Deo Nath Yadav S/O Bajrangi Yadav vs Registrar General, High Court Of ...
2011 Latest Caselaw 6157 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
Court No. - 18
 

 
Case :- SERVICE SINGLE No. - 8239 of 2011
 

 
Petitioner :- Deo Nath Yadav S/O Bajrangi Yadav
 
Respondent :- Registrar General, High Court Of Judicature At Allahabad & O
 
Petitioner Counsel :- Qamrul Hasan
 
Respondent Counsel :- Manish Kumar
 

 
Hon'ble Anil Kumar,J.

Heard Sri Qamrul Hasan,learned counsel for petitioner and Sri S.P. Srivastava, learned Standing Counsel.

By means of the present writ petition, the petitioner has challenged the impugned order of transfer dated 05.11.2011 (Annexure No. 1) passed by O.P. No. 1/Registrar General, High Court of Judicature at Allahabad, Allahabad.

Facts of the present case as submitted by learned counsel for petitioner are that the petitioner appoint on the post of Chowkidar/Faras by order dated 01.1.1998 under Judgeship of Lakhimpur Kheri, a Class-IV post, still working and discharging in the said capacity.

Learned counsel for petitioner further submits that for redressal of his grievances in respect to the promotion to next higher post, he had filed a Writ Petition No. 7114 of 2010 before this Court impleaded the then District Judge, Kheri/Sri Amar Singh Chauhan (now presently posted as District Judge, Bulandshahar) O.P. No. 2 and also alleged certain allegations against him. When the said fact come to knowledge of the O.P. No. 2, he hurriedly on 27.09.2010 made a complaint against the petitioner to Hon'ble the Chief Justice, Allahabad High Court.

Sri Qamrul Hasan,learned counsel for petitioner submits that in view of the said compliant, the order dated 05.11.2011 has been passed by which the petitioner transferred from Judgeship, Lakhimpur Kheri to Judgeship, Mahoba.

While assailing the impugned order of transfer, learned counsel for petitioner submits that the same is illegal and arbitrary in nature as the same is outcome, personal prejudice and bias of the O.P. No. 2, against the transfer policy issued by the government in respect to the transfer of Class-IV employee.

Learned counsel for petitioner further challenged the impugned order of transfer on the ground that the same has been passed in a mid-session and as his three children (sons and daughter, namely, Km. Luky Yadava, Lavi Yadav, Aryan Yadav) are studying in Class-IV, II and Nursery in the institution known as Children's Academy, Lakhimpur Kheri , in case if the petitioner is transferred in the mid-session, the study of his children will suffer in the present era of competition. So, the impugned order of transfer is illegal, liable to be set aside.

The law is well settled that transfer being exigency of service can be effected by the employer concerned in accordance with administrative exigency, in the interest of administration and public interest at any point of time and that cannot be monitored and guided by this Court unless it may be shown that transfer order is vitiated on account of the contravention of the statute , or lacks jurisdiction or mala fide.

The Hon'ble Supreme Court in the case of Shilpi Bose (Mrs.) and others Vs. State of Bihar and others , 1991 Supp (2) SCC 659, has held as under:-

" 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 order 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."

The aforesaid view has been reiterated by Hon'ble Supreme Court in the case of Union of India another Vs. N.P. Thomas, 1993 Supp (1) SCC 704 and N.K. Singh Vs. Union of India and others (1994) 6 SCC 98 holding therein if a person holding a transferable post, is transferred, there is no violation of any statutory/ mandatory rules then the same is not subject to judicial review.

Further, in the case of Chief General Manager, ( Telecom) N.E. Telecom Circle and another Vs. Rajendra Ch. Bhattacharjee and others, (1995) 2 SCC 532 Hon'ble Supreme Court has held as under:-

"It is needless to emphasise that a government employee or any servant of a public undertaking has no legal right to insist for being posted at any particular place. It cannot be disputed that the respondent holds a transferable post and unless specifically provided in his service conditions, he was no choice in the matter of posting. Since the respondent has no legal or statutory right to claim his posting at Agartala, therefore, there was no justification for the Tribunal to set aside the respondent's transfer to Dimpur."

In view of the above, in the instant case, on the part of petitioner no legal or statutory right to claim his posting at Lakhimpur Kheri when the order of transfer dated 05.11.2011 passed O.P. No. 1 is not in violation of any statutory rules.

Now coming to another issue involved in the present case as argued by learned counsel for petitioenr that the impugned order of transfer is in violation of transfer policy is also not correct because in the case of Union of India Vs. S.L. Abbas , AIR 1993 SC 2444, Hon'ble Apex Court has held as under :-

" The said guideline, however, does not confer upon the Government employee a legally enforceable right."

The said view has been reiterated by Hon'ble Supreme Court in the case of Rajendra Roy Vs. Union of India another (1993) 1 SCC 148 wherein the Apex Court has held as under:-

"It is true that the order of transfer often causes a lot of difficulties and dislocation in the family set up of the concerned employees but on that score the Oder of transfer is not liable to be struck down. Unless such order is passed mala fide or in violation of the rules of service and guidelines for transfer without any proper justification the Court and the Tribunal should not interfere with the order of transfer."

In the case of Bank of India Vs. Jagjit Singh Mehta, 1992 (1) SCC 306, the Hon'ble Supreme Court has held as under:-

" The said observations in fact tend to negative the respondent's contentions instead of supporting them. The jdugment also does not support the Respondent's contention that if such an order is questioned in a Court or the Tribunal , the authority is obliged to justify the transfer by adducing the reasons therefor. It does not also say that the Court or Tribunal can quash the order of transfer, if any of the administrative instructions/ guidelines are not followed, much less can be characterized as mala fide for that reason. To reiterate , the oder of transfer can be question in a Court or Tribunal only where it is passed mala fide or where it is made in violation of the statutory provisions."

The said view was further reiterated by Hon'ble Supreme Court in the case of National Hydro-Electric Power Corporation Ltd. Vs. Sri Bhagwan and another, AIR 2001 SC 3309.

Next argument advanced by learned counsel for the petitioner that the transfer order is against the principle of natural justice as the same has been posted during mid-session of the studies of his son/daughter , is also got no force as in the case of Rajendra Prasad Vs. Union of India 2005 (2) ESC 1224 after considering the judgment of Hon'ble Supreme Court in the case of Director of School Education Madras and others Vs. O Karuppa Thevan and another , 1996(1) UPLBEC 347 this Court has held as under:-

" The issue of transfer in mid academic session was considered by the Hon'ble Supreme Court and it was held that" the fact that children of the employee are studying should be given due weight, if the exigencies of the service are not urgent." Therefore, it is for the employer to examine as to whether transfer of an employee can be deferred till the end of the current academic session. The Court has no means to assess as what is the real urgency of administrative exigency. Thus, the Court is not inclined to consider this submission at all."

The same view has been reiterated by Division Bench of this Court in the case of Gulzar Singh Vs. State of U.P. and other, 2006 (5) AWC 4755 and another Division Bench of this Court in the case of S.P. Jindal Vs. State of U.P. , 2002(1) AWC 306 and also in the case of Jagendra Singh Vs. State of U.P. and others, (2009) 3 UPLBEC 2338.

For the foregoing reasons, I do not find any infirmity or irregularity in impugned order of transfer dated 05.11.2011 (Annexure No. 1) passed by O.P. No. 1, as such the present writ petition lacks merit and is dismissed.

However, petitioner, if so advised, may move an application to the competent authority for redressal of his grievances which he has raised in the present case within two weeks from the receiving a certified copy of this order and after receiving the same said authority may decide the same expeditiously.

With the above observations, writ petition is dismissed.

No order as to costs.

Order Date :- 25.11.2011

Ravi/