Allahabad High Court
Jagdish Kumar Srivastava vs State Of U.P. And 4 Others on 25 March, 2022
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 33 Case :- WRIT - A No. - 447 of 2022 Petitioner :- Jagdish Kumar Srivastava Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Kushmondeya Shahi Counsel for Respondent :- C.S.C.,Akhilesh Chandra Srivastava,Ashutosh Mishra Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Mr. K. Shahi, learned counsel for the petitioner, Mr. Rakesh Pandey, learned Senior Advocate assisted by Mr. Ashutosh Mishra, learned counsel for respondent no.5, Mr. Akhilesh Chandra Srivastava, learned counsel for respondent no.4 and Mr. S.C. Upadhyay, learned Counsel for the State-respondents.
By means of the present writ petition, petitioner has assailed the order dated 7th January, 2022 passed by the Additional Director of Education (Basic), Shiksha Nideshalaya, Prayagraj i.e. respondent no.3 (Annexure-7 to the writ petition), whereby the petitioner has been transferred from District Kanpur Nagar to Sambhal. The petitioner has also prayed for a direction upon the respondents to permit the petitioner to work as Block Development Officer, Block Kalyanpur,District Kanpur Nagar.
It is the case of the petitioner that pursuant to the selection made by the U.P. Public Service Commission dated 31st March, 1998, petitioner was selected and appointed on the post of Assistant Basic Education Officer under the handicapped category as he is having 40% of locomotor disability. Thereafter the petitioner has been promoted on the post of Block Education Officer. By the order dated 30th June, 2015, the petitioner has been transferred from Block Kanpur Dehat to Block Ghatampur of District Kanpur Nagar and thereafter transferred from Block Ghatampur to Kalyanpur of District Kanpur Nagar vide order dated 9th February, 2016 and since then he is working on the said post at the same block i.e. Kalyanpur, Kanpur Dehat (reference paragraph-4 of the present writ petition). Vide order dated 7th January, 2022 passed by respondent no.3, the petitioner has been transferred from District Kanpur Nagar to District Sambhal. It is against this order of transfer that the present writ petition has been filed.
Learned counsel for the petitioner submits that appointing authority of the petitioner, who is working as Block Education Officer, which is the post of Group-B officer, is the Director of Education (Basic), U.P. at Lucknow i.e. respondent no.2, whereas the impugned order of transfer has been passed by the Additional Director of Education (Basic), Shiksha Nideshalaya, Prayagraj i.e. respondent no.3, therefore, the same is illegal and without jurisdiction. In support of his plea, learned counsel for the petitioner has placed reliance upon the judgment of a Division Bench of Lucknow Bench of this Court in the case of Muneem Ahmad Vs. State of U.P. Thru, Prin. Secy. Deptt. of Basic Edu. Lko. & Others (Service Bench No. 14485 of 2017 decided on 7th July, 2017), wherein it has been held that the Director of Education (Basic) is the head of department of Basic Education of the State of U.P., therefore, he has the power to transfer any employee/officer working on the post of Group-B. Learned counsel for the petitioner has further placed reliance upon an interlocutory order of a Division Bench of this Court dated 2nd August, 2017 passed in the case of Ramesh Kumar Singh Vs. State of U.P. & 3 Others (Writ-A No. 34158 of 2017), whereby the Division Bench, on the ground of jurisdiction/authority has stayed the effect and operation of the order dated 21st July, 2017, whereby a District Basic Education Officer has transferred the petitioner of that writ petition, who was posted as Block Education Officer i.e. Class-II/Group-B post. Prima facie, the Writ Court had also firmed an opinion that the District Basic Education Officer has no authority to transfer an employee posted on Group-B/Class-II post, he has only authority to transfer a Class-III employee. Learned counsel for the petitioner further submits that as per the Government Order dated 29th March, 2018, a disabled person like the petitioner cannot be transferred to any other place unless or until he has given his consent. Lastly, learned counsel for the petitioner submits that after enforcement of Model Code of Conduct, no transfer order is permissible. On the cumulative strength of the aforesaid, learned counsel for the petitioner submits that the impugned order of transfer is arbitrary, illegal and without jurisdiction, therefore the same is liable to be quashed.
Mr. Rakesh Pandey, learned Senior Advocate appearing for respondent-Election Commission of India submits that for ensuring free and fair elections, under Article 324 (1) of the Constitution of India the Election Commission has power to direct the State to transfer those officers/employees, who have completed more than four years of their postings in one district. In support of his plea, he has placed reliance upon a Division Bench judgment of this Court in the case of Lalji Shukla & Another Vs. Election Commission of India & Others reported in 2002 (1) AWC 608, wherein the Division Bench in paragrraph-8 has held as follows:
"8. We are of the opinion that the impugned directive of the Election Commission is valid as it does not discriminate between different officers but a uniform directive has been issued for all the officers who have completed four years of stay in the same district, to move out. This directive appears to be quite reasonable. In our opinion this Court does not sit in appeal over such orders of the Election Commission, and all that it can see is whether the directive is absolutely whimsical, arbitrary or mala fide. No allegation of mala fide has been made in this petition against the Election Commission."
He, therefore, submits that the impugned order of transfer does not warrant any interference by this Court.
On the submission made by the learned counsel for the petitioner that the impugned order of transfer is without jurisdiction as respondent no.3 has no jurisdiction/power/authority to pass such order, Mr. S.C. Upadhyay, learned counsel for the State submits that from the perusal of the order impugned, it is apparently clear that the same has been issued under the signature of respondent no.3 but the same has been passed from the office of Director of Education (Basic), U.P. at Lucknow in compliance of the directions or guidelines issued by the Election Commission of India that in the last four years, those persons, who have completed upto or more than three years in a district must be transferred by the State Government. In the facts of the present case, the petitioner has been posted in the same district i.e. Kanpur Nagar for more than six years, which fact has also not been disputed by him. Therefore, it is clear that the said order of transfer has not been passed by respondent no.3 in his official capacity. Learned counsel for the State-respondents, therefore, submits that the impugned order of transfer does not suffer from any jurisdictional error. Apart from the above, learned counsel for the State, on the basis of instructions so received by him, submits that vide Government Order dated 14th July, 2011, clause-2 of Uttar Pradesh Adhinastha Shiksha (Prati Up Vidyalaya Nirikshak) Seva Niyamawali, 1992 has been amended and after such amendment, the designation of the post of Sub-Inspector of School has been changed to Block Education Officer and this post comes under Group C Gazetted Officer and under Clause-3 of Rules, 1992, the appointing authority of the post of Sub-Inspector of School which has been designated as Block Education Officer, is the Additional District of Education (Basic) U.P. Therefore, learned counsel for the State submits that there is no illegality or infirmity in the order impugned.
Lastly, learned counsel for the respondents submits that since the order impugned has been passed in compliance of the direction/guidelines issued by the Election Commission for ensuring free and fair elections, therefore, the submission of the learned counsel for the petitioner that after enforcement of Model Code of Conduct, no transfer order is permissible, does not arise.
This Court has considered the submissions made by the learned counsel for the petitioner and has carefully scanned the records of the present writ petition as well as instructions along with relevant Government Orders so placed before this Court, which have been taken on record. This Court finds substance in the submissions made by the learned counsel for the respondents that the order impugned does not suffer from any jurisdictional error within the four corners. However, this Court can consider the submission made by the learned counsel for the petitioner that the petitioner being disabled employee cannot be transferred at any other place without his consent, but seeing the fact that the petitioner has not joined at the transferred place of posting i.e. Sambhal till date after lapse of a period of more than three and half months from the date of order impugned to be precise on 7th January, 2022, this petition, at the behest of a person like the petitioner, who does not comply the administrative order of his superior officer after a period of more than three months, cannot be entertained by this Court in exercise of powers under Article 226 of the Constitution of India.
The Apex Court in the case of Union of India & Others Vs. S.L. Abbas, reported in (1993) 4 SCC 357, has held that the guideline in respect of transfer does not confer upon the Government employee a legally enforceable right. The relevant part of the judgment reads as under:
"7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right."
In the case of N.K. Singh Vs. Union of India & Others reported in (1994) 6 SCC 98, the Apex Court after referring a large number of previous judgments has held as under:
"6. Shri Ram Jethmalani, learned counsel for the appellant did not dispute that the scope of judicial review in matters of transfer of a Government servant to an equivalent post without any adverse consequence on the service or career prospects is very limited being confined only to the grounds of mala fides and violation of any specific provision or guideline regulating such transfers amounting to arbitrariness. In reply, the learned Additional Solicitor General and the learned counsel for Respondent 2 did not dispute the above principle, but they urged that no such ground is made out; and there is no foundation to indicate any prejudice to public interest."
The Apex Court in Rajendra Singh & Others Vs. State of Uttar Pradesh & Others, reported in (2009) 15 SCC 178, has held that a Government servant has no right to remain posted at the place of his choice. Relevant part of the judgment reads thus:
"8. A government servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. No Government can function if the government servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires (see State of U.P. Vs. Gobardhan Lal;(2004) 11 SCC 402: 2005 SCC (L&S) 55, SCC p. 406, para 7)."
In the case of S.C. Saxena v. Union of India & Others reported in (2006) 9 SCC 583, the Apex Court has observed that a Government servant cannot disobey the transfer by not reporting at the place of posting. It is his duty to first report for work and if he has some difficulty / personal problem, he can make a representation after joining at his new place of posting. The Supreme Court has deprecated the practice of not reporting at the place of posting and indulging in litigation. The Apex Court held as under:
"6. We have perused the record with the help of the learned counsel and heard the learned counsel very patiently. We find that no case for our interference whatsoever has been made out. In the first place, a government servant cannot disobey a transfer order by not reporting at the place of posting and then go to a court to ventilate his grievances. It is his duty to first report for work where he is transferred and make a representation as to what may be his personal problems. This tendency of not reporting at the place of posting and indulging in litigation needs to be curbed. Apart therefrom, if the appellant really had some genuine difficulty in reporting for work at Tezpur, he could have reported for duty at Amritsar where he was so posted. We too decline to believe the story of his remaining sick. Assuming there was some sickness, we are not satisfied that it prevented him from joining duty either at Tezpur or at Amritsar. The medical certificate issued by Dr. Ram Monohar Lohia Hospital proves this point. In the circumstances, we too are of the opinion that the appellant was guilty of the misconduct of unauthorisedly remaining absent from duty."
(Emphasis added) The Division Bench judgment relied upon by the learned counsel for the petitioner in the case of Mueen Ahmad (Supra) is not applicable in the facts of the present case. So far as the order of the another Division Bench relied upon by the learned counsel for the petitioner in the case of Ramesh Kumar singh (Supra), is concerned, this Court is of the opinion that no interlocutory orders are binding upon this Court.
In the case of Vishnu Traders Vs. State of Haryana, reported in 1995 Suppl (1) SCC 461, the Apex Court has observed as under:-
"In the matters of interlocutory orders, principle of binding precedent cannot be said to apply. However, the need for consistency approach and uniformity in the exercise of judicial discretion respecting similar causes and the desirability to eliminate occasions for grievance of discriminatory treatment requires that all similar matters should receive similar treatment except where factual differences require a different treatment so that there is an assurance of consistency, uniformity, predictability and certainty of judicial approach."
Similar view has been taken by this Court in Smt. Rampati Jaiswal Vs. State of U.P., reported in AIR 1997 All. 170.
In view of the aforesaid, this Court finds no good ground to interfere in the present matter, while exercising its powers under Article 226 of the Constitution of India.
Accordingly, this petition is dismissed.
(Manju Rani Chauhan, J.) Order Date :- 25.3.2022 Sushil/-