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2011 DIGILAW 347 (ALL)

DINESH KUMAR SRIVASTAVA v. STATE OF U. P.

2011-02-14

DEVENDRA KUMAR ARORA

body2011
JUDGMENT Hon’ble Devendra Kumar Arora, J.—Heard Sri Ramesh Kumar Srivastava, learned counsel for the petitioner and learned Standing Counsel for and on behalf of the official opposite parties. By means of present writ petition, the petitioner has challenged the validity of the impugned order dated 12.4.2010 by which his representation dated 16.2.2010 regarding cancellation of transfer order dated 10.2.2010 from Lekhpal Circle Mati to Lekhpal Circle Jahangirabad has been rejected. The petitioner is a Lekhpal and prior to his transfer he was working in Circle Mati, tehsil Nawabganj, district Barabanki. 2. The submission of learned counsel for the petitioner is that present transfer is not a routine transfer and the same has been passed by way of punishment as well as with the mala fide intention, on the basis of the complaint of the opposite party No. 5, who is a Ex-Pradhan and husband of the present Pradhan (opposite party No. 6). 3. It is further submitted that the opposite party No. 5 has made complaint to the Collector, district Barabanki on 25.11.2009 requesting him to conduct an enquiry against the petitioner and take necessary action and on the basis of recommendation of the Collector district Barabanki an enquiry has been conducted by Additional District Magistrate (Finance & Revenue), district Barabanki and after enquiry he directed the opposite party No. 4 to transfer the petitioner. It is also submitted by the learned counsel for the petitioner that the transfer order has been passed on the dictates of Additional District Magistrate, (Finance & Revenue), district Barabanki and the Up-Zila Adhikari, Nawabganj, district Barabanki, the appointing authority has not applied his mind while passing the impugned transfer order. The representation of the petitioner was also rejected by the District Magistrate, Barabanki in a mechanical manner without appreciating the grievance of the petitioner. 4. It is also submitted by learned counsel for the petitioner that the transfer order has been passed by invoking the power of Sub-Rule (2) of Rule 24 of Uttar Pradesh Lekhpals Service Rules, 2006 (here-in-after referred to as the Rules, 2006) and the said rule provides that if consolidation proceedings are going on in circle then appointing authority has been authorized to pass the order of transfer after consultation with Record Officer or Assistant Collector. In the circle Mati there is no consolidation operation, hence, the impugned order cannot be passed under Sub-Rule 2 of Rule 24 of U.P. Lekhpals Service Rules, 2006 and the impugned transfer order has been passed on the wrong motion and without application of mind. It is also submitted that under Rule 24 (1) of Rules, 2006 the Collector on his own discretion has right to transfer the Lekhpal from one pargana (circle) to another pargana (circle) and pargana and prabhari of pargana i.e. the Assistant Collector has right to transfer a Lekhpal within pargana. The rule specifically provides that the transfer order can only be passed by Collector or Prabhari of pargana i.e. the Assistant Collector on his own discretion and apparently in the present case the appointing authority has not exercised his discretion and only passed the consequential order. 5. It is also submitted by the learned counsel for the petitioner is that the opposite party No. 2 in his order dated 12.4.2010 has not recorded any finding to the effect that as to whether the petitioner’s transfer has not been made on the basis of complaint of the President of Bahujan Samaj Party. Apart from this, the impugned order is stigmatic in nature and the same has been passed without affording any opportunity to the petitioner. 6. Learned Standing Counsel while opposing the writ petition submitted that the petitioner was posted as Lekhpal in circle Mati, tehsil Nawabganj, district Barabanki on 21.6.2005. Since the petitioner was not performing his duties properly, as such, after holding departmental proceedings he was reinstated in service after awarding major punishment. 7. Earlier on 31.7.2007, petitioner was transferred from Lekhpal circle Mati to Lekhpal circle Jyori, tehsil Nawabganj, district Barabani and the said transfer order was challenged by the petitioner, making allegation of political interference and the transfer order was stayed by this Court by means of order dated 21.8.2007 passed in Writ Petition No. 4783 (S/S) of 2007 till the next date of hearing. The transfer of the petitioner was cancelled in compliance of order of this Court. 8. The transfer of the petitioner was cancelled in compliance of order of this Court. 8. Now, once again the petitioner has come before this Court making similar allegation of political interference whereas the petitioner was found prima facie guilty of unauthorized encroachment of land of Gram Sabha in the enquiry by the Additional District Magistrate on 6.2.2010, the copy of the report has also been annexed as Annexure-CA-1 to the counter-affidavit. It is also submitted that the petitioner is posted in the present circle for the last five years and his effort is to remain in the circle by any means. 9. It is also submitted by the learned Standing Counsel that as per the policy, a Lekhpal can be posted in one circle for three years. The transfer is a normal administrative exigency and the same has been done in public interest. The representation of the petitioner was considered by the District Magistrate, Barabanki in pursuance to the orders dated 1.4.2010 passed by this Court in Writ Petition No. 1834 (S/S) of 2010 and the same was rejected by means of speaking order in which it has been specifically mentioned that the transfer order has been passed on the basis of inspection report of Additional District Magistrate (Finance & Revenue), Barabanki and taking into consideration the relevant provisions of rule in public interest and on administrative exigency. It was also mentioned in the order of District Magistrate, Barabanki that the Additional District Magistrate (Finance & Revenue), Barabanki on his inspection dated 6.2.2010 found unauthorized possession over the land of Gaon Sabha. There was cultivatory land available in the Gaon Sabha, but no effort has been made for allotment of the same to the eligible persons. It was also found by the Additional District Magistrate (Finance & Revenue) that the petitioner has not performed his duties and responsibility properly. The competent authority after examining the report of the Additional District Magistrate (Finance & Revenue) and looking into the fact that petitioner is posted in the present circle for the last five years, transferred the petitioner by means of order dated 10.2.2010 in public as well as on administrative ground and the departmental proceedings have also been initiated against the petitioner, for which, charge-sheet has already been issued on 4.4.2010. The District Magistrate while considering the representation of the petitioner in pursuance to the direction of this Court dated 1.4.2010 passed in Writ Petition No. 1834 (S/S) of 2010, examined the issued in detail after seeking report from the Sub-Divisional Magistrate, Nawabganj, district Barabanki, in which it was clarified that the transfer of the petitioner has not bee done on any political pressure or illwill. Rather, the same has been done taking into consideration the Governmental work as well as points raised by the Additional District Magistrate (Finance & Revenue) in his report. 10. The learned Standing Counsel vehemently submitted that the petitioner being posted for the period of last five years in Lekhpal circle Mati created constituency for himself and is not performing his duties impartially. Further departmental proceedings are pending against him. On this back ground the petitioner was transferred on administrative ground in public interest from present place of posting. 11. The learned counsel for the petitioner in his re-joinder in sum and substance reiterated his earlier arguments and tried to plead a case of mala fide. 12. I have considered the rival submissions of learned counsel for the parties and gone through the record. 13. This is the second inning, the petitioner initially filed Writ Petition No. 1834 (S/S) of 2010, which was disposed of by means of order dated 1.4.2010 with a direction to the District Magistrate, Barabanki to consider and decide the representation of the petitioner against the impugned transfer order by means of a speaking and reasoned order. 14. Admittedly, the petitioner was posted in Lekhpal Circle Mati on 21.6.2005 and approximately five years have passed at the present place of posting. The District Magistrate, Barabanki while considering the representation in pursuance to the order of this Court dated 1.4.2010 passed in Writ Petition No. 1834 (S/S) of 2010 considered the grievance of the petitioner in detail and passed a speaking and reasoned order. 15. From perusal of the record, it is evident that the Additional District Magistrate (Finance & Revenue) made a spot enquiry in the presence of the petitioner and various irregularities have been found, which he has indicated in his enquiry report dated 8.12.2010. 15. From perusal of the record, it is evident that the Additional District Magistrate (Finance & Revenue) made a spot enquiry in the presence of the petitioner and various irregularities have been found, which he has indicated in his enquiry report dated 8.12.2010. The competent authority taking into consideration the report of the Additional District Magistrate (Finance & Revenue) at the first instance decide to transfer the petitioner from present place of posting and thereafter departmental proceedings have been initiated by issuing charge-sheet dated 4.4.2010. 16. It appears that the petitioner, who was posted in Lekhpal Circle Mati for the last five years, has developed personal interest in the area and that is why he does not want to move out from the circle. The record also shows that petitioner was earlier transferred in the year 2007 on 31.8.2007 from the Lekhpal Circle Mati to Jyori Tehsil Nawabganj, district Barabanki and the same was challenged by the petitioner by means of Writ Petition No. 4783 (S/S) of 2007 apparently on the ground that he has been transferred on political consideration. Thus, time and again the grounds of political interference has been raised. The District Magistrate while considering the representation of the petitioner considered the grievance of the petitioner in detail and rejected the same by means of a speaking and reasoned order dated 12.4.2010. On examination of the order passed by the District Magistrate, this Court finds that the District Magistrate has examined each and every issue and observed that the allegation of the petitioner that he has been transferred on account of complaint of the District President, Bahujan Samaj Party and Gram Pradhan is baseless. 17. It will not be out of place to mentioned here that under the service jurisprudence transfer of an employee who holds a transferable post is a normal feature and has been recognized throughout as an incident of service. In the matter of the transfer, the Government/employer has a wide discretion and it is the employer who is the best judge to utilise the service of its employee and to place and post him at its discretion accordingly. The employee has no legal say in the matter of his posting except to bring to the notice of the authority concerned his personal difficulty or any hardship. The employee has no legal say in the matter of his posting except to bring to the notice of the authority concerned his personal difficulty or any hardship. The employee as such, as no vested right either to insist for a particular post or to be posted at a particular place or to stick to a particular one. In fact, transfer has been considered necessary in public interest and to maintain efficiency in public administration. It has been settled by a catena of authorities that ordinarily transfer orders are not to be interfered with on the judicial side until and unless it is shown that the order of transfer passed is without jurisdiction or is in breach of any statutory rule or it has been motivated by malice of fact or law or is proved to be punitive, vindictive or stigmatic in nature. 18. In view of the settled legal position, this Court after going through the order of the District Magistrate, Barabanki dated 12.4.2010, does not find any cogent reason to interference with the impugned transfer order under Article 226 of the Constitution. 19. Accordingly, the writ petition is dismissed. No order as to costs. —————