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2000 DIGILAW 1323 (ALL)

SHEO KUMAR RAM GUPTA v. STATE OF UTTAR PRADESH

2000-10-17

PRADEEP KANT, R.D.MATHUR

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PRADEEP KANT, J. ( 1 ) THE petitioner who is posted as Assistant Engineer (Civil) in the Irrigation Department, government of U. P. has approached this Court challenging the order of transfer dated 15. 7. 2000 by means of which the petitioner has been transferred from Lucknow to Sitapur. ( 2 ) THE main thrust of challenge to the order of transfer is that the order recites that the transfer has been effected on the own request of the petitioner whereas the petitioner has categorically asserted in the writ petition that he has not made any request for transfer. In all 21 Assistant engineers have been transferred by the same order and at the top of the order, it has been recited that the transfers are being made on the own request of the incumbent. ( 3 ) IN para 4 of the writ petition, the petitioner has asserted that he has never requested the authorities concerned for transfer. Para 4 of the writ petition reads as under : "4. That the petitioner had never requested the authorities concerned for transfer but on the other hand, the petitioner has prayed that on account of some personal and domestic problems, the petitioners transfer may not be made. " We required the Engineer-in-Chief of the Irrigation Department to be present and to indicate as to when the petitioner has not made any request for transfer then in what circumstances, the order of transfer has been passed on his own request. The Engineer-in-Chief, Sri V. K. Tyagi appeared before us and stated that the application for transfer of the petitioner was moved by the wife of the petitioner, which was received from reliable sources and treating it to be a representation made on behalf of the petitioner, he has passed the order of transfer transferring the petitioner to Sitapur. He has further stated that the application made two requests ; (i) that the petitioner should be posted at a non-restricted place, as he has already completed minimum period of six years at a restricted place, and (ii) that the petitioner should be posted in certain offices at Lucknow itself. He has further stated that the application made two requests ; (i) that the petitioner should be posted at a non-restricted place, as he has already completed minimum period of six years at a restricted place, and (ii) that the petitioner should be posted in certain offices at Lucknow itself. The Engineer-in-chief further stated that looking to the exigency of service, the petitioner was accommodated at Sitapur at a non-restricted post in accordance with the prayer made by his wife and, therefore, if he has not been retained at Lucknow in a non-restricted office, no illegality has been committed by the authority. On a specific query being put to the Engineer-in-chief that under what provision of law, an application moved by the wife for transferring the petitioner from one place to another could be treated to be an application on behalf of the Government employee so as to act upon the said request, the Engineer-in-Chief fairly stated that there is no such rule under the Service Rules or otherwise but it has become customary that such applications are treated as the application moved on behalf of the government employee and the Government employees often make request for transfer in this manner. We fail to appreciate that when under the Rules wife or a near relation of the employee has no say in transfer of a Government employee, then under which authority of law, the department concedes such request as the request made on behalf of the Government employee. We also enquired from the Engineer-in-Chief that when an application is moved for transfer of a government employee on his own request or through his wife or some near relation, like father or son, whether such application is confronted to the Government employee through his departmental head so as to get it confirmed as to whether the request has been made by the government employee or not, the Engineer-in-Chief in response to the said query stated that although a request made either by the employee himself or by any other person including his wife should, of course, be cross-checked and genuineness of the same should be got confirmed from the employee concerned through his departmental head but this practice is also not being followed. ( 4 ) CASES have come before us where the employee has refuted that he has made any application for transfer although the order of transfer mentions the said reason for transfer. Besides this, if a government employee makes a request for transfer on his request and when he is posted on the place desired by him, the other incumbent who is transferred to accommodate such a person can be transferred in exigency of service but again the transfer of such incumbent is also shown as transfer on his own request whereas such a Government employee never makes any request for transfer. Since the transfer orders are impugned very frequently by the Government servants, if the transferred place is not of their liking, with a plea that although the transfer order gives reason of his transfer as own request but no such request has been made by him which sometimes results in passing of interim order of stay in favour of such incumbents. We are, therefore, of the view that whenever an application for transfer on own request of the government servant is made or reaches the authority concerned, the authenticity and genuineness of the same should be got confirmed by the authority competent to transfer from the said Government employee through his departmental head or his immediate superior where the employee is working and in case the employee owns the request, the authority shall be at liberty to pass appropriate orders accordingly but in case the employee denies of moving such application, the question of considering his request for transfer does not arise. ( 5 ) IT is further directed that the request made on behalf of wife of Government employees or any other near relation, unless there are specific reasons for which the Government employee himself cannot move an application, should not be entertained and should not be treated as an application for request of transfer for and on behalf of a Government employee. ( 6 ) CARE should also be taken that when request of a Government employee for transfer to a particular place is accepted, the transfer of the incumbent in whose place the employee is to be adjusted should not be indicated as transfer on the request of other employee also but the same can be ordered in exigency of service or in public interest or otherwise. ( 7 ) THE action of the authority concerned in passing the order of transfer on request of the government employee without getting it confirmed and without looking to the above facts results in undue advantage to the Government employee who gets an application moved through his wife or otherwise and when he finds that the transfer order has not been passed according to his liking, he challenges the same on the ground that he has not made any such request. In the instant case, the petitioner has categorically mentioned in para 4 of the writ petition that he has not made any request for transfer but the fact remains and established from the record that the petitioners wife had made the request for transfer of the petitioner from a restricted post to a non-restricted post. She has further requested that the petitioner who is already working at lucknow should be accommodated in either of the three offices situate in Lucknow which are non-restricted place of posting. The application of the wife dated 28. 4. 2000 has been placed before us and a photostat copy of the same has been taken on record. A bare perusal of the said application would indicate that the application appears to have been written on the dictates of the petitioner himself, as the details of posting and nature of place of posting, etc. which have been mentioned therein could not be in the knowledge of the wife ordinarily. The petitioner thus is guilty of swearing an affidavit deliberately and knowingly that it was incorrect. The petitioner could have stated in the writ petition that his wife gave the application for transfer but he has not moved any application for transfer and the transfer has not been effected in accordance with the request made by the wife. The petitioner thought it proper to deny the application moved by the wife by not mentioning the fact regarding the same in the writ petition and taking a definite stand that he has not moved any application for transfer. Such conduct of the petitioner, who is a government servant, cannot be appreciated. The petitioner thought it proper to deny the application moved by the wife by not mentioning the fact regarding the same in the writ petition and taking a definite stand that he has not moved any application for transfer. Such conduct of the petitioner, who is a government servant, cannot be appreciated. The petitioner has tried to take the advantage of the application which is moved through his wife for his posting in another office at Lucknow but when the petitioner was posted at Sitapur, he took the stand that since he has not moved any application for transfer, therefore, the transfer on his own request could not have been made to sitapur. We refuse to interfere with the transfer order of a person who has not come with clean hands and tried to misguide the Court by not stating that the application was moved by his wife. It is inconceivable that the wife has moved the application for transfer of the husband but the husband was unaware about moving of such application. We, therefore, find that it is not a fit case for interference under Article 226 of the Constitution and the writ petition is liable to be dismissed. In the circumstances of the case, we impose costs of Rs. 2,000 upon the petitioner. ( 8 ) BEFORE parting, we provide that whenever case of transfer on own request are brought to the notice of the authority concerned, the authority concerned shall, while exercising its own discretion in transferring a Government servant, keep in mind the directions referred to above in this judgment. ( 9 ) THE writ petition is dismissed. The costs of Rs. 2,000 shall be deposited by the petitioner with the State Legal Service Authority within a period of one month from the date of the judgment. .