Vimal Kumar Gupta vs State Of U.P. And 3 Ors
2014 Latest Caselaw 8013 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
RESERVED
 
Court No. - 58
 
Case :- WRIT - A No. - 44044 of 2014
 
Petitioner :- Vimal Kumar Gupta
 
Respondent :- State Of U.P. And 3 Ors
 
Counsel for Petitioner :- Arun K. Singh I
 
Counsel for Respondent :- C.S.C.,Govind Kumar Saxena,Nripendra Mishra
 

 
Hon'ble Suneet Kumar,J.

The petitioner is working as Junior Engineer (Civil) in Ghaziabad Development Authority, Ghaziabad (hereinafter referred to as 'G.D.A.') since 21.07.2012, and is an employee belonging to class "C" category.

The petitioner was initially appointed in G.D.A. on 14.10.2004, prior to appointment as regular Junior Engineer, petitioner worked as daily wager/work charge Junior Engineer since 1988, thereafter, was transferred from G.D.A. to Bulandshahr Development Authority on 30.06.2008, lastly, the petitioner was transferred from Bulandshahr Development Authority to G.D.A. on 21.07.2012, since then, the petitioner is working in G.D.A.

On regular appointment on 14.10.2004, the petitioner became a member of the U.P. Development Authorities Centralized Services and is governed by the U.P. Development Authorities Centralized Services Rules, 1985.

By the impugned order dated 14.08.2014, the petitioner was transferred from G.D.A. to Lucknow Development Authority.

The contention of learned counsel appearing for the petitioner is that the transfer order is in breach of the transfer policy of the State Government dated 04.06.2014 as amended for development authorities vide order dated 20.06.2014 for the year 2014-15, further, the impugned order is absolutely arbitrary and suffers from malafide, as several officers and employees of U.P. Development Authority Centralized Services are working in G.D.A. for more than 10 years and are continuing there, the names of the officers have been mentioned in paragraph 15 of the writ petition, thus according to the petitioner, the policy of pick and choose was adopted by the respondents.

Sri Navin Sinha, Senior Advocate, assisted by Sri Arun K. Singh-I appearing for the petitioner, in support of his submission, has relied upon the following judgments: T.S.R. Subramaniam and others Versus Union of India and others1, and judgment dated 03.09.2014 rendered in Maha Raj Singh Versus State of U.P. and others2.

Per contra, Sri Ravi Kant, Senior Advocate, assisted by Sri C.S. Singh, appearing for the State, Sri Nripendra Mishra, for the G.D.A., would submit that the transfer order was passed in public interest, further, this court in Ved Pal Singh Versus State of U.P. and others3, has taken note of the fact that a large number of Assistant Engineers in various development authorities have stayed for more than six years in a particular development authority, thus, the State Government took a decision to transfer 101 Assistant Engineers from one development authority to another, similarly, more than 325 junior engineers working in different development authorities were transferred, these persons had completed more than 10 years as junior engineers. The petitioner as junior engineer has worked more than 21 years in G.D.A., thus, was transferred. In spite of, the petitioner working in Bulandshahr Development Authority for four years i.e. from 2008 to 2012. The transfer order was issued after due approval from the Hon'ble Chief Minister, as such, there is no illegality in transferring the engineers in the mid session.

Sri Ravi Kant, Senior Advocate, in support of his submission, has relied upon State of U.P. and others Versus Gobardhan Lal4, Registrar General, High Court of Judicature of Madras Versus R. Perachi and others5 and Basawaraj and another Versus Special Land Acquisition Officer6,

Having heard learned counsel for the parties and perused the record, the sole question for determination is as to whether the transfer policy/guideline confers any right upon the petitioner to continue at a particular place of posting merely other employees are continuing.

As regards the law, in the matter of transfer of Government Servants/servants of the statutory body is well settled to require any reiteration.

In the case of Shanti Kumari v. Regional Deputy Director, Health Services, Patna Division, Patna and others7, the Supreme Court has held:

"2........Transfer of a Government servant may be due to exigencies of service or due to administrative reasons. The Courts cannot interfere in such matters......"

In Shilpi Bose (Mrs) and others v. State of Bihar and others8, the Supreme Court set aside the judgment of Patna High Court and held as follows:

"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."

` In the case of N.K. Singh v. Union of India and others9, the Supreme Court held as follows:-

"24. ...Challenge in courts of a transfer when the career prospects remain unaffected and there is no detriment to the government servant must be eschewed and interference by courts should be rare, only when a judicially manageable and permissible ground is made out. This litigation was ill-advised."

In Gobardhan Lal (supra), the Supreme Court held as under:-

"It is too late in the day for any Government Servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. The Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision."

This Court in Dharmendra Kumar Saxena Versus State of U.P.10, considering the aforementioned judgments was of the view that in transfer matter the course open to the employee is to approach the higher authority for redressal of his grievance.

In R. Perachi (supra), the Supreme Court reiterated the principle that transfer is incident of service, one can make grievance if the transfer is made on administrative grounds, without attaching any stigma. The courts or tribunal are not appellate forum to decide the transfer of officers on administrative ground. The Courts cannot go into the exigency of posting of an officer at a particular place.

Similar view was taken by the Supreme Court in Mohd. Masood Ahmad v. State of U.P. and others11, Rajendra Singh and others v. State of Uttar Pradesh and others12, State of Haryana and others v. Kashmir Singh and another13.

In Dr. Amarjit Singh Ahluwalia v. the State of Punjab and others14, dealing with executive/administrative instructions, the Supreme Court held administrative instruction, not having the force of law, but the State Government could not at its own sweet will depart from it without rational justification, thus the Government is bound by executive orders/policies, the guidelines are made to be followed and not to breach it without any justifiable reasons, but at the same time, the Supreme Court has consistently taken a view that in transfer matter breach of guidelines/policies did not confer upon the servants any legally enforceable right.

In Gujarat Electricity Board and another v. Atmaram Sungomal Poshani15, the Supreme Court held as under:-

"whenever a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order.........."

Similarly in S.C. Saxena Versus Union of India and others16, the Supreme Court observed as under:-

"In the first place, a government servant cannot disobey a transfer order by not reporting at the place of posting and then go to a court to ventilate his grievances. It is his duty to first report for work where he is transferred and make a representation as to what may be his personal problems."

Applying the law on the facts of the case, it is contended on behalf of the petitioner that the order of transfer is in breach of the transfer policy dated 04.06.2014 as amended for development authorities on 20.06.2014, the petitioner has not put in 10 years of service in G.D.A., petitioner was transferred to G.D.A. on 21.07.2012, further, the impugned transfer order is in violation of Article 14 of the Constitution of India, other similarly situated junior engineers who have put in more than 10 years of service are continuing in the development authority in G.D.A., thus, State Government is not consistent in its policy of transfer rather has adopted a pick and choose policy.

In Basawaraj (supra), Supreme Court held that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Paragraph 8 is reproduced:-

"It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitled any other party to clam benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible."

In the facts of the present case, the petitioner was initially working as daily wager/work charge junior engineer in G.D.A. since 1988, was subsequently regularized in 2004, thereafter, was transferred in 2008 to Bulandshahar Development Authority after putting four years of service was re-transferred to G.D.A. in 2012, thus, the contention is that the petitioner has not completed 10 years of service at G.D.A., therefore, as per the averment of the respondents, in the counter affidavit, that no person will be posted back unless he completes reasonable period in the other development authorities, thus, the transfer of the petitioner is against the stand taken in the counter affidavit as petitioner has put in only 4 years of service in G.D.A.

It has been specifically averred by the respondents that the transfers was carried out after seeking approval from the Hon'ble Chief Minister and the transfers was made in public interest. Even accepting the contention of the petitioner that the petitioner worked for some period (four years) out side G.D.A. before being retransferred to G.D.A., therefore, is entitled to continue for 10 years as per the transfer policy, cannot be accepted for the reason that the transfer policy/guide lines in that eventuality will have to be read as a document creating a right in favour of the petitioner/employees and breach thereof would become enforceable.

The Court will not interfere with the impugned order of transfer as the remedy of the petitioner is to approach the competent authority by making representation after joining the place of posting as held in S.C. Saxena (supra). The transfer policy cannot be enforced as a statute nor does it confer any right/disability upon the employee transferred, it is merely guideline to be followed by the State authorities. Merely, because some of the junior engineers are continuing beyond ten years or have been transferred earlier would not confer any right upon the petitioner for similar treatment. The employer is the best judge regarding posting of its employees, Court cannot substitute the decision of the employer. The respondents have stated that the records of such employees who have not been transferred, are awaited, as and when their records are received, necessary orders would be passed.

The impugned order of transfer is not a malafide exercise of power as the order has been passed in compliance of the directions issued by this Court in Ved Pal Singh's case (supra). Further, the learned counsel for the petitioner has failed to point out infraction of any statutory provision, abuse of power for transfer made for collateral purposes or the transfer has prejudicially affected the status of the employee. The Court declines to interfere with the impugned order of transfer dated 14.08.2014.

In Dr. Balkrishna Pandey Vs. State17, a Division Bench of the Court has held that if an employee is at a station for a long time and the transfer is made administratively only on that ground, it cannot be a case of mala fide.

In view of the law and reasons stated herein above, it is provided that the petitioner shall forthwith join the place of posting, as held in S.C. Saxena (supra), thereafter make representation to the respondent no. 1, who shall consider and decide the same by reasoned and speaking order, preferably within four weeks from the date of filing of certified copy of this order alongwith the copy of the representation.

Subject to the above, writ petition fails and is dismissed.

No order as to costs.

Order Date :- 05.11.2014

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