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2016 DIGILAW 2967 (ALL)

Kashi Nath Mishra v. State of U. P.

2016-08-29

MAHESH CHANDRA TRIPATHI, V.K.SHUKLA

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JUDGMENT Kashi Nath Mishra is before this Court assailing the validity of the order dated 16.08.2016 passed by learned Single Judge in Civil Misc. Writ Petition No.37945 of 2016 (Kashi Nath Mishra vs. State of U.P. and others). The order passed by learned Single Judge is being assailed precisely on the ground that learned Single Judge has failed to consider the transfer policy, which restrain the respondent-authorities to transfer the Class III and Class IV employee out of the region, whereas by means of impugned transfer order dated 08.08.2016 passed by respondent no.4 i.e. Additional Director (Prosecution) Gorakhpur Region, Gorakhpur, petitioner-appellant had been transferred from Gorakhpur Region to Azamgarh Region as per Government order dated 05.08.2013 and as such, the order passed by learned Single Judge is per-se bad and the same has been passed ignoring the transfer policy. From the record in question, this much is reflected that the petitioner-appellant is a Personal Assistant in the office of Joint Director (Prosecution) Gorakhpur and had proceeded to file the Writ Petition No.37945 of 2016 for quashing the order dated 08.08.2016, whereby he has been transferred from District Gorakhpur to District Siddharth Nagar. This much is also reflected from the record in question that petitioner-appellant had filed earlier Writ Petition No.7362 of 2016 challenging the transfer order dated 7.1.2016 precisely on three grounds, first that the transfer was by way of punishment on a complaint made against him, secondly there was no post of Personal Assistant at Siddharth Nagar and thirdly, that there was some medical problem with him. In the said direction, detailed counter affidavit has been filed by the State-respondents in which it was brought to the notice of the Court that petitioner-appellant was transferred on a complaint of one Kaushal Kishore and that criminal proceedings were pending against him in the State of Uttrakhand at Dehradun and the Court had taken the view that his transfer will not influence the criminal proceedings and as such, the writ petition was disposed of by an order dated 20.4.2016 with a direction to the respondents to decide the petitioner's representation. Consequently, in response to the directives so issued by this Court, the respondent-authorities vide an order dated 07.06.2016 had rejected the claim of the petitioner-appellant and the said action has impelled the petitioner-appellant once again to be before this Court by filing a Writ Petition No.34322 of 2016, challenging the order dated 7.6.2016 whereby his representation was rejected and this Court has proceeded to ask learned Standing Counsel to obtain necessary instruction as to whether the post of Personal Assistant existed in district Siddharth Nagar or not. This much is also reflected that from the record in question that when the instructions were not provided to the Court by the next date, the Joint Director of Prosecution, Gorakhpur was directed to be present in the Court on the next date i.e. on 12.8.2016 and meanwhile on 8.8.2016 the impugned transfer order has been passed. The same was the subject matter of challenge in Writ Petition No.37945 of 2016 and learned Single, in his wisdom, has proceeded to dismiss the said Writ Petition with following observations: "Heard Sri Akhtar Ali, learned counsel for the petitioner and Sri Mata Prasad, learned Additional Chief Standing Counsel for the respondents. The petitioner is a Personal Assistant in the office of Joint Director (Prosecution) Gorakhpur and is seeking quashing of the order dated 8.8.2016 whereby he has been transferred from District-Gorakhpur to District-Siddharth Nagar. Earlier also the petitioner had filed Writ petition no.7362 of 2016 challenging the transfer order dated 7.1.2016 on three grounds, first that the transfer was by way of punishment on a complaint made against him, secondly there was no post of Personal Assistant at Siddharth Nagar and thirdly, that there was some medical problem with him. A counter affidavit was filed by the State in which it was stated that the petitioner was transferred on a complaint of one Kaushal Kishore and that criminal proceedings were pending against him in the State of Uttrakhand at Dehradun. The Court therefore took the view that his transfer will not influence the criminal proceedings. This Court therefore, disposed of the writ petition by order dated 20.4.2016 with a direction to the respondents to decide the petitioner's representation. Thereafter, by the order dated 7.6.2016. the petitioner's representation was rejected. The petitioner then filed Writ petition no.34322 of 2016 challenging the order dated 7.6.2016 rejecting his representation. This Court therefore, disposed of the writ petition by order dated 20.4.2016 with a direction to the respondents to decide the petitioner's representation. Thereafter, by the order dated 7.6.2016. the petitioner's representation was rejected. The petitioner then filed Writ petition no.34322 of 2016 challenging the order dated 7.6.2016 rejecting his representation. The standing counsel was directed to obtain instructions as to whether the post of personal assistant existed in Siddharth Nagar or not. When the instructions were not provided to the Court by the next date, the Joint Director of Prosecution, Gorakhpur was directed to be present in the Court on the next date i.e. on 12.8.2016. In the meantime, on 8.8.2016 the impugned transfer order has been passed. The contention of the petitioner is that he belongs to Gorakhpur Region and cannot be transferred to Siddharth Nagar in view of the Government Order dated 5.8.2013. However, the impugned order mentions that there is a shortage of staff at Siddharth Nagar which means that there is a vacant post of Personal Assistant at Siddharth Nagar. Even otherwise, as per the order dated 7.6.2016, Annexure-11 to the writ petition, passed by the Additional Director (Law), U.P., Lucknow the petitioner had remained at Gorakhpur for the last 29 years. Learned counsel for the petitioner then tried to place reliance upon the Government Order dated 5.8.2013. This order on the other hand mentions that since sometimes there are different appointing authorities for different posts, therefore each category is treated to be a separate unit. In my opinion, this order does not state anywhere that the petitioner cannot be transferred. However, considering the fact that the petitioner had remained at Gorakhpur for the last 29 years, I do not find any illegality or infirmity in the impugned order. The writ petition lacks merit and is accordingly, dismissed." While deciding the Writ Petition in question, the learned Single Judge has also proceeded to observe that petitioner-appellant remained at Gorakhpur for last 29 years and the Government Order dated 05.08.2013 nowhere goes to reflect that petitioner-appellant cannot be transferred. Thus admitted position is that petitioner-appellant holds transferable post and the authority who has passed the said transfer order has got full competence as it is for the authority to see as to where an incumbent is to be posted and as to where his/her services are to be best utilized. Thus admitted position is that petitioner-appellant holds transferable post and the authority who has passed the said transfer order has got full competence as it is for the authority to see as to where an incumbent is to be posted and as to where his/her services are to be best utilized. Law on the subject is clear that transfer policy is not enforceable in Court of law and the remedy of incumbent is to approach the authority concerned, who can always look into the grievance and redress the same. Once such is the factual situation, then there is no occasion for us to interfere with the impugned transfer order in view of the judgment of Apex Court in the cases of Mrs. Shilpi Bose and others Vs. State of Bihar and others reported in 1995 (71) FLR 1011 (SC); State of U.P. Vs. Gobardhan Lal ( AIR 2004 SC 2165 ); Union of India, others Vs. Janardhan Debanath and another reported in [ (2004) 4 SCC 245 and S.C. Saxena Vs. Union of India and others reported in 2006(9) SCC, page 583. Special Appeal sans merit and the same is dismissed accordingly.