Krishan Kumar Gupta vs State Of ...
2018 Latest Caselaw 2868 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

	AFR
 
	Court No. - 17
 
Case :- SERVICE SINGLE No. - 27976 of 2018
 
Petitioner :- Krishan Kumar Gupta
 
Respondent :- State Of U.P.Thru.Prin.Secy.Medical & Health Deptt.Lko.&Ors.
 
Counsel for Petitioner :- Sushil Kumar Pathak
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Abdul Moin,J.

1. Heard learned counsel for the petitioner and learned Additional Chief Standing counsel appearing for the State-respondents.

2. By means of the present petition, the petitioner being aggrieved with the transfer order dated 31.05.2018, a copy of which is annexure 2 to the writ petition transferring him from Siddharth Nagar to Kushi Nagar as well as aggrieved against the order dated 30.08.2018 by which the representation of the petitioner has been rejected is before this Court.

3.It is argued by learned counsel for the petitioner that initially vide order dated 31.05.2018, the petitioner who was working as Senior Assistant had been transferred from Siddharth Nagar to Kushi Nagar. Being aggrieved with the said order, the petitioner had approached this Court by filing Writ Petition No. 22234 (SS) of 2018 Inre; Krishna Kumar Gupta Vs. State of U.P and Ors which was disposed of by this Court vide order dated 06.08.2018 by directing the respondents to decide the pending representation of the petitioner.

4. In pursuance thereof, the respondents have proceeded to pass the order dated 30.08.2018 by which the representation of the petitioner has been rejected. While rejecting the representation of the petitioner, it has been contended by the respondents that petitioner has been working in district Siddharth Nagar since the last twenty five years. It is also contended that the petitioner along with his wife is an impediment in the working of the Hospital inasmuch as repeated queries under the Right to Information Act are raised by the petitioner and his wife which amount to 85 in number, consequently taking these facts into consideration, it was decided to transfer the petitioner to some other district and institute disciplinary proceedings also against him. Thus, learned counsel for the petitioner submits that the impugned order rejecting the representation indicates that the petitioner has been transferred on a punitive basis which order cannot be sustained. It is also argued that the petitioner has been posted in district Siddharth Nagar since February, 1999 and not since the last 25 years as indicated in the impugned rejection order and thus it is contended that the impugned rejection order indicates patent non application of mind to the relevant facts of the case and has been passed in a prejudicial manner. It is also contended that upon the representation of the petitioner, report has also been requisitioned from the Chief Medical Officer, Siddharth Nagar and without even waiting for the report, the respondents have proceeded to reject the representation of the petitioner. Thus, it is argued that both the impugned transfer order dated 31.05.2018 and the rejection order dated 30.08.2018 are patently bad in the eyes of law and merits to be quashed.

5. On the other hand, learned Additional Chief Standing counsel on the basis on instructions has produced a complaint dated 24.04.2018 sent by Dr. Rochismati Pandey, Chief Medical Superintendent, Siddharth Nagar to the Chief Medical Officer, Siddharth Nagar that she is the sole lady Gynecologist working in the hospital and repeated queries under the Right to Information Act are being raised by the petitioner and his wife with an intention to create an impediment in the working of the hospital. It is also indicated in the complaint that in the capacity of being the sole lady Gynecologist there is heavy pressure of patients and sometimes there is some delay in submitting the reply to the said RTI queries with the result that the petitioner and his wife take up the matter before the State Commission and repeated warning etc are being issued by the State Commission in the appeals being preferred by the petitioner and his wife and, as such, it has become next to impossible to work and carry out the patient duties on account of the repeated harassment on the part of the petitioner and his wife through the unnecessary RTI queries which also do not have any basis. It is also argued by the learned Additional Chief Standing counsel that transfer is an exigency of service and a person cannot be permitted to either choose a particular post or a particular district for his posting and transfer order can be interfered with only on certain legal grounds which have not been set forth in the instant writ petition.

6. Having considered the arguments of the learned counsel for the contesting parties and perused the record what this Courts finds is that it is an admitted fact that the petitioner has been posted since February, 1999 at Siddharth Nagar, if not since last 25 years. It is a settled proposition of law that transfer is an exigency of service and it is the prerogative of the employer to transfer the employee to any place where the employer himself feels that the petitioner would be able to discharge the duties and shoulder the responsibilities of the post to which he is being transferred in an effective manner.

7. In this regard, this Court may refer to the following judgments:-

8. The Hon'ble Supreme Court in the case of Rajendra Roy Vs. Union of India reported in (1993) 1 SCC 148 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 order 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."

9. The said view has been reiterated by Hon'ble Supreme Court in the case of Bank of India Vs. Jagjit Singh Mehta reported in 1992 (1) SCC 306 wherein the Apex Court has held as under:-

"The said observations in fact tend to negative the respondent's contentions instead of supporting them. The judgment 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 order of transfer can be questioned in a Court or Tribunal only where it is passed mala fide or where it is made in violation of the statutory provisions."

10. It clearly comes out from perusal of the aforesaid judgments that transfer is an exigency of service and it is the prerogative of the employer to post any employee at any particular place and an employee can only agitate against his transfer order on the grounds which have been laid down by the Hon'ble Supreme Court in the aforesaid judgments.

11. Learned counsel for the petitioner has not taken any of the aforesaid grounds which have been fructified by the Hon'ble Supreme Court in a large number of decision a few of which have already been indicated above to raise a challenge to the impugned transfer order.

12. As regards, the ground taken by the petitioner of the transfer order being stigmatic, a perusal of the transfer order dated 31.05.2018 indicates that the petitioner is being transfered in public interest. Nothing further is contained in the said order. Taking into consideration the aforesaid proposition of law, it is prerogative of the employer to transfer an employee either in administrative exigency or public interest. Certain reasons have been indicated while rejecting the representation of the petitioner vide order dated 30.08.2018. Placing reliance on the said reasons, it has been contended that the impugned transfer order becomes punitive. However, once the impugned transfer order itself does not contain any such insinuations or allegation and it is only when this Court vide order dated 06.08.2018 required the respondents to decide the representation of the petitioner that the said reasons have been indicated while rejecting the representation of the petitioner and not acceding to the request of the petitioner for cancellation of such transfer order. Merely because reasons have been indicated in the order rejecting the representation will not and can not convert an innocuous order of transfer into punitive transfer order as is sought to be made out by the learned counsel for the petitioner. This issue is no longer res integra, as this Court in Writ Petition No. 20789 (S/S) of 2018 Inre; Ajay Kumar Mishra, Inspector General of Police and Ors has considered almost the entire law on the subject pertaining to punitive transfer and have repelled such a contention. For the sake of convenience, the relevant observations of Ajay Misra (supra) are reproduced below:-

"15. This Court may also refer to a Division Bench judgment of this Court in the case of Union of India Vs. Vishnu Kant Pal in Special Appeal No. 969 of 2015 decided on 11.01.2016 where in with respect to a similar order of transfer which was sought to be challenged on the ground that while deciding the representation of the employee concerned, reasons were indicated that the same has been issued in a punitive manner, the Division Bench indicated that even if the order of transfer was passed upon the receipt of the report, the order of transfer cannot be regarded as being stigmatic inasmuch as the authorities are entitled to issue such orders of transfer on administrative grounds and even assuming that a complaint is received against the employee, it is for an employer to make suitable arrangements to ensure that the interest of the employee is duly taken care of. For the sake of convenience, the relevant paragraph is being reproduced below:-

"Even if, the order of transfer was passed upon the receipt of the report, we are emphatically of the view that the transfer cannot be regarded as being stigmatic. The authorities are entitled to issue such orders of transfer on administrative grounds. Even assuming that a complaint is received against an employee, it is for the employer to make suitable arrangements to ensure that the interest of the employer - in the present case, a public employer such as the North Central Railway is duly taken care of by assigning suitable duties to the employee."

16. In this regard, the Court may refer to the judgment of the Hon'ble Supreme Court in the case of Registrar General High Court Vs. R.Perachi reported in (2011) 12 SCC 137 wherein the Hon'ble Supreme Court even after considering that the transfer order of the employee concerned was on the basis of report of the Registrar (Vigilance) and it had also been opined by the District Judge concerned that the retention of the employee in his District was undesirable from the point of view of the administration, held that transfer is an exigency of service and one cannot make a grievance if the transfer is made on an administrative ground and without stigma.

18. Likewise, the Hon'ble Supreme Court in the case of Rajendra Singh Vs. State of U.P reported in (2009) 15 SCC 178 held as under:-

3.The transfer order dated July 31, 2007 came to be challenged by the Writ Petitioner before the High Court of Allahabad, Bench Lucknow. While challenging the legality of the transfer order, Writ Petitioner set up the grounds that he joined as Sub-Registrar, Ghaziabad, Sadar-IV only a month back; that the transfer order has been issued on the complaint of one Radhey Lal, Sanyojak Dalit Morcha Sangharsh Samiti, Lucknow and that the order of transfer was arbitrary, stigmatic and suffers from non-application of mind.

8. A Government Servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. 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 contrary. No Government can function if the Government Servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires.

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 (Mrs.) and Ors. v. State of Bihar and Ors. AIR 1991 SC 532, 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 and Ors. (1994) 6 SCC 1998, this Court reiterated that 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.

12. As regards Respondent No. 5, the High Court considered the matter thus:

...in our view, it is evident that the respondent No. 5 also can not be said to be an Officer having a better conduct and integrity in comparison to the petitioner justifying his posting at Ghaziabad and in this regard, it appears that I.G. (Stamps) did not give correct information to the Principal Secretary. However, it can not be held that the respondent No. 1 in passing order dated 31st July, 2007 has acted maliciously or for extraneous reasons amounting to malafide. Once the basic ground of challenge to the impugned order of transfer that the same is malicious in law falls, we do not find any reason to interfere with the impugned order of transfer, transferring the petitioner from Ghaziabad to Hapur. It is not the case of petitioner that his transfer is contrary to rules or has been issued by an authority who is not competent. It is well settled that an order of transfer is amenable for judicial review on limited grounds namely it is contrary to rules or has been passed an incompetent authority or is a result of malafide. In view of admission on the part of the respondent No. 1 in his Counter Affidavit that the respondent No. 5 has been found guilty of serious misconduct for causing loss to the Government revenue by acting without jurisdiction and colluding evasion of stamp duty, in our view transfer of the respondent No. 5 to Ghaziabad can not be sustained in view of further admission on the part of the respondent No. 1 that the interest of department requires posting of an honest and efficient person at Ghaziabad.

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.

21. When the facts of the instant case are seen in the light of the principles of law laid down by the Hon'ble Supreme Court in the case of R.Perachi (supra), Rajendra Singh (supra) and Janardhan Debnath (supra) what clearly comes out is that once transfer order itself indicates that the same is being passed in a routine manner then it would be desirable from the point of view of the administration that even if complaints are there, the employee can be transferred out of unit/place concerned. The employee concerned is not faced with any stigma or any insinuation as the order does not indicate so and consequently, no interference would be required in such a transfer order. To the same effect are the Division Bench judgments of this Court of Dr. Anil Kumar Pradhan Vs. State of U.P. and Vishnu Kant Pal (supra).

13. Having thus considered the entire facts and circumstances of the case, what this Court finds is that the transfer of the petitioner has been occasioned in public interest as per the transfer order dated 31.05.2018. The petitioner having admittedly been posted at Siddharth Nagar since the February, 1999 cannot thus have any grievance against the same more particularly in view of the public interest which is sought to be sub served for with his transfer from Siddharth Nagar.

14. Accordingly, keeping in view the aforesaid discussion and the pronouncement of law in this regard, no interference is required in the impugned orders dated 31.05.2018 and 30.08.2018. The writ petition is dismissed.

Order Date :- 27.9.2018

Pachhere/-