HIGH COURT OF JUDICATURE AT ALLAHABAD Chief Justice's Court AFR Case :- SPECIAL APPEAL No. - 476 of 2015 Appellant :- Ashok Kumar Mishra Respondent :- State Of U.P. And 2 Others Counsel for Appellant :- Santosh Kumar Mishra Counsel for Respondent :- C.S.C. Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice Hon'ble Yashwant Varma,J.
The appellant is presently posted as Inspector in the Crime Branch in district Varanasi. The appellant is due to retire from service on 17 July 2016 on attaining the age of superannuation. On 11 May 2015, the appellant was transferred from Varanasi to Vindhyachal, which led to the filing of writ proceedings resulting in the impugned judgment and order of the learned Single Judge. Prior thereto, on 30 October 2014, the appellant was transferred from Mirzapur to Varanasi. The order of transfer recorded that the appellant had less than two years to retire and that bearing in mind the difficulties which were expressed by him, it had been sympathetically considered and decided to transfer him to Varanasi on humanitarian grounds.
The grievance before the learned Single Judge and in the special appeal is that the policy circular dated 4 June 2014 contained a provision, inter alia, under which some benefit is being granted to government servants who have less than two years to retire. The relevant part of the policy circular on which reliance has been placed reads as follows:
"(vii) 2 o"kZ esa lsokfuo`Rr gksus okys lewg 'x' ds dkfeZdksa dks muds x`g tuin ,oa lewg 'd' ,oa '[k' ds dkfeZdks dks muds x`g tuin dks NksMrs gq,] bfPNr tuin esa rSukr djus ij ;FkklEHko fopkj fd;k tk;A"
The learned Single Judge has disposed of the writ petition by directing the Inspector General of Police, Varanasi Zone, to decide the representation of the appellant dated 1 July 2015, preferably within a period of three months from the filing of a certified copy of the order.
The learned Senior Counsel appearing on behalf of the appellant has relied upon Clause (vii) of the policy circular dated 4 June 2014 and the orders of the learned Single Judges of this Court dated 29 May 2015 and 4 June 2015, respectively in Shree Niwas Pandey v. State of Uttar Pradesh1 and Suresh Chandra Pandey v. State of Uttar Pradesh2. In both those orders, the learned Single Judges had directed that the transfer be held in abeyance till the disposal of the representation. Reliance has also been placed on an order of a Division Bench of this Court in Badri Prasad Mishra, Dy. S.P. v. State of Uttar Pradesh3.
There can be no doubt that transfer is an exigency of service. In the present case, the policy circular, which has been relied upon by the appellant, indicates certain conditions in the case of a person who has less than two years to retire. Learned Standing Counsel has sought to distinguish the policy circular on the ground that it applies to government servants.
For the purpose of these proceedings, we need not enter upon a wider area of dispute as to whether the policy circular applies. Even on the assumption that it does, it is a well settled principle of law that a policy circular by itself does not confer any vested right. Interest of the administration is paramount. With due deference to the directions issued by the Division Bench in Badri Prasad Misra (supra), we are constrained to reiterate what was held by the Hon'ble Supreme Court of India in Shilpi Bose (Mrs) v. State of Bihar4. Dealing with the contention of a transfer order being in violation of administrative instructions, it was held that a transfer order made in public interest and for administrative reasons should not be interfered with unless the same is stated to have been made in violation of any mandatory statutory rule or on the ground of malafides. It was further held that even if a transfer order is passed in violation of executive instructions or orders, the Court should not interfere and leave the affected party to approach the higher authorities in the department. The above law and principles declared in Shilpi Bose (supra) were reiterated by the Apex Court in State of Haryana v. Kashmir Singh5. The above judgments do not appear to have been brought to the attention of the Division Bench concerned.
All that we can observe, at this stage, is that since the appellant was, on 30 October 2014, transferred from Mirzapur to Varanasi specifically bearing in mind the difficulties which were expressed by him and he has less than two years to retire and he has again been transferred by an order dated 11 May 2015 from Varanasi to Vindhyachal, the Inspector General of Police may have due regard to the facts and circumstances of the case while passing an appropriate order in accordance with law, as directed by the learned Single Judge. The appellant has sought to highlight his personal grievance that he is suffering from a kidney ailment, which will be duly considered. Since we have held that a policy circular itself does not confer any vested right, there is no reason to pass any order staying the operation of the order of transfer. The order of the learned Single Judge does not suffer from any error.
Subject to what we have observed above, the special appeal is disposed of. There shall be no order as to costs.
Order Date :- 20.7.2015 RKK/-
(Yashwant Varma, J) (Dr. D.Y. Chandrachud, CJ)