Allahabad High Court
Amit Narayan Rai And 18 Others vs State Of U.P. And 3 Others on 23 January, 2023
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 19 Case :- WRIT - A No. - 15574 of 2022 Petitioner :- Amit Narayan Rai And 18 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Srishti Gupta,Kartikeya Saran Counsel for Respondent :- C.S.C. Hon'ble Jaspreet Singh,J.
1. Heard Sri Kartikeya Saran, learned counsel for the petitioner as well as Sri M.C. Chaturvedi, learned Senior Counsel along with Sri Ankit Gaud, learned counsel for the State-respondents.
2. The present petitioners pray for issuance of a writ in the nature of certiorari quashing the impugned transfer order dated 20.06.2022 and 06th July, 2022 passed by the respondent no. 2. The primary ground of challenge to the aforesaid transfer order is that it is in violation of the transfer policy of 2022-23 in so far as it relates to the petitioner.
3. The case as setup by the petitioners is that they are all selected and appointed as Class-III Clerical employees and are presently discharging their duties at various places in the State of Uttar Pradesh. It is also stated that all the petitioners being the ministerial employees are also the office bearers of the Uttar Pradesh Medical and Public Health Ministerial Association. The details of each of the petitioners along with his post, place of posting, date on which each was elected when they were elected in the respondent no.4-Association and where have they been transferred has been indicated in a chart which is the part of paragraph 4 of the petition.
4. The learned counsel for the petitioner Sri Saran submits that the Government had modified the transfer policy for the year 2022-23 on 15.06.2022. Heavy reliance has been placed on Clause 12 of the Transfer Policy to buttress the submission that the said clause makes it very clear that in case a transfer is to be made of an office bearers of the District Level (which is the case of the present petitioners) then prior approval of the District Magistrate is to be taken in the said case. It is urged that in the present case, there is no approval of the District Magistrate rather only a general approval has been granted by the Director General (Medical and Health Services) Uttar Pradesh which is de-hors the transfer policy.
5. It is also urged that the Director General (Medical and Health Services) Uttar Pradesh just a day prior to his retirement on 30.06.2022 had given the approval to transfer 260 ministerial staff which included the present petitioners. An attempt has been made to show that the said transfer order has been passed in a malafide manner as 260 employees have been approved for transfer in one go which indicates that there is no application of mind. It is also urged that there is a clear violation of Clause 12 of the transfer policy and for the said reason, the order of transfer in so far as it relates to the petitioner is concerned, is bad and accordingly deserves to be set aside.
6. The learned counsel for the State Sri Ankit Gaud while opposing the aforesaid submissions submits that there is no violation of Clause 12, inasmuch as, prior approval of the Authority one rank higher than the Appointing Authority has been taken. It has been urged that similar issue was raised by another set of Class-III Ministerial Employees who had challenged their transfer before this Court at Lucknow in the case of Ajay Kumar Srivastava Vs. State of U.P. and others bearing Writ-A No. 4766 of 2022 which was connected with Writ-A no. 5568 of 2022 wherein similar grounds were taken and the said petition came to be dismissed by means of order dated 12.09.2022 holding that the transfer was valid.
7. It is further urged that the said order of the learned Single Judge was assailed in Special Appeal No. 411 of 2022 where again this issue including Clause 12 of the transfer policy was considered and thereafter it was held that there is no error or ground to interfere with the transfer and as such the Special Appeal was dismissed by means of order dated 11.10.2022.
8. It is thus urged that once the issue of transfer has been considered and decided by a coordinate Bench of this Court which has been affirmed in Special Appeal, the issue regarding the invalidity of the transfer that Clause 12 of the transfer policy has been violated is not open to be canvassed any more and it is liable to be rejected. It has also been submitted that all the petitioners have joined on their respective places of posting and it has further been pointed out that in so far as the petitioner no. 13 and 19 is concerned, they have been transferred on their volition as they had made a request for transfer by moving an application to the Competent Authority on the online portal.
9. It has also been pointed out that in so far as the petitioners are concerned, the respondent had received two lists of office bearers of different rival groups of Uttar Pradesh Medical Public Health Ministerial Association and in pursuance of the Government Order dated 16.01.2009, the steps are being taken for holding fresh elections. Since the fresh elections are to take place and by cancelling earlier elections, hence, it cannot be said that the petitioners are the elected office bearers of the District Level Associations, hence, for the said reason as well, Clause 12 has no applicability.
10. It has also been pointed out that almost all the petitioners have been posted for more than 15 years in their place of posting/region and thus for this reason as well there is no error which can be pointed out in the transfer order which may require any interference from this Court and the writ petition deserves to be dismissed.
11. Sri Saran, learned counsel for the petitioners responding to the aforesaid submissions in rejoinder has pointed out that the Uttar Pradesh Medical and Public Health Ministerial Association has already filed a writ petition bearing No. 35634 (writ-C) of 2022 wherein the Court found that the elections for the Association are held for two years and the last election was held on 14.08.2021 and after a lapse of one year, the State-Authorities have woken up to the representations of certain individuals and has passed the impugned order and taking note of the aforesaid granted indulgence by means of order dated 25.11.2022 and provided that even though the elections may take place but the final results will not be declared.
12. It has also been pointed out that the Division Bench of this Court in its order dated 30.11.2022 had recorded the statement of the learned Standing Counsel to the effect that the results of the elections have been kept in a sealed cover and they have not been implemented as on date and that the charge continues to be with the earlier elected individuals.
13. It is thus urged on the strength of the aforesaid orders that in so far as the present petitioners are concerned they were elected in the election which took place in the year 2021 and as admitted to the other side, the charge is still with the previously elected office-bearers which includes the petitioners, hence, in the instant case, the submission of learned counsel for the respondents that Clause-12 of the transfer policy does not have any bearing is absolutely misconceived.
14. It is also urged that there is a clear violation of Clause-12 and though the State has filed its counter affidavit but it could not dispute that there is no prior approval of the District Magistrate before passing the order of transfer, hence, for the said reasons, the transfer order is bad.
15. The Court has heard the learned counsel for the parties and also perused the material on record including the decision of a coordinate Bench of this Court in the case of Ajay Kumar Srivastava (supra) and the decision of the Division Bench of this Court dated 11.10.2022 in Special Appeal No. 411 of 2022 (Ajay Kumar Srivastava Vs. State of U.P. and others) also the interim orders passed in Writ-C No. 35634 of 2022 (Uttar Pradesh Medical and Public Health Ministerial Association and another Vs. State of U.P. and others) dated 25.11.2022 and 30.11.2022.
16. Before considering the rival contentions, it will be appropriate to draw the contours within which this Court in exercise of powers under Article 226 of the Constitution of India can interfere in an order of transfer by taking aid of judicial pronouncements.
17. Recently, the Apex Court in S.K. Naushad Rahaman and others vs. Union of India and others; AIR 2022 SC 1494 had the occasion to consider the basic precepts of service jurisprudence relating to transfer and the relevant paragraphs of the said decision reads as under:-
24. First and foremost, transfer in an All India Service is an incident of service, Whether, and if so where, an employee should be posted are matters which are governed by the exigencies of service. An employee has no fundamental right or, for that mater, a vested right to claim a transfer or posting of their choice.
25. Second, executive instructions and administrative directions concerning transfers and postings do not confer an indefeasible right to claim a transfer or posting. Individual convenience of persons who are employed in the service is subject to the overreaching needs of the administration.
26. Third, policies which stipulate that the posting of spouses should be preferrably, and to that extent practicable, at the same station are subject to the requirement of the administration.
27. The above principle was cited with approval in Union of India vs. SL. Abbas, where the Court held that transfer is an incident of service.
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28. Fourth, norms applicable to the recruitment and conditions of service of officers belonging to the civil services can be stipulaed in;
(I) A law enacted by the competent legislature;
(ii) Rules made under the proviso to Article 309 of the Constitution; and
(iii) Executive instructions issued under Article 73 of the Constitution, in the case of civil services under the Union and Article 162, in the case of Civil services under the States.
29. Fifth, where there is a conflict between exectutive instructions and rules framed under Article 309, the rules must prevail. In the event of a conflict between the rules framed under Article 309 and a law made by the appropriate legislature, the law prevails. Where the rules are skeletal or in a situation when there is a gap in the rules, executive instructions can supplement what is stated in the rules.
29. Sixth, a policy decision taken in terms of the power conferred under Article 73 of the Constitution on the Union and Article 162 on the States is subservient to the recruitment rules that have been framed under a legislative enactment or the rules under the proviso to Article 309 of the Constitution.
18. In the case of Shanti Kumari Vs. Regional Deputy Director, Health Services, Patna Division, Patna and others; (1981) 2 SCC 72, the Apex Court has held as under:-
" 2. Having heard learned counsel for the parties, we are of the opinion that the High Court rightly declined to interfere with the impugned order. Transfer of a Government servant may be due to exigencies of service or due to administrative reason. The Courts cannot interfere in such matters. Shri Grover, learned counsel for the appellant, however, contends that the impugned order was in breach of the Government instructions with regard to transfers in the Health Department. If that be so, the authorities will look into the matter and redress the grievance of the appellant."
19. In Gujarat Electricity Board and Another Vs. Atmaram Sungomal Poshani ; 1989 (2) SCC 602. the Apex Court held as under:-
" 4. Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to other is an incident of service. No Government servant or employee of public undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the public administration. Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification, or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled the concerned public servant must carry out the order of transfer. If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant rules, as has happened in the instant case. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other."
20. In Union of India and others Vs. S.L. Abbas; 1993 (4) SCC 351 wherein the Apex Court held 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 subeject. 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."
21. In N.K. Singh Vs. Union of India and others (1994) 6 SCC 98 wherein the Apex Court 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 malafides 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."
22. In S.C. Saxena Vs. Union of India and others; (2006) 9 SCC 583; wherein 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 issue by Dr. Ram Manohar 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."
23. In Rajendra Singh and others Vs. Sate of Uttar Pradesh and others (2009) 15 SCC 178, wherein the Apex Court held as under:-
"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. v. Gobardhan Lal, MANU/SC/0281/2004 ; (2004) 11 SCC 402; 2005 SCC (L&S) 55, SCC p. 406, para 7)."
24. In Dharmendra Kumar Saxena Vs. State of U.P. and others 2013 (7) ADJ 53; wherein a coordinate Bench of this Court held as under:-
"24. From the aforementioned cases, it is evident that the Government is bound by executive order/policies. The guidelines are made to follow it and not to breach it without any justifiable reasons. Whenever the Government deviates from its policies/guidelines/executive instructions, there must be cogent and strong reasons to justify the order; when transfer order is challenge by way of representation, there must be material on record to establish that the decision was in public interest and it does not violate any statutory provision, otherwise the order may be struck down as being arbitrary and violate of Article 14 of the Constitution. The authorities cannot justify their orders that breach of executive orders do not give legally inforceable right to aggrieved person. As observed by Justice Frankfurter "An executive agency must be rigorously held to standards by which it professes its action to be judged."
25. Having taken note of the settled legal principles in respect of the scope of interference in matters relating to transfer, it is now well settled that no employee can seek a vested right to serve at any given place of his choice. The transfer is an incidence of service and an employee who is holding a transferrable post and if transferred cannot urge that there is any violation of a legal right. The order of transfer needless to say is an administrative order and the Courts are reluctant to interfere with transfer order which are made in public interest and for administrative reasons unless the order of transfer is shown to be an outcome of malafides or in violation of statutory provisions prohibiting any such transfer.
26. In the aforesaid backdrop, if the impugned order is examined, it would reveal that the transfer order under challenge cannot said to be an outcome of malafides nor it has been so alleged. Neither can it be said to be in violation of any statutory provision which prohibits such a transfer. However, the pith and substance of the submission of the learned counsel for the petitioner is that the said transfer order is in violation of the Clause 12 of the transfer policy dated 15.06.2022.
27. For appropriate consideration, Clause 12 of the transfer policy is being reproduced hereinafter for ready reference:-
"12. सरकारी कर्मचारियों के मान्यता प्राप्त सेवा संघो के पदाधिकारियों के स्थानान्तरणः-
सरकारी सेवकों के मान्यता प्राप्त सेवा संघों के अध्यक्ष/सचिव, जिनमें जिला शाखाओं के अध्यक्ष एवं सचिव भी सम्मिलित हैं, के स्थानान्तरण, उनके द्वारा संगठन में पदधारित करने की तिथि से 02 वर्ष तक न किये जायें। यदि स्थानान्तरण किया जाना अपरिहार्य हो, तो स्थानान्तरण हेतु प्राधिकृत अधिकारियों से एक स्तर उच्च अधिकारी का पूर्वानुमोदन प्राप्त किया जाय। जिला शाखाओं के पदाधिकारियों के स्थानान्तरण प्रकरणों पर जिलाधिकारी की पूर्वानुमति प्राप्त की जाए।"
28. The aforesaid Clause only provides that such employees who are the office bearers which also includes the President and Secretary of the Association which are recognized should not be transferred for a period of two years from the date they assume the charge of office bearers, however, in case if the transfer is necessary then the approval of one rank higher authority than the Prescribed Authority must be taken and in respect of office bearers of District Associates, the prior approval of the District Magistrate be taken.
29. It will also be relevant to notice that in Dharmendra Kumar Saxena (supra), this Court after considering the decisions of the Apex Court held that transfer policy is not binding as it does not give rise to a legally enforceable right to an aggrieved person. In the instant case, it is not disputed that the prior approval of one rank higher authority than the Prescribed Authority has been taken and the same has also been noticed by a Division Bench of this Court in its judgment dated 11.10.2022 in Special Appeal No. 411 of 2022 (Ajay Kumar Srivastava Vs. State of U.P. and others) wherein Clause 12 of the transfer policy was considered and noticed.
30. The learned counsel for the petitioner has also urged that in the case of Ajay Kumar Srivastava (supra), the Division Bench did make a reference to Clause 12 but it did not deal with the issue regarding the non-compliance of prior approval from the District Magistrate where it relates to the office bearers of District Level Associations.
31. Be that as it may, the issue regarding Clause 12 has been noticed by the Division Bench and turned down. As already noted above, the transfer policy is merely a guidelines and though it must be adhered but its infraction does not give rise to any enforceable rights to an aggrieved party. Moreover, the petitioners could not demonstrate any visible prejudice caused only for the reason that though the approval exists from one rank higher authority which is even higher than the District Magistrate but not from the District Magistrate itself. In absence of any clear prejudice established, mere deviation in compliance of Clause 12 appears to be cosmetic, especially when the service conditions does not place any embargo on such transfer.
32. The learned counsel for the petitioners could not dispute the fact that all the petitioners have been in their place of posting for more than 15 years prior to the impugned transfer and the details as mentioned in paragraph 5 of the counter affidavit filed by the State relating to each of the petitioners clearly indicates the fact that all the petitioners have been at one place for last almost 20 years. In so far as the petitioner nos. 13 and 19 are concerned, they themselves have sought their transfer on their own volition.
33. Considering the aforesaid material, submissions made by the respective parties and taking a holistic view including the fact that the petitioners have already joined on their place of posting and drawing strength from settled legal principles culled out from the pronouncements noted hereinabove, this Court does not find that there is any cogent reason for this Court to interfere in the transfer order. The larger public interest as well as the fact that each of the petitioners have been in their place of posting for about 20 years and more in itself in terms of the transfer policy requires consideration and for the said reason, the employer being best suited to judge the suitability of the employee and the place at which work is to be taken cannot be interfered with by the Court in exercise of the writ jurisdiction.
34. For the reasons as detailed hereinabove, this Court does not find favour with the petitioner and the petition is sans merit, accordingly, it is dismissed. In the facts and circumstances, there shall be no order as to costs.
(Jaspreet Singh, J.) Order Date:- 23.01.2023 Asheesh