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2011 DIGILAW 2952 (ALL)

Shiv Singh and Ors. v. State of U. P. Through The Prin. Secy. Deptt. of Home & Ors.

2011-12-22

ANIL KUMAR

body2011
Anil Kumar, J. Heard Sri M.P. Raju, learned counsel for petitioners, learned State counsel and perused the record. By means of the present writ petition, the petitioners have challenged the impugned order of transfer dated 08.12.2011 and also the order dated 03.10.2011 by which the petitioners are transferred, so far it relates to the petitioners. Learned counsel for petitioners while challenging the impugned orders submits that the impugned order of transfer is against the transfer policy/guidelines, so the same are not in accordance with law, passed with ulterior motive, liable to be set aside. The law is well settled that transfer being exigency of service can be effected by the employer concerned in accordance with 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. Further, it is not disputed by learned counsel for petitioners that petitioner are holding a transferable post. Learned counsel for petitioner further argued that the impugned order of transfer have been passed in a mid-session in case if the petitioners are transferred in pursuance to the impugned orders , the study of their children will suffer in the present era of competition. So, the impugned order of transfer is illegal, liable to be set aside. I have heard learned counsel counsel for parties and perused the record. The law is well settled that transfer being exigency of service can be effected by the employer concerned in accordance with 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. In the present case as argued by learned counsel for petitioenr that the impugned order of transfer is in violation of transfer policy is not correct because in the case of Union of India Vs. In the present case as argued by learned counsel for petitioenr that the impugned order of transfer is in violation of transfer policy is not correct because in the case of Union of India Vs. 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." The said view has been reiterated by Hon'ble Supreme Court in the case of Rajendra Roy Vs. Union of India 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 Oder 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." In the case of Bank of India Vs. 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. 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 oder of transfer can be question in a Court or Tribunal only where it is passed mala fide or where it is made in violation of the statutory provisions." The said view was again reiterated by Hon'ble Supreme Court in the case of National Hydro-Electric Power Corporation Ltd. Vs. Sri Bhagwan and another, AIR 2001 SC 3309 . Next argument advanced by learned counsel for the petitioner that the transfer order is against the principle of natural justice as the same has been passed during mid-session of the studies of his son/daughter , is also got no force as in the case of Rajendra Prasad Vs. Sri Bhagwan and another, AIR 2001 SC 3309 . Next argument advanced by learned counsel for the petitioner that the transfer order is against the principle of natural justice as the same has been passed during mid-session of the studies of his son/daughter , is also got no force as in the case of Rajendra Prasad Vs. 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 Vs. 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." The same view has been reiterated by Division Bench of this Court in the case of Gulzar Singh Vs. State of U.P. and other, 2006 (5) AWC 4755 and another Division Bench of this Court in the case of S.P. Jindal Vs. State of U.P. , 2002(1) AWC 306 and also in the case of Jagendra Singh Vs. State of U.P. and others, (2009) 3 UPLBEC 2338. No other points have been argued or pressed by the learned counsel for the petitioners. In view of the abvoesaid facts, I do not filed any illegality and infirmity in the transfer order which is under challenge. For the foregoing reasons, the relief as claimed by petitioners in present writ petition cannot be granted under Article 226 of the Constitution of India. Hence, the same is dismissed. In view of the abvoesaid facts, I do not filed any illegality and infirmity in the transfer order which is under challenge. For the foregoing reasons, the relief as claimed by petitioners in present writ petition cannot be granted under Article 226 of the Constitution of India. Hence, the same is dismissed. However, as prayed by petitioners' counsel, petitioners are permitted to make representation in respect to grievance which they have raised in present writ petition to O.P. No. 2 /Inspector General of Police (Estt.), Police Establishment Board, Lucknow within a period of two week from today annexing all relevant documents and material in support of his case and after receiving the same, O.P. No. 2 dispose of within a further period of two weeks thereafter with reasoned and speaking order. No order as to costs.