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2015 DIGILAW 2556 (ALL)

Arun Awasthi v. State of U. P.

2015-08-21

ANIL KUMAR

body2015
JUDGMENT Anil Kumar, J. Heard Shri Alok Singh, learned counsel for the petitioner, learned Standing Counsel and perused the record. 2. By means of the present writ petition, the petitioner has challenged the impugned order of transfer dated 21.04.2015 passed by opposite party no.3/Director Paramedical and Health Services, U.P., Lucknow by which he has been transferred from 27th P.A.C. Battalion, Sitapur to the office of Chief Medical Officer, District-Eata. 3. Learned counsel for the petitioner while challenging the impugned order submits that the same is neither in administrative exigency of service nor in the interest of department as the same has been passed in pursuance to the direction issued vide letter no.4200/Panch-7-2015 dated 04.07.2015 by the opposite party no.1. As such, the same is unsustainable and the petitioner cannot be transferred in pursuance to the order dated 21.04.2015 passed by the opposite party no.3. 4. It is further argued by learned counsel for the petitioner that wife of the petitioner is posted at Sitapur. So keeping in view the said fact as well as terms of the transfer policy that husband wife should be posted at same place, there is no justification or reason on the part of the respondent no.3 to transfer the petitioner, liable to be set aside. 5. Sri Gyanendra Kumar Srivastava, learned Standing Counsel while defending the impugned transfer order submits that the ground taken by learned counsel for the petitioner for challenging the impugned transfer order in the instant writ petition is in contravention of law laid down by this Court in the case of Ashok Kumar Mishra Vs. State of U.P. and others, 2015(6) ADJ 498 , so the present writ petition filed by the petitioner liable to be dismissed. 6. Sofaras the argument raised by learned counsel for the petitioner that the impugned order is neither in administrative exigency of service nor in the interest of department has got no force because a Division Bench of this Court in the case of Ashok Kumar Mishra( Supra) has held as under: - "There can be no doubt that transfer is an exigency of service. In the present case, the policy circular, which has been relied upon by the appellant, indicates certain conditions in the case of a person who has less than two years to retire. In the present case, the policy circular, which has been relied upon by the appellant, indicates certain conditions in the case of a person who has less than two years to retire. Learned Standing Counsel has sought to distinguish the policy circular on the ground that it applies to government servants. For the purpose of these proceedings, we need not enter upon a wider area of dispute as to whether the policy circular applies. Even on the assumption that it does, it is a well settled principle of law that a policy circular by itself does not confer any vested right. Interest of the administration is paramount. With due deference to the directions issued by the Division Bench in Badri Prasad Misra (supra), we are constrained to reiterate what was held by the Hon'ble Supreme Court of India in Shilpi Bose (Mrs) v. State of Bihar, 1991 Supp. (2) SCC 659. Dealing with the contention of a transfer order being in violation of administrative instructions, it was held that a transfer order made in public interest and for administrative reasons should not be interfered with unless the same is stated to have been made in violation of any mandatory statutory rule or on the ground of malafides. It was further held that even if a transfer order is passed in violation of executive instructions or orders, the Court should not interfere and leave the affected party to approach the higher authorities in the department. The above law and principles declared in Shilpi Bose (supra) were reiterated by the Apex Court in State of Haryana v. Kashmir Singh, (2010) 13 SCC 306 . The above judgments do not appear to have been brought to the attention of the Division Bench concerned." 7. Next argument raised by learned counsel for the petitioner that the impugned order is unsustainable as the same has been passed in pursuance to the impugned order dated 21.04.2015 passed by the opposite party no.3 has got no force because opposite party no.2 is the higher authority to the opposite party no.3. Next argument raised by learned counsel for the petitioner that the impugned order is unsustainable as the same has been passed in pursuance to the impugned order dated 21.04.2015 passed by the opposite party no.3 has got no force because opposite party no.2 is the higher authority to the opposite party no.3. As such, he has got all power to issue a direction to the opposite party no.3 to transfer the petitioner in the administrative exigency of service and in the interest of department because 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. 8. 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. 9. 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. 10. 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. 10. Last argument raised by learned counsel for the petitioner that the husband and wife may be posted at the same place in view of the Government order is concerned, the petitioner cannot derive any benefit because from the perusal of the transfer policy on the point in issue, the position which emerges is that the husband and wife, if they are in government servant, they may be posted at the same place, (as faras possible (Yathasambhav). 11. 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 ). 12. 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..................." 13. 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. 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. Stat 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. 14. For the foregoing reasons, I do not find any illegality or infirmity in the impugned order under challenge in the present writ petition. Accordingly, the writ petition is dismissed.