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2010 DIGILAW 1862 (ALL)

DEV NARAYAN MAURYA v. STATE OF U. P. through SECRETARY REVENUE

2010-06-03

ANIL KUMAR

body2010
JUDGMENT ANIL KUMAR, J.--Present writ petition has been taken up today in view of the urgency as mentioned by the petitioner. 2. Heard Sri Aditya Kumar Tiwari, learned Counsel for the petitioner and Sri Rajiv Mishra learned Standing Counsel on behalf of the respondents. 3. By means of the present writ petition, the impugned order of transfer dated 21.5.2010 (Annexure-12) passed by O.P. No.2 (District Magistrate, Raebareli) is under challenge. 4. Sri Aditya Tiwari, learned Counsel for the petitioner while assailing the impugned order of transfer submits that the petitioner who was working as Wasil Yaqui Navees at Tehsil Unchhahar District Raebareli was initially by order dated 20.3.2010 (Anneuxre-II) was directed to join at Tehsil Dalmau on the post of Typist thereafter by means of the order dated 21.5.2010 passed by District Magistrate, Raebareli he was directed to submit his joining before the Administrative Officer, Raebareli, the same has been done at the behest and political presure exercised by one of the Minister of the Ruling Party in the State of Uttar Pradesh and due to the said political pressure, the O.P. No.2 without application of his own mind has passed the impugned order of transfer, as such the same is illegal, arbitrary and liable to be set aside. 5. Learned Counsel for the petitioner does not dispute the facts that the petitioner has holding a transferable post. 6. 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. 7. 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 others1, wherein Hon'ble Supreme Court has held as under: 1. 1991 Supp (2) SCC 659. 1991 Supp (2) SCC 659. "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." 8. Further, the aforesaid view has been reiterated by Hon'ble Supreme Court in the case of Union of India another v. N.P. Thomas2, and N.K. Singh v. Union of India and others3 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 and in the case of Chief General Manager, (Telecom) N.E. Telecom Circle and another v. Rajendra Ch. Bhattacharjee and others4, Hon'ble Supreme Court has held as under: 2. 1994 (69) FLR 729 (SC). 3. (1994) 6 SCC 98 . 4. (1995) 2 SCC 532 . "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 was no choice in the matter of posting. Since the respondent has no legal or statutory right to claim his posting at Agartalil, therefore, there was no justification for the Tribunal to set aside the respondent's transfer to Dimpur." 9. Moreover, the argument which has been raised by the learned Counsel for the petitioner that the impugned order of transfer has been passed at the behest of the political pressure exercised by one of the Minister of the Ruling Party and thus with oblique motive ami purpose, the O.P. No.2 without application of his own mind has passed the same so the impugned order of transfer is mala fide in nature. The said argument raised by the learned Counsel for the petitioner is wholly misconceived in view of the law laid down by Hon'ble Supreme Court in the case of of Federation of Railway Officers Association v. Union of India1. If plea of mala fide is raised by the petitioner then the person against whom the malice is alleged, should be made a party but in the present case, petitioner has not made any person by name against whom mala fide is alleged, so the petitioner cannot be allowed to raise the said plea, therefore, the order cannot be said to be vitiated on the ground of mala fide. Accordingly, the same is rejected. 1. 2003 (50) ALR 221 (SC)=2003 (6) AIC 171 (SC). 10. For the foregoing reasons, I do not find any illegality or infirmity in the impugned order of transfer dated 21.5.2010 passed by O.P. No.2 which is under challenge. 11. However, the petitioner is permitted to make a fresh representation to O.P. No.2 (District Magistrate, Raebarcli) within a period of one weeks from the date of receiving the certified copy of this order annexing all the relevant documents and materials in support of his case along with self-addressed envelope and after receiving the same O.P. No.2 (District Magistrate, Raebareli) shall consider and dispose of by way of speaking and reasoned order in accordance with law within a further period of six weeks thereafter and communicate the same to the petitioner. 12. With the above observation, the writ petition is dismissed. Petition Dismissed.