directed against the impugned judgment & order dated 23.7.2015, passed by the learned Single Judge in Writ Petition No. 7717 (SS) of 2013.
The appellant is aggrieved with the impugned judgment & order only to the extent that in pursuance to the order of the learned Single Judge when he rushed to Baghpat and approached the Superintendent of Police for his joining, he refused to allow him to join on the ground that his service records have been sent back to Ambedkar Nagar where he was posted before his transfer.
Admittedly, the appellant did not join for about four years pursuant to transfer order dated 24.3.2011.
We are of the view that once the appellant did not join for about four years, there was no occasion for the Superintendent of Police, Baghpat to hold his service record for indefinite period. He has rightly sent back the same to Ambedkar Nagar where the appellant was posted prior to his transfer. Moreover, the appellant has failed to point out any error in judgment & order, impugned in this appeal. In the result, the appeal stands dismissed.
The appellant is at liberty to approach the Transferring Authority for redressal of his grievance or to get modified the judgment & order of learned Single Judge in view of the subsequent developments."
It is apparent that even at the said juncture while giving leave by the appellate authority, the petitioner could not report to the transferred place as meanwhile his services were dismissed on 20.05.2015. Against the same he has preferred appeal and revision but the same were also having the same fate.
In this backdrop, learned counsel for the petitioner submits that once the leave was accorded by the writ Court as well as appellate Court, the petitioner may be permitted to join at the transferred place and in case the competent authority find that the petitioner is incapacitated to work in the disciplined force, then the application for voluntary retirement may be considered.
Considering the facts and circumstances, once leave was accorded by learned Single Judge as well as appellate authority more so in the presence of learned Standing Counsel, in such situation such major punishment cannot be accepted by this Court and as such the orders impugned are liable to be set aside. Accordingly, the orders impugned are set aside. The matter is relegated to the Superintendent of Police, Baghpat to consider and decide the grievance of the petitioner subject to condition that the petitioner would report for duty to the Superintendent of Police, Baghpat within 15 days from today. Learned counsel for the petitioner on the basis of instructions has also made statement that on the principle of "no work no pay" the petitioner will not claim any back wages for the period of absence. However, he will be entitled for all other consequential benefits.
The writ petition stands allowed accordingly.
Order Date :- 10.1.2020 SP/