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2008 DIGILAW 2180 (ALL)

DEVENDRA SINGH v. STATE OF UTTAR PRADESH

2008-10-24

DEVI PRASAD SINGH, V.D.CHATURVEDI

body2008
JUDGMENT By the Court.—Heard learned counsel for the petitioner and learned Standing Counsel. 2. Supplementary counter affidavit filed by the State is taken on record. 3. The present writ petition under Article 226 of the Constitution of India, has been preferred by the petitioner feeling aggrieved against the order dated 22.5.2008 contained in Annexure 1 to the writ petition by which he was transferred from Chhata Mathura to Kushi Nagar. 4. While assailing the impugned order, the learned counsel for the petitioner has drawn attention of this Court towards the Government order dated 22.5.2008 circulated by the Joint Secretary, providing that persons who are continuing on a post in pursuance of the interim order or orders of the High Court, shall be posted at the place of lower importance. Submission of the petitioner’s counsel is that since the transfer is influenced by the condition No. 3 provided in the Government order dated 22.5.2008, it suffers from extraneous reasons and violative of Article 14 of the Constitution being arbitrary in nature. 5. At the very outset, the learned CSC has submitted that the offending portion of the Government order dated 22.5.2008 has been withdrawn by the subsequent Government order/circular dated 23.10.2008 contained in Annexure SCA-2 to the supplementary counter affidavit keeping in view the observation of this Court on earlier date. 6. We have heard the learned counsel for the parties and perused the record and proceed to decide the writ petition at this stage. 7. The Government order dated 22.5.2008 which has been relied upon by the respondents while passing the impugned order of transfer seems to be an order tending to interference with the administration of justice. The offending portion of the said order as given in the para-3, is reproduced as under : “3. Kripya aise upnibandhakon jinhein punaravantan mein koi sthan avantit nahein hai ya lok sewa aayog ki chaynit suchi mein nahein hai tatha vartman mein ma. uchcha nyayalaya sa sthagan adesh ke tahat upnibandhak ke pad par karyarat hain, ko sthanantaran satra mein rajasva ki dristi se kam mahatvapurna sthanon par tainat kiya jana sunischit karne ka kast karen.” 8. When the aforesaid portion of the order dated 22.5.2008 contained in Annexure 1 to the writ petition was shown to the Court an observation was made by this Court that the order is contemptuous and tends to interfere with the administration of justice. When the aforesaid portion of the order dated 22.5.2008 contained in Annexure 1 to the writ petition was shown to the Court an observation was made by this Court that the order is contemptuous and tends to interfere with the administration of justice. Only because litigants approach this Court, they cannot be persecuted. Learned CSC agreed for the recall of the Government order dated 22.5.2008. Earlier statement was made by the learned Standing Counsel that record has been sent to the Chief Minister for approval but later on, the learned Chief Standing Counsel fairly agreed to comply with the interim order passed by this Court. Now by filing supplementary counter affidavit of the Joint Secretary, it has been stated that the interim order passed by this Court has been complied with and entire Government order dated 22.5.2008 has been withdrawn. 9. Though after, withdrawal of the Government order dated 22.5.2008 there appears to be no ground existing to proceed further against the offending portion of that order but since the transfer order has not been withdrawn, we are proceeding to decide the said controversy hereinafter. 10. Under the constitutional scheme, three wings of the Government have been assigned constitutional statutory duties to serve the peoples of the country. However, the judiciary has been assigned the power to uphold the constitution and every order or statute or enactment of the State or the Central Government is subject to judicial review. Special Bench of Hon’ble Supreme Court in the recent judgment reported in : (2007) 2 SCC 1 , I.R. Coelho v. State of Tamilnadu, finally settled the law that power of judicial review subject to certain norms is vested in the higher judiciary of the country and every State action may be subject to judicial review in case citizen approaches the Court with the grievance of violation of fundamental or statutory rights on one or other ground. 11. Accordingly, during the course of judicial review of a Government action, in case an order or interim order or judgment is passed, the authorities have got no option but to comply with the order in its letter and spirit. The order passed by this Court is subject to judgment in special appeal, or may be subject to interference by Hon’ble Supreme Court. The order passed by this Court is subject to judgment in special appeal, or may be subject to interference by Hon’ble Supreme Court. Unless the order of this Court is moulded or set aside by higher forum the authorities or State have no option but to comply with the orders and judgments in its letter and spirit. The authorities of Government discharging duties as public servants have to comply with the order and for compliance of the orders of this Court, it requires no prior approval from the ministers or of the Head of department. Of course, the remedy is available to approach the higher forum as indicated hereinabove. To keep the interim order or final judgment of this Court pending under the garb of approval of the higher authorities, ministers for reasonably long period under the facts and circumstances of a case, may amount to contempt of this Court and also interference in dispensation of justice. Needless to say that over the order of this Court which attains finality, the State or its authorities or ministers have no right to act like appellate authority. Accordingly, every order or judgment passed by this Court has to be complied with by the authorities without availing the approval of the minister or the Head of the Departments. Higher judiciary is the final arbitor to resolve a dispute. 12. The transfers are made in exigency of service either in public interest or administrative ground. Hon’ble Supreme Court has held that the transfer order may be passed on administrative ground or in public interest. The employee does not have got right to claim appointment or posting on a particular place. However, in case the order suffers from malice, or violation of certain Rules or Regulations or for extraneous reasons the higher judiciary has got ample power to set aside such transfer order. The order of transfer should be passed exclusively in public interest or on administrative ground to meet out the exigency of service. Any political interference or extraneous reasons or considerations effecting the order of transfer, shall be arbitrary and violative of Article 14 of the Constitution of India. In the case reported in 1993 Supp (3) SCC 35, Ramadhar Pandey v. State of U.P. and others, Hon’ble Supreme Court held that an order of transfer may be passed either on administrative ground or in public interest. 13. In the case reported in 1993 Supp (3) SCC 35, Ramadhar Pandey v. State of U.P. and others, Hon’ble Supreme Court held that an order of transfer may be passed either on administrative ground or in public interest. 13. In the present case, the impugned order seems to have been passed shifting the petitioner from one place to other keeping in view the observations made in the Government order dated 22.5.2008 which has been recalled by the State Government. The order seems to have been passed being influenced by the condition No. 3 of the Government order dated 22.5.2008 and extraneous reasons which is not sustainable under law. The writ petition deserves to be allowed. 14. Accordingly, the writ petition is allowed. A writ in the nature of certiorari is issued quashing the impugned order of transfer dated 30.6.2008 contained in Annexure 2 to the writ petition with consequential benefits. The petitioner shall be permitted to continue in service at the place of his posting prior to passing of the transfer order. However, it shall be open to opposite parties to pass fresh order if necessary, keeping in view the observations made hereinabove to meet out the exigency of service in accordance to law. 15. There shall be no order as to costs. ————