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2009 DIGILAW 3490 (ALL)

VINOD KUMAR PANDEY v. STATE OF U. P.

2009-11-13

ANIL KUMAR, SIBGHAT ULLAH KHAN

body2009
JUDGMENT By the Court.—By means of the present writ petition, the petitioner has challenged the impugned order dated 23.10.2009 passed by opposite party No. 3 by which he was transferred from Sub-Registrar II, at Noida Gautam Budh Nagar to Sub Registrar Ghaziabad II, District Ghaziabad. 2. Heard Sri Vineet Pandey, learned counsel for the petitioner and Sri H.R. Misra learned Senior Counsel assisted by Sri H.K. Misra learned counsel appearing on behalf of respondent No. 7 and learned Standing Counsel for opposite parties No. 1 to 6. 3. Learned counsel for the petitioner has submitted that the petitioner joined on the post of Sub Registrar II Noida, district Gautam Budh Nagar with effect from 6.2.2009 and in pursuance of which the petitioner had settled his family at Noida, Gautam Budh Nagar and his daughter Km. Esha Pandey is studying in Class V in Delhi Public School Sector 30 Noida. 4. Now by means of impugned order dated 23.10.2009, the petitioner has been transferred from the post of Sub-Registrar II at Noida Gautam Budh Nagar to Sub-Registrar, Ghaziabad II district Ghaziabad. 5. In brief, learned counsel for the petitioner has argued that the impugned transfer order dated 23.10.2009 which is under challenge in the present writ petition is wholly arbitrary, illegal and bad as the same has not been passed in view of administrative exigency of services but the same has been passed only to accommodate one Sri Rakesh Kumar Gautam, who is impleaded as opposite party No. 7 to the writ petition. 6. In addition to above said fact, it is also submitted by the learned counsel for the petitioner that the impugned order of transfer is in contravention to the Government Policy as contained in annexure-2 to the writ petition and further the same is also not sustainable on humanitarian ground that his daughter is studying in class Vth in Delhi Public School, Noida. In the event if the petitioner joins in pursuance of the impugned order of transfer dated 23.10.2009 passed by opposite party No. 3, the studies of his daughter will be effected in the present era of competition as such the impugned order of transfer is against the principle of fair play and natural justice. In support of his contention learned counsel for the petitioner relies on the following judgments : (1) Rajendra Roy v. Union of India and another, AIR 1993 SC 1236 . In support of his contention learned counsel for the petitioner relies on the following judgments : (1) Rajendra Roy v. Union of India and another, AIR 1993 SC 1236 . (2) Somesh Tiwari v. Union of India and others, (2009) 2 SCC 592 . 7. On the other hand, learned Standing Counsel appearing on behalf of the respondent Nos. 1 to 6 and Sri H.R. Misra, Senior Advocate learned counsel for opposite parties No. 7 have supported the order of transfer which is under challenge in the present case on the ground that the same is passed after taking into consideration, the administrative exigency of services by the respondent No. 3. Further in view of the law laid down by Hon’ble Supreme Court in the case of Rajendra Singh etc. etc. and State of U.P. and others passed in Civil Appeal No. 4975 of 2009 decided on 31.7.2009 and in view of the Division Bench Judgment of this Court Uma Shanker Rai v. State of U.P. and others, 2009(2) ESC 786 (All) the present writ petition has no force and is liable to be dismissed. 8. We have heard learned counsel for the petitioner and perused the record. 9. In the present case, the bone of contention is of post of Sub-Registrar either in Noida District Gaugam Budh Nagar or Sub-Registrar at Ghaziabad and for appointment/posting on the posts there is always a tug of war between the persons, who are working on the post to Sub-Registrar in the State of U.P. in the Tax and Registration Department on one point of time or other which is evident from the facts involved in the present case. 10. The undisputed fact of the present case are to the effect that Sri Rakesh Kumar Gautam was posted as Sub-Registrar, Ghaziabad and he was transferred vide order dated 24.2.2009 at Greater Noida as such, Sri Rajesh Tewari, who was working as Sub-Registrar Greater Noida was also transferred from the said post by means of order dated 24.2.2007. 10. The undisputed fact of the present case are to the effect that Sri Rakesh Kumar Gautam was posted as Sub-Registrar, Ghaziabad and he was transferred vide order dated 24.2.2009 at Greater Noida as such, Sri Rajesh Tewari, who was working as Sub-Registrar Greater Noida was also transferred from the said post by means of order dated 24.2.2007. Aggrieved by the said order of transfer, Sri Rajesh Tewari had filed a Writ Petition No. 361 (S/B) of 2009, Rajesh Tewari v. State of U.P. and others before this Court and on 6.3.2009 the Division Bench of this Court had stayed the order of transfer, the operative portion of the said order is quoted as under : “A perusal of the impugned transfer order 24.2.2009 reveals that the transfer order has been passed merely on the direction of the State Government. We, therefore, stay the operation and enforcement of the impugned order dated 24.2.2009, a copy of which has been annexed as annexure No. 2 to the writ petition. The petitioner shall be allowed to continue on the post on which he was working prior to the impugned order dated 24.2.2009 till further order of this Court.” 11. Further, due to above said fact and the order passed by this Court in Writ Petition No. 361 (S/B) of 2009 Rajesh Tewari was allowed to work and discharge the duties on the said post of Sub-Registrar Greater Noida. In view of the above said development, the order dated 23.10.2009 was passed by respondent No. 3 by which Rakesh Kumar Gautam (respondent No. 7), Sub-Registrar Ghaziabad II Ghaziabad was transferred to the post of Sub-Registrar II Noida at Gautam Budh Nagar and consequently, the petitioner who was working on the post of Sub-Registrar II, Gautam Budh Nagar was transferred to Sub-Registrar,Ghaziabad II, Ghaziabad. 12. The law is well settled that transfer being exigency of service can be effected by the employer concerned in accordance with its administrative exigency, in the interest of administration and public interest at any point of time and that cannot be monitored and guided by this Court unless it may be shown that transfer order is vitiated on account of the contravention of the statute, or lacks jurisdiction or mala fide. 13. 13. Admittedly, in the present case, it is not disputed by the learned counsel for the parties that the petitioner is holding the transferable post as such in view of the judgment passed by the Hon’ble Supreme Court in the case of Shilpi Bose (Mrs.) and others v. State of Bihar and others, 1991 Supp (2) SCC 659 wherein Hon’ble Supreme Court has held as under : “In our opinion, the Courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer order 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.” 14. The aforesaid view has been reiterated by Hon’ble Supreme Court in the case of Union of India and another v. N.P. Thomas, 1993 Supp (1) SCC 704 and N.K. Singh v. Union of India and others, (1994) 6 SCC 98 holding therein if a person holding a transferable post, is transferred, there is no violation of any statutory/mandatory rules then the same is not subject to judicial review. 15. Further, in the case of Chief General Manager, ( Telecom) N.E. Telecom Circle and another v. Rajendra Ch. Bhattacharjee and others, (1995) 2 SCC 532 Hon’ble Supreme Court has held as under : "It is needless to emphasise that a government employee or any servant of a public undertaking has no legal right to insist for being posted at any particular place. It cannot be disputed that the respondent holds a transferable post and unless specifically provided in his service conditions, he has no choice in the matter of posting. Since the respondent has no legal or statutory right to claim his posting at Agartala, therefore, there was no justification for the Tribunal to set aside the respondent’s transfer to Dimpur." 16. It cannot be disputed that the respondent holds a transferable post and unless specifically provided in his service conditions, he has no choice in the matter of posting. Since the respondent has no legal or statutory right to claim his posting at Agartala, therefore, there was no justification for the Tribunal to set aside the respondent’s transfer to Dimpur." 16. In view of the above, in the instant case the petitioner, who is working on a transferable post has no legal or statutory right to claim his posting at Noida District Gautam Budh Nagar when the order of transfer dated 23.10.2009 passed by respondent No. 3 is not in violation of any statutory rules. 17. Now coming to another basic issue, we find that in the case in hand even the submission that the impugned order of transfer is in violation of the transfer policy and therefore, is liable to be set aside is not correct. 18. In the case of Union of India v. S.L. Abbas, AIR 1993 SC 2444 , Hon’ble Apex Court has held as under : “The said guideline, however, does not confer upon the Government employee a legally enforceable right.” 19. The said view has been reiterated by Hon’ble Suprreme Court in th case of Rajendra Roy v. Union of India and another, (1993) 1 SCC 148 wherein the Apex Court has held as under : “It is true that the order of transfer often causes a lot of difficulties and dislocation in the family set up of the concerned employees but on that score the order of transfer is not liable to be struck down. Unless such order is passed mala fide or in violation of the rules of service and guidelines for transfer without any proper justification the Court and the Tribunal should not interfere with the order of transfer.” 20. In the case of Bank of India v. Jagjit Singh Mehta, 1992 (1) SCC 306 , the Hon’ble Supreme Court has held as under : “The said observations in fact tend to negative the respondent’s contentions instead of supporting them. The judgment also does not support the Respondent’s contention that if such an order is questioned in a Court or the Tribunal, the authority is obliged to justify the transfer by adducing the reasons therefor. The judgment also does not support the Respondent’s contention that if such an order is questioned in a Court or the Tribunal, the authority is obliged to justify the transfer by adducing the reasons therefor. It does not also say that the Court or Tribunal can quash the order of transfer, if any of the administrative instructions/guidelines are not followed, much less can be characterized as mala fide for that reason. To reiterate, the order of transfer can be questioned in a Court or Tribunal only where it is passed mala fide or where it is made in violation of the statutory provisions.” 21. The said view was further reiterated by Hon’ble Supreme Court in the case of National Hydro-Electric Power Corporation Ltd. v. Sri Bhagwan and another, AIR 2001 SC 3309 . 22. Further, in the present case, learned counsel for the petitioner failed to point out that in what manner impugned transfer order which is under challenge in the present writ petition, is in violation of statutory/mandatory rules. Moreover, in the case in hand, since no authorities has been impleaded by name in the writ petition, therefore, in view of the law laid down by Hon’ble Supreme Court in the case of Federation of Railway Officers Association v. Union of India, AIR 2003 SC 1344 the plea of mala fide raised by the petitioner can neither be allowed to be entertained nor can be considered and the order of transfer, therefore, cannot be said to be vitiated on account of mala fide, as such the judgment relied by the learned counsel for the petitioner in the case of Somesh Tiwari v. Union of India and others (supra) is not applicable in the view of the facts and circumstances of the present case. 23. 23. The argument submitted by the learned counsel for the petitioner that the transfer order is against the principle of natural justice as the same has been posted during mid-session of the studies of his daughter, is also got no force as in the case of Rajendra Prasad v. Union of India, 2005(2) ESC 1224 after considering the judgment of Hon’ble Supreme Court in the case of Director of School Education Madras and others v. O Karuppa Thevan and another, 1996(1) UPLBEC 347 this Court has held as under : “The issue of transfer in mid academic session was considered by the Hon’ble Supreme Court and it was held that” the fact that children of the employee are studying should be given due weight, if the exigencies of the service are not urgent.” Therefore, it is for the employer to examine as to whether transfer of an employee can be deferred till the end of the current academic session. The Court has no means to assess as what is the real urgency of administrative exigency. Thus, the Court is not inclined to consider this submission at all.” 24. The same view has been reiterated by Division Bench of this Court in the case of Gulzar Singh v. State of U.P. and others, 2006 (5) AWC 4755 and another Division Bench of this Court in the case of S.P. Jindal v. State of U.P., 2002(1) AWC 306 and also in the case of Jagendra Singh v. State of U.P. and others, 2009(6) ADJ 453 . 25. In view of the above, We do not find any merit in this petition. It is accordingly dismissed. However, it will not preclude the petitioner from making appropriate representation explaining his personal problems, if any, and if such a representation is made, the same may be considered by the said authority in accordance with law. 26. No order as to costs. ————