Pramod Charan Saxena v. Director, Panchayat Raj Lekha Nideshalaya
2002-08-16
S.P.MEHROTRA
body2002
DigiLaw.ai
JUDGMENT S. P. Mehrotra, J. 1. This writ petition has been filed by the petitioner under Article 226 of the Constitution of India, inter alia, challenging the order dated 28.6.2002 (Annexure-5 to the writ petition) and the order dated 3.8.2002 (Annexure-10 to the writ petition) passed by the respondent No. 1. 2. It appears that by the order dated 28th June, 2002 (Annexure-5 to the writ petition), issued by the respondent No. 1, the petitioner, who was holding the post of Lekhakar, was transferred from Etah to the Headquarter at Lucknow in public interest. The petitioner filed an earlier writ petition being Civil Misc. Writ Petition No. 26990 of 2002 before this Court challenging the said order dated 28th June, 2002. The said writ petition was decided by the order dated 11th July, 2002. After noticing the submission made by the learned counsel for the petitioner in the said Writ Petition No. 26990 of 2002 that as per Government policy, the petitioner was not liable to transferred when only one and half years was left for his retirement, and that the last posting ought to be made on the choice of the petitioner, this Court in the said order dated 11th July, 2002, observed as follows : "No breach of any statutory rule or regulation has been shown. No case for interference in writ jurisdiction is made out." 3. However, considering the submission made by the learned counsel for the petitioner in the said writ petition, this Court by the said order dated 11th July, 2002, permitted the petitioner to make a representation within ten days. It was further observed that in case such a representation was made within a period of ten days from the date of the said order, the Director, Panchayat Raj Lekha Nideshalaya, U. P., Indira Bhawan, Lucknow (Respondent No. 1 in the said writ petition) would dispose of the said representation preferably within a period of four weeks from the date a certified copy of the said order dated 11th July, 2002 along with the representation was submitted by the petitioner before the said authority. It was further directed that if the representation was made by the petitioner, the operation of the transfer order dated 28th June, 2002, would remain stayed for a period of six weeks from the date of the said order. 4.
It was further directed that if the representation was made by the petitioner, the operation of the transfer order dated 28th June, 2002, would remain stayed for a period of six weeks from the date of the said order. 4. Pursuant to the said order dated 11th July, 2002, the petitioner made a representation before the Director, Panchayat Raj Lekha Nideshalaya, U. P., Indira Bhawan, Lucknow, which has been annexed as Annexure-9 to the present writ petition. By the order dated 3rd August, 2002 (Annexure-10 to the writ petition) the Director, Panchayat Raj Lekha Nideshalaya, U. P., Lucknow (Respondent No. 1 in the present writ petition) has decided the said representation filed by the petitioner pursuant to the said order dated 11th July, 2002, passed by this Court. 5. I have heard learned counsel for the petitioner and learned standing counsel for respondent No. 1. 6. Learned counsel for the petitioner submitted that the transfer order dated 28th June, 2002, was against the Government policy and as such, the said transfer order is liable to be quashed. Having considered the same submission on made by the learned counsel for the petitioner in the earlier writ petition, namely, Civil Misc. Writ Petition No. 26990 of 2002, this Court in the said order dated 11th July, 2002, held that no case for interference in writ jurisdiction was made out. Thus, the said submission made by the learned counsel for the petitioner is no longer open to the petitioner. 7. I have perused the order dated 3rd August, 2002 (Annexure-10 to the writ petition) passed by the respondent No. 1. I do not find any illegality in the said order. Transfer is an incident of service. No interference is to be made with the transfer order unless there is violation of statutory rules or there is mala fide. Learned counsel for the petitioner has not been able to show any violation of statutory rules or any mala fide on the part of the respondents. In the circumstances, no interference is called for in writ jurisdiction under Article 226 of the Constitution of India. Reference in this regard may be made to certain judicial decisions. 8.
Learned counsel for the petitioner has not been able to show any violation of statutory rules or any mala fide on the part of the respondents. In the circumstances, no interference is called for in writ jurisdiction under Article 226 of the Constitution of India. Reference in this regard may be made to certain judicial decisions. 8. In Lakhan Singh v. State of U. P. and others, 1983 AWC 195 (LB), a Division Bench of this Court laid down that even if the transfer order was contrary to the directions of the State Government, the same was not liable to be interfered with in exercise of writ jurisdiction under Article 226 of the Constitution of INdia. Reliance was placed on a decision of the Apex Court in Shanti Kumari v. Regional Deputy Director, Health Services, AIR 1981 SC 1577 . The said decision of the Division Bench in Lakhan Singh's case (supra) was followed by a Division Bench in Birpal Singh and another v. U. P. State through Director, National Cadet Corps. Directorate, U. P., Lucknow and others, 1983 AWC 165. In B. Varadha Rao v. State of Karnataka and others, AIR 1986 SC 1955 , their Lordships of the Apex Court laid down as follows (paragraph 4 of the said AIR) : "4. .........................We agree with the view expressed by the learned Judges that transfer is always understood and construed as an incident of service. The words 'or other conditions of service' in juxtaposition to the preceding words 'denies or varies to his disadvantage his pay, allowances, pension' in Rule 19 (1) (a) must be construed ejusdem generis. Any alteration in the conditions of service must result in prejudice to the Government servant and some disadvantage touching his pay, allowances, pension, seniority, promotion, leave, etc. It is well understood that transfer of a Government servant who is appointed to a particular cadre of transferable posts from one place to another is an ordinary incident of service and therefore, does not result in any alteration of any of the conditions of service to his disadvantage.
It is well understood that transfer of a Government servant who is appointed to a particular cadre of transferable posts from one place to another is an ordinary incident of service and therefore, does not result in any alteration of any of the conditions of service to his disadvantage. That a Government servant is liable to be transferred to a similar post in the same cadre is a normal feature and incident of Government service and no Government servant can claim to remain in a particular place or in a particular post unless, of course, his appointment itself is to a specified, non-transferable post .................................................." 9. In Mrs. Shilpi Bose and others v. State of Bihar and others, AIR 1991 SC 532 , their Lordships of the Supreme Court laid down as follows (paragraph 4 of the said AIR) : "4. In our opinion, the Courts should not interfere with a transfer order which are made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department. If the Courts continue to interfere with day-to-day transfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders." 10. In Union of India and another v. N. P. Thomas, AIR 1993 SC 1605 , their Lordships of the Supreme Court laid down as follows (paragraph 8 of the said AIR) : "8. In the present case, it cannot be said that the transfer order of the respondent transferring him out of Kerala circle is violative of any statutory rule or that the transfer order suffers on the ground of mala fide.
In the present case, it cannot be said that the transfer order of the respondent transferring him out of Kerala circle is violative of any statutory rule or that the transfer order suffers on the ground of mala fide. The submissions of the respondent that some of his juniors are retained by Kerala circle and that his transfer is against the policy of the Government posting the husband and wife in the same station as far as possible cannot be countenanced since the respondent holding a transferable post has no vested right to remain in the Kerala circle itself and cannot claim, as a matter of right, the posting in that circle even on promotion." In Union of India and others v. S. L. Abbas, AIR 1993 SC 2444 , their Lordships of the Supreme Court laid down as follows (paragraphs 7 and 8 of the said AIR) : "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 subject. 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. 8. The jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Article 226 of the Constitution of India in service matters. This is evident from a perusal of Article 323A of the Constitution. The constraints and norms which the High Court observes while exercising the said jurisdiction apply equally to the Tribunal created under Article 323A. (We find it all the more surprising that the learned single member who passed the impugned order is a former Judge of the High Court and is thus aware of the norms and constraints of the writ jurisdiction). The Administrative Tribunal is not an Appellate Authority sitting in judgment over the orders of transfer.
(We find it all the more surprising that the learned single member who passed the impugned order is a former Judge of the High Court and is thus aware of the norms and constraints of the writ jurisdiction). The Administrative Tribunal is not an Appellate Authority sitting in judgment over the orders of transfer. It cannot substitute its own judgment for that of the authority competent to transfer. In this case the Tribunal has clearly exceeded its jurisdiction, in interfering with the order of transfer. The order of the Tribunal reads as if it were sitting in appeal over the order of transfer made by the Senior Administrative Officer (competent authority)." 11. In State of Punjab and others v. Joginder Singh Dhatt, AIR 1993 SC 2486 , their Lordships of the Supreme Court laid down as follows (paragraph 3 of the said AIR) : "3. We have heard learned counsel for the parties. This Court has time and again expressed its disapproval of the courts below interfering with the order of transfer of public servant from one place to another. It is entirely for the employer to decide when where and at what point of time a public servant is transferred from his present posting. Ordinarily, the Courts have no jurisdiction to interfere with the order of transfer. The High Court grossly erred in quashing the order of transfer of the respondent from Hoshiarpur to Sangrur. The High Court was not justified in extending its jurisdiction under Article 226 of the Constitution of India in a matter where, on the face of it, no injustice was caused." 12. IN N. K. Singh v. Union of India and others, (1994) 6 SCC 98 , their Lordships of the Supreme Court laid down as follows, (paragraph 23 of the said SCC) : "23. .................... Assessment of worth must be left to the bona fide decision of the superiors in service and their honest assessment accepted as a part of service discipline. Transfer of a Government servant in a transferable service is a necessary incident of the service career. Assessment of the quality of men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. Several imponderables requiring formation of a subjective opinion in that sphere may be involved, at times.
Assessment of the quality of men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. Several imponderables requiring formation of a subjective opinion in that sphere may be involved, at times. The only realistic approach is to leave it to the wisdom of that hierarchical superiors to make that decision. Unless the decision is vitiated by mala fides or infraction of any professed norm or principle governing the transfer, which alone can be scrutinized judicially, there are no judicially manageable standards for scrutinizing all transfers and the Courts lack the necessary expertise for personnel management of all Government departments. This must be left, in public interest, to the departmental heads subject to the limited judicial scrutiny indicated." In Abani Kanta Ray v. State of Orissa and others, 1995 Supp (4) SCC 169, their Lordships of the Apex Court laid down as follows (paragraph 10 of the said SCC) : "10. It is settled law that a transfer which is an incident of service is not to be interfered with by the Courts unless it is shown to be clearly arbitrary or vitiated by mala fides or infraction of any professed norm or principle governing the transfer : (See N. K. Singh v. Union of India)." 13. In view of the aforesaid discussion, I am of the view that this writ petition lacks merit, and the same is liable to be dismissed. The writ petition is accordingly dismissed.