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2001 DIGILAW 721 (ALL)

SURVESH CHAND GUPTA v. STATE OF UTTAR PRADESH

2001-07-23

D.R.CHAUDHARY, S.R.SINGH

body2001
D. R. CHAUDHARY, J. ( 1 ) THE petitioner herein, was posted as Chief Pharmacist in C. M. S. D. Store, District Hospital, azamgarh under Chief Medical Officer (in short C. M. O.), Azamgarh. He was transferred to ballia by means of the order dated 23. 9. 2000 and by another order dated 26. 9. 2000 the respondent No. 6 was accommodated by transferring him on the post on which the petitioner was working. The two orders aforementioned are under challenge in the present writ petition. ( 2 ) EARLIER to the impugned transfer order dated 23. 9. 2000 the petitioner was subjected to transfer from Azamgarh to Gorakhpur by means of the order dated 22. 4. 1999 which the petitioner challenged in writ petition No. 20903 of 1999 inter alia on the ground that the order impugned therein was passed under political pressure to accommodate one Sri H. N. Singh (respondent No. 6 ). This Court passed the interim order dated 20. 5. 1999 staying the operation of the transfer order dated 22. 4. 1999. The respondents in vindication of their authority ignored the stay order dated 20. 5. 99 and sent a letter dated 28. 2. 2000 addressed to the C. M. O. , Azamgarh by name requesting him to relieve the petitioner of his charge as Chief Pharmacist in compliance of his transfer order dated 22. 4. 1999. By another order dated 3. 4. 2000 the respondent No. 6 Sri H. N. Singh was posted as Chief Pharmacist in place of the petitioner though the respondent No. 6 could not be promoted as Chief Pharmacist. The aforestated two orders came to be challenged In writ petition No. 19122 of 2000 and this Court by interim order dated 21. 4. 2000 stayed the operation of orders impugned therein till further orders. The aforestated two writ petitions i. e. Writ Petition No. 20903 of 1999 and Writ Petition No. 19122 of 2000 however, came to be dismissed as having become infiructuous in view of the orders dated 23. 9. 2000 and 26. 9. 2000 being impugned in the present writ petition. ( 3 ) THE petitioner contends that the impugned orders have been passed in utter disregard of the order dated 30. 9. 9. 2000 and 26. 9. 2000 being impugned in the present writ petition. ( 3 ) THE petitioner contends that the impugned orders have been passed in utter disregard of the order dated 30. 9. 1999 passed in writ petition No. 35242 of 1998 directing the respondents to pass orders independently in accordance with law, without being influenced by political maneuvering; the impugned orders on the face of it, have been passed on the behest of the politicians to accommodate the respondent No. 6 as Chief Pharmacist in C. M. S. D. Store, in place of the petitioner; the politicians belonging to the Ruling Party (BJP) and the bureacrats have made it their prestige issue as the earlier transfer order of the petitioner was stayed by this Court, the respondent No. 6 is facing disciplinary proceedings as well as criminal case under Prevention of, Corruption Act before Special Judge, Gorakhpur in Special Trial No. 94 of 1997 and is not a chief Pharmacist; the respondent No. 6 is also guilty of forgoing letters; in vigilance enquiry he is found to have committed financial irregularities while posted in C. M. S. D. Store, Azamgarh; the petitioner, being President of Diploma Pharmacist Association, District Azamgarh, his transfer is unwarranted under the guidelines; there exists no administrative ground at all except to oblige respondent No. 6. On the strength of the facts and events aforestated, the petitioner is seeking issuance of writ of certiorari quashing the orders being impugned herein. ( 4 ) THE respondent Nos. 1 to 5 as well as the respondent No. 6 have denied the case set up by the petitioner by filing their separate counter-affidavits to which petitioner has filed rejoinder affidavit affirming the contents of the writ petition. In the counter affidavit filed by Dr. Harish chandra Vaish on behalf of respondent Nos. 1 to 5 it has been stated that the petitioner has been in Azamgarh, continuously for 15 years as Pharmacist and as Chief Pharmacist since 1998. Upon regard being had to his long stay at Azamgarh he was transferred to Gorakhpur as Chief Medical officer vied order dated 22. 4. 1999. The operation of the said order, however, came to be stayed by the High Court vied order dated 20. 5. 1999 passed in Civil Misc. Writ Petition No. 2095 of 1999. Upon regard being had to his long stay at Azamgarh he was transferred to Gorakhpur as Chief Medical officer vied order dated 22. 4. 1999. The operation of the said order, however, came to be stayed by the High Court vied order dated 20. 5. 1999 passed in Civil Misc. Writ Petition No. 2095 of 1999. Transfer of a Government servant holding a transferable post is an incidence of service, a part of service conditions and is normally not interfered with by this Court in its extra-ordinary discretionary jurisdiction unless the Court finds that the order is mala fide or that the service rules prohibit such transfer or that the authority, who issued the order, had not the competence to pass the order. It is also a settled law that in absence of prima facie material to establish mala fide, judicial review of transfer would be unjustified. The transfer order issued on administrative exigencies or with a view to subserving any public interest is not open for judicial review. The instant case is not covered under any of these exceptional circumstances in which the Court may in its extraordinary and discretionary jurisdiction under Article 226 of the Constitution of India, interfere with the transfer order dated 23. 9. 2000 (Annexure 13 ). But so far as the impugned order dated 26. 9. 2000 Annexure- 14 is concerned we are of the view that it is liable to be quashed. By means of the said order respondent H. N. Singh who was earlier transferred and posted as Chief pharmacist, Police Hospital, Azamgarh has been transferred to work as Chief Pharmacist in c. M. S. D. under Chief Medical Officer, Azamgarh. The said order it would appear from the facts of the case has been politically manoeuvred by respondent H. N. Singh. Such a posting obtained by political manoeuvring would not be in the interest of the fair administration. Accordingly, the petition succeeds in part. The interim order dated 26. 9. 2000 being Annexure-14 whereby the respondent H. N. Singh has been transferred and posted as Chief Pharmacist in place of the petitioner is quashed though the Court declines to quash the order dated 23. 9. 2000 Annexure-13 whereby the petitioner has been transferred on administrative ground from Azamgarh to Ballia. Direction contained in the order dated 23. 9. 9. 2000 being Annexure-14 whereby the respondent H. N. Singh has been transferred and posted as Chief Pharmacist in place of the petitioner is quashed though the Court declines to quash the order dated 23. 9. 2000 Annexure-13 whereby the petitioner has been transferred on administrative ground from Azamgarh to Ballia. Direction contained in the order dated 23. 9. 2000 Annexure-13 that charge be handed over to respondent H. N. Singh is however, quashed, The petitioner may hand over charge to Chief medical Officer, Azamgarh who may retain the same until any other Chief Pharmacist is appointed in place of the petitioner. .