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2004 DIGILAW 1347 (ALL)

SHESH NATH SINGH YADAV v. MUKESH SINGH

2004-07-26

MARKANDEY KATJU, UMESHWAR PANDEY

body2004
ORDER : M. Katju and Umeshwar Pandey, JJ. Heard learned Counsel for the parties. 2. This special appeal has been filed against the interim order of the learned single Judge dated 20.7.2004. 3. By that interim order the writ Petitioner's transfer order dated 9.7.2004, has been stayed. 4. The learned single Judge has further directed that the Petitioner shall be continued as Inspector in-charge at police station G.R.P., Varanasi and paid his salary. 5. It is well-settled that transfer is an exigency of service. The issue of transfer and posting has been considered time and again by the Apex Court and the entire law has been settled by a catena of decisions. It is entirely for the competent authority to decide when, where and at what point of time a public servant is to be transferred from his present posting. Transfer is not only an incident but an essential condition of service, (Vide Union of India and Others Vs. S.L. Abbas, (1993) 4 SCC 357 ; Mrs. Shilpi Bose and others Vs. State of Bihar and others, AIR 1991 SC 532 ; Union of India and another Vs. N.P. Thomas, AIR 1993 SC 1605 ; Chief Manager (Tel.) N. E. Telecom Circle v. Rajendra Ch. Bhattacharjee AIR 1995 SC 813 ; State of U.P. v. Dr. R.N. Prasad 1995 (Suppl) 2 SCC 151; Union of India and Ors. v. Ganesh Dan Singh 1995 (Suppl) 3 SCC 214; N.K. Singh Vs. Union of India and others, (1994) 6 SCC 98 ; Abani Kante Ray v. State of Orissa 1996 (1) AWC 214 (SC) : 1995 (Suppl) 4 SCC 169; National Hydroelectric Power Corporation Ltd. Vs. Shri Bhagwan and others, (2001) 8 SCC 574 ; State Bank of India v. Anjan Sanyal and Ors. AIR 2001 SC 1748 and Public Services Tribunal Bar Association Vs. State of U.P. and Another, (2003) 4 SCC 104 . 6. An employee holding a transferable post cannot claim any vested right to work on a particular place as a transfer order does not affect any of his legal rights and the Court cannot interfere with a transfer/posting. In Gujarat Electricity Board and Another Vs. Atmaram Sungomal Poshani, (1989) 2 SCC 602 , the Supreme Court has observed as under: Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the another is an incident of service. In Gujarat Electricity Board and Another Vs. Atmaram Sungomal Poshani, (1989) 2 SCC 602 , the Supreme Court has observed as under: Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the another is an incident of service. No Government servant or employee of a public undertaking has a legal right for being posted at any particular place. Transfer from one place to another is generally a condition of service and the employee has no choice in the matter. Transfer from one place to another is necessary in public interest and efficiency in the public administration. 7. A similar view has been taken by the Apex Court in Chief General Manager (Telecom) N.E. Telecom Circle (supra). 8. In Shilpi Bose (supra), the Apex Court has held that an order of transfer/posting "issued by the competent authority did not violate any of her legal right". An employee holding a transferable post cannot claim any vested right for his/her posting at a particular place. 9. The Petitioner was clearly on a transferable post. Hence we are of the opinion that the learned single Judge was not justified in passing the impugned order, and in particular he was certainly not justified in passing the order that the Petitioner should be continued as Inspector-in-charge at a particular police station. It is entirely for the authorities concerned to decide which police officer will be posted at which police station, and this is not a matter for this Court to encroach upon. Judges must exercise judicial restraint and not interfere with the functions which do not pertain to their jurisdiction. It is no part of a Judge's jurisdiction to decide which police officer will be posted where. 10. As regards the objection that the impugned order is an interim order and hence no special appeal is maintainable against it as it is not a 'judgment', this aspect has been considered in great detail in the Division Bench decision of this Court in Special Appeal No. 555 of 2004, State of U.P. v. Smt. Meera Sankhwar, decided on 12.7.2004. In that decision the entire case law relating to Chapter VIII Rule 5 of the High Court Rules has been discussed, and it has been held that in certain circumstances a special appeal lies against an interim order. In that decision the entire case law relating to Chapter VIII Rule 5 of the High Court Rules has been discussed, and it has been held that in certain circumstances a special appeal lies against an interim order. In our opinion the impugned order is of a nature that it is appealable. 11. We are clearly of the opinion that the impugned order was illegal and it is hereby set aside. Appeal is allowed.