Allahabad High Court
Dr. Ram Singh vs State Of U.P. And 3 Others on 20 September, 2023
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:181494
Court No. - 34
Case :- WRIT - A No. - 14570 of 2023
Petitioner :- Dr. Ram Singh
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Ramesh Kumar Singh,Bhupesh Kumar Singh
Counsel for Respondent :- C.S.C.
Hon'ble Ajit Kumar,J.
1. Heard Sri Ramesh Kumar Singh, learned counsel for the petitioner and learned Standing Counsel for the State respondents.
2. By means of this petition filed under Article 226 of the Constitution, petitioner has challenged the order dated 27th July, 2023, whereby his representation made to the competent authority pursuant to the earlier order by this Court dated 11th July, 2023 has been rejected on the ground that petitioner has overstayed for the petition of 11 years at Varanasi Division, Varanasi, therefore, he is liable to be transferred.
3. Learned counsel for the petitioner has assailed the order of authority on three grounds:
(i). The authority has not considered any of the aspects regarding pleas taken by the petitioner in his representation for permitting to stay back at Jaunpur or nearby districts;
(ii). In the matter of Dr. Salini Mishra, the authority took a pragmatic view and amended/ changed the transfer order on the same date; and
(iii). One Raghukul Tilak, Senior Assistant Homeopathy was suspended for making wrongful allegations regarding transfer etc.
4. It is, therefore, argued that the petitioner having discharged his duties quite deligently and honestly with the respondents, his case was liable to be considered sympathetically, considering the fact that his wife was also working at Jaunpur and that his small children got admitted in school.
5. Per contra, it is argued by learned Standing Counsel that once petitioner is working on a transferable post, he cannot have choice of place of posting for a long time in his service career and petitioner having overstayed for a period of 11 years in a division, deserved transfer under the transfer policy.
6. It is further argued by learned Standing Counsel that citing an example of Dr. Salini Mishra is of no help to the petitioner as in her representation she might have taken such plea that weighed the mind of the authority in amending her transfer order. The writ petition lacks requisite details about the grounds taken by Dr. Salini Mishra. Moreover, it is argued that stay on transfer of an officer cannot itself be a ground to stay or modify the transfer of another officer.
7. Having heard learned counsel for the respective parties and having perused the record particularly the representation that had been made by the petitioner, I find that petitioner's wife is working as an Assistant Teacher in a primary School in development block of district Jaunpur, which is run under the aegis of Basic Shiksha Parishad.
8. The service of these schools are basically non-transferable and choice of transfer under the relevant transfer policy that covers such department is only once from once district to another district and, therefore, in these circumstances, when an employee is working on a transferable post in Government service, cannot always claim to remain posted either in the district in which his wife is working or in a nearby district. Matters of transfer are governed by the principle of administrative exigency and public interest and those who are in the realm of affairs better know how to utilize the services of their employees.
9. It is true that the children of the petitioner are small and going to small school but in the considered view of the Court such matters could carry weight provided such children are appearing in any board examination or in a particular examination to be held in that year alone. Small children can always be shifted to another schools and it cannot be said that as such prejudice is caused to an employee that if he stands transferred, he would be suffering any irreparable loss. Moreover, the wife of the petitioner is in service as Assistant Teacher in primary school and will better in a better position to look after her school going children.
10. Learned counsel for the petitioner has relied upon a judgment of this Court in the case of Amit Kumar v. State of U.P. and others: 2023 LawSuit (All) 1159 in which vide paragraph 10 it has been held thus:
"10. Upon hearing learned Counsel for parties, this Court is of opinion that the law by now has come to be fairly well settled. Transfer is indeed an exigency of service and interference by this Court in exercise of our writ jurisdiction under Article 226 of the Constitution of India is permissible only in the event that the transfer is actuated by mala fides in fact or is vitiated by malafides in law. Still, there is one more avenue, where this Court can interfere with a transfer order, and, that is where the transfer order is in breach of a statutory rule. However, in no event a transfer order can be interfered with on the ground of infraction of the State's transfer policy. This position of the law is well settled in view of the decision of the Supreme Court in Mrs. Shilpi Bose and others v. State of Bihar and others, 1991 AIR (SC) 532."
11. The principles as have been discussed in paragraph 10 of the said judgment which has been relied upon by learned counsel for the petitioner are not disputed at all. The principles that governe the Court in interfering the transfer order are only for certain exceptional cases and to that extent, therefore, the principle as laid down in the judgment are absolutely correct but I do not see the exercise of administrative discretion in respect of the petitioner to be taken as a case of mala fides, nor any such plea has been taken so as to demonstrate that authority had any prejudiced mind in passing the order impugned. The ground taken of public interest or administrative exigencies do not call for any interference unless an action is shown to be per se bad in law either for want of authority or mala fides. These two grounds are quite lacking in the present case.
12. In the circumstances, therefore, I do not find any justification to interfere with the order passed by the authority rejecting the representation of the petitioner on the ground that he has overstayed at a division for more than 11 years.
13. Writ petition lacks merit and is, accordingly, dismissed.
Order Date :- 20.9.2023
Atmesh
