Khub Singh vs State Of U P And 3 Others
2021 Latest Caselaw 6683 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 89
 

 
Case :- WRIT - A No. - 3112 of 2021
 

 
Petitioner :- Khub Singh
 
Respondent :- State Of U P And 3 Others
 
Counsel for Petitioner :- Manoj Kumar Mishra,Hritudhwaj Pratap Sahi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajeev Misra,J.

Heard Mr. Hritudhwaj Pratap Sahi, learned counsel for petitioner, who is available on audio/video link. Learned Standing Counsel representing State-respondents is also available.

This writ petition under Article 226 of the Constitution of India has been filed challenging order dated 01.02.2021 passed by respondent no.3- District Magistrate, Etah, whereby petitioner has been transferred from Tehsil Jalesar to Tehsil Aliganj, District- Etah.

Present writ petition came up for admission on 12.03.2021 and this Court passed following order:-

"Submission is that the impugned order of transfer dated 01.02.2021 is based on the complaint of the MLA concerned as also the letter of Divisional Commissioner. It is urged that the order is punitive in nature and is otherwise based on the dictates of the MLA without there being any independent application of mind on part of the authority concerned.

In the facts and circumstances of the case it will be appropriate to permit learned Standing Counsel to obtain instructions in the matter.

Post as fresh, once again, on 06.04.2021.

Till the next date of listing, effect and operation of the order dated 01.02.2021 passed by the District Magistrate, Etah shall be kept in abeyance."

On the matter being taken up, learned Standing Counsel contends that pursuant to above order dated 12.03.2021 passed by this Court, requisite instructions have been obtained by him. He therefore contends that present writ petition can be heard and decided finally at this stage without calling for a formal counter affidavit. Learned counsel for petitioner has no objection to the disposal of present writ petition finally at this stage. Consequently, with the consent of parties, this writ petition is being disposed of finally at the admission stage without calling for a counter affidavit.

Record shows that petitioner- Khub Singh was appointed as a Seasonal Collection Amin on 15.11.1999 at Tehsil Jalesar, District Etah. Subsequently, petitioner was made permanent. It is the case of petitioner that while petitioner was working as Collection Amin at Tehsil Jalesar, District Etah, the local M.L.A. sent a letter dated 31.05.2019 addressed to respondent-2, Commissioner Aligarh Division, Aligarh requesting him to ensure transfer of petitioner to some other district. Copy of letter dated 31.05.2019 is on record as Annexure-2 to the writ petition. It appears that subsequent to the letter 31.05.2019, respondent-2, Commissioner Aligarh Division, Aligarh sent a confidential letter dated 26.06.2019 addressed to respondent-3, District Magistrate, Aligarh directing therein that petitioner Khub Singh, who is working as Collection Amin at Tehisl Jalesar, District Etah be transferred to Tehsil Aliganj with immediate effect. Aforesaid letter further records that complaints have been received against petitioner in respect of which discreet enquiry was conducted. In the enquiry, it has been gathered that continuation of petitioner at Tehsil Jalesar is not in public interest or in interest of work. As such, on administrative account continuation of petitioner at Tehsil Jalesar as Collection Amin is not appropriate. Prima facie involvement of petitioner in political activities has also come to light.

Mr. Hritudhwaj Pratap Sahi, learned counsel for petitioner has reiterated his submissions as noted in above order dated 12.03.2021.

He has then invited the attention of Court to the letter of Commissioner Aligarh Division, Aligarh, which is on record at page- 21 of the paper book. He contends that conclusions recorded in the letter dated 26.06.2019 are ex-parte. No such enquiry was held wherein petitioner was afforded notice or opportunity of hearing to plead his innocence. The allegations made against the petitioner in the letter dated 26.06.2019 are not only the motive behind transfer of petitioner, but also the foundation for passing an order of transfer against petitioner. Since the transfer of petitioner is founded on the conclusions drawn against petitioner in the letter dated 26.06.2019 and such foundation having been recorded ex-parte against petitioner the consequential order of transfer passed against petitioner cannot be sustained.

It is next submitted by learned counsel for petitioner that order impugned in present writ petition is simply based upon the letter of Commissioner Aligarh Division, Aligarh (Annexure-3 to the writ petition). Impugned order does not reflect any independent application of mind by the competent authority, i.e., respondent no.3- District Magistrate, Etah. He therefore contends that imugned order is not only arbitrary but also illegal inasmuch as, impugned order of transfer has been passed only on the basis of letter of Commissioner dated 26.06.2019. Respondent-2 has failed to exercise his own independent discretion in the matter as required to be done in exercise of powers under the relevant service rules.

It is lastly contended that validity of an order has to be judged on the basis of reasons recorded in the impugned order. The only reason assigned is that petitioner has been transferred in compliance of letter dated 26.06.2019 issued by respondent-2, Commissioner Aligarh Division, Aligarh on administrative ground. In the humble submission of learned counsel for petitioner, reasons so assigned in impugned order can hardly be said to be a valid reason. Infact according to learned counsel for petitioner, no reason has been assigned in the impugned order for transferring the petitioner as according to the recital contained in the impugned order petitioner has been transferred on administrative ground pursuant to letter dated 26.06.2019. To buttress his submission, he has referred to the judgment of Apex Court in Mohinder Singh Gill Vs. Chief Election Commissioner, AIR 1978 Supreme Court 851.

Learned Standing Counsel has opposed present writ petition. On the basis of instructions received by him, he contends that except for a short period of 11 months in his entire service career, petitioner has remained posted as Collection Amin at Tehsil Jalesar, District Etah. As such, impugned order of transfer dated 01.02.2021 passed against petitioner whereby he has been transferred from Tehsil Jalesar to Tehsil Aliganj is perfectly just and legal. Petitioner is not entitled to any indulgence of this Court and writ petition is liable to be dismissed.

Having heard learned counsel for petitioner, learned Standing Counsel for State-respondent and upon perusal of material brought on record, the Court finds that submissions urged by learned counsel for petitioner have not been specifically disputed by learned Standing Counsel. Furthermore, perusal of impugned transfer order dated 01.02.2021 clearly goes to show that petitioner has been transferred pursuant to letter dated 26.06.2019 issued by respondent-2, Commissioner Aligarh Division, Aligarh on administrative ground. The transfer of petitioner pursuant to the letter of Commissioner can hardly be said to be an administrative ground. As such, the ground mentioned in impugned order of transfer is not a ground tenable in law. In view of above, the inescapable conclusion is that impugned order of transfer dated 01.02.2021 has been passed by respondent no.3- District Magistrate, Etah without independently applying his mind. Same has been passed only on the basis of letter of Commissioner Aligarh Division, Aligarh dated 26.06.2019. An administrative authority while passing an order under the provisions of relevant service rules has to independently apply his mind to the facts and circumstances of a given case, which admittedly has not been done by respondent-3, District Magistrate, Etah. Consequently, the order impugned in present revision cannot be classified as an independent order. The same falls in the category of an order which can safely be said to be arbitrary.

In view of discussion made above, present writ petition succeeds and is liable to be allowed.

It is accordingly allowed. The impugned order dated 01.02.2021 passed by respondent no.3- District Magistrate, Etah (Annexure-6 to the writ petition) is hereby quashed. It shall however be open to respondents to pass a fresh order in accordance with law.

Cost made easy.

Order Date :- 28.6.2021

Saif