Allahabad High Court
Anshuman Singh Sisodia vs State Of U.P. And Ors. on 30 July, 2003
Equivalent citations: 2003(4)AWC3302
JUDGMENT N.K. Mehrotra, J.
1. Heard the learned counsel for the petitioner and the learned additional standing counsel.
2. Petitioner, a Junior Engineer in Jal Sansthan, Jhansi had challenged his transfer order dated 24.6.2003, Annexure-1 by which he has been transferred from Jhansi to Jal Sansthan, Kanpur. He has challenged his transfer order on the ground that he has been transferred on the dictate of Shri Babu Ram, M.Com. a Minister in the State Government who is M.L.A. from Oral constituency of Legislative Assembly. In support of the allegations of mala fide against the Minister, the petitioner has alleged that the Minister has made a political issue for his transfer. It is alleged that Shri Santosh Singh Ex. M.P. from Congress Party is his close relative and during the last election of the Minister, the petitioner's close relative Mr. Santosh Singh Ex. M.P. of Congress Party from Azamgarh was incharge of Jhansi Division and he had stayed some night at the residence of the petitioner during election of the Minister. Since the petitioner is a Thakur by caste, the Minister treats him the candidate of Mr. Chaturvedi and rival Congress candidate. He has further alleged that he has stopped giving work to a contractor Mr. Ran Vijay Singh who is close to the Hon'ble Minister.
3. Besides the allegations of mala fide against the Minister, it is contended by the petitioner that there are other engineers who are staying in District Oral for more than 10 years while he was at Oral since 15.6.1996. Further he has alleged that his children will suffer if he is transferred after the start of academic session.
4. After hearing the learned counsel for the parties, I find that now it is well-settled that this Court can interfere with the order of transfer under Article 226 of the Constitution of India on a very limited ground, namely, that the transfer order has been passed contrary to any statutory provision or has been passed by a person who has no authority to do so or is mala fide (See Mrs. Shilpi Bose v. State of Bihar, AIR 1991 SC 532 and Union of India v. S, L. Abbas, AIR 1992 SC 2444).
5. In the instant case, I find that there is a letter of Shri Babu Ram, M.Com. Hon'ble Minister in the Government which is Annexure-2 to the writ petition. In this letter, the Minister being an M.L.A. of the local area, has written to the Director, Local Bodies that there are complaints of corruption against the petitioner at the time of his tour in the constituency, the people make complaint against the petitioner.
6. Learned counsel for the petitioner has also referred a decision of this Court in special appeal of Harish Chandra Tiwari v. Upper Shiksha Nideshak (Uttrakhand), U. P., Lucknow, (1999) 1 UPLBEC (Sam) 4.
7. I find that this judgment by which the special appeal was allowed, does not lay down any law.
8. Further learned counsel for the petitioner has referred Arvind Dattatrya Dhande v. State of Maharashtra, 1998 (1) AWC 342 (SC) : AIR 1997 SC 3067. In this case, a licence of the contractor was cancelled by the officer of the Excise Department and on the complaint of that Government servant with their representative, namely, the M.L.A. or M.P. of the area than with the higher officers. If in such circumstances, the M.L.A. or M.P. takes up the matter and brings to the notice of the higher officers or the Minister of the concerned department about the misdeeds of a Government servant no exception can be taken to such a course of action. The representatives of the people (M.L.A. and M.P.) hold responsible constitutional position and there is no presumption that whenever they draw attention to the misdeeds of a Government servant, they do so with mala fide intention. A transfer order passed soon after a letter or complaint lodged by M.L.A. or M.P. or a political person cannot be branded as having been done at the dictate of such a person. There is no presumption that the authority passing the transfer order has not applied his independent mind. It is quite likely that the authority was not aware of the situation and after the full and correct facts were brought to his notice, he decides to take appropriate action on objective consideration. We are, therefore, clearly of the opinion that without there being anything more, the mere fact that a transfer order has been passed soon after a complaint has been sent by an M.L.A. or M.P. or a political person to the Minister or superior officers of the concerned department. It cannot be branded as having been passed without application of mind or on the dictate of a political person. In the present case, there is nothing on record to show that the concerned M.L.A. or leader of the political party had any personal animosity with the petitioner or that they had made complaint against him on account of any oblique motive for some personal gain. There is no material to show that any action taken by the petitioner in the discharge of his official duty has caused any personal injury to the President of B.J.P. or to the local M.L.A. In these circumstances, the contention raised by the learned counsel for the petitioner cannot be accepted." contractor, the transfer order was made on the dictate of that contractor. In the facts and circumstances of the case, the Hon'ble Supreme Court found that the transfer order was issued at the behest of that contractor . and, therefore, this transfer order was quashed.
9. Here in the instant case, I do not find any evidence that the Minister has got the petitioner transferred because of the reasons given above. Further, I am of the opinion that mere fact that the transfer order has been passed soon after a complaint has been sent by an M.L.A. or M.P. or a political person to the Minister or superior officers of the concerned department, it cannot be branded as having been passed without application of mind or on the dictate of a political person.
10. In Narain Kumar Rai v. State of U. P. and Ors., 2002 (1) AWC 365, a Division Bench of this Court has observed as under :
"We have given our careful consideration to the submission made. We are clearly of the opinion that from the mere fact that a Government servant is transferred on the basis of a complaint made by an M.L.A. or M.P., or a leader of the political party, it cannot be held that the same is mala fide and the transfer order cannot be struck down on the said ground alone without there being anything more. An M.L.A. or M.P. is the representative of the people and common public has access to him. Often it is very difficult for a common man to meet the higher officers and to bring to their notice the misdeeds or the wrong way of functioning of a Government servant at a lower level. It is not possible for a common man to go to the capital of the State, namely, Lucknow, and then to meet the higher officers to lodge a complaint against the wrong manner of functioning of a Government servant. The M.L.A. and M.P. visit their constituency frequently and meet the members of the public. It is far easier for the public to lodge a complaint against the improper functioning of a
11. As said above, there is no evidence on record to primp facie prove the allegations stated in the petition against the Minister Further, there are other grounds to challenge the transfer order like that the children will suffer by the transfer order after the start of the academic Sessions and others having longer period of stay have not been transferred, have no force.
12. Learned counsel for the petitioner has next submitted that by the impugned order, the petitioner has been debarred from making representation. In my opinion, this embargo cannot be imposed at the time of passing of the transfer order because transfer order is not a punishment and every employee has a right to put his grievance to the competent authority and the Director, Local Bodies is bound to decide the representation if the petitioner makes his representation putting his personal grievance with regard to his transfer. So if any representation is made, the Director, Local Bodies shall decide that representation within a period of two weeks from the date a representation's received and no coercive action will be taken against the petitioner on non-joining on the new station without deciding the representation, if any.
13. In view of the above, I find no force in the petition. The writ petition is dismissed with the observation as stated above.