Allahabad High Court
Mohd. Zeeshan vs State Of U.P. And Ors. on 25 February, 2008
Author: Pankaj Mithal
Bench: Pankaj Mithal
JUDGMENT Pankaj Mithal, J.
1. The petitioner is an Assistant Tax Superintendent (Tax and Revenue Inspector) which is a class III post governed by the U.P. Palika Centralized Services, Rules, 1966. Rule 25 of the aforesaid Rules empowers the State Government to transfer any officer of the Centralized Service from one Palika to another.
2. In exercise of the said power, the petitioner has been transferred from Nagar Palika, Parishad Chandpur, Bijnor and has been attached to the Directorate without assigning any duties. This order of transfer/attachment dated 21st January 2008 passed by the Chief Secretary has been impugned in the writ petition on the ground of malafidies and on the ground that it has been passed without application of mind by the authority concerned simply on the dictates of a political personality.
3. The writ petition was entertained by an order dated 18.2.2008 and in view of the fact that the transfer order was not a routine order of transfer but was an order made under the head VIP, the Court had directed the standing counsel to produce the record. The record has been produced and has been seen by me.
4. Heard learned Counsel for the parties. All of them are agreeable for the disposal of this petition at this stage itself on the basis of the record without any further opportunity to file any counter or rejoinder affidavits.
5. Sri U.N. Sharma, learned Senior Advocate assisted by Sri Suneet Kumar, learned Counsel for the petitioner has submitted that the petitioner has been transferred only on the basis of a letter written by one former member of the Lok Sabha and the Zila Parabhari, Bijnor U.P., of the BSP to the effect that the workers of the BSP have made complaints to him that the petitioner is working in the interest of the Samajwadi Party and his actions are contrary to the policies of the BSP. Therefore, he should be transferred from Chandpur.
6. The record produced do reveals the existence of the above letter of the former Member of Parliament (in short M.P.) of the Bijnor and that the impugned transfer order has been passed without verifying the substance in the complaints made against the petitioner simply to please the said political person.
7. Learned standing Counsel has defended the order on the ground that the Chief Secretary was within its power to transfer the petitioner, even if it has been passed on the dictates of a political person and in support thereof he has placed reliance upon a Division Bench decision of the Supreme Court Mohd. Masood Ahmad v. State of U.P. and Ors. Sri Farman Naqvi who has appeared for the Nagar Palika Parishad Chandpur respondents No. 3 and 4 by filing counter affidavit has defended the order on an additional ground that the petitioner is a resident of Bijnor and therefore he can not be posted in the home district and in support has brought documents such as voters list of the year 2006 and the certificates of the school to establish that the petitioner is basically resident of district Bijnor.
8. There is no dispute to the settled legal preposition that where an employee holds a transferable post the transfer being part of the service condition of the employee should not ordinarily be interfered with by the Court unless, it is established that the order is malafide and has been passed in contravention of the service Rules or by an authority who is not competent to pass the same. In Mohd. Masood Ahmad (supra) the Supreme Court has held that even if an employee has been transferred on the recommendation of a MLA that by itself would not vitiate the transfer order as it is the duty of the representative of the people to express the grievances of the people and the State government is certainly empowered to transfer such employee on his behalf.
9. In Sarvesh Kumar Awasthi v. Jal Nigam and Ors. Apex Court while dealing with the transfer of an employee effected at the recommendations either of Minister or MLAs, MPs and MLCs observed that the transfer of an officer is required to be made on the basis of set norms and guidelines without any political interference. Some what similar view was expressed by the three Judges Bench of the Supreme Court in Suresh Chandra Sharmd v. Chairman, U.P.S.E.C. and Ors. and it was held that interference in transfer and posting with political patronage has totally disturbed the autonomous nature of the Electricity Board. Accordingly, the practice of transferring the officers and employees at the behest of politicians was discouraged by the Supreme Court.
10. A Division Bench of this Court in the case of Lokesh Kumar v. State of U.P. and Ors. 1998 (1) AWC 27 held that the transfer without any administrative exigency or pubic interest merely for political reasons is not sustainable.
11. This has been followed by the Division Bench decision in the case of Goverdhan Lal v. State of U.P. and Ors. 2000(2) AWC 1515 wherein also the practice of transferring employees on political pressure was deprecated.
12. Another Division Bench of this Court Ajai Jauhari v. State of U.P. and Ors. 2004 (1) AWC 940 has held that the transfer of a government servant on political pressure can not be sustained when the government has not applied mind to the relevant consideration as to whether the transfer is justifiable on the touch stone of administrative exigency or public interest.
13. In view of the above legal position the principal that emerges is that ordinarily transfer should be made only on set norms either looking to the administrative exigency or the public interest and transfers on the request/complaints or dictates of MLAs and MPs would not normally stand vitiated provided they are made on the administrative grounds after verifying the substance of the complaints or public interest. In other words, transfers at the behest of politicians are permitted only to the limited extent where the authority concerned applies its mind and founds some substance in the request or complaints of the politicians of the officers/employees concerned. In nutshell, without there being anything to substantiate the complaints or to support the request the order of transfer passed merely because a politician has requested, can not be justified. Even, in the case of Mohd. Masood Ahmad (Supra) it is said that every transfer at the behest of a politicians would not stand vitiated but it all depends upon the facts and circumstances of the individual case. In the instant case the transfer has been made merely in view of the letter of the former M.P., on the allegation that he has received complaints that the petitioner is patronising the policies of the previous government and as such his actions are against government in power. This complaint has not been verified and there is nothing on record to show that the Chief Secretary had found any substance in the same. The transfer in the instant case as such has not been made on any administrative exigency or in public interest. Moreover, this was not a request or complaint made by a sitting MLA or MP who may be said to be a representative of the public. It is a letter by the former MP which does not represent anybody as on date. He is nobody to inter meddle with the affairs of the department concerned on behalf of the public. In view of the aforesaid facts and circumstances the decision of the Supreme Court in the case of Mohd Masood Ahmad (Supra) would not be applicable in the present case. A former M.P., on whose request the transfer is made is not a person who represents the public in general. He is only a political person and therefore his letter if being acted upon would result in giving political mileage to such a person and would not be an action in public interest or administrative exigency. I am therefore of the view that the power of transferring an officer can not be wielded arbitrarily, malafidly or at the instance of politicians who no longer represent the public. If it is for the better administration that the employee concerned must have freedom from fear of being harassed by repeated transfer or transfer orders at the instance of someone who has nothing to do with the administration of the department concerned. Thus, in the above facts and circumstances the impugned order is unsustainable and suffers from total non application of mind which has been passed only to please a leader affiliated to the Ruling party. The impugned order dated 31.1.2008 (Annexure-1 to the writ petition) is therefore quashed.
14. However, before parting it would be suffice to add that the contention raised by Sri Naqvi that the petitioner is a resident of district Bijnor and therefore he should not be posted in the home district is a matter which is required to be considered after verification of the facts. Therefore, it is not necessary to deal with the said aspect of the matter in exercise of the writ jurisdiction. The respondents are left free to take necessary action in this regard in accordance with law.
15. Petition allowed. No order is passed as to costs.