Shambhu Nath Pandey vs State Of U.P. Through Secy. Home ...
2015 Latest Caselaw 2440 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 18
 

 
Case :- SERVICE SINGLE No. - 4597 of 2014
 
Petitioner :- Shambhu Nath Pandey
 
Respondent :- State Of U.P. Through Secy. Home Deptt. Lko. & Ors.
 
Counsel for Petitioner :- Rajendra Pratap Singh,Surendra Pratap Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Anil Kumar,J.

Heard Sri Surendra Pratap Singh, learned counsel for the petitioner, Sri Badrul Hassan, learned Additional Chief Standing Counsel for opposite parties and perused the record.

Facts, in brief, of the present case are that petitioner , who is Peon in P.A.C., by order dated 23.1.2009 transferred to C.B.C.I.D. Division Barely,joined his duty on 11.5.2009 and after joining, challenged the order of transfer 23.1.2009 by filing Writ Petition No. 2742(SS) of 2009, disposed of vide order 11.5.2009 reads as under:-

" The present writ petition has been preferred under Article 226 of the Constitution of India against the impugned order dated 4.3.2009 contained in Annexure no.1 to the writ petition and the impugned order of transfer dated 23.1.2009 contained in Annexure no.2 to the writ petition.

Against the impugned order of transfer, the petitioner has resumed duty. Hence, no case for interference is made out.

However, since the petitioner has already made his representation before the competent authority to ventilate his grievance, the competent authority is directed to decide the petitioner's representation by passing a speaking and reasoned order within two months from the date of receipt of a certified copy of this order and communicate decision . Liberty is given to the petitioner to represent his cause afresh.

Subject to above, the writ petition is finally disposed of."

Thereafter the case of the petitioner was considered by the competent authority and rejected by order dated 16.7.2009.

In view of the said background , petitioner has filed present writ petition with the prayer that competent authority may be directed to consider the case of the petitioner for transfer from Barely to Lucknow.

Transfer is an incidence of service and it does not require the consent of the employee. A public servant has no vested right to seek transfer to a location of his choice. An employee can be transferred on administrative exigencies and in public interest. It is not obligatory on the part of the employer to comply with the principles of natural justice before making an order of transfer. The Government is empowered to transfer a civil servant from one post to another or to an equivalent post in the same cadre or grade or carrying the a lien. No employee can claim to a particular posting as the matter of posting is entirely in the domain of the administration.

No Government employee has any right to be posted at any particular place forever, because transfer is not only an incidence of service, but also a condition of service, and as such it is necessary in public interest and in the interest of efficiency in public administration. There is no hostile discrimination in transfer from one post to another when the posts are of equal status and responsibility. The transfer in posts, which are in the same grade or cadre or considered equivalent can be affected on administrative exigencies.

The general principles in respect to the transfer an employees that can be deducted from various judicial pronouncements and the statutory provisions are as follows: (i) that an employee cannot be transferred out of his cadre or establishment against his wish; (ii) that no transfer can be justified merely because the pay is not affected, when the appointment is made to a specified post or a specific group of posts; (iii) that the Government employee cannot be asked to perform duties which were never expected of him at the time of recruitment; and (iv) that the expectation of future promotion cannot be wiped off by moving a Government employee around.

But, the judicial review the validity of the transfer order can be adjusted, if the order of transfer suffers from the vice of mala fide exercise of power not made in public interest or administrative exigency, but simply to accommodate another employee without any justifiable reason. Further, order of transfer is shown to be an outcome of mala fide exercise of power or violative of any statutory provision or passed by an authority not competent to do so, but the transfer order cannot lightly be interfered with by the courts as a matter of routine for every type of grievance sought to be made.

Hon'ble Apex court in Civil Appeal No. 7728 of 2012 the case of Ayaaubkhan Noorkhan Pathan Vs. The State of Maharashtra and Ors. decided on 08.11.2012 held as under:-

"7. It is a settled legal proposition that a stranger cannot be permitted to meddle in any proceeding, unless he satisfies the Authority/Court, that he falls within the category of aggrieved persons.

Only a person who has suffered, or suffers from legal injury can challenge the act/action/order etc. in a court of law. A writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the appellant that there has been a breach of statutory duty on the part of the Authorities. Therefore, there must be a judicially enforceable right available for enforcement, on the basis of which writ jurisdiction is resorted to. The Court can of course,enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the Court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that, the relief prayed for must be one to enforce a legal right. Infact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same. (Vide : State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12; Saghir Ahmad & Anr. v. State of U.P., AIR 1954 SC 728; Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal & Ors., AIR 1962 SC 1044; Rajendra Singh v. State of Madhya Pradesh, AIR 1996 SC 2736; and Tamilnad Mercantile Bank Shareholders Welfare Association (2) v. S.C. Sekar & Ors., (2009) 2 SCC 784).

8. A "legal right", means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, "person aggrieved" does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must therefore, necessarily be one, whose right or interest has been adversely affected or jeopardised. (Vide: Shanti Kumar R. Chanji v. Home Insurance Co. of New York, AIR 1974 SC 1719; and State of Rajasthan & Ors. v. Union of India & Ors., AIR 1977 SC 1361).

9. In Anand Sharadchandra Oka v. University of Mumbai, AIR 2008 SC 1289, a similar view was taken by this Court, observing that, if a person claiming relief is not eligible as per requirement, then he cannot be said to be a person aggrieved regarding the election or the selection of other persons.

10. In A. Subhash Babu v. State of A. P. , AIR 2011 SC 3031, this Court held:

"The expression ''aggrieved person' denotes an elastic and an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of complainant's interest and the nature and the extent of the prejudice or injury suffered by the complainant."

Moreover, it is settled position of law that the State Government to transfer an employee in the effective utilization of the services, in the administrative exigency services and in the interest of department because transfer is a very important incidence of service and often the order of transfer which may appear innocuous causes serious hardship to the concerned employee. It should be noted in this connection that how best the service of a Government employee can be utilized must be left to the wisdom of the employer and for that purpose, to the appropriate authorities in a public service.

Whether the service of a Government employee can be better utilized in some other place is not a justifiable issue in a court of law. It will be sufficient to sustain an order of transfer if it can be shown that the service is a transferable one and by the impugned order of transfer, no condition of service or the norm laid down for such transfer has been violated and that a proper consideration of administrative exigency and/or public interest has been made by the concerned authority and on being satisfied of such administrative exigency and/or public interest, the order of transfer has been made.

In the instant matter by order dated 23.1.1009 petitioner was transferred from P.A.C. Lucknow to C.B.C.I.D. Division Barely . In pursuance of the same, joined the duty at Barely thereafter challenged the order of transfer order dated 23.1.2009 by filing Writ Petition No. 2742 (SS) of 2009, disposed vide order dated 11.5.2009 and, thereafter the case of the petitioner for transfer and retaining him at Lucknow was rejected by order dated 16.7.2009 passed by Superintendent of Police ( Establishment) Crime Branch , Crime Research Department, U.P. Lucknow . The same has not been challenged till date, so the relief as claimed in the instant writ petition, cannot be granted under Article 226 of the Constitution of India.

Accordingly, point to be considered is whether the petitioner is entitled for a writ of mandamus directing the competent authority to consider the case of the petitioner for transfer from Barely to Lucknow. It is settled proposition of law that a employee has no legal right to be posted / transferred on a particular post, it is the sole domain and prerogative of the appointing authority / competent authority to do so .

Keeping in view of the said fact as well as because "Mandamus" is a Latin word. Literally, it means a "command" or an "order" which directs a person or authority to whom it is addressed to perform the public duty imposed on him or on it.

Mandamus is English origin. The direction in the Magna Carta that the Crown was bound neither to deny justice to anybody nor to delay anybody in obtaining justice has been recognized by this writ. The first reported case of mandamus was the Middleton's Case (1574) 3 Dyer 332b in 1573 wherein a citizen's franchise was restored. James Bagg (1615) 11 Co Rep 93b was the leading decision by which a membership of local body was restored to the applicant.

The first reported case was in 1775 R. v. Warren Hastings, (1775) 1 ID (05) 1005, where mandamus was sought against the supreme Council of the Governor General. Statutory recognition to grant mandamus was granted by section 50 of the Specific Relief Act, 1877. In Tan Bug Taim V. Collector AIR 1946 Bom 216, an order requisitioning property was held ultra vires. The words "any law" were interpreted as wide enough to include all kind of law, statutory or otherwise.

After the commencement of the Constitution, the supreme Court is empowered under Article 32 to issue mandamus for the enforcement of fundamental rights, while every High Court has power to issue mandamus under Article 226 for the enforcement of fundamental rights and also for "any other purpose" throughout the territories in relation to which it exercises jurisdiction.

Mandamus differs from prohibition and certiorari in that, while the former can be issued against administrative authority,the latter are available against judicial and quasi-judicial authorities. Mandamus acts where the courts and tribunal usurp jurisdiction vested in them or exceed their jurisdiction. Whereas mandamus demands activity, prohibition commands inactivity. While mandamus compels, certiorari corrects.

A writ of mandamus is an extraordinary remedy. It is not a writ of right. It is intended to supply deficiency in law and is thus a discretionary remedy. A court may refuse to issue mandamus unless it is shown that there is clear right of the applicant or statutory or common-law duty of the respondent and there is no alternative remedy available to the applicant. Like any other discretion, however, discretion to issue mandamus also must be exercised fairly reasonably and on well- established legal principles.

In Corpus Juris Secundum Vol 55, 5 (See Halsbury's Laws of England, Vol. 1 (4th Edn.) paras 89 III), mandamus is defined thus:

Mandamus is a writ directed to a person, officer, corporation or inferior court commanding the performance of a particular duty which results from the official station of the one to whom it is directed or from operation of law.

Thus is an order issued by a court to a public authority asking it to perform a public duty imposed upon it by the constitution or by any other law. (See State of Mysore v. K. N. Chandrasekhara, AIR 1965 SC 532) and it is a judicial remedy which is in the form of an order from a superior court (the Supreme Court or a High Court) to any government, court, corporation or the public authority to do or to forbear from doing some specific act which that body is obliged under law to do or refrain from doing, as the case may be, and which is in the nature of a public duty and in certain cases of a statutory duty.

While mandamus may require performance of duty, it"s command is never to act in a particular manner. Mandamus cannot be used to substitute a judgment or direction of the court for that of the authority against whom it is issued.

The primary object of mandamus is to supply defect of justice. It seeks to protect rights of a citizen by requiring enforcement and fulfilment of imperative duty created by law. It thus promotes justice. It should therefore, be used at all occasions where the law has conferred right but has created no specific remedy. Through this writ , a court can correct all errors which trend to the oppression of the subject and grant him appropriate relief.

The main function of Mandamus is to compel action. It neither creates nor confers power to act. It only commands the exercise of power already existing when it is the duty of the person or authority proceeded against to act.

Remedy in mandamus is equitable in nature and its issuance is largely controlled by equitable considerations. It can only be issued to prevent injustice. A court will consider whether issuance of mandamus would promote substantial justice or perpetuate injustice. "writ of mandamus will not be granted where harm than good will result from its issuance." (See Wade & Forsyth, Administration Law (2009) 524).

A writ of mandamus can be issued if the following conditions are satisfied by the petitioner:

The petitioner must have a legal right. This is a condition precedent. It is elementary that no one can ask for mandamus without a legal right. There must be legally protected and judicially enforceable right before an applicant may claim mandamus. A person can be said to be aggrieved to do something or to abstain from doing something. The existence of right ids thus the foundation of the jurisdiction of a writ court to issue mandamus. (See Umakant Saran v. State of Bihar, (1973) 1 SCC 485).

Hon'ble the Apex Court in the case of Praga Tools corpn. V. Imanual (1969) 1 SCC 585 (Praga Tools Corpn.) held that the condition precedent for the issue of mandamus is that there is in it one claiming a legal right to the performance of the legal duty by one against whom it is sought.

In Mani Subrat Jain V. State of Haryana (1977) 1 SCC 486, the Apex Court held that it is elementary though it is be restated that no one can ask for mandamus without a legal right. There must be a judicially enforceable right as well as a legally protected interest before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to do something or to abstain from doing anything.

Applicant approaching a writ court must show that he himself has legal right which can be enforced. If he is not directly or substantially affected, he cannot maintain a petition mandamus. (See Charanjit Lal Chowdhury v. Union of India, AIR 1951 SC 41).

The second requirement for a writ of mandamus is that the opposite party must have a legal duty to be performed. A legal duty must have been imposed on the authority by the constitution, a statute or by common law and the performance of that duty should be imperative, not discretionary or optional. There must be in the applicant a right to compel the performance of some duty cast on the opponent. (See State of MP. v. G. C. Mandawar, AIR 1954 SC 493).

So , keeping in view of the above said fact, by way of writ of mandamus, a direction as prayed by the 687 petitioner in the present case cannot be issued to opposite parties.

For the foregoing reasons , the writ petition lacks merit and is dismissed.

Order Date :- 18.9.2015

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