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2017 DIGILAW 1914 (ALL)

JAUHARI v. STATE OF U. P.

2017-08-19

IFAQAT ALI KHAN, RAN VIJAI SINGH

body2017
JUDGMENT By the Court.—We have heard Sri Rakesh Pandey, learned counsel for the petitioners and Sri J.P.N. Raj, learned Chief Standing Counsel-IV for the State-respondents. 2. By means of this writ petition, the petitioners, who are 19 in numbers and are working as Additional Statistical Officers in different districts in the State, have prayed for issuing a writ of certiorari quashing the transfer order dated 5.7.2017 passed by the Special Secretary, Micro, Small & Medium Enterprises Department, U.P., Lucknow, by which the petitioners have been transferred at different places. 3. While entertaining this writ petition, on 17.7.2017, following order was passed by this Court: “Supplementary-affidavit filed today is taken on record. We heard heard Sri Rakesh Pande, learned counsel for the petitioner. The petitioners claim themselves to be the Additional Statistical Officers and have approached this Court to issue a writ of certiorari quashing the order dated 5.7.2017 by which the petitioners who fall at serial Nos. 17, 11, 36, 38, 52, 31, 28, 26, 35, 46, 2, 3, 41, 47, 40, 14, 33 and 6 have been transferred to different places. Submission of the counsel for the petitioner is that under the Government Policy, the transfer order can be passed by the competent authority of the department. In his submission in view of Rule 5-C, the appointing authority for the post of Additional Statistical Officer happens to be Additional Director and Director happens to be departmental head. Here in this case the power of transfer has neither been exercised by the departmental Head nor by the appointing authority, therefore, it is without jurisdiction. The counsel for the petitioner has further argued that even if it is assumed that the transfer order has been passed by the higher authority then it will amount a colourable exercise of law. Learned Standing Counsel is directed to seek instructions in the matter within three days." 4. Pursuant thereto, learned standing counsel has filed counter-affidavit, to which no rejoinder-affidavit has been proposed to be filed by the learned counsel for the petitioners. As has been noticed by us while passing the order dated 17.7.2017, learned counsel for the petitioner contended that the transfer order is without jurisdiction, as it has neither been passed by the appointing authority, nor by the Head of the Department. As has been noticed by us while passing the order dated 17.7.2017, learned counsel for the petitioner contended that the transfer order is without jurisdiction, as it has neither been passed by the appointing authority, nor by the Head of the Department. Taking note of that, a counter-affidavit has been filed duly sworn by Sri Sanjay Singh, Assistant Commissioner, Industry, District Industry Center, Allahabad, stating therein that in view of the fact that number of transferred employees was more than 20%, therefore, in view of para 5 of the transfer policy of 2017, the proposal was sent before the Hon’ble the Chief Minister for approval and only thereafter, the transfer order has been issued by the appointing authority. 5. Sri Pandey, learned counsel for the petitioners has invited attention of this Court towards para 5 of the counter-affidavit, in which it is stated that after approval from the competent level, the transfer order has been passed by the State Government (Special Secretary of the concerned Department) and issued by the Additional Commissioner /Additional Director, Industry (Karmik), Kanpur. In his submissions, this is patently illegal and without jurisdiction in view of the law laid down by the Apex Court in Anirudhsinhji Karansinhji Jadeja and another v. State of Gujarat, (1995 (6) SC 146); wherein, the Apex Court has observed that if the statutory authority has been vested with jurisdiction, the same has to be exercised according to his own discretion. If the discretion is exercised under the direction or in compliance with some higher authority’s instruction, then it will be a case of failure to exercise discretion altogether. 6. In the submissions of learned counsel for the petitioners, in view of the fact that the transfer order has been passed by the Special Secretary, Micro, Small & Medium Enterprises Department, U.P., Lucknow, therefore, it is apparent that the appointing authority, i.e., the Additional Commissioner/Additional Director, Industries, U.P., Kanpur, has not exercised his own discretion and the order has been issued on the dictate of the higher authority, hence, the same deserves to be quashed. 7. He has also placed reliance upon the judgment of the Division Bench of this Court in Chhatrapal Singh v. State of U.P. and others, 2003 (3) UPLBEC 2634 . Emphasis has been laid down by the learned counsel for the petitioners on paragraph Nos. 27 and 28 of the said judgment, which read as under: “27. 7. He has also placed reliance upon the judgment of the Division Bench of this Court in Chhatrapal Singh v. State of U.P. and others, 2003 (3) UPLBEC 2634 . Emphasis has been laid down by the learned counsel for the petitioners on paragraph Nos. 27 and 28 of the said judgment, which read as under: “27. There is another aspect of the matter. When the statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same. It has been hither to uncontrovcrted legal position that where a statute requires to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods or modes of, performance are impliedly and necessarily forbidden. [Vide Taylor v. Taylor, (1876) 1 Ch. D. 426; Nazir Ahmed v. King Emperor, AIR 1936 PC 253 ; Deep Chand v. State of Rajasthan, AIR 1961 SC 1527 ; Patna Improvement Trust v. Smt. Lakshmi Devi, AIR 1963 SC 1077 ; State of Vttar Pradesh v. Singhara Singh and others, AIR 1964 SC 358 ; Nika Ram v. State of Himachal Pradesh, AIR 1972 SC 2077 ; Ramchandra Keshav Adke v. Govind Joti Chavare and others, AIR 1975 SC 915 ; Chettiam Veettil Ammad v. Taluk Land Board and others, AIR 1979 SC 1573 ; State of Bihar v. J.A.C. Saldanna, AIR 1980 SC 327; A.K, Roy and Am. v. State of Punjab and others, 1986 (4) SCC 326 ; State of Mizoram v. Biakchhawna, (1995) 1 SCC 156 ; J.N. Ganatra v. Morvi Municipality, Morvi, AIR 1996 SC 2520 ; Babu Verghese and others v. Bar Council of Kerala and others, (1999) 3 SCC 422 and Chandra Kishore Jha v. Mahavir Prasad, JT 1999 (7) SC 256]. 28. The aforesaid settled legal proposition is based on a legal maxim “Expressio unius est exclusio alterius”, meaning thereby that if a statute provides for a thing to be done in a particular, then it has to be done in that manner and in no other manner and following other course is not permissible. This maxim has consistently been followed, as is evidence from the cases referred to above. This maxim has consistently been followed, as is evidence from the cases referred to above. A similar view has been reiterated in Chandra Kishore Jha v. Mahavir Prasad and others, (1999) 8 SCC 266 ; Haresh Dayaram Thakur v. State of Maharashtra and others, (2000) 6 SCC 179 ; Delhi Administration v. Gurdip Singh and others, (2000) 7 SCC 296 ; Dhanajaya Reddy v. State of Karnataka etc. etc., (2001) 4 SCC 9 and Commissioner of Income Tax, Mumbai v. Anjum M.H. Ghaswala and others, (2002) 1 SCC 633 .” 8. Refuting the submissions of the learned counsel for the petitioners, learned Chief Standing Counsel-IV has submitted that initially, the proposal for transfer was made by the Additional Commissioner/Additional Director, Industries, U.P., Kanpur which was sent through the Director of Industries to the Government for approval of the Hon’ble the Chief Minister. Learned Chief Standing Counsel-IV has brought before us the record containing the proposal and approval of the Hon’ble the Chief Minister regarding the aforesaid transfer, which contains that in view of the fact that out of 76 Additional Statistical Officers, 56 had to be transferred, therefore, the approval of the Hon’ble the Chief Minister was necessary. 9. In view of the fact that the initial proposal was made by the Additional Commissioner/Additional Director, Industries, U.P., Kanpur and the same was sent through Director, Industries to the Government for seeking approval of Hon’ble the Chief Minister, we find that it has not been passed on the dictate of the Special Secretary, Micro, Small & Medium Enterprises Department, U.P., Lucknow. 10. However, for the sake of argument, assuming the argument of the learned counsel for the petitioners is correct, that the order has been passed by the Special Secretary, Micro, Small & Medium Enterprises Department, U.P., Lucknow, in that eventuality too, in view of the fact that initial proposal was made by the appointing authority and the same has been approved by the Hon’ble the Chief Minister, the alleged passing of order by the Special Secretary, Micro, Small & Medium Enterprises Department, U.P., Lucknow cannot be said to be an order passed by the appointing authority, i.e., the Additional Commissioner/Additional Director, Industries, U.P., Kanpur or the Director, Industries, on the dictate of the Special Secretary, Micro, Small & Medium Enterprises Department, U.P., Lucknow. Had it been a case that the proposal was not sent by the appointing authority through the Director, Industries, in that eventuality, the argument of the learned counsel for the petitioners would have full weight, but here there is nothing before us which may suggest that the appointing authority has issued the transfer order on the dictate of the Special Secretary, Micro, Small & Medium Enterprises Department, U.P., Lucknow. 11. The case laws relied upon by the learned counsel for the petitioners, altogether, are distinguishable on facts, as in the case of Anirudhsinhji Karansinhji Jadeja (supra), the matter relates to Terrorism and Disruptive Activities and Prevention Act, 1987 and in that context, the Hon’ble Apex Court has observed that if a particular authority is vested with certain powers, that has to be exercised by that authority. Here, the case is distinguishable on facts that the appointing authority of the petitioner happens to be the Additional Commissioner/Additional Director, Industries, U.P., Kanpur and the initial proposal for transfer was made by him, which has been subsequently approved by the Hon’ble the Chief Minister, therefore, the law relied upon by the learned counsel for the petitioners is of no help to the petitioners. 12. So far as the reliance placed by the learned counsel for the petitioners upon the judgment in the case of Chhatrapal Singh (supra) is concerned, in paras 27 and 28 of the said judgment, the Division Bench of this Court has observed that when a statute provides to do a thing in a particular manner, in that eventuality, that thing has to be done in that very manner, otherwise, the outcome of the same would be void. It may be noticed that here no statute has been shown by the learned counsel for the petitioners which governs the transfer of the Government employees. The transfer of Government employees is made on the basis of the transfer policy which is issued from time to time and that has no statutory force, therefore, that case is also distinguishable on facts. 13. In view of the foregoing discussions, we do not find any error in the impugned transfer order dated 5.7.2017 passed by the Special Secretary, Micro, Small & Medium Enterprises Department, U.P., Lucknow. The writ petition fails and it is hereby dismissed. 14. In the last, learned counsel for the petitioners has submitted that the petitioner Nos. 13. In view of the foregoing discussions, we do not find any error in the impugned transfer order dated 5.7.2017 passed by the Special Secretary, Micro, Small & Medium Enterprises Department, U.P., Lucknow. The writ petition fails and it is hereby dismissed. 14. In the last, learned counsel for the petitioners has submitted that the petitioner Nos. 11, 12 and 16 are going to be retired within two years, therefore, in view of the recent transfer policy of the Government, they should not have been transferred and in case the transfers were imminent, in that eventuality, the transfers were to be made on the place of their choice. With respect to the petitioner Nos. 2, 7, 3, 8 and 19, the quashing of the transfer orders have been sought on the basis of their personal problems, as the spouses of those petitioners are working. With respect to petitioner No. 1, it is submitted that he is the elected President of the Association of the employees, therefore, he should not have been transferred in view of the recent transfer policy of the Government. 15. With respect to the aforesaid grievances of the petitioners, since they have already joined at their transferred places being disciplined employees, it will be open for them to make representations before the respondent No. 1 alongwith the certified copy of the order of this Court for redressal of their grievances. 16. In case such representations are filed, the same shall be considered and decided sympathetically keeping in mind the law laid down by this Court in the case of Ram Nath v. State of U.P. and others, 2010(9) ADJ 398 and Akhilesh Kumar Singh v. State of U.P. and another (Writ A No. 32069 of 2017, decided on 9.8.2017), expeditiously, but not later than six weeks from the date of receipt of the representations.