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2014 DIGILAW 404 (ALL)

R. K. SINGH v. PHOOLMATI

2014-02-06

D.Y.CHANDRACHUD, DILIP GUPTA

body2014
JUDGMENT By the Court.—The learned Single Judge has, in the exercise of the jurisdiction under Article 226 of the Constitution, dismissed the writ petition as having been rendered infructuous on the ground that an order of transfer dated 26 November 2013 which was passed against the respondent has since been cancelled on 12 December 2013 in pursuance of the interim order dated 6 December 2013. The learned Single Judge has also held that as the order of transfer was passed by the appellant, who was the Chief Medical Officer, at the behest of a member of the Legislative Assembly without any independent application of mind, the Principal Secretary should pass an appropriate order for posting of the appellant at a place where she may not have to discharge independent duties. 2. The respondent was posted as a Staff Nurse at the Community Health Centre, Naraini, district Banda. A letter was addressed on 4 October 2013 by a member of the Legislative Assembly to the Chief Medical Officer stating that there were complaints from the patients about the conduct of the respondent and that she was not willing to work without accepting money. The elected representative recommended that the respondent be transferred to Jaspura. The Chief Medical Officer called for a report from the Additional Chief Medical Officer, Banda. In his report dated 26 November 2013, the Additional Chief Medical Officer found that there was substance in the grievances against the respondent. The records would, however, indicate that the Superintendent in his earlier report dated 20 November 2013 had not found any substance in the complaints against the respondent. In the subsequent report dated 26 November 2013, the Additional Chief Medical Officer, however, observed that the respondent was under the protection of the Superintendent as a result of which she was not rendering her duties satisfactorily. On 26 November 2013, the respondent was transferred to the Community Health Centre, Jaspura, which is situated within the jurisdiction of the same Chief Medical Officer. 3. The learned Single Judge passed an interim order of stay on 6 December 2013 following which the order of transfer was suspended pending further orders in the writ petition. The learned Single Judge held that in consequence the writ petition had been rendered infructuous and dismissed it as such. 3. The learned Single Judge passed an interim order of stay on 6 December 2013 following which the order of transfer was suspended pending further orders in the writ petition. The learned Single Judge held that in consequence the writ petition had been rendered infructuous and dismissed it as such. However, while dismissing the writ petition, the learned Single Judge held that a member of the Legislative Assembly is an outsider and so his complaint could not be considered as a command by the Chief Medical Officer, who was duty bound to independently apply her mind. Consequently, the Principal Secretary of the department was directed to look into the matter and to assign the respondent a place where she would not be required to discharge independent duties of a district level Officer as the appellant was not fit to hold any office independently. 4. We find merit in the contention of the learned Standing Counsel appearing of behalf of the appellants that the learned Single Judge could not have dismissed the petition as infructuous. An interim order was passed by the Court on 6 December 2013 that the order of transfer dated 26 November 2013 shall remain stayed. On 12 December 2013, in implementation of the interim directions, the transfer was held in abeyance pending further action. The communication dated 12 December 2013 makes it clear that it was issued in pursuance of and in compliance of the interim order dated 6 December 2013. Hence, the Court was required to decide the petition one way or the other. As a matter of fact, the learned Single Judge has dwelt on the merits of the grievances of the respondent since the observations of the learned Single Judge indicate the formation of an opinion by the Court that the order of transfer stood vitiated on the ground that it was passed at the behest of an elected representative without independent application of mind. Hence, the final order dismissing the writ petition as infructuous was patently incorrect. As a matter of fact, if the petition were to be rendered infructuous, the interim order dated 6 December 2013 would also come to an end, in which event the Government would be at liberty to post the respondent to a place of posting in accordance with the order of transfer. 5. As a matter of fact, if the petition were to be rendered infructuous, the interim order dated 6 December 2013 would also come to an end, in which event the Government would be at liberty to post the respondent to a place of posting in accordance with the order of transfer. 5. We now come to the main grievance in regard to the interference of the Court in transfer orders. It is a well-settled principle of law that transfer is an exigency of service. Orders of transfer do not constitute a stigma or punishment and are passed in the exigencies of administration. Except for mala fides or violation of a statutory provision, the Court under Article 226 of the Constitution does not interfere with an order of transfer. In the present case, what seems to have weighed with the learned Single Judge was a complaint dated 4 October 2013 of an elected representative. One indicator of the fact that the order of transfer was not passed only on that basis is that over a month had elapsed since the letter of the elected representative was sent and until the order of transfer was eventually issued on 26 November 2013. In the meantime, the facts were verified at the behest of the Chief Medical Officer, by the Additional Chief Medical Officer, Banda, who submitted his report, a copy of which has been annexed as Annexure-3 to the writ petition. The Superintendent, however, in his communication dated 20 November 2013 did not find merit in the complaint against the respondent, but these are matters which cannot be entered into by the Court under Article 226 of the Constitution since whether the employee should be transferred in the interest of the administration is not for the Court to determine. Even on the aspect as to whether the order of transfer would stand vitiated because of the intervention of an elected representative, the Court has to keep in mind the observations made by the Supreme Court in Mohd. Masood Ahmad v. State of U.P. and others, (2007) 8 SCC 150 , in which it was held : “8. Learned counsel for the appellant submitted that the impugned transfer order of the appellant from Muzaffarnagar to Mawana, District Meerut was made at the instance of an MLA. Masood Ahmad v. State of U.P. and others, (2007) 8 SCC 150 , in which it was held : “8. Learned counsel for the appellant submitted that the impugned transfer order of the appellant from Muzaffarnagar to Mawana, District Meerut was made at the instance of an MLA. On the other hand, it has been stated in the counter-affidavit filed on behalf of Respondents 1 and 2 that the appellant has been transferred due to complaints against him. In our opinion, even if the allegation of the appellant is correct that he was transferred on the recommendation of an MLA, that by itself would not vitiate the transfer order. After all, it is the duty of the representatives of the people in the legislature to express the grievances of the people and if there is any complaint against an official the State Government is certainly within its jurisdiction to transfer such an employee. There can be no hard-and-fast rule that every transfer at the instance of an MP or MLA would be vitiated. It all depends on the facts and circumstances of an individual case. In the present case, we see no infirmity in the impugned transfer order.” 6. This judgment was followed by the present Division Bench recently in State of U.P. and 4 others v. Ram Krishna Mishra and another, Special Appeal Defective No. 107 of 2014, decided on 31st January, 2014. 7. Thus, looked at from either perspective, the learned Single Judge was clearly in error on both counts. Firstly, the learned Single Judge, in the facts of the case, transgressed the limitation of his jurisdiction under Article 226 of the Constitution in examining the transfer order on merits. The learned Single Judge fell in error in holding that there was no independent application of mind by the appellant since the record of the case would indicate otherwise. The appellant had filed a counter-affidavit before the learned Single Judge in which it was stated that though a complaint had been received from the member of the Legislative Assembly, the appellant had passed the transfer order after considering all the facts pertaining to the respondent since she had been working at the Community Health Centre, Naraini for a long period of time and the members of the public were not satisfied with her working. Secondly, having entered upon the merits of the order of transfer, the learned Single Judge erred in dismissing the writ petition as infructuous. The petition was not rendered infructuous since it was in pursuance of the interim order that the transfer order was held in abeyance pending further action. 8. Consequently we are of the view that the Special Appeal will have to be allowed. 9. The Special Appeal is, accordingly, allowed by setting aside the impugned judgment and order dated 16 December 2013. The writ petition filed by the respondents shall, in the circumstances, stand dismissed. In the circumstances of the case, there shall be no order as to costs.