Virendra Nath Singh vs State Of U.P. Thru ...

1. Heard Sri Ramesh Chandra Pandey, learned counsel for the petitioner.

2. Notices on behalf of opposite parties have been accepted by the office of the learned Chief Standing Counsel and Sri Ran Vijay Singh, learned Additional Chief Standing Counsel has put in appearance on their behalf.

3. By means of this writ petition, the petitioner has assailed the impugned transfer/ panel change order dated 12.04.2019, passed by the Director, Training and Employment Directorate, U.P., Lucknow, so far as it relates to the petitioner. The grounds to challenge the aforesaid order are in two folds. Firstly, the said transfer order has been passed in violation of Transfer Policy dated 29.03.2018 (Annexure No.5 to the writ petition), and secondly, the present transfer order has not been passed assigning specific reasons as to whether this transfer order has been passed in 'public interest' or on account of any 'administrative exigency'.

4. Learned counsel for the petitioner has drawn attention of this Court towards Item No.11 (vi) of the aforesaid transfer policy wherein it has been provided that the assignment given to an employee of Group-III cadre shall be changed after three years and in the present case, the assignment so given to the petitioner, has been changed within a period of six months, therefore, this transfer order is per se illegal.

5. Per contra, Sri Ran Vijay Singh, learned Additional Chief Standing Counsel has submitted that by means of the present transfer order, the petitioner who was assigned the work of Establishment Training of Gazetted Patal has been assigned the charge of Cash Section whereby he shall deal with the entire works relating to transaction of cash and the Drawing and Disbursing of cash. Sri Singh has submitted that only the table of the petitioner has been changed even in the same building.

6. Sri Singh has further submitted that office order dated 12.04.2019 the impugned hereto, categorically provides that the Competent Officer concerned has modified earlier order and passed this order shifting the tables/ assignment of work of as many as six persons in the same office. Therefore, it may not be said that there is any ill intention of the authority concerned to shift the assignment of work of the employees. This is absolutely an administrative exigency, for which, the Competent Authority has always got jurisdiction to pass such order.

7. Sri Singh has also submitted that the Transfer Policy is only a guideline which the authorities usually follow but on account of any administrative exigency any transfer order could have been passed even beyond the guidelines of the Transfer Policy. The Transfer Policy has got no statutory force.

8. Sri Ran Vijay Singh, learned Additional Chief Standing Counsel has placed reliance of the dictum of Hon'ble Apex Court in re: Rajendra Singh and others vs. State of Uttar Pradesh and others reported in (2009) 15 SCC 178 referring paras-9, 10 & 13 and 14, which are as under:-

"9. The courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides. In the case of Shilpi Bose v. State of Bihar, this Court held :

"4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day-to- day transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders."

10. In N. K. Singh v. Union of India & Ors, this Court reiterated that:

"6......the scope of judicial review in matters of transfer of a Government Servant to an equivalent post without adverse consequence on the service or career prospects is very limited being confined only to the grounds of mala fides or violation of any specific provision.....".

13. It is difficult to fathom why the High Court went into the comparative conduct and integrity of the petitioner and Respondent No. 5 while dealing with a transfer matter. The High Court should have appreciated the true extent of scrutiny into a matter of transfer and the limited scope of judicial review. Respondent No. 5 being a Sub-Registrar, it is for the State Government or for that matter Inspector General of Registration to decide about his place of posting. As to at what place Respondent No. 5 should be posted is an exclusive prerogative of the State Government and in exercise of that prerogative, Respondent No. 5 was transferred from Hapur-II to Ghaziabad- IV keeping in view administrative exigencies.

14. We are pained to observe that the High Court seriously erred in deciding as to whether Respondent No. 5 was a competent person to be posted at Ghaziabad-IV as Sub- Registrar. The exercise undertaken by the High Court did not fall within its domain and was rather uncalled for. We are unable to approve the direction issued to the State Government and Inspector General of Registration to transfer a competent officer at Ghaziabad-IV as Sub-Registrar after holding that Respondent No. 5 cannot be said to be an officer having a better conduct and integrity in comparison to the petitioner justifying his posting at Ghaziabad-IV. The High Court entered into an arena which did not belong to it and thereby committed serious error of law."

9. On the strength of the aforesaid dictum of Hon'ble Apex Court, Sri Singh has submitted that the present transfer order may not be interfered as the transfer order has been passed on account of 'administrative exigency'.

10. Considering the rival submissions of learned counsel for the parties and perusing the material available on record viz-a-viz the case law so cited by Sri Ran Vijay Singh, the learned Additional Chief Standing Counsel, I am of the considered view that the impugned transfer order dated 12.04.2019 has been passed on account of 'administrative exigency' as by means of this order the assignment of work of the petitioner has been changed under the same office and the employee can not claim as a matter of right that he be retained for a particular assignment. Further, Item No.11 (vi) of the Transfer Policy dated 29.03.2019 (Annexure No.5 to the writ petition), is affirmative in nature which categorically provides that after three years assignment of work for Group-C cadre shall be changed and it does not provide that within a period of three years it may not be changed. As per my view to change the assignment of an employee within the same office is an 'administrative exigency', which would be decided by the Competent Authority through his wisdom.

11. The transfer order may only be challenged if the same has been passed by the authority, who has got no jurisdiction to pass such order or the said order has been passed in violation of statutory rules or it suffers from any kind of malafide.

12. In the present case, the authority who has passed the impugned transfer order, is an Authority Competent to pass such order and such order has not been passed in violation of any statutory provisions of law. Further more, the bare perusal of the transfer order does not reveal that it is an outcome of the malafide of the authority concerned and more so the plea of malafide has not been taken in the instant writ petition. However, learned counsel for the petitioner has tried to submit the malafide of the Competent Authority who has passed the order of transfer. It appears that if such type of transfer orders are assailed whereby only assignment of the person has been changed under roof of the same office, it can be considered as misuse of the process of law. This Court under Article 226 of the Constitution of India is not meant to entertain such type of misconceived petitions. If the impugned order has got no legal basis and it could not be established that the incumbent has got any right to assail such order, then the fate of such petition would only be dismissal and not only a simple dismissal, but also it should be a dismissal with costs, as precious time of the Court has been wasted.

13. Therefore, in view of the above, I find no infirmity, illegality or perversity in the impugned transfer order dated 12.04.2019, passed by the opposite party No.2 and accordingly the writ petition is dismissed with the cost of Rs.500/-.

14. The petitioner shall deposit the cost of Rs.500/- in the Registry of this Court within a period of one month from today and the said amount of cost shall be transmitted to the Library of Oudh Bar Association for purchase of Bare Acts. If the amount of cost is not deposited within the aforesaid stipulated time, the Senior Registrar of this Court shall recover this amount from the petitioner as arrears of land revenue.

Order Date :- 25.4.2019 Suresh/ [Rajesh Singh Chauhan,J.]