Ajay Kumar Srivastava vs State Of U.P. Thru. Addl. Chief ...
2022 Latest Caselaw 12452 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 17
 

 
Case :- WRIT - A No. - 4766 of 2022
 

 
Petitioner :- Ajay Kumar Srivastava
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Medical And Health Lko. And 4 Others
 
Counsel for Petitioner :- Anand Mani Tripathi,Anurag Tripathi
 
Counsel for Respondent :- C.S.C.
 
With
 
Case :- WRIT - A No. - 5568 of 2022
 

 
Petitioner :- Ajay Kumar Srivastava
 
Respondent :- State Of U.P. Thru.Addl. Chief Secy. Medical And Health And 4 Others
 
Counsel for Petitioner :- Anand Mani Tripathi,Anurag Tripathi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Alok Mathur,J.

1. Heard Sri Anand Mani Tripathi, learned counsel for the petitioner as well as learned Standing Counsel for the respondents.

2. With the consent of learned counsel for the parties, both the writ petitions are heard and decided by this common judgment.

3. In Writ-A No. 4766 of 2022, the petitioner has challenged the order dated 23.07.2022, passed by the Director, Administration (Medical and Health Services), U.P., Lucknow thereby rejecting the representation of the petitioner given against his order of transfer dated 30.06.2022, transferring the petitioner from Balrampur to Barabanki.

4. In WRIT - A No. - 5568 of 2022, the petitioner has sought direction to the State Government to implement the transfer policy and follow its guidelines specifically with regard to persons who are elected office bearers of employees unions.

5. In this regard it is submitted by learned Standing Counsel that such a direction cannot be issued by the writ Court and also considering the fact that the petitioner had preferred another writ petition being Writ-A No. 4766 of 2022, seeking similar relief and consequently direction sought in Writ-A No. 5568 of 2022 would effect other similarly situated office bearers, who have been transferred. It is noticed that all the individuals who are elected office bearers of employees unions, would approach this Court seeking specific reliefs and such a writ petition would be in the realm of PIL.

6. It has been submitted by learned counsel for the petitioner that petitioner who was working on the post of Junior Assistant in the Office of Chief Medical Officer, Combined District Hospital, Balrampur was transferred from Bahraich to Balrampur. He approached this Court challenging the order of transfer, where this Court by means of order dated 13.07.2022, passed in Writ Petition No. 4198 of 2022, had disposed of the writ petition, directing the concerned authority to decide the representation of the petitioner in accordance with law and it was further provided that no coercive action shall be taken against the petitioner till decision of his representation. It is in pursuance to the direction of this Court that the impugned order dated 23.07.2022, has been passed, rejecting the said representation.

7. While deciding the said representation, the respondents have taken into consideration the fact that the petition has spent 34 years in district Balrampur/Division Devipatan which substantially long period of time and therefore in public interest the petitioner has been transferred on the post of Junior Assistant to the office of Chief Medical Officer, Barabanki.

8. Learned counsel for the petitioner has assailed the order of transfer on two grounds, firstly that the respondents have wrongly calculated the period of 34 years spent by the petitioner at District Balrampur and secondly that according to the guidelines of 2022 issued by the State Government, approval of next higher authority was to be taken and in this regard respondents have obtained approval of Director General, Medical and Health while infact approval of State Government should have been taken.

9. Learned Standing Counsel has obtained complete instructions in this regard which have been placed before this Court and same are also taken on record. With regard to the fact that the petitioner has spent 34 years in district Balrampur, it has been stated that the petitioner has spent total 34 years in the Division of Devipatan and at district Balrampur, and hence he has spent 34 years.

10. In this regard it is noticed that admittedly according to the petitioner he was posted at Balrampur in 2014 and he had spent 8 years at Balrampur. It has further been stated that even on previous occasion he has been posted at Balrampur when he was working on Class IV post (Group-D).

11. Apart from above, while rejecting representation of the petitioner the respondents have considered conduct of petitioner while being posted at Balrampur, on this count the Court has considered rival submissions and has noticed that the petitioner was posted at Balrampur for long length of time and during this period there were certain allegations against petitioner and administrative authorities in this regard were compelled to transfer the employee from one district to another.

12. It is noticed that the petitioner has not spent 34 years but still undoubtedly substantially long period of his service he has been posted at Balrampur and hence it cannot be said that the respondents have committed any arbitrariness while transferring the petitioner and that their action is violative of Article 14 and 16 of the Constitution of India.

13. The second ground which has been raised by learned counsel for the petitioner is that approval of the State Government has not been taken in this regard, which is the competent authority to transfer the petitioner and not Director General, whose approval has been obtained while transferring the petitioner.

14. Heard learned counsel for the parties and perused the record.

15. This Court is of the considered view that the respondents had followed the guidelines of 2022 as issued by the State Government while transferring the petitioner. Interference of this Court under Article 226 of the Constitution of India in the matters pertaining to transfer is limited. Needless to say that petitioner is liable to be transferred throughout the State and he has no vested right to be posted at a particular place. The petitioner has spent substantially long time at Balrampur and in administrative exigency, there is no doubt that a person has to be transferred regularly in exercise of power held by the State Government to take services of its employees any where in the State.

16. It is not in dispute that the petitioner holds a transferable post. It is a settled law that transfer is an exigency of service. Ordinarily the Court should not interfere in the matter of transfer except on the limited grounds i.e. violation of statutory rules and malafide. Violation of transfer policy or executive order does not confer any vested right on the employee to challenge the transfer order in the Court. Reference may be made to the judgments of the Supreme Court in Union of India and others v. S.L. Abbas, (1993) 4 SCC 357; Shilpi Bose (Mrs.) and others v. State of Bihar and others, 1991 Supp 2 SCC 659; and, N.K. Singh v. Union of India and others, (1994) 6 SCC 98.

17. In the case of Home Secretary, U.T. of Chandigarh and another v. Darshjit Singh Grewal and others, (1993) 4 SCC 25 one of the questions before the Supreme Court that fell for consideration was whether policy/ guideline issued by the Chandigarh Administration was binding on the Chandigarh Engineering College which is a constituent college of the Punjab University. Justice B.P. Jeevan Reddy (as His Lordship then was) speaking for the Bench made the following observation:

"14. It may be relevant to emphasise at this juncture that while the rules and regulations referred to above are statutory, the policy guidelines are relatable to the executive power of the Chandigarh Administration. It is axiomatic that having enunciated a policy of general application and having communicated to it all concerned including the Chandigarh Engineering College, the Administration is bound by it. It can, of course, change the policy but until that is done, it is bound to adhere to it."

18. A policy/ policy decision/ policy matter is made by Government after considering all the points from different angles, while framing the policy the Government also takes into consideration the administrative efficiency and other incidental matters. Once the Government takes a policy decision, it is obligatory on its officials to execute its policy in the right earnest and to achieve the objects of the policy. The rule of the law casts a duty on the administrative functionaries to act within the framework of the law, be it law made by the legislature, subordinate legislation or executive orders issued under Article 73 and 162 of the Constitution. They are also obliged to follow the circulars/ memos and instructions issued by the Govenment. In the matter of policy decision of the Government, it is trite that Courts, in exercise of their jurisdiction, will not transgress into the field of policy decision. Court's interference is called for only on limited grounds, when it suffers from unreasonableness, arbitrariness or it is beyond legislative power or is beyond constitutional limits or public policy or against statutory provision. If the Courts have treated the policy/ policy decision / policy matter on such a high pedestal then Government's own employees/ officials cannot be allowed to breach and ignore its order with impunity.

19. In light of the judgments of Hon'ble Supreme Court, it is noticed that for the last 34 years, the petitioner has been posted at same district or at nearby place in the district and consequently it cannot be said that the respondents have acted in arbitrary manner or there is any violation of statutory rules. It is further noticed that the petitioner does not have vested right to be posted in a particular place considering that he may be liable to be transferred anywhere in Uttar Pradesh. There are also certain allegations against the petitioner, and consequently the administrative authority in his discretion can transfer an employee in such circumstances considering the administrative exigency.

20. In the light of above, there is no violation of statute or rule so as to call for interference by this Court in the order of transfer. Further, learned counsel while amending the writ petition has assailed the order of suspension and also challenged the order dated 26.07.2022, only because of the fact that the petitioner has been transferred on 30.06.2022 and the Chief Medical Officer, Balrampur has rejected representation of the petitioner has he has not joined at the transferred place of posting till 26.07.2022.

21. It has been recorded that the petitioner has been relieved from Balrampur but he has failed to join at his transferred place of posting where he was directed to join on 12.07.2022. Taking this as serious dereliction in discharge of duties, not complying with the order of superior authorities, the petitioner has been placed under suspension. It is further noticed that interim protection was granted to the petitioner that no coercive steps shall be taken against him till decision of the representation. It is noticed that the representation of the petitioner was rejected on 23.07.2022, which according to the petitioner was communicated to him on 27.07.2022. It has been stated by the petitioner that before he could comply with the said order, he was placed under suspension on 26.07.2022.

22. Considering the above facts it is noticed that there is no doubt the respondents have been hasty in passing the order of suspension, and till the decision on his representation was communicated to him, protection was granted by this Court. The impugned order was served only on 27.07.2022 and for not complying with the said order he has been suspended on 26.07.2022, which is on the face of it arbitrary exercise of power, accordingly, it is provided that in case the petitioner joins at his transferred place of posting within ten days from today, then no coercive action shall be taken against him in pursuance to the suspension order dated 26.07.2022 and the said order shall cease to exist on his joining at the transferred place of posting.

23. In case petitioner does not comply with this order, then the respondents will be at liberty to proceed against the petitioner in accordance with law.

24. Subject to aforesaid observations the writ petitions are dismissed.

Order Date :- 12.9.2022

A. Verma

(Alok Mathur, J.)