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2010 DIGILAW 1147 (ALL)

Narendra Bahadur Singh v. State of U. P.

2010-04-07

ANIL KUMAR

body2010
Anil Kumar,J.- Heard Sri Ravi Singh, learned counsel for the petitioner. 2. By means of the present writ petition, the petitioner has challenged the order dated 16.02.2010 passed by O.P. No. 2 as contained in Annexure-1 to the writ petition by which the petitioner's representation has been rejected in pursuance to the order dated 12.10.2009 passed by this Court in writ petition No. 6427 (SS) of 2009 Narendra Bahadur Singh Vs. State of U.P. and others. 3. Facts in brief as submitted by learned counsel for the petitioner are that the petitioner who is working on the post of Assistant Teacher in Prathmik Vidyalay Mavpur Barchauli, was transferred after promotion to Junior High School, Gauriganj by order dated 26.08.2009 (Annexure-3). 4. Aggrieved by the said order of transfer, the petitioner submitted a representation dated 05.03.2010 (Annexure-4) to the Competent Authority but when no heed was paid in the matter in question the petitioner approached this Court by means of the writ petition NO. 6427 (SS) of 2009 Narendra Bahadur Singh Vs. State of U.P. and others. On 12.10.2009 an order was passed, the operative part of the said order is reproduced hereinbelow:- "On account of promotion petitioner has been shifted to other place. No case for interference is made out. However, competent authority is directed to decide the petitioner's representation keeping in view the relevant government orders in accordance with law by passing a speaking and reasoned order expeditiously and preferably within a period of two months from the date of receipt of a certified copy of this order and communicate the decision to the petitioner. Subject to above, writ petition is disposed of finality." 5. Accordingly, thereafter the representation of the petitioner, rejected by Basic Shiksha Adhikari, Sultanpur (O.P. No. 2) by means of the impugned order dated 16.02.2010 (Annexure-1). Hence the present writ petition. 6. In the present case, it is not disputed by the learned counsel for the parties that the petitioner that he 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 Vs. Hence the present writ petition. 6. In the present case, it is not disputed by the learned counsel for the parties that the petitioner that he 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 Vs. 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." 7. The aforesaid view has been reiterated by Hon'ble Supreme Court in the case of Union of India another Vs. N.P. Thomas, 1993 Supp (1) SCC 704 and N.K. Singh Vs. 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. 8. Further, in the case of Chief General Manager, (Telecom) N.E. Telecom Circle and another Vs. Rajendra Ch. Bhattacharjee and others, (1995) 2 SCC 532 Hon'ble Supreme Court has held as under:- "It is needless to emphasis 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 was 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." 9. It cannot be disputed that the respondent holds a transferable post and unless specifically provided in his service conditions, he was 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." 9. In the instant case, as the petitioner is holding a transferable post the said fact, is not disputed by counsel for the petitioner and initially for redressal of his grievance against transfer order dated 26.08.2009, petitioner approached this Court by filling writ petition No. 6427 of 2009, the same was disposed of by order dated 12.10.2009 with the direction to decide the representation of the petitioner, thereafter the same was rejected by the impugned order dated 16.02.2010 passed by O.P. No. 2, then in such a situation the Court should not interfere in the matter because a person holding a transferable in the administrative exigency of services, was transferred by his employer thereafter the representation made by the employee against the transfer order is also rejected by his employer taking in consideration the relevant factors i.e. public interest and for administrative reason, in the interest of the institution in which he/she is working, then this Court while exercising its power of judicial review under Article 226 of the Constitution of India, cannot set aside the order because the matter in respect to the transfer or rejection of representation against the transfer order solely lies with the domain of the Employer who has taken the said decision keeping in view the Administrative Exigency of Service etc. in which the employee is working unless the same is not in violation of any mandatory statutory rule or mala fide action, the said two condition does not exist in the present case. So I do not find any infirmity or illegality in the impugned order dated 16.02.2010 (Annexure -1) passed by O.P. No. 2. 10. Accordingly, the present writ petition lacks merit and is dismissed. 11. No order as to costs.