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2015 DIGILAW 2906 (ALL)

Kurendra Pal v. State of U. P.

2015-09-15

ANIL KUMAR

body2015
JUDGMENT Anil Kumar, J. Heard Sri Shyam Mohan, learned counsel for petitioner, Sri Badrul Hasan, learned Additional Chief Standing Counsel and perused the record. 2. By means of the present writ petition, the petitioner has challenged the impugned order dated 31.08.2015 passed by respondent No. 1 by which respondent No. 5/Sri Sudhir Kumar Srivastava who is working on the post of Assistant Development Officer, Panchayat at Allahabad in the Panchayat Raj Department, State of U.P. has been transferred on the said post to Lakhimpur Kheri. 3. Sri Shyam Mohan, learned counsel for petitioner while challenging the impugned order submits that as there is no post of Assistant Development Officer, Panchayat, is vacant in Kheri, so there is no justification or reason on the part of respondent No. 1 to transfer respondent No. 5/Sri Sudhir Kumar Srivastava. 4. Next argument advanced by learned counsel for petitioner is that the petitioner being the senior-most person working on the post of Assistant Development Officer, Panchayat at Lakhimpur Kheri has been given the charge of the post of District Panchayat Raj Officer and in case respondent No. 5/Sri Sudhir Kumar Srivastava is posted, he should be debarred from the said charge, so the order dated 31.08.2015 is liable to be set aside. 5. Sri Badrul Hasan, learned Additional Chief Standing Counsel while defending the impugned order submits that by means of the said order respondent No. 5/Sri Sudhir Kumar Srivastava has been posted as Assistant Development Officer, Panchayat at Lakhimpur Kheri in the administrative exigency of services and he has already taken over the charge on the said post. 6. He further submits that respondent No. 5/Sri Sudhir Kumar Srivastava is senior to the petitioner on the post of Assistant Development Officer, Panchayat and his name find place in the seniority-list at serial No. 78 whereas the name of the petitioner find place in the said seniority-list at serial No. 174. And the petitioner who is working and discharging his duties on the post of Assistant Development Officer, Panchayat at Lakhimpur Kheri will be allowed to work and discharge his duties in the said capacity and will be paid salary and other allowances for which he is entitled, accordingly, it is submitted by learned State counsel that the petitioner has got no locus/right to challenge the impugned order dated 31.08.2015 (Annexure No. 1) passed by respondent No. 1. 7. 7. After hearing learned counsel for parties and going through the record, the first question which to be considered is that whether the petitioner has any locus/right, suffer a legal injury in order to enable him to challenge the order dated 31.08.2015 (Annexure No. 1) passed by respondent No. 1 thereby transferring respondent No. 5/Sri Sudhir Kumar Srivastava as Assistant Development Officer, Panchayat at Lakhimpur Kheri. 8. Hon'ble Apex court in Civil Appeal No. 7728 of 2012 the case of Ayaaubkhan Noorkhan Pathan v. The State of Maharashtra and Ors. decided on 08.11.2012, as under: - "7. It is a settled legal proposition that a stranger cannot be permitted to meddle in any proceeding, unless he satisfies the Authority/Court, that he falls within the category of aggrieved persons. Only a person who has suffered, or suffers from legal injury can challenge the act/action/order etc. in a court of law. A writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the appellant that there has been a breach of statutory duty on the part of the Authorities. Therefore, there must be a judicially enforceable right available for enforcement, on the basis of which writ jurisdiction is resorted to. The Court can of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the Court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that, the relief prayed for must be one to enforce a legal right. In fact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same. (Vide : State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12 ; Saghir Ahmad & Anr. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same. (Vide : State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12 ; Saghir Ahmad & Anr. v. State of U.P., AIR 1954 SC 728 ; Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal & Ors., AIR 1962 SC 1044 ; Rajendra Singh v. State of Madhya Pradesh, AIR 1996 SC 273 ; and Tamilnad Mercantile Bank Shareholders Welfare Association v. S.C. Sekar & Ors., (2009) 2 SCC 784 ). 8. A "legal right", means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, "person aggrieved" does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must therefore, necessarily be one, whose right or interest has been adversely affected or jeopardised. (Vide: Shanti Kumar R. Chanji v. Home Insurance Co. of New York, AIR 1974 SC 1719 ; and State of Rajasthan & Ors. v. Union of India & Ors., AIR 1977 SC 4 1361). 9. In Anand Sharadchandra Oka v. University of Mumbai, AIR 2008 SC 1289 , a similar view was taken by this Court, observing that, if a person claiming relief is not eligible as per requirement, then he cannot be said to be a person aggrieved regarding the election or the selection of other persons. 10. In A. Subhash Babu v. State of A. P., AIR 2011 SC 3031 , this Court held: "The expression 'aggrieved person' denotes an elastic and an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of complainant's interest and the nature and the extent of the prejudice or injury suffered by the complainant." 9. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of complainant's interest and the nature and the extent of the prejudice or injury suffered by the complainant." 9. So far the matter relating to transfer of a Government servant is concerned, it is settled position of law that it is a domain of the State Government/competent authority to transfer an employee in the effective utilisation of the services, in the administrative exigency services and in the interest of department. 10. A transfer is a very important incidence of service and often the order of transfer which may appear innocuous causes serious hardship to the concerned employee. It should be noted in this connection that how best the service of a Government employee can be utilised must be left to the wisdom of the employer and for that purpose, to the appropriate authorities in a public service. 11. Whether the service of a Government employee can be better utilised in some other place is not a justifiable issue in a court of law. It will be sufficient to sustain an order of transfer if it can be shown that the service is a transferable one and by the impugned order of transfer, no condition of service or the norm laid down for such transfer has been violated and that a proper consideration of administrative exigency and/or public interest has been made by the concerned authority and on being satisfied of such administrative exigency and/or public interest, the order of transfer has been made. 12. In the instant matter, admittedly respondent No. 5/Sri Sudhir Kumar Srivastava, Assistant Development Officer, Panchayat is senior to the petitioner in the cadre of Assistant Development Officer, Panchayat in the Panchayat Raj Department, State of U.P. by transferring/posting him at Lakhimpur Kheri in the said capacity, the petitioner will not have any legal injury in any manner, because he will discharge his duties on the post of Assistant Development Officer, Panchayat at Lakhimpur Kheri and paid salary and other allowances admissible to the said post. 13. 13. Accordingly, the argument advanced by learned counsel for petitioner that he will be debarred from officiating the charge on the post of District Panchayat Raj Officer is misconceived as he has no right to hold the officiating charge of the said post, so he has got no right or locus to challenge the order dated 31.08.2015 (Annexure No. 1) passed by respondent No. 1 thereby transferring respondent No. 5/Sri Sudhir Kumar Srivastava as Assistant Development Officer, Panchayat at Lakhimpur Kheri. 14. For the foregoing reasons, the writ petition lacks merit and is dismissed.