Allahabad High Court
Ram Awadh Ram vs State Of U.P. And Anr. on 20 November, 2004
Equivalent citations: 2005(1)ESC693
Author: R.B. Misra
Bench: R.B. Misra
JUDGMENT R.B. Misra, J.
1. Heard Sri H.R. Misra along with Sri K.M. Misra, learned Counsel for the petitioner, and learned Standing Counsel for the State respondents.
2. Counter and rejoinder affidavits have been exchanged, therefore, with the consent of learned Counsels for the parties this writ petition is decided finally at this stage in view of the Second Proviso to Rule 2 of Chapter XXII of the Allahabad High Court Rules, 1952.
3. In this petition prayer has been made for issuance of writ of certiorari quashing the order dated 22/30.6.2004 (Annexure-4 to the writ petition) so far as it relates to the petitioner passed by the District Magistrate. Azamgarh transferring the petitioner from Azamgarh to Meh Nagar by a general transfer order. On the oral prayer of learned Counsel for the petitioner the subsequent transfer order dated 9.7.2004 was allowed to be challenged in the present petition.
4. The brief facts necessary for adjudication of the writ petition are that the petitioner was initially selected and appointed as a Clerk in the Collectorate, Azamgarh in February, 1982 and at the relevant time was posted as Reader in the Court of Additional Magistrate (Second), Azamgarh. The service of the petitioner is governed by U.P. District Offices (Collectorates) Ministerial Service Rules, 1980 (hereinafter in short called as the 'Rules, 1980'). Rule 3 (a) of 'Rules, 1980' defines the appointing authority that in the case of Superintendent the appointing authority means the Commissioner of the Division and in the case of all other posts means the District Officer of the District, i.e. the District Magistrate, who is authorised to transfer the staff of the clerical cadre. Rule 27 of 'Rules, 1980' provides as under:
"27. Transfers.--Transfer from one post to another in the same office shall be made by the District Officer. Transfer from one district to another in the same Division may be made by the Commissioner. Transfer from one Division to another may be made by the Board of Revenue or by mutual arrangement between the Commissioners of the concerned divisions with the approval of the Board of Revenue.
In making these transfers the general policy laid down by the Government from time to time shall be followed."
5. It appears that to regulate the transfer of subordinate ministerial cadre general transfer policy was promulgated and in reference thereto on 3rd March, 1983 an 6rder (Annexure-2 to the writ petition) was issued, which reads as below:
^^'kklukns'k la[;k 393@dk@4@7 bZ- ,e-@83 izs"kd Jh ujs'k pUnz lDlsuk lfpo] m- iz- 'kklu A lsok esa] leLr foHkkxk/;{k ,oa izeq[k dk;kZy;k/;{k] mÙkj izns'k A dkfeZd vuqHkkx&4 y[kuÅ fnukad 3 ekpZ] 1983 egksn;] eq>s ;g dgus dk funs'k gqvk gS fd 'kklu }kjk fu.kZ; fy;k x;k gS fd ljdkjh deZpkfj;ksa ds ekU;rk izkIr lsok la?kksa ds v/;{k ,oa lfpo dk LFkkukUrj.k muds vius laxBu esa in /kkfjr djus dh frfFk ls nks o"kZ rd u fd;k tk; A ;g lqfo/kk mä inkf/kdkf;ksa dks laxBu esa cus jgus dh vof/k rd gh vuqeU; gksxh] vFkkZr~ ;fn nks o"kZ dh vof/k ds iqoZ gh laxBu esa inkf/kdkfj;kssa ds pquko fuokZpu ;k fdlh vU; dkj.kksa ls og vius in ls gV tkrs gSaa rc ;g lqfo/kk ml le; rd gh lhfer jgsxh tc rd os laxBu esa in/kkfjr djrs gSa A bl vof/k esa ;fn vifjgk;Z dkj.k o'k fdUgha iz'kklfud dkj.kksa ls mä inkf/kdkjh@inkf/kdkfj;ksaa dk LFkkukUrj.k djuk vko';d gks rks ml n'kk esa LFkkukUrj.k djus okys vf/kdkjh ls ,d Lrj Åij vf/kdkjh dh vuqqefr LFkkukUrj.k ds dkj.kkaas dks n'kkZrs gq;s izkIr dh tk;s A vkils vuqjks/k gS fd ekU;krk izkIr lsok la?kksa ds iz'uxr inkf/kdkfj;ksa ds LFkkukUrj.k fo"k;d mijksä O;oLFkk dk vuqikyu lqfuf'pr fd;k tk;s A ujs'k pUnz lDlsuk lfpo**
6. Subsequently, in reference thereto on 3rd June, 2004 the Chief Secretary of State of Uttar Pradesh had issued a Government Order/circular to all the Principal Secretaries/ Secretaries/Head of Departments of the State Government, para-10 of which provides as below:
^^10- ljdkjh deZpkfj;ksa ds ekU;rk izkIr lsok la?kksa ds inkf/kdkfj;ksa ds LFkkukUrj.k&&ljdkjh lsodksa ds ekU;rk izkIr lsok la?kksa ds v/;{k@lfpo] ftuesaa ftyk 'kk[kkvksa ds v/;{k ,oa lfpo Hkh lfEefyr gSaaa] ds LFkkukUrj.k] muds }kjk laxBu esa in /kkfjr djus dh frfFk ls nks o"kZ rd u fd;s tk;sa A ;fn LFkkukUrj.k fd;k tkuk vifjgk;Z gks] rks LFkkukUrj.k gsrq izkf/kÑr vf/kdkfj;ksa ls ,d Lrj Åij ds vf/kdkjh dk iwokZuqeksnu izkIr fd;k tk;s A ftyk 'kk[kkvksa ds inkf/kdkfj;ksa ds LFkkukUrj.k&izdj.kksa ij ftykf/kdkjh dh iwokZuqefr izkIr dh tk;s A**
7. It is, therefore, clear that according to the Government Order dated 3.3.1983 the office bearers, namely, President and Secretary of a recognised trade union cannot be transferred within a period of two years from the date of resuming their charge of the elected office. Similar policy was also reiterated in the subsequent transfer policy promulgated by Government Order dated 3.6.2004. Since, the petitioner was elected as an office bearer of the Uttar Pradeshiya Ministerial Collectorate Karmachari Sangh. Branch Azamgarh on 2.11.2003 for a period of two years i.e. upto 2.11.2005, therefore, according to the petitioner, by means of the impugned order he could not have been made the subject of general transfer from the post of Reader working at the District Head Quarter Collectorate of Azamgarh to the post of A.W.B.N., Tehsil Meh Nagar of District Azamgarh, which is about 42 Kms. from the District Head Quarter of District Azamgarh and that too without mentioning in the impugned transfer order that the order was passed in the public interest or in the interest of administration.
8. The impugned transfer order was challenged before this Court on the ground that the transfer order has been passed in contravention with the Government policy of transfer, which has been framed under the 'Rules, 1980' and by making such transfer the defiance of Rules has been made, as the said transfer was made in annual chain of transfer along with others, which did not necessitate the unavoidable reasons and, as such, his transfer is against the mandatory requirement of transfer policy of the Government as well as against the Rules applicable to the office bearers of an Union. According to the petitioner, the work and conduct of the petitioner had all along been satisfactory and nothing adverse was known to him and by the impugned transfer Para 10 of the General Transfer policy dated 3.6.2004 was flouted, thereby flouting provisions of Rule 27 of 'Rules, 1980', which specifically deals with the transfer of President and Secretary of a recognised trade union including the President and Secretary of its branch offices, as they cannot be transferred within a period of two years from the date of their resuming the office.
9. According to the petitioner, after filing of the present writ petition, the State Government visualised that there was a clerical mistake in not mentioning in the order of transfer that it was made in the public interest or on the administrative ground as indicated in para 17 of the counter affidavit and realising the mistake on the part of the district administration that the impugned order was passed in derogation to the policy and rules, a rectificatory order was made, consequently by an order dated 9th July, 2004 the petitioner was again posted in Tehsil Sadar of District Administration of District Azamgarh.
10. According to the petitioner subsequent transfer order dated 9th July, 2004 shall not make the cause as infructuous, as the petitioner could not have been transferred initially dehors the Government Orders and Government Policy in respect of transfers protected under Rule 27 of 'Rules, 1980'.
11. Counter affidavit has been filed indicating that by clerical mistake not mentioning the word "public interest" and "in the interest of administration" in the impugned order of transfer, shall not frustrate the spirit of transfer and when the earlier mistake was rectified by the subsequent order, then the cause and grounds of challenge does not subsist otherwise also the transfer is in exigency of service and could be made for the betterment of administration as well as in the public interest as the present transfer has not been made by way of malafide or political vendetta or by colourable exercise of powers or by way of punishment and, as such, this Court should not make a judicial review of the transfer order.
12. The petitioner has endeavoured to controvert the contents of the counter affidavit by reiterating the averments of the writ petition through his rejoinder affidavit.
13. According to the petitioner :
(a) In Union of India and Anr. v. N.P. Thomas, AIR 1993 SC 1605, their Lordships of the Supreme Court laid down as follows :
"8. In the present case, it cannot be said that the transfer order of the respondent transferring him out of Kerala Circle is violative of any statutory Rule or that the transfer order suffers on the ground of malafide, The submissions of the respondent that some of his juniors are retained by Kerala Circle and that his transfer is against the policy of the Government posting the husband and wife in the same station as far as possible cannot be countenanced since the respondent holding a transferable post has not vested right, to remain in the Kerala Circle itself and cannot claim, as a matter of right, the posting in that circle even on promotion."
(b) In Union of India and Ors. v. S.L. Abbas, AIR 1993 SC 2444, their Lordships of the Supreme Court laid down as follows :
"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.
8. The jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Article 226 of the Constitution of India in service matters. This is evident from a perusal of Article 323A of the Constitution. The constraints and norms which the High Court observes while exercising the said jurisdiction apply equally to the Tribunal created under Article 323A. (We find it all the more surprising that the learned Single Member who passed the impugned order is a former Judge of the High Court and is thus aware of the norms and constraints of the writ jurisdiction). The Administrative Tribunal is not an Appellate Authority sitting in judgment over the orders of transfer. It cannot substitute its own judgment for that of the authority competent to transfer. In this case the Tribunal has clearly exceeded its jurisdiction interfering with the order of transfer. The order of the Tribunal reads as if it were sitting in appeal over the order of transfer made by the Senior Administrative Officer (Competent Authority)."
(c) The scope of judicial review of transfer under Article 226 of the Constitution of India has also been settled by the Supreme Court in view of the decisions of Rajendra Roy v. Union of India and Anr., (1993) 1 SCC 148; National Hydroelectric Power Corporation Ltd, v. Shri Bhagwan and Anr., 2001 (8) SCC 574; State Bank of India v. Anjan Sanyal and Ors., (2001) 5 SCC 508. This Court following the aforesaid principles laid by the Supreme Court in Vijay Pal Singh v. State of U.P. and Ors., 1997 (3) ESC 1668" (All) and Onkarnath Tiwari v. Chief Engineer, Minor Irrigation Department, U.P., Lucknow and Ors., 1997 (3) ESC 1866, has held that the principle of law unfold in the aforesaid decisions in that an order of transfer is a part of service conditions of an employee and is not required to be interfered with lightly by a Court of law in exercise of its discretionary jurisdiction unless the Court finds that either the order is malafide or that the service rules prohibit, such transfer or that the authorities, who issued the orders, were not competent to pass the orders,
14. In support of their stand the learned Counsel for the respondents referred the following cases :
(A) In B. Varadha Rao v. State of Karnataka and Ors., AIR 1986 SC 1955, their Lordships of the Apex Court laid down as follows :
"4.................We agree with the view expressed by the learned Judges that transfer is always understood and construed as an incident of service. The words "or other conditions of service" in juxtaposition to the preceding words 'denies or varies to his disadvantage his pay, allowances, pension' in Rule 19 (1) (a) must be construed ejusdem generis. Any alteration in the conditions of service must result in prejudice to the Government servant and some disadvantage touching of his pay, allowances, pension, seniority, promotion, leave etc. It is well understood that transfer of a Government servant who is appointed to a particular cadre of transferable posts from one place to another is an ordinary incident of service and therefore, does not result in any alteration of any of the conditions of service to his disadvantage. That a Government servant is liable to be transferred to a similar post in the same cadre is a normal feature and incident of Government service and no Government servant can claim to remain in a particular place or in a particular post unless, of course, his appointment itself is to a specified, non-transferable post.................."
(B) In Mrs. Shilpi Bose and Ors. v. State of Bihar and Ors., AIR 1991 SC 532, their Lordships of the Supreme Court laid down as follows :
"4. In our opinion, the Courts should not interfere with a transfer order which are made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory Rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the Courts continue to interfere with day-to-day transfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration, which would not be conducive to public interest. The High Court over looked these aspects in interfering with the transfer orders."
(C) In State of Punjab and Ors. v. Joginder Singh Dhatt, AIR 1993 SC 2486, their Lordships of the Supreme Court laid down as follows :
"3. We have heard learned Counsel for the parties. This Court has time and again expressed its disapproval of the Courts below interfering with the order of transfer of public servant from one place to another. It is entirely for the employer to decide when, where and at what point of time a public servant is transferred from his present posting. Ordinarily the Courts have no jurisdiction to interfere with the order of transfer. The High Court grossly erred in quashing the order of transfer of the respondent from Hoshiarpur to Sangrur. The High Court was not justified in extending its jurisdiction under Article 226 of the Constitution of India in a matter where, on the face of it, no injustice was caused."
(D) In N.K. Singh v. Union of India and Ors., (1994) 6 SCC 98, their Lordships of the Supreme Court laid down as follows :
"23. ...................Assessment of worth must be left to the bona fide decision of the superiors in service and their honest assessments accepted as a part of service discipline. Transfer of a Government servant in a transferable service is a necessary incident of the service career. Assessment of the quality of men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. Several imponderables requiring formation of a subjective opinion in that sphere may be involved, at times. The only realistic approach is to leave it to the wisdom of that hierarchical superiors to make that decision. Unless the decision is vitiated by mala fides or infraction of any professed norm or principle governing the transfer, which alone can be scrutinised judicially, there are no judicially manageable standards for scrutinising all transfers and the Courts lack the necessary expertise for personnel Management of all Government departments. This must be left, in public interest, to the departmental heads subject to the limited judicial scrutiny indicated."
(E) In Abani Kanta Ray v. State of Orissa and Ors., 1995 Supp. (4) SCC 169, their Lordships of the Apex Court laid down as follows :
"10. It is settled law that a transfer which is an incident of service is not to be interfered with by the Courts unless it is shown to be clearly arbitrary or vitiated by mala fides or infraction of any professed norm or principle governing the transfer, [See N.K. Singh v. Union of India]."
(F) As held in Riaz Ahmad v. Additional Registrar (Administration.), Co-operative Societies, U.P. Lucknow and Ors., 2002 (5) ESC 125 (All), this Court has declined to interfere the transfer order by saying that transfer is an incident of service and the Court does not interfere normally in the transfer orders unless there is violation of any statutory Rules or the transfer is malafide.
15. This Court (D.B.) in Vijay Kumar Chaurasia v. State of U.P. and Ors., 2004 (2) ESC 1251 (DB), has held that ordinarily High Court cannot interfere with the order of transfer made in exigency of service as a part of conditions of services, unless the transfer was found to be made malafidely or service rules prohibits such transfer.
16. I have heard learned Counsel for the parties. I find that in view of the analysis made above, the transfer in question could not have been made in a routine manner by a general transfer order, as the petitioner was an office bearer of an Union elected on 2.11.2003 and as provided in the Government Order dated 3.6.2004 (Annexure-3 to the writ petition) as well as in reference to the Rule 27 of the 'Rules, 1980' his transfer was ab-initio illegal. It is notable that there was nothing or for no specific reason or presumption transfer could not be avoided, whereas, the transfer of the petitioner was made along with others in a routine manner, which is in derogation to the Rules. By the subsequent transfer order dated 9.7.2004 earlier transfer order dated 29/30.6.2004 was not cancelled, rather it is fresh transfer order, which is also under challenge. In these circumstances, the impugned transfer order dated 29/30.6.2003 and subsequent transfer order dated 9.7.2004 are not legally sustainable, therefore, they are set aside.
In view of the above observations, the writ petition is allowed.
No order as to cost.