Research › Search › Judgment

Allahabad High Court · body

2015 DIGILAW 2385 (ALL)

Raja Ram v. State of U. P.

2015-08-13

ANIL KUMAR

body2015
JUDGMENT Anil Kumar, J. Petitioner who was working on the post of Senior Assistant, Ghaziabad at 37 UP Battalion NCC, Ghaziabad, has made a representation to the competent authority for his transfer on compassionate ground. As the said representation has not been considered, so he approached this Court by filing Writ Petition No.4162 (SS) of 2012, disposed of by order dated 08.08.2012 which on reproduction reads as under : - "Notice on behalf of opposite parties no. 1 to 5 and 7 has been accepted by the learned Chief Standing Counsel. For the order proposed to be passed there is no need to issue notice to opposite party no. 6. Learned counsel for petitioner submits that petitioner and his wife both are the government employees and as such as per the Government Order dated 22.3.2012 they are to be posted in the same district. The petitioner in this regard had made a request for his transfer on compassionate grounds to Lucknow on 19.8.2004. The Commanding Officer, 37th U.P. Battalion, NCC, Ghaziabad, had also recommended to consider the case of the petitioner for transfer to Lucknow. It is also submitted that recently 12 persons have been accommodated and transferred on compassionate grounds to Lucknow by orders dated 7.5.2012, 14.5.2012 and 29.7.2012 but the case of the petitioner has not been considered. Learned Standing Counsel on the other hand submitted that as per the general transfer policy the husband and wife in case both are government employees, are to be posted in one district as far as possible, it is not mandatory that both of them shall be posted in same district. I have considered the submissions made by the parties' counsel. I am of the considered opinion that the grievance of the petitioner shall be first looked into by the department itself. In this view of the matter, with the consent of parties' counsel and without entering into the merits of the case, writ petition is finally disposed of with liberty to the petitioner to move a fresh representation before opposite party no. In this view of the matter, with the consent of parties' counsel and without entering into the merits of the case, writ petition is finally disposed of with liberty to the petitioner to move a fresh representation before opposite party no. 3, who is said to be the competent authority in this regard and in case any such representation is made the same shall be considered and decided in accordance with law, rules, regulations and the orders, expeditiously, say within a period of six weeks' from the date a certified copy of this order along with the copy of the representation is produced before him. " 2. By order dated 03.10.2012, the said representation has been rejected by the competent authority with the following observations : - "The petitioner has also claimed that he and his wife both are government servant and they are liable to be posted at one place. However, it is clarified that the Transfer Policy-2012 issued by U.P. State Government clearly states that as far as possible the same is desirable but not mandatory. All related records/documents were put up before the Offg ADG NCC, who, after going through entire circumstances of the case, has considered and disposed off the representation dated 27 Aug, 2012 of Sri Raja Ram, Senior Assistant of 37 UP Bn NCC Ghaziabad, with the directions that his case for compassionate posting to Lucknow is not feasible at this stage. However, his case is likely to be considered on availability of vacancy and keeping in view the functional efficiency/requirement of the Department, in organizational interest, as and when due." 3. I have heard learned counsel for the parties and gone through the records and also produce the transfer policy issued by the State Government. 4. Needless to mention herein that it is not disputed by learned counsel for petitioners that petitioner is holding a transferable post. 5. So far as the argument advanced by learned counsel for petitioner that in view of the transfer policy, the husband and wife should be posted at the same place, hence the impugned order is liable to be set aside. From the perusal of Clause 1(d) of the transfer policy, the position which emerged out is that the husband and wife, if they are in government service, they may be posted at the same place, as far as possible (Yathasambhav). 6. From the perusal of Clause 1(d) of the transfer policy, the position which emerged out is that the husband and wife, if they are in government service, they may be posted at the same place, as far as possible (Yathasambhav). 6. Thus, the phrase "as far as possible" mentioned in the transfer policy does not take away the right of the employer to transfer on an administrative exigency or even on administrative ground of its employee. Further, this phrase really means that the principles are to be observed unless it is not possible to follow them in the particular circumstances of a case. By use of this phraseology the rule etc. is made directory instead of mandatory (See. Rani Vs. Deputy Director of Consolidation, AIR 1959 All 525 ; and Gopalpur Tea Co. Ltd. Vs. Corporation of Calcutta, AIR 1966 Cal 51 ). 7. In the case of Rajender Singh & Ors. Vs. State of U.P. & Ors., (1998) 7 SCC 654 , the Apex Court explained the meaning of words 'as far as possible' as under: - "....................These words are not prohibitory in nature. They rather connote a discretion vested in the prescribed authority which can exercise that discretion ?....................... It is thus"discretion" and not "compulsion" which contributes the core of this statutory provision..................." 8. The expression 'as far as possible' inheres in it an in built flexibility. (See. Osmania University Vs. V.S. Muthurangam & Ors., AIR 1997 SC 2758 ). Accordingly, the expression "as far as practicable" mean, practicable, feasible, possible, performable. It means, not interfering with the ration prescribed under any rule, which fulfills the interest of administration, but flexible provision clothing government with powers to meet special situations where the normal process of the government resolution cannot flow smooth. (See. N.K. Chauhan & Ors. Vs. State of Gujarat & Ors., AIR 1977 SC 251 ). Therefore, as far as possible means, so long it remains practicable and feasible. It is a discretion of the authority to carve out an exception and it is not necessary for him to give strict adherence to the statutory provisions, hence the argument in question has go not force, rejected. 9. Therefore, as far as possible means, so long it remains practicable and feasible. It is a discretion of the authority to carve out an exception and it is not necessary for him to give strict adherence to the statutory provisions, hence the argument in question has go not force, rejected. 9. The next argument raised by learned counsel for petitioner that the the impugned order dated 03.102012 by which the petitioner's representation has been rejected is without arbitrary in nature as the petitioner has been engaged in preparation of electoral roll and the same cannot be a ground for challenging the impugned order. 10. Transfer is an incidence of service and it does not require the consent of the employee. A public servant has no vested right to seek transfer to a location of his choice. An employee can be transferred on administrative exigencies and in public interest. It is not obligatory on the part of the employer to comply with the principles of natural justice before making an order of transfer. The Government is empowered to transfer a civil servant from one post to another or to an equivalent post in the same cadre or grade or carrying the a lien. No employee can claim to a particular posting as the matter of posting is entirely in the domain of the administration. 11. No Government employee has any right to be posted at any particular place forever, because transfer is not only an incidence of service, but also a condition of service, and as such it is necessary in public interest and in the interest of efficiency in public administration. There is no hostile discrimination in transfer from one post to another when the posts are of equal status and responsibility. The transfer in posts, which are in the same grade or cadre or considered equivalent can be affected on administrative exigencies. 12. There is no hostile discrimination in transfer from one post to another when the posts are of equal status and responsibility. The transfer in posts, which are in the same grade or cadre or considered equivalent can be affected on administrative exigencies. 12. The general principles in respect to the transfer an employees that can be deducted from various judicial pronouncements and the statutory provisions are as follows: (i) that an employee cannot be transferred out of his cadre or establishment against his wish; (ii) that no transfer can be justified merely because the pay is not affected, when the appointment is made to a specified post or a specified group of posts; (iii) that the Government employee cannot be asked to perform duties which were never expected of him at the time of recruitment; and (iv) that the expectation of future promotion cannot be wiped off by moving a Government employee around. 13. But, the judicial review of order of transfer can be done, if the order of transfer suffers from the vice of mala fide exercise of power when the transfer is made not in public interest or administrative exigency, but simply to accommodate another employee without any justifiable reason. Unless the order of transfer is shown to be an outcome of mala fide exercise of power or violative of any statutory provision or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with by the courts as a matter of routine for every type of grievance sought to be made. 14. The said condition does not exit in the present case. 15. For the foregoing reasons, I do not find any infirmity or illegality in the impugned order which is under challenge in the present writ petition, as such present writ petition lacks merit and is dismissed.