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2015 DIGILAW 536 (ALL)

Kalu Ram v. State of U. P.

2015-03-23

VIVEK KUMAR BIRLA

body2015
JUDGMENT Vivek Kumar Birla,J. Heard learned counsel for the petitioner and the learned Standing Counsel appearing for all the respondents. 2. The present petition has been filed challenging the impugned transfer order dated 20.2.2015 passed by the respondent no. 5, the Superintendent of Police (Establishment), Lucknow transferring the petitioner from district Hapur of Meerut Zone to some district of Lucknow Zone. 3. The grievance of the petitioner is that there seems to be no exigency or administrative requirement so as to warrant his transfer at this stage when only 17 months of service is left. Learned counsel for the petitioner further submits that the petitioner is not keeping well and for this purpose he has already made a representation to the respondent no. 2, the Director General of Police, U.P., Lucknow. 4. A perusal of paragraph 7 to the writ petition clearly demonstrates that the petitioner is serving within a limited zone of the State of U.P. and now he has been transferred to Lucknow Zone. It is well settled law that the transfer and postings must be left in the discretion of the State authorities concerned because they are in the best position to assess the required policemen in any particular district and/or another range than in another, depending upon their assessment of the law and order situation, administrative requirements of the situation and/or other considerations. Reference may be made in this regard to the law laid down by the Hon'ble Supreme Court in the case of State of Haryana Vs. Kashmir Singh (2010) 13 SCC 306 wherein the Hon'ble Supreme Court has clearly laid down that the Courts should maintain judicial restrain while interfering in administrative matters. Courts should not interfere with purely administrative matters except where absolutely necessary on account of violation of any fundamental or other legal right of the citizen. State administration cannot function with its hands tied by judiciary behind its back. Transfer and posting of policemen are purely administrative matters. Transfer is an incidence of service. 5. In so far as the illness of the petitioner is concerned, there is no document to demonstrate that the petitioner is suffering from any grave illness so as to warrant his stay at a particular place. 6. However, a bunch of writ petition was decided by the learned Single Judge in the case of Manish Kumar Dixit Vs. 5. In so far as the illness of the petitioner is concerned, there is no document to demonstrate that the petitioner is suffering from any grave illness so as to warrant his stay at a particular place. 6. However, a bunch of writ petition was decided by the learned Single Judge in the case of Manish Kumar Dixit Vs. State of U.P. and others 2015 (2) ADJ 87 relating to Police Constables in Civil Police. The said bunch was dismissed by judgment dated 12.12.2014. In the aforesaid judgment the law relating to transfer was discussed in detail. Against the aforesaid judgment of learned Single Judge Special Appeal Defective No. 42 of 2015, HC 72 AP Arvind Kumar and others Vs. State of U.P. and others was filed which was connected with other special appeals. In the aforesaid appeal, following observation was made by the Hon'ble Division Bench in its order dated 23.1.2015, which reads as under: "The learned counsel for the appellants has relied upon various judgments which are already quoted in the learned Single Judge Judgment mainly Vinod Kumar Vs. State of U.P. 2010(7) ADJ 315 FB and Prakash Singh Vs. Union of India and Prakash Singh V. Union of India, 2006(8) SCC 1 and also raised various pleas, however, lastly, conceded and submitted that appellants may be given permission to comply with the order of moving representation before the concerned authorities in compliance of the liberty granted by the learned Single Judge while disposing of their writ petitions and fixed a time frame for disposal of such representation if preferred before the concerned authorities. In view of the statement made by the learned counsel for the appellants we are of the opinion that Special Appeal devoid of merit and deserves to be dismissed and the appellants may be given liberty to move representation before the concerned authority as provided in para 43 of the judgment of the learned Single Judge." 7. The Supreme Court in a long line of decisions has held that in the transfer matter the Court should exercise its jurisdiction under Article 226 of the Constitution only on limited grounds i.e. malafide or violation of statutory rules. It has been further held by the Supreme Court that if the transfer order is in violation of a Government Order or the transfer policy the appropriate remedy is to file a representation to the higher authority. It has been further held by the Supreme Court that if the transfer order is in violation of a Government Order or the transfer policy the appropriate remedy is to file a representation to the higher authority. Reference may be made to the judgements of the Supreme Court in the cases of Union of India and others v. S.L. Abbas, (1993) 4 SCC 357 ; Shilpi Bose (Mrs) and others v. State of Bihar and others, 1991 Supp (2) SCC 659 and, N.K. Singh v. Union of India and others, (1994) 6 SCC 98 . 8. In my opinion, the ratio of the cases as discussed above also applies in the present case as the petitioner also belongs to a disciplined force. 9. The Hon'ble Supreme Court in the case of S.C. Saxena Vs. Union of India and others (2006) 9 SCC 583 observed that a Government servant should first join the place where he is transferred. After joining the transferred place, he may make a representation to the higher authorities to ventilate his grievance. 10. Accordingly, in view of the facts and circumstances of the case, I am not inclined to interfere in the transfer order. However, the respondent no. 2, the Director General of Police, U.P., Lucknow is directed to decide the representation filed by the petitioner preferably within a period of three weeks from the date of production of a certified copy of this order before the said respondent. This writ petition is disposed of accordingly.