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2004 DIGILAW 1270 (ALL)

JAI PRAKASH SINGH v. STATE OF U. P

2004-07-14

K.S.RAKHRA, PRADEEP KANT

body2004
PRADEEP KANT, K. S. RAKHRA, JJ. ( 1 ) THESE are two writ petitions filed by Jai Prakash singh and both of them arise of the same order of transfer and posting of respondent No. 5, Dharmendra Nath Singh, at Sharda Nagar Range, South Kheri Division, as a result of which the petitioner has been shifted from the said range allegedly for accommodating the respondent No. 5 at Sharda Nagar Range, under the exercise of political pressure and influence and not for any public purpose or any administrative exigency. ( 2 ) WRIT Petition No. 1403 (SB) of 2003 has been filed challenging the order of transfer of respondent No. 5 to Sharda Nagar Range by means of order dated 14. 10. 2003 and also the order dated 23. 10. 2003, by means of which the petitioner has been attached to the divisional Office, South Kheri Division. ( 3 ) DURING the pendency of the aforesaid writ petitions, another order has been passed on 27. 2. 2004, by means of which the petitioner was transferred to Forest Security, siddhartha Nagar Forest Division, which order has been made the subject matter of challenge in Writ Petition No. 333 (SB) of 2004. ( 4 ) BEFORE entering into the merits of the case, it would be relevant to mention that again during hearing of these petitions, another order has been passed by the State Government, transferring the petitioner to Maniyar Range, Ballia Forest Division on 27. 5. 2004. ( 5 ) THE facts, which have given rise to this controversy, which has been very hotly contested not only by the private parties but also by the State Government, are as under : the petitioner, a Forest Range Officer, was transferred from Bhira Range, South kheri Division to Sharda Nagar Range, South Kheri Division on 3. 6. 2002. On 28. 5. 2003, several Range Officers/forest Rangers were transferred, wherein the respondent No. 5, whose name did find place at serial No. 37 in the list of transfers, was sought to be transferred from Dhaurara Range, North Kheri Division to Bhira range, South Kheri Division. 6. 2002. On 28. 5. 2003, several Range Officers/forest Rangers were transferred, wherein the respondent No. 5, whose name did find place at serial No. 37 in the list of transfers, was sought to be transferred from Dhaurara Range, North Kheri Division to Bhira range, South Kheri Division. The respondent No. 5, instead of comply ing with the said transfer order, appears to have indulged in putting political pressure for his transfer to his prace of choice, namely, Sharda Nagar Range, as he was not apparently willing to join at Bhira Range, as a consequence of which, he did not join the transferred place, namely, Bhira Range, despite clear order of transfer. In the meantime, an order was issued on 14/15. 7. 2003 by the Principal Chief conservator of Forest, U. P. Lucknow, ensuring compliance of the transfer orders. The respondent No. 5, however, instead of joining at the transferred place, namely, bhira Range, made effort for change of his posting for which he took shelter of the local M. L. A. namely, Sri Rajendra Singh Rana, Who wrote a letter on 26. 9. 2003 to the Chief Minister, U. P. stating therein that the respondent No. 5 is his near relative and he be posted at Sharda Nagar Range, South Kheri Division. On this letter of Sri Rajendra Singh Rana, MLA, Deoband, Saharanpur, the Special secretary to the Chief Minister endorsed the same to the Principal Secretary, forest, saying that the aforesaid order be effected. In response to the wishes of the mla, the transfer order dated 14. 10. 2003 was passed transferring and posting the respondent No. 5 to Sharda Nagar Range under the signatures of the Special secretary to the State Government with a direction to the Principal Chief Conservator of Forest to make such posting within three days and apprise him of the action taken. ( 6 ) SINCE the petitioner was already working at Sharda Nagar Range and there was no vacancy of the Forest Range Officer, the Principal Chief Conservator of Forest informed the principal Secretary, Forest that the petitioner is already posted and working at the aforesaid range and in the letter dated 14. 10. 2003 of the State Government, no directions have been issued with respect to posting of the sitting incumbent and therefore, the directive issued on 14. 10. 2003 would mean posting two Range Officers in one Range. 10. 2003 of the State Government, no directions have been issued with respect to posting of the sitting incumbent and therefore, the directive issued on 14. 10. 2003 would mean posting two Range Officers in one Range. He also mentioned that transfer order in mid-session could be effected only after approval of the Forest Minister. He, therefore, requested that for transferring the petitioner in one of the ranges mentioned by him in the aforesaid letter, due approval be granted so that respondent No. 5 be posted in South Kheri Division. As a consequence of the aforesaid information given by the principal Chief Conservator of Forest, the State Government issued an order on 23. 10. 2003 attaching the petitioner to the office of South Kheri Forest Division. ( 7 ) IN the counter-affidavit filed by the State Government as well as by the private respondent, the aforesaid facts have not been disputed but a defence has been taken by the private respondent that he was not aware of the order dated 28. 5. 2003 transferring him to bhira and since he had fallen ill, for which he has taken one or two days leave, thereafter he was ordered to be posted at Sharda Nagar Range whereas the State Government did not deny the political pressure being put by the respondent No. 5 but defended the action by saying that the petitioner has also indulged in applying political influence, for staying at sharda Nagar Range and, therefore, since both of them have used political influence for being posted at Sharda Nagar Range, therefore, no relief can be granted to the petitioner. ( 8 ) ANOTHER plea has been taken by the State Government that when the petition was filed, the Court after looking to the record did find that both the parties have exercised political pressure and, therefore, the learned Advocate General was directed to look into the matter, who got the case adjourned to a next date. However, the learned Advocate General, instead of looking into the matter himself, as the record reveals, advised the Government to take a decision in the matter and record also says that as per the direction of the Court, the Chief Minister had reviewed the position, since there were recommendations of two different MLAs for two different persons, and decided that order in favour of respondent no. 5 shall be maintained. 5 shall be maintained. The submission is that the matter having been reviewed by the state Government and the Chief Minister having said that the earlier order posting the respondent No. 5 to Sharda Nagar Range should be maintained, there cannot be any subsisting grievance to the petitioner. ( 9 ) ON 20. 11. 2003, a Division Bench/of this Court, after taking into consideration the review made by the Chief Minister, observed that this Court deprecates the practice of passing transfer orders on political pressure and in the instant case both the parties have exerted political pressure on the Chief Minister who has taken a decision on 15. 11. 2003 for maintaining the impugned transfer order dated 23. 10. 2003 and that no interference is required at this stage, but at the same time said that joining of the petitioner at the transferred place shall be subject to further orders of the Court. ( 10 ) APART from the pleadings of the parties, the record has been produced which establishes that letter was written by the MLA Sri Rajendra Singh Rana as aforesaid for transferring the respondent No. 5 to Sharda Nagar Range saying him to be his relative, on which directions were immediately issued for transferring the respondent No. 5 to Sharda nagar Range. This letter is dated 26. 9. 2003, on which the aforesaid endorsement has been made on that very date by the Special Secretary to the Chief Minister to the Principal secretary, Forest, directing him to give effect to the aforesaid transfer order. Apart from the said letter, there is one more letter of Dr. Arvind Yadav, State President, Samajwadi Party (Prabuddh Prakoshth), U. P. , making a recommendation for transferring the respondent No. 5 at a particular Range. There is another letter dated 29. 9. 2003 written by one Sri vanshidhar Raj and Sri Arvind Giri, Members of Legislative Assembly, U. P. , addressed to the Chief Minister requesting for transfer of the respondent No. 5 to Sharda Nagar Range. This letter has also been signed by Dr. Kaushal Kishore, MLA, Lakhimpur. Special secretary to the Chief Minister has endorsed this letter again to the Principal Secretary, forest saying that the aforesaid transfer order has been directed to be effected. There is also a letter dated 5. 10. 2003 of Sri Rajendra Singh Rana, received in the office of Chief Minister on 8. 10. Kaushal Kishore, MLA, Lakhimpur. Special secretary to the Chief Minister has endorsed this letter again to the Principal Secretary, forest saying that the aforesaid transfer order has been directed to be effected. There is also a letter dated 5. 10. 2003 of Sri Rajendra Singh Rana, received in the office of Chief Minister on 8. 10. 2003, with the endorsement of Special Secretary to the Chief Minister to the principal Secretary, Forest for seeking the proposal for transfer of the respondent No. 5. ( 11 ) THERE is another letter dated 21. 10. 2003, received in the office of the Chief Minister on 23. 10. 2003 of one Kunwar Arunveer Singh, MLA, Bahraich making recommendation in favour of the petitioner, saying that he knows him peronsally and that the petitioner is a hard working officer, whose stay in Sharda Nagar Range is only of one year and it has come to his knowledge that some anti-social people are putting political pressure for removing him from that place because of their self-interest, therefore, his posting may be continued at Sharda Nagar Range. On this letter, the Special Secretary to the Chief Minister, Sri chandrama Prasad, addressed a note to the Principal Secretary, Forest requiring stay of the petitioner at Sharda Nagar Range. However, the respondent No. 5 was posted at Sharda nagar Range and the petitioner was attached, as stated hereinbefore, in the divisional office of South Kheri Division and later on, was posted in the Security Range and lastly he has been transferred to Maniyar Range, Ballia Division. ( 12 ) THE transfer orders are not normally open to challenge unless they are passed in violation of some statutory rule or provision or are actuated by malice and of course, if they have not been passed by the Competent Authority. In the absence of any reasonable proof of political influence or malafide exercise of power, transfer orders are not lightly interfered with. A Government servant cannot insist that he should be allowed to remain at a particular place for the period that he desires nor he can be posted and transferred according to his own wishes. It is the State Government, which is the Competent Authority to transfer and post the Government servants on a place where they are more required and are more suited. It is the State Government, which is the Competent Authority to transfer and post the Government servants on a place where they are more required and are more suited. The transfer orders, thus, are passed in exigency of service either in public interest or for administrative reasons. Law in this regard is well settled but if a transfer order has been passed not in conformity with broad principles enumerated above, or so as to say for extraneous considerations, neither for any administrative reasons nor in public interest but for accommodating a particular Government servant at a particular place, that too on his request, which has been pushed by him to a stage till it is accepted in response to 1 he political clout that he is having, it cannot be said that such a transfer order has been passed bonafide or in public interest. ( 13 ) IT also cannot be disputed that where both the contesting parties fight for a post at a particular place and indulge in exercising political pressure, the one who falls to get the case done in his/her favour cannot complain before the Court that the order passed in favour of the other person suffers from vice of mala fide, having been passed under political clout, which the other person enjoys. Article 226 is a discretionary jurisdiction of the High Court cannot be used nor is meant for such Government servants, who indulge in politicking. ( 14 ) LEARNED Counsel for the respondent-State has placed reliance upon a judgment of the Apex Court dated 23. 3. 2004 pronounced in Civil Appeal No. 408 of 2004 State of U. P. v. Gobardhan Lal, 2004 All. LJ 1433, in support of his submission that the letter written by the MLA in favour of the respondent No. 5 was not sufficient to hold that his transfer was a result of mala fide. ( 15 ) IN this case the High Court has set aside the order of transfer as it was supposedly passed on a letter written by the MLA. The Supreme Court took into consideration the defence taken by the State, wherein the genuineness of the aforesaid letter of the MLA was challenged. It was stated that it was a fake letter which was never written by the MLA nor was available in files. The Supreme Court took into consideration the defence taken by the State, wherein the genuineness of the aforesaid letter of the MLA was challenged. It was stated that it was a fake letter which was never written by the MLA nor was available in files. Apart from this, it was also contended by the State that performance of the respondent in the previous stations as well came under a cloud and as a matter of fact, he was suspended for alleged irregularities and misconduct, while he was posted at hamirpur and Gonda. Though subsequently he was reinstated on 11. 7. 1997 and departmental proceedings instituted were still pending against him. Writ petitioner himself was said to be real brother of a MLA, who, had put lot of pressure through another MLA, at every stage to get favourable treatment. The Supreme Court, in the light of the above, held that it was not possible for the High Court to decide the disputed question of fact and, therefore, allowed the appeal upsetting the order passed by the High Court. The Apex Court reiterated that the transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service. Unless the order of transfer is shown to be an outcome of a malafide exercise of power or violative of any statutory provision (an act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the Competent Authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. The Court also said that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision. Even allegations of malafides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures and surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer. ( 16 ) IN the instant case, the petitioner had been working at Sharda Nagar Range for a period of one year only but that could hardly have been a ground for not transferring him nor is a ground for consideration by this Court but the fact that the transfer order has been passed in respect of a person, namely, respondent No. 5 transferring him to a place where there is no vacancy and for accommodating at a place of his choice and the incumbent regularly working on the said post is sought to be attached to an office without there being any complaint against him and without there being any enquiry in contemplation, apparently makes it clear that such a transfer order has been passed only to accommodate the respondent No. 5. The pleadings as revealed and record as disclosed, do not leave any doubt that the respondent No. 5 did not obey the transfer order dated 28. 5. 2003, by means of which he was transferred from Dhaurhara Range to Bhira Range and even did not hesitate in putting political pressure and avoiding joining at the said place, despite clear direction being issued by the Principal Chief Conservator of Forest on 14. 7. 2003, that all persons who have been transferred must join immediately at their transferred place, though his transfer order was neither stayed by the State Government, nor there was any order in his favour permitting him not to join at the transferred place and in the meantime, it appears that he made approaches through political persons and as stated above, there are letters written by four different MLAs, namely, Sri Rajendra Singh Rana, Sri Arvind Giri, Sri Vanshidhar Raj and dr. Kaushal Kishore, within a span of hardly 12-13 days, namely, right from 26. 9. 2003 to 8. 1. 2003 and on these letters, Special Secretary to the Chief Minister, directed the Principal secretary, Forest to make transfer effected as recommended by the MLAs. ( 17 ) PASSING an order of transfer on the complaint made by the public representative or on his request otherwise, cannot always be a ground for the High Court to interfere or to attach any motive or malafide on such an order of transfer, but what is required in such cases is that even after getting such recommendations, the State Government should apply its own mind and should pass an order in accordance with law. In case the transfer orders are passed merely on the behest or wishes expressed by the public representative, namely, MLA and other political persons, and without any further application of mind by the Competent authority, the said orders would become bad. The reason for transfer of the petitioner as indicated by one MLA is that he was his relative. The other letters also said that he be posted at Sharda Nagar Range. The reasons for such a posting or insistence for the respondent No. 5 to be posted at Sharda Nagar Range, have not come forward either in the counter affidavit filed by the respondents nor they are available in the record of the State Government. There is no case of the respondent-State that the petitioners stay at Sharda Nagar Range was in any way prejudicial to the interest of work or that he was to be transferred and, therefore, in his place respondent No. 5 could have been accommodated. To the contrary, the respondent No. 5 was first directed to be transferred and posted at Sharda Nagar Range, without even making any alternative arrangement for the petitioner and when this fact was brought to the notice of the State Government by the Principal. Chief Conservator of Forest, the State Government passed an order attaching the petitioner to the office of South Kheri forest Division. Chief Conservator of Forest, the State Government passed an order attaching the petitioner to the office of South Kheri forest Division. ( 18 ) ATTACHMENT of a regular incumbent, who is holding a regular post and discharging the functions, cannot be ordinarily allowed nor is ordered unless there is some cogent reason for the same, for example, there may be complaints against him which are to be enquired into or some enquiry may be in contemplation, but in the absence of such reasons, attachment of a Government servant only for accommodating another government servant would be bad in law. ( 19 ) DURING the course of pendency of these petitions, the State Government, probably being conscious of the said fact, tried to defend the order of transfer of respondent No. 5 by changing posting of the petitioner from time to time, namely, earlier he was given posting in Forest Security. Siddhartha Nagar Forest Division but later on he was ordered to be transferred to Maniyar Range in Ballia Division. ( 20 ) TRANSFER and posting a Government servant on the strength of the political pressure exerted by him to a particular place of posting where a regular incumbent is working and for accommodating such a person making attachment of the regular incumbent to an office and thereafter with a view to modify him, passing different transfer orders but not allowing him to remain at his place of posting where he was earlier working, certainly smacks of mala fide and cannot be said to be bonafide exercise of power. ( 21 ) THE argument that exercise of political influence by the petitioner as well as the respondent No. 5 both, for being retained at Sharda Nagar Range, disentitles the petitioner to have any remedy, has to be seen in the context of normal behaviour of a prudent person. ( 21 ) THE argument that exercise of political influence by the petitioner as well as the respondent No. 5 both, for being retained at Sharda Nagar Range, disentitles the petitioner to have any remedy, has to be seen in the context of normal behaviour of a prudent person. It would be a different matter, where two or more Government servants fight for a posting at a particular place and for which they exercise their political influence and only one of them succeeds in which case the person remaining unsuccessful would not be allowed to take shelter of discretionary jurisdiction of this Court but where a Government servant is said to be ousted from his posting because of the political pressure exerted by another government servant and there being no fault or reason for his transfer, he, if approaches a political person in defence of his case so that his case may also be heard by the State government before passing an order of transfer, whom the State is likely to favour. It cannot be said that such approach should be equated with a pressure tactic or exercise of political influence for retaining a place of posting. ( 22 ) THE petitioner in the instant case was posted and was working at Sharda Nagar range. The respondent No. 5 in utter violation and disobedience of the order passed by the chief Conservator of Forest dated 28. 5. 2003 did not join at the transferred place of Bhira range and indulged in exercising political influence by not one but couple of MLAsviz. Sri rajendra Singh Rana, who wrote letter dated 26. 9. 2003 and Sri Vanshidhar Raj and Sri arvind Giri who wrote letter dated 29. 9. 2003 for transferring him and posting at Sharda nagar Range and also Dr. Arvind Yadav, State President, Samajwadi Party (Prabuddh prakoshth), U. P. , and when the petitioner came to know about all this, he also appears to have made approaches through one MLA, in which a mention made was that the petitioners working in Sharda Nagar Range was only of one year and he is very honest and hardworking officer, having full control over his subordinates but he is sought to be removed from Sharda nagar Range because of political pressure exercised by some anti-social elements, therefore, he should be allowed to remain at Sharda Nagar Range. This can be termed as natural behaviour of a human being when he is under a threat of being removed by an order of transfer not in public interest or exigency of service but for accommodating a particular person because of his political clout and political pressure put upon by him. In such a situation, for putting his case before the State Government, which was passing one after the other direction to post the respondent No. 5 at Sharda Nagar Range, if the petitioner made such attempt, he cannot be said to be disentitled from getting relief from this Court. ( 23 ) A Division Bench of this Court in the case of Ajay Jauhariv. State of U. P. , 2004 (1)All WC 940 (LB), observed that Courts have time and again pointed that transfer orders, which are mala fide, arbitrary, under political pressure and bereft of public interest/ administrative exigency, are vitiated as they tend to demoralise honest Government officers and that the Government cannot be allowed to act arbitrarily or with political whims. ( 24 ) IN that case also the Court found that no doubt petitioner and the respondent No. 5 in that writ petition both sought to put political pressure to influence the Government decision in the matter of posting and that the Government did not apply its mind to the relevant consideration in law, i. e. whether transfer in question is justifiable on the touchstone of administrative exigency or public interest and, therefore, quashed the transfer order. ( 25 ) FOR the reasons stated above, we find that transfer and posting of the respondent No. 5 to Sharda Nagar Range was not made in public interest or for administrative exigency but simply to accommodate him on the desire and wish expressed by couple of Members of legislative Assembly, without there being any justifiable reason for the same. ( 26 ) THE order of transfer dated 23. 10. 2003 transferring the respondent No. 5 to Sharda nagar Range thus suffers from vice of mala fide exercise of power and is liable to be quashed. Consequently all the orders passed subsequently for transferring the petitioner from one place to another also stand quashed. The petitioner would be allowed to continue at Sharda Nagar Range and the respondent No. 5 would be posted at any other Range. Consequently all the orders passed subsequently for transferring the petitioner from one place to another also stand quashed. The petitioner would be allowed to continue at Sharda Nagar Range and the respondent No. 5 would be posted at any other Range. However, it will be open to the State Government to post the respondent No. 5 either in the ranges which have been offered to the petitioner during pendency of the writ petition either at Forest Security, Siddhartha Nagar Forest Division or Maniyar Range in Ballia Division or any other nearby Range, if it is possible. The petitioner shall be allowed to resume duties at Sharda Nagar Range forthwith and necessary orders for posting the respondent No. 5 shall be issued within one week from the date of receipt of certified copy of this order. ( 27 ) THE transfer order dated 23. 10. 2003 is quashed. The writ petitioners are allowed. No order as to costs. Petition allowed.