Allahabad High Court
Naushad Ahmad vs State Of U.P. Thru.Addl. ... on 9 August, 2023
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:52988
Court No. - 20
Case :- WRIT - A No. - 5326 of 2023
Petitioner :- Naushad Ahmad
Respondent :- State Of U.P. Thru.Addl. Prin.Secy. Horticulture Deptt. And 4 Others
Counsel for Petitioner :- Mohd. Ateeq Khan
Counsel for Respondent :- C.S.C.
Hon'ble Manish Mathur,J.
Heard learned counsel for petitioner and learned State Counsel for opposite parties. Counter affidavit filed on behalf of opposite party is taken on record.
Petition has been filed challenging order dated 30th June, 2023 whereby petitioner has been transferred on the post of Urdu Translator from Pratapgarh to Ballia. Also under challenge is the order dated 3rd July, 2023 whereby petitioner has been relieved.
Initially it had been submitted that the impugned orders have been passed by the Director, Horticulture without jurisdiction as also with regard to the fact that the post on which petitioner is working is not transferable.
With regard to aforesaid submissions, Mr. Sandeep Sharma learned State Counsel has adverted to the U.P. Urdu Translator cum Junior Clerk Service Rules 1994 to submit that the aforesaid rules would be applicable upon the petitioner and in terms of Rule 5(a), appointing authority means an authority empowered to make appointment to a post of Junior Clerk in a government department or office under under relevant service rules or executive instructions. It is submitted that since petitioner is working on a Class III post, the appointing authority as such would mean the head of the department and since transfer is to be effected outside the district, it would mean Director of the department who has passed impugned order in the present case and therefore the order can not be said to be without jurisdiction. He has also drawn attention to the order dated 25th August, 2006 issued by the State Government indicating that Urdu Translators should not be transferred in normal or due course of administration. It is thus submitted that in terms of aforesaid rules and the order dated 25th August, 2006 the post on which petitioner is working is not only transferable but the impugned order has been passed by the competent authority.
On being confronted by such a submission, learned counsel for petitioner does not wish to press the same re: lack of jurisdiction but submits that petitioner has been elected District Secretary of the Union concerned and therefore in terms of paragraph 12 of the government order dated 7th June, 2023 he would be exempt from transfers for a period of two years. He has also placed reliance on judgments rendered by Supreme Court in the cases of Anirudhsinhji Karansinhji Jadeja and another versus State of Gujarat reported in (1995) 5 Supreme Court Cases 302 and Joint Action Committee of Air Line Pilots Association of India (ALPAI) and others versus Director General of Civil Aviation and others reported in (2011) 5 Supreme Court cases 435 to submit that a perusal of impugned order also makes it evident that it has been passed on the basis of recommendations made by the Deputy Director on the basis of certain complaints and due to which also the impugned order is liable to be quashed.
Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it is evident from record as well as from short counter affidavit that impugned order has been passed by the competent authority and in view of the order dated 25th August, 2006, petitioner is working on a post which is transferable. As such the aforesaid submissions to the contrary are rejected.
So far as submission of learned counsel for petitioner is concerned that he would be exempt from annual transfers on account of being office bearer, it is also evident that there is no such pleading in the petition with regard to same and therefore such a submission can not be considered in the absence of any specific pleading.
Learned counsel for petitioner has also adverted to the fact that impugned order has been passed being influenced by recommendations made by Deputy Director and therefore indicates lack of independent application of mind by the Director.
So far as the aforesaid submission is concerned, it is also evident from order dated 25th August, 2006 that transfers on the post of Urdu Translators can be made in exigencies of service. The impugned order dated 30th June, 2023 also is indicative of the fact that it has been passed by the competent authority on the basis of complaints forwarded by the Deputy Director of the department itself. Such a recommendation having been made by an authority subordinate to the appointing authority, can not be said to be an exercise of undue influence on the competent authority who is naturally superior to the recommending authority. The judgments relied upon by learned counsel for petitioner, in the considered opinion of this Court would not be of any help particularly since in the case of Joint Action Committee of Air Line Pilots' Association of India (supra), the aspect pertained to whether orders regarding flight duty time limitation could have been issued only by the Director General of Civil Aviation or on the basis of government circulars as well. The aforesaid aspect of the matter, is quite distinguishable on facts itself. Similarly in the case of Anirudhsinhji Karansinhji Jadeja (supra), the judgment pertains to accused under the Terrorist and Disruptive Activities (Prevention) Act 1987 since their prayer for release was denied by designated court. The aforesaid judgment also is quite distinguishable on facts since present case pertains to transfer of petitioner.
In view of discussion made herein above, it is quite evident that impugned order has been passed by the competent authority for cogent reasons and in accordance with order dated 25th August, 2006, which also indicates the fact that post of Urdu Translators are transferable posts.
In view of aforesaid, there does not appear to be any reason to interfere with the impugned order. The petition as such is dismissed.
Order Date :- 9.8.2023
prabhat
