Good Transfer Order - Transfer ko Policy/Guidelines/instructions ke taht kiya jaana chahiye, anyatha court dakhal de sakta hai -

Good Transfer Order - Transfer ko Policy/Guidelines/instructions ke taht kiya jaana chahiye, anyatha court dakhal de sakta hai - 



The same law has been reiterated in Kendriya Vidyalaya Sanghthan Versus Damodar Prasad Pandey and Others 2004 (12) SCC 299 which has followed Abhonikanto Rai Versus State as well as noticed U.O.I. Versus S.L. Abbass. In Sarvesh Kumar Awasthi Ve U.P. Jal Nigam and others, 2003 Vol 11 SCC 740 , it was emphasized that transfer of officers is required to be effected on the basis of said norms and guidelines. Thus, taking the above law into account it cannot be said that if there is a violation of a published transfer policy/guidelines/instructions, the respondents can be allowed to justify the deviation by contending that the said policy not being statutory does not give any vested right or cause of action to the concerned employee




Central Administrative Tribunal - Allahabad
Original Application No.932 Of ... vs Union Of India on 21 May, 2015
      

  

   

 RESERVED 

CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD

(THIS THE  21st DAY OF MAY, 2015)

Present

HONBLE MS. JASMINE AHMED, MEMBER (J)

Original Application No.932 OF 2013  
(U/S 19, Administrative Tribunal Act, 1985)
Sanjeev Kumar Singh, aged about 32 years, son of Rabindra Singh, Presently posted as LDC in the office of G.E. Clement Town, Dehradun (Uttarakhand).
Applicant 
            
V E R S U S

1. Union of India through Secretary, Ministry of Defence, New Delhi. 
2. Engineer-in-Chiefs, Branch Army Head Quarter Kashmir House, P.O. New Delhi-11.
3. Chief Engineer, Head Quarter Central Command, Lucknow-2.
4. The Commander Works Engineer (MES), Dehradun.
5. Garrison Engineer, Clement Town, Dehradun (Uttarakhand).

..Respondents

Advocates for the Applicant:- Shri N.P. Singh

Advocate for the Respondents:- Shri Anil Kumar Singh

O R D E R
DELIVERED BY HONBLE MS. JASMINE AHMED, MEMBER (J) By way of this original application filed under section 19 of the Administrative Tribunals Act 1985 the applicant has prayed for the following reliefs:-

A.) To issue a writ order in nature of certiorari quashing the impugned transfer order dated 18.04.2013 and rejection order dated 08.07.2013 in respect of applicant (Annexure No.A-1 and Annexure No.A-14) of the original application passed by the respondent no.3.

B) Issue a direction in the nature of mandamus commanding the respondents not to interfere in the present working of the applicant as LDC GE Claimant Town, Dehradun and reconsider the matter in the light of latest transfer policy dated 27.08.2007 under the head of CML posting.

C) To issue any other writ order or direction as this Court may deem fit and proper in the facts and circumstances of the case.

D) To award cost to the applicant.

2. The brief facts of the case are that the applicant has been appointed as LDC with the respondents organization in the year 2007 and since then he is discharging his duties with the full satisfaction of his superior authorities. Suddenly the applicant has been transferred on 18.4.2013 from GE/CT Dehradun to CE Lucknow. This is the second round of litigation wherein this Tribunal by order dated 15.5.2013 in OA no.591 of 2013 (U) disposed of the OA with a direction to the respondents to decide the representation preferred by the applicant dated 11.3.2013 in the light of the rule position which is enumerated in the guidelines and also taking into consideration the personal problems of the applicant. It was also directed that the representation should be decided within a period of two months from the date of receipt of a certified copy of that order. The respondents by letter dated 8.7.2013 disposed of the representation of the applicant dated 11.3.2013 regretting his request but the reply given by the respondents reflects the contradiction with their own published rules and guidelines.

3. The applicant assailed this OA challenging the reply dated 8.7.2013. By order dated 26.7.2013 the applicant was granted interim protection by staying the transfer order dated 18.4.2013 which is continued till date. The applicant is challenging the transfer order dated 18.4.2013 and also the rejection order dated 8.7.2013 on various points. He states that the transfer is against the transfer posting guidelines issued by the Ministry of Defence. The applicant is challenging the CML i.e. Command Manning Level posting. He states that as per Rule 36(b) of the CML posting guidelines dated 27.8.2007 he would be liable for transfer only on completion of six years service from 24.3.2009. The clause 36(b) of CML Posting reads as under:-

CML Posting will be normally from executive to executive except to the Home station of the individual concerned provided employees executive tenure is not acceded beyond six years continuously. All postings under CML shall be issued by end of March every year keeping in view the academic session of children and will be implemented latest by 15th May each year.

4. The counsel for the applicant states that as per these guidelines the applicant could not be transferred before completion of six years. He has also stated that while transferring the applicant respondents has followed pick and choose policy as employees are sitting at Dehradun since 10.5.2007 wherein the applicant was posted on 24.3.2009. He also states that as per clause 35 of CML Posting policy dated 27.8.2007 the transfer should be done between the command but not within the command meaning thereby the transfer should be inter command not intra command but here in this case the transfer order is intra command. The counsel for the applicant contends that even while transferring the applicant the respondents has violated the provision of 36(d) also as they have not asked the volunteers and newly recruited employees for opting transfer.

5. By the aforesaid contentions the applicant has emphasized that the transfer order passed by the respondent is based on pick and choose policy and against the published policy/guidelines/instructions. The respondents have violated their own guidelines with impunity and thus the said transfer order dated 18.4.2013 is liable to be quashed and set aside with all consequential benefits.

6. The respondents have filed their reply wherein they have stated that transfer is an incidence of service and also stated that no contravention of the guidelines dated 27.8.2007 has been made by the respondents. The respondents have stated that Central Command, Lucknow holding CML percentage of Civilian Clerical category was 63% as per which holding of Dehradun Complex was exceeding by 11 clerks. He also stated that as per para 36(a)and 36 (b) of the existing posting policy to maintain CML holding above command manning level percentage by Dehradun complex i.e. 11 individuals of Dehradun complex were require to be withdrawn and posted to other unit where deficiency existed to maintain informalities of CML. They have denied that any violation of policy dated 27.8.2007 has been committed by the respondents. The counsel for the respondents have further contented that the transfer under CML posting policy document/guidelines/instructions do not give any vested right to the applicant to challenge the impugned transfer order particularly when there is no statute on the question of transfer. The respondents have also contended that violation of transfer policy/guidelines/instructions does not vitiate the transfer order.

7. It is observed that there is no contradiction or dispute in the pleadings and arguments in the case that there exist a policy guidelines dated 27.8.2007. The only issue is where there is a published transfer policy/guidelines/instructions in existence and the transfer has been made in violation of the provisions of the same, can the respondents be allowed to justify the deviations by contending that the transfer policy/guidelines/instructions do not give any vested right to the applicant? Secondly, often the deviations from the published transfer policy/guidelines/instructions are sought to be justified on the ground of administrative requirement/exigency and in the interest of the organization or in public interest. Thus, the second issue that needs to be considered is what are the parameters for justifying the deviations on the ground of administrative requirement/exigency or in the interest of the organization or public interest.

8. It is seen that there is a very detailed and comprehensive transfer policy/guidelines/instructions for management of Group C and D Personnel of the MES issued and circulated on 27.8.2007 by the Directorate General(Personnel), Engineer-in-Chiefs Branch. The said policy/guidelines/instructions caters to very detailed and minute aspects of transfer and posting of the personnel of MES. The clauses and various provisions like clause 36(b) and 36(d) relied upon by the applicant as referred above clearly shows that the said provisions have been ignored by the respondent while transferring the applicant by the impugned order dated 18.4.2013.

9. Before going into the two specific issues identified above it would be appropriate to deal with one of the contentions of the respondents that the ordinary tenure of continuous six years mentioned in clause 36(b) of the said transfer policy/guidelines/instructions is only the maximum tenure and there is no bar of transferring an employee before the completion of the said tenure. The submission of the respondents must be examined from the point of view of the objective with which the said transfer policy/guideline/instruction has been issued. The very first paragraph of the said policy contends the objective of the policy. The same is quoted below:-

1. The Management of Group C & D of MES manpower rests with CEs of various Commands. There has to be uniformity in the policy, accordingly guidelines have been issued by this HQ letter No.79040/EIC (1) Dated 31 Aug 1994 and No.B/20148/PP/EIC(1) dated 16 April 2003 as amended from time to time. The said policy guidelines are uniformly applicable to all CEs Command irrespective of the their geographic spread and peculiarlties, number of Zones/complexes/station etc. There is need to consider the applicability and practical problems being faced by the employees in a particular Command and to draw out a comprehensive policy so as to suit the organizational need and Individual aspirations of Commands. The present policy has been evolved based on the experience gained through various representations received and interaction made with various employees unions and associations.

10. The very first paragraph, as quoted above is in the nature of preamble of the transfer policy it is clearly revealed that the transfer policy has been introduced with the view of bringing uniformity in transfers affected in various commands. While framing the policy, practical problems being faced by the employees have been given due consideration. Besides, it is also apparent that the policy is a comprehensive one dealing with almost every aspect of the transfer and has been evolved over a period of time based upon the difficulties mentioned in various representations in the past and interaction with employees unions and associations. Such a policy which has been evolved over a period of time based on the difficulties and problems faced by the employees and organizational needs cannot be construed as a mare piece of paper. When taking all the rival aspects into consideration, the competent authority has prescribed a continuous tenure of six years for an employee to be eligible for transfer then normally the said tenure must be adhered to unless there is an extra ordinary reason to curtail the tenure in any given case. The contention of the respondents that the same is only a maximum tenure cannot be accepted at its face value. In the context in which transfer policy has been framed and the objective behind the transfer policy, it must be held that the six years tenure prescribed in clause 36 (b) is both the maximum tenure as well as the normal tenure. If such an interpretation is not given, then the policy/guideline will loose its sanctity as an employee can be transferred at any time before the completion of his normal tenure. Thus the main objectives of the policy namely uniformity in all commands, the norms of transfer developed over a period of time by keeping individuals hardships and organizational needs will be reduced to a farce. It is not that in an emergency situation an employee cannot be transferred before the completion of his tenure. But any deviation from the said tenure has to be justified by the respondent case wise with reference to the material justifying a deviation. In the instant case, admittedly the applicant has not completed his normal and maximum tenure of six years nor any materials has been produced or pleaded to justify reduction of normal tenure in respect of the applicant.

11. Thus, as far as the first issue is concerned it may be noted here that the existence of a published transfer policy guidelines is not in dispute in this case at all. It is also not in dispute that as on date of issuance of the transfer order, the applicant had not completed his tenure of six years at GE/City Dehradun. But, the respondents contented that such policy/guidelines/instructions do not give any right to the applicant to challenge the transfer order, they being mare policy/guidelines/instructions and not statutory rules. The Honble Supreme Court in the case of Rajendra Roy Versus Union of India, 1993 (1) SCC 148, held as under:-

7.Unless such order is passed malafide 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.

12. Further, in the case of Abanikanta Ray Versus State of Orissa, 1995 Supp (4) SCC 169 the Honble Apex Court held as follows:-

10. It is settled law that a transfer which is an incident of service is not to be interfered with by the courts unless it is shown to be clearly arbitrary or vitiated by malafides or infraction of any professed norm or principles governing the transfer.

13. The same law has been reiterated in Kendriya Vidyalaya Sanghthan Versus Damodar Prasad Pandey and Others 2004 (12) SCC 299 which has followed Abhonikanto Rai Versus State as well as noticed U.O.I. Versus S.L. Abbass. In Sarvesh Kumar Awasthi Ve U.P. Jal Nigam and others, 2003 Vol 11 SCC 740 , it was emphasized that transfer of officers is required to be effected on the basis of said norms and guidelines. Thus, taking the above law into account it cannot be said that if there is a violation of a published transfer policy/guidelines/instructions, the respondents can be allowed to justify the deviation by contending that the said policy not being statutory does not give any vested right or cause of action to the concerned employee.

14. The second issue is about justifying a transfer order in violation of a published policy on the ground of administrative requirement or exigency or in the interest of the organization state or in public interest. As far as the present case is concerned, it may be noted here that though the respondents have mentioned in the counter affidavit that the transfer of the applicant has been effected in the interest of the state, no where the said interest of the state/organization has been explained. How the transfer of the applicant is in the interest of the state/organization? What administrative requirement or exigency compelled the respondents to transfer the applicant before the completion of his ordinary tenure of 6 years? Answers to these questions are not forthcoming either in the counter reply or in the oral submissions of the respondents.

15. The defence of administrative requirement/exigency or in the interest of state/organization or in public interest, in the context of transfer, mean only one and the same thing. These are various different words to describe an exigency in administration so as to justify a deviation from a professed norm. The word Exigency has been defined as follows in the New Lexicon Websters Dictionary:

a pressing need, the state or quality of being urgently needed. Blacks Law Dictionary, 8th Edition defines the same word as follows:

A state of urgency; a situation requiring immediate action Similarly, William C. Burtons Legal Thesaurus defines the word as follows:

Crisis, critical situation, difficulty, pressing necessity, pressure, urgent need.

16. Thus, from the above authentic definitions, it is clear that an administrative exigency is a very pressing necessity, a critical necessity and a situation of great urgency. Thus, normal situations or circumstances do not come under the purview of administrative exigency. If the situation is a routine situation or a normally prevalent situation, then the contention of administrative exigency/requirement etc. has to be rejected. Further, to invoke the defence of administrative exigency/requirement or its various synonyms like in the interest of the organization or in public interest, the pressing need, or the critical situation etc. must be demonstrated in the pleadings of the respondents duly supported by the office files on the basis of which such counter affidavits are prepared. Thus, to summarize, to advance the argument of administrative exigency or its various synonyms as noticed above, the pressing need, critical situation etc. must have been considered by the competent authority in the files and also must have been demonstrated in the counter affidavit. Conversely, in the absence of any pleadings containing details of pressing needs, urgent or difficult situation necessitating a deviation from the professed norms, the defence of administrative exigency and its various synonyms would not be available to the respondents.

17. In other words administrative requirement or exigency is not a mantra to be uttered by the respondents to get the benefit of the same, but has to be demonstrated by pleadings and supporting materials. In the instant case except for uttering the word in the interest of the State/organization as a mantra, nothing has been mentioned about any pressing need or difficult or critical situation etc. to justify a deviation from the published and professed norms in the form of policy/guidelines/instructions. Thus, in the facts of the case where there is no pleadings to justify any exigency, the contention of the respondents deserves to be rejected.

18. Clause 52 of the transfer guidelines dated 27.8.2007 states generally Group C And D employees should not normally be transferred from one station to another station except in very special circumstances like adjustment of surplus and deficiency, promotion, compassionate ground/mutual basis, exigencies of service on as an administrative requirement. The respondents in their rejection letter dated 8.7.2013 taken the plea of 11 numbers extra holding of CML and has stated longest stayees were required to be taken off from Dehradun complex and posted to where deficiency is existing as per CML. But it is found that there are employees who have been retained at Dehradun who were posted at Dehradun much before the applicant hence the contention of the respondents are proved to be incorrect as they have not followed the seniority position while dealing with CML posting which is contradiction of Clause 55 of the transfer guidelines dated 27.08.2007. It is also stated by the counsel for the applicant as well as by the representation of the applicant that in one hand the respondents are stating that there are surplus staffs in clerical cadre, on the other hand to cope up with clerical work, 5-6 industrial workers are deployed for clerical work. He also stated that the industrial workers are from different grades and are not expected to be shifted from their respective discipline to deal with clerical work. He states that the applicant in his representation took this categorical plea but the respondents did not reply anything on this point which clearly reflects that the plea of surplus and satisfaction level is very artificially manipulated just to harass the employees of lower starta, keeping in view their megre salary Government of India has time and again by its various orders prohibited the transfer of group C and D employees.

19. In view of the above discussion, the OA succeeds. The impugned transfer order under CML posting dated 18.4.2013 in respect of the applicant is quashed and set aside. Similarly the order dated 8.7.2013 rejecting the representation of the applicant is also quashed and set aside. The applicant would be entitled to all consequential benefits. However, in the facts of the case, the parties are left to bear their own costs.

[JASMINE AHMED] Member (J) /ns/



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Transfer Order - High court : - In this order Court found frequent transfer and arbitrary, Aur authority ko kaha ki transfer ko aage se sahi tarh se kiya jaye

Transfer Order - High court : - In this order Court found frequent transfer and arbitrary, Aur authority ko kaha ki transfer ko aage se sahi tarh se kiya jaye, 

court ke purview me nahin hai transfer matter par seedhe dakahl dene ka, lekin guideline ke virudd, malafide/durbhavna se, akaran va bager prshashnik karno ke hone vale transfer me court dakhal de sakta hai

good

Karnataka High Court

Sri Somanna vs The Commissioner, Bbmp on 1 April, 2014

Author: A.N.Venugopala Gowda

                               1




     IN THE HIGH COURT OF KARNATAKA AT BANGALORE
                                                  ®
          DATED THIS THE 1ST DAY OF APRIL, 2014

                           BEFORE

     THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA

            WRIT PETITION NO.6577/2014 (S-TR)

BETWEEN:

Sri Somanna,
S/o. B. Channaiah,
Aged 57 years,
R/at No.681, 10th Main Road,
3rd Block, Rajajinagar,
Bangalore.
                                           ...PETITIONER
(By Sri S.N. Bhat, Adv.)

AND:

1.      The Commissioner,
        B.B.M.P.,
        Bangalore - 560 002.

2.      The Deputy Commissioner
        (Administration),
        B.B.M.P.,
        Bangalore - 560 002.

3.      Megaraj,
        Aged 56 years,
        Working as Work Inspector in the
                               2




      Office of the Superintending Engineer,
      B.B.M.P.,
      Ward No.121, Magadi Road,
      Bangalore - 560 076.
                                          ...RESPONDENTS

(By Sri M.R. Shailendra, Adv. for R1 & R2;
    Sri B.K. Sampath Kumar, Adv. for R3)

     This petition is filed under Articles 226 and 227 of
the Constitution of India, praying to quash the order
passed by the 2nd respondent dated 03.02.2014 vide
Annexure-D.

     This petition coming on for preliminary hearing in 'B'
group this day, the Court made the following:

                           ORDER

The petitioner and the respondent No.3 are working as Work Inspectors in Cotton Pet Sub-Division of Bruhat Bangalore Mahanagara Palike. By an Office Order dated 03.02.2014 vide Annexure-D, the petitioner having been posted to Ward No.121 and the respondent No.3, who was working in Ward No.121, having been posted to Ward No.109, this writ petition was filed assailing the order as at Annexure-D.

2. Sri S.N. Bhat, learned advocate, contended that the impugned order of transfer is arbitrary, since, there is frequent shifting of the petitioner from one Ward to another, on account of interference of politicians and at the behest of the respondent No.3 and hence, interference is called for.

3. Sri M.R. Shailendra, learned advocate, for respondents 1 and 2, on the other hand, contended that the impugned order was issued in exigencies of the service and being an administrative decision and also that the offices of Ward Nos.109 and 121 being in one and the same building, cannot be construed as transfer and cannot be permitted to be assailed in the writ jurisdiction under Article 226 of the Constitution of India.

4. Sri B.K. Sampath Kumar, learned advocate, for respondent No.3, submitted that there being no rules framed by the BBMP in respect of transfers and that the transfers being effected on the basis of Councilors' working relationship with the Work Inspectors and the petitioner having wielded political influence and got his transfers effected earlier, cannot assail the order as at Annexure-D.

5. While hearing the case, after noticing from the record that the petitioner and the respondent No.3 had been posted as against each other's post frequently and since, both the petitioner and the respondent No.3 had secured recommendations from the Corporators, MLAs and also Ministers, for their retention and postings, the Commissioner of BBMP was directed to appear before the Court. Sri Lakshmi Narayana, Commissioner, BBMP, appeared on 10.03.2014. In view of the displeasure expressed on the frequent transfers and postings effected, though within the same zone, but on the basis of the recommendation letters issued by the politicians, which is not in administrative exigencies, the Commissioner was directed to come up with a proposal to avoid the frequent transfers and to prevent the political interference. The Commissioner submitted that a resolution dated 30.08.2012 was adopted by the BBMP with regard to the minimum tenure of Group 'A' and 'B' Officers, as two years and in respect of Group 'C' and 'D' Cadres, as three years, in a place. The Commissioner submitted that, within the zone, the power to transfer has been delegated to the Joint Commissioners and in view of the developments noticed in this case, he assured that a Circular would be immediately issued, restricting the transfer and posting of Group 'C' and 'D' employees, within a zone, for a period of three years.

6. Sri M.R. Shailendra, filed a Memo and produced a Circular bearing No.B12(6A)/PR/363/2013-14, dated 20.03.2014, issued by the Commissioner, BBMP and submitted that, henceforth, the transfers/postings of Group 'C' and 'D' employees would be regulated in terms of the said Circular.

7. In SARVESH KUMAR AWASTHI Vs. U.P. JAL NIGAM, (2003) 11 SCC 740, Apex Court having noticed that transfers had been effected on the recommendations, either of Ministers or MLAs/MPs/MLCs, has held as follows:-

"In our view, transfer of officers is required to be effected on the basis of set norms or guidelines. The power of transferring an officer cannot be wielded arbitrarily, mala fide or an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned. For better administration the officers concerned must have freedom from fear of being harassed by repeated transfers or transfers ordered at the instance of someone who has nothing to do with the business of administration."

8. In MOHD. MASOOD AHMAD Vs. STATE OF U.P, (2007) 8 SCC 150, considering a contention that the impugned transfer order of the appellant was made at the instance of an MLA and that the counter affidavit filed by the respondents stated that the appellant was transferred due to the complaints against him, Apex Court has held as follows :-

"............in our opinion, even if the allegation of the appellant is correct that he was transferred on the recommendation of an MLA, that by itself would not vitiate the transfer order. After all, it is the duty of the representatives of the people in the legislature to express the grievances of the people and if there is any complaint against an official the State Government is certainly within its jurisdiction to transfer such an employee. There can be no hard- and-fast rule that every transfer at the instance of an MP or MLA would be vitiated. It all depends on the facts and circumstances of an individual case."

9. In the case of SRI MRUTHYANJAYA N.V., Vs. STATE OF KARNATAKA AND OTHERS, W.P.No.56276/2013 decided on 12.12.2013, a transfer effected from the Panchayat Raj Engineering Division, Bangalore Rural, to the office of the Executive Engineer, Hebbal Division, BBMP, Bangalore, having been assailed and upheld by the Karnataka Administrative Tribunal, when challenged in a writ petition, a Division Bench of this Court, by taking note of the definition of 'transfer' under Rule 8(49) of the Karnataka Civil Services Rules, has held that the transfer from one office to another office within the same headquarters cannot be treated as transfer and none can make a grievance against such an order of transfer from one office to another office on the ground that it is premature or arbitrary.

10. Petitioner and the respondent No.3 are holding transferable posts. Hence, the Commissioner or Delegated Authority, can effect the transfer/posting in exigencies of service and in the administrative interest and interference by the Courts, with the administrative decisions/ transfer orders, should only be in rare cases, as has been held by the Apex Court in catena of decisions, (see B. Varadha Rao Vs. State of Karnataka and others, AIR 1986 SC 1955,Mrs.Shilpi Bose vs. State of Bihar, AIR 1991 SC 532, Union of India vs. N.P. Thomas, AIR 1993 SC 1605 and Union of India vs. S.L. Abbas, (1993) 4 SCC 357), since, transfer is an incident of service and is made in administrative interest. However, if there is 'malice' based on firm foundation of facts pleaded and established and not merely on insinuations and vague allegations, there can be interference.

11. In RAJENDRA SINGH Vs. STATE OF U.P., (2009) 15 SCC 178, Apex Court has held that the Courts are always reluctant to interfere with transfer of employees unless such transfer is vitiated by violation of some statutory provision or suffers from mala fides.

12. In the instant case, it is to be observed that the challenge to the impugned order of transfer is not based on the violation of any statutory provision regulating service conditions of the employee or by an Authority not competent to do so. The case of the petitioner is that there is frequent transfer and the same is arbitrary. The record of the case shows that both the petitioner and the respondent No.3 have produced the minutes/notes of Ministers, MLAs and the BBMP Councilors, in the matter of their posting, to a particular Ward. Undisputedly, the offices of both the Wards, wherein, the petitioner and the respondent No.3 are working are situated in one and the same building. Thus, there can be no hardship of whatsoever nature either to the petitioner or to the respondent No.3 on account of the transfer, though more than once in an year i.e., from the one Ward to another Ward in the same Sub-Division of BBMP.

13. S.69 of the Karnataka Municipal Corporations Act, 1976 (for short 'the Act'), reads thus:

"69. Control over Corporation Establishment.- Subject to the provisions of this Act, rules and regulations, the Commissioner shall specify the duties of persons borne on the Corporation establishment and exercise powers of supervision and control over them and decide all questions relating to their conditions of service."

The Commissioner, BBMP, has issued the Circular bearing No.B12(6A)/PR/363/2013-14, dated 20.03.2014, in exercise of the power vested in him under the above provision. The material portion of the Circular reads as follows:

"C¢üPÁj/£ËPÀgÀgÀÄUÀ¼ÀÄ ¤µÉ× ªÀÄvÀÄÛ ²¹Û¤AzÀ PÁAiÀÄð¤ªÀð»¸À®Ä ¸ÁzsÀåªÁUÀĪÀAvÉ ¥Àæw ªÀµÀð ¸ÀPÁðgÀzÀ ªÀUÁðªÀuÉ ªÀiÁUÀð¸ÀÆaUÀ¼ÀAvÉ ªÉÄÃ/dÆ£ï wAUÀ¼ÀÄUÀ¼À°è ªÀiÁvÀæ ¸ÁªÀiÁ£Àå ªÀUÁðªÀuÉ ªÀiÁqÀ¯ÁUÀĪÀÅzÀÄ. E£ÀÄß ªÀÄÄAzÀÉ UÀÆæ¥ï '¹' ªÀÄvÀÄÛ 'r' £ËPÀgÀgÀ£ÀÄß ªÀÄÆgÀÄ ªÀµÀðUÀ¼ÀÄ ºÁUÀÆ ªÉÄîÝeÉð C¢üPÁjUÀ¼À£ÀÄß PÀ¤µÀ× JgÀqÀÄ ªÀµÀðUÀ¼À CªÀ¢üAiÉÆ ¼ÀUÉ ªÀUÁðªÀuÉAiÀÄ£ÀÄß ªÀiÁqÀĪÀAw®è. ¸ÁªÀiÁ£Àå ªÀUÁðªÀuÉ CªÀ¢ü ªÀÄÄVzÀ £ÀAvÀgÀ F PɼÀPÀ AqÀ ¸ÀAzÀ¨sÀðUÀ¼À£ÀÄß ºÉÆgÀvÀÄ¥Àr¹ E£ÁåªÀÅzÉà ¸ÀAzÀ¨sÀðUÀ¼À°è ªÀUÁðªÀuÉ ªÀiÁqÀĪÀAw®è.

1. C¢üPÁj/£ËPÀgÀgÀÄUÀ¼À «gÀÄzÀÞ zÀÆgÀÄUÀ¼ÀÄ zÁR¯ÁV, zÀÆj£À°è ªÉÄïÉÆ ßlPÉÌ ¸ÀvÁåA±ÀªÉAzÀÄ PÀAqÀħAzÀ ¸ÀAzÀ¨sÀðzÀ°è

2. C¢üPÁj/£ËPÀgÀgÀÄUÀ¼À ¤ªÀÈwÛ ºÁUÀÆ ¤zsÀ£À¢AzÀ GAmÁUÀĪÀ SÁ° ºÀizÉÝUÀ ¼À£ÀÄß ¨sÀwð ªÀiÁqÀĪÀ ¸ÀAzÀ¨sÀðzÀ°è

3. C¢üPÁj/£ËPÀgÀgÀÄUÀ¼À ªÀÄÄA§rÛ¬ÄAzÀ SÁ°AiÀiÁUÀĪÀ ºÀÄzÉÝUÀ ¼À£ÀÄß vÀÄA§ÄªÀ ¸ÀAzÀ¨sÀðzÀ°è

4. C¢üPÁj £ËPÀgÀgÀ°è CzÀPÀëvÉ, C²¸ÀÄÛ ºÁUÀÆ PÀvÀðªÀå ¤ªÀðºÀuÉAiÀÄ°è C¸ÀªÀÄxÀðvÉ JAzÀÄ ¸ÀPÀëªÀÄ ¥Áæ¢üPÁgÀPÉÌ PÀAqÀħAzÀ ¸ÀAzÀ¨sÀðzÀ°è E£ÀÄß ªÀÄÄAzÉ ¸ÁªÀiÁ£Àå ªÀUÁðªÀuÉ CªÀ¢üAiÀÄ°è ¥ÀæwAiÉÆ AzÀÄ ±Éæà tÂAiÀÄ ¹§âA¢ ªÀUÀðzÀªÀgÀ£ÀÄß ªÉÄÃ/ dÆ£ï wAUÀ¼ÀÄUÀ¼À°è ¸ÁªÀðd¤PÀ »vÁ¸ÀQÛ¬ÄAzÀ ªÀiÁvÀæ ªÀUÁðªÀuÉ ªÀiÁqÀ®Ä ¸ÀÆa¹zÉ. ¸ÁªÀiÁ£Àå ªÀUÁðªÀuÉ CªÀ¢ü ªÀÄÄVzÀ £ÀAvÀgÀ AiÀiÁªÀÅzÉà PÁgÀtUÀ½AzÀ («±ÉõÀ ¥ÀæPÀgÀtUÀ¼À£ÀÄß ºÉÆgÀvÀÄ¥Àr¹) ªÀUÁðªÀuÉ ¥Àæ¸ÁÛªÀ£ÉAiÀÄ£ÀÄß ªÀÄAr¸À¨ÁgÀzÉAzÀÄ PÀlÄÖ¤mÁÖV ¤zÉÃð²¸À¯ÁVzÉ.

² ¥üÁgÀ¸ÀÄì DzsÁgÀzÀ ªÉÄÃ¯É ªÀUÁðªÀuÉ PÉÆ ÃgÀĪÀ £ËPÀgÀgÀÄUÀ¼À «gÀÄzÀÞ ¹.¹.J. £ÀqÀvÉ ¤AiÀĪÀÄUÀ¼À C£ÀĸÁgÀ ²¸ÀÄÛ PÀæªÀÄ dgÀÄV¸À¯ÁUÀĪÀÅzÀÄ.

ªÉÄîÌAqÀ ¸ÀÆZÀ£ÉUÀ¼À £ÀÄß PÀlÄÖ¤mÁÖV ¥Á°¸À®Ä ¸ÀÆa¸À¯ÁVzÉ."

14. In view of the above and the undertaking given by the Commissioner of BBMP by way of affidavit filed in this case, that the transfers and postings of the employees in Group 'C' and 'D' Cadres, henceforth, would be regulated in terms of the said Circular, I find no justification to interfere with the impugned order of transfer.

Consequently, the challenge to the impugned order fails. However, the Commissioner/Delegated Authority, BBMP, henceforth, shall effect the transfers and postings, in terms of the Circular, extracted supra.

Writ petition is disposed of accordingly. No costs.

Sd/-

JUDGE sac*

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Good Transfer order - Isme Court ne Transfer Me Legal Malice Paya aur Yachi ko Rahat Dee -

Good Transfer order - Isme Court ne Transfer Me Legal Malice Paya aur Yachi ko Rahat Dee - 



Yeh Order bhee ek Najeer bane Supeme Court ke Transfer Order ke aadhaar par nirneet hua hai:
In Sarvesh Kumar Awasthi vs. U.P.Jal Nigam and others, (2003) 11 SCC 740, the Supreme Court held:- 
"In our view, transfer of officers is required to be effected on the basis of set norms or guidelines. The power of transferring an officer cannot be wielded arbitrarily, mala fide on an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned. For better administration the officers concerned must have freedom from fear of being harassed by repeated transfers or transfers ordered at the instance of someone who has nothing to do with the business of administration."
-------------
However, it is definitely within the competence of the Tribunals/Courts to go into the transfer order where the transfer on administrative grounds is not justified of the scales that have been enumerated earlier. In Sarvesh Kumar Awasthi versus U.P. Jal Nigam and Others [2003(11)SCC 740] wherein the Honble Supreme Court has held as under:-

Central Administrative Tribunal - Delhi
Kapil Mohan Sharma vs State Of Nct Of Delhi on 21 October, 2013
      

  

  

 Central Administrative Tribunal
Principal Bench

OA No.1459/2013
Reserved on:31.07.2013
Pronounced on: 21.10.2013

Honble Dr.Birendra Kumar Sinha, Member (A)

Kapil Mohan Sharma,
S/o Shri Chander Bhanu Sharma,
R/o B-732, MIG Flats, East of Loni Road,
Shahdra, Delhi  93. Applicant

(By Advocate: Shri R.K.Sehrawat)

Versus

1. State of NCT of Delhi,
Through its Chief Secretary,
Secretariat, Players Building,
Indraprastha Estate, New Delhi.

2. Directorate of Education,
Through it Director,
Old Secretariat,
Delhi.       Respondents

(By Advocate: Shri Vijaya Pandita)


ORDER 
The instant OA filed under Section 19 of the Administrative Tribunals Act, 1985 is directed against the order of the Respondent No.l dated 25.04.2013 transferring the applicant from Gokhle Marg-SBV (North) to Dhakka  GBSSS (North West A).

2. The case of the applicant is that he was admittedly working as TGT (Natural Science) in Sarvodaya Bal Vidyalaya (SBV) No.1, Mori Gate, Delhi-110 006. It is the case of the applicant that there was one teacher namely Neeta Bahl, Lecturer (Physics), wanted that boy namely Pankaj, who had been found indulging in gross indiscipline to the extent of when having a can of beer in his hand on a particular occasion. One Braham Prakash, father of Pankaj, applied and was granted Transfer Certificate (TC) at his own volition. Now, he wanted re-admission of his ward in the same school. His case was espoused by Neeta Behl, who misbehaved with the applicant in presence of the Head of the School. The applicant further complained that earlier also he had filed complaints against said Neeta Behl, who exceeded her jurisdiction and insulted him on many occasions. The case of the applicant was supported by the Head of the Institution. The complaint of the applicant was twice enquired into, the first time by one Dr. Neeraj, Principal, Shaheed Amir Chand Govt. Sarvodaya Vidyalaya, Sham Nath Marg, Delhi and the secondly by two lady Principals/HOS who, after following the due procedures under the rule of natural justice, supported the version of the applicant.

3. In the meanwhile, the applicant was promoted to the post of Lecturer (Political Science) vide order dated 26.09.2012 and was transferred to Govt. Boys Senior Secondary School, ID No.1309009, Dhaka. However, the applicant was transferred from GBSS, Dhaka to SBV Gokhle Marg, New Delhi in partial modification of the office order dated 26.09.2012 by issuing a corrigendum dated 12.10.2012. On 18.10.2012, the applicant was relieved from Mori Gate No.1 SBV to take up his assignment at Gokhle Marg SBV. On 23.04.2013, said Neeta Bahl was also transferred on the administrative grounds from SBV No.1, Mori Gate to Roop Nagar, No.1-GGSSS (North). On 25.04.2013, the applicant was again transferred by the impugned order from SBV, Gokhle Marg North to Dhakka-GBSSS North-West-A.

4. The applicant has taken the plea that he was the injury party as said Neeta Bahl misbehaved with him on more than one occasion. His stand has been totally supported by the report of the Head of the School and also by the two Inquiry Reports, as mentioned earlier. However, instead of taking action against the said Neeta Bahl, who had used political influence, the Director of Education had to transfer the applicant on the basis of the report of the enquiry officer, who conducted the inquiry at the back of the applicant and without even having associated the applicant or the school teachers. It is the further case of the applicant that he was not furnished the report of the inquiry officer and was transferred out. In the second place, he also questioned the administrative propriety of the action. He had already been transferred out on the place of conflict that being SBV No.1, Mori Gate. Hence, there was no administrative purpose involved in transferring him out from his subsequent assignment at SBV (ID No.1207014-North). In the third place, the said Neeta Bahl had been working in the SBV No.1, Mori Gate for last 18 years and her transfer was fully justified on account of the complaints against her as established in the different inquiry report and also the report of the HOS. The applicant has, therefore, sought the following reliefs:-

(a) Quash/set aside the transfer order No.DE.2(8)(189)/E-2/2008/6108-12 dated 25.04.2013 passed by the Directorate of Education whereby the applicant is transferred from SBV, Ghokhle Marg (1207014) North to Dhakka-GBSSS (1309009) North-West-A;

allow the cost of litigation;

Pass any order or further order which this Honble Court may deem fit and proper in the facts and circumstances of this case.

5. The respondents have filed their counter affidavit wherein they have taken up the stand that who should be posted where is the prerogative of the employer and, in view of catena of judgments of Honble Supreme Court, the Tribunals/Courts should not normally interfere in such process. The submission of the respondents is that the transfer has been indicated on the basis of the inquiry report conducted by one Suman Kataria, Dy. Director of Education (West), who submitted her report on 14.12.2012 recommending that both the teachers be transferred. The instant Transfer has, therefore, been taken on administrative grounds in response thereof. In support of this, the respondents have relied upon the earlier cases of State of M.P. Vs. Sh. S.S.Kourav & Ors [1995 (3) SCC 270], S.C.Saxena Vs. Union of India [(2006) 9 SCC 583], Shilpi Bose (Mrs.) vs. State of Bihar, [1991 Supp (2) SCC 659], Union of India Vs. S.L.Abbas [1993, Vol.3, SCC 357], National Hydroelectric Power Corpn. Ltd. Vs. Shri Bhagwan, [2001 Vol. 8 SCC page 574], Union of India Vs. H.N.Kirtania [(1989) 3 SCC 445] and State of UP Vs. Goverdhan Lal [(2004 11 SCC 402)].

6. The sole issue in the instant case to be decided is that whether this transfer is justified on administrative grounds or is marred by procedural malice? It is well admitted that the applicant had served as TGT (Natural Science) SBV No.1, Mori Gate, Delhi  110 006 where he had strong differences with one Neeta Bahl. It further appears that the grievance is related to encroachment of the applicants rights by said Neeta Bahl in the form of encircling his attendance sheets. The issue appears to have risen over the matter of admission of one Pankaj, who had earlier taken TC following series of complaints against him. It is further admitted that the Head of the School appears to have supported the version of the applicant as would be apparent from his report to the TGT, North Lucknow Road, Delhi  6. He holds that the complaint of the said Neeta Bahl using unparliamentary language was not substantiated. To the contrary, the complaint of behaviour of Neeta Bahl against the applicant was unacceptable, which reads as under:-

4. Same day or the day after that Mr. Brahm Prakashs complaint come in light. Mr. Braham Prakashs ward Pankaj was a student of this school from 6th class and asked for SLC last year. Undersigned got so many complaints regarding bad behavior of Pankaj from his class colleagues and other students that he has been snatching money from other students, beating them and even on one occasion our school peon Mr. Surender saw him having a can of beer in his hand. Mr. Surender tried to capture him but he escaped from school premises by jumping over school boundary wall. Mr. Braham Prakash who was a PTA official too himself was worried of his ward activities and thus thought of shifting his ward to any of his relative and thus applied for SLC of his ward.

Till the time Mr. Braham Prakash applied for SLC of his ward he never complained of using any case based words or any type of bad behavior by any of my staff member neither in PTA meetings nor in personal to me. In the application for SLC in the column of reason he did not mentioned bad behavior of any of may teacher due to which he was forced to leave the school.

7. I took the suggestion from Kapil Mohan Sharma and Mr. Promod Kumar Sharma (Admission incharge) in this respect who after confirmation suggested me to request Mr. Braham Prakash and his sister to take approval of Honourable Director of Education as none up to the level of D.D.E. or R.D.have the power to make admission in the month of December.

I communicated the same to Mr. Braham Prakash and his sister and they further went to Mrs. Neeta Bahl for help. Mrs. Neeta Bahl promised me that she shall help Mr. Braham Prakash for seeking the permission from Director of Education using her political links and till then she requested to allow Pankaj to sit in the class and give him provisional admission.

8. Mrs. Neeta Bahl could not bring the permission from Director of Education and gave a letter from Honorable HRD minister Sh. Kapil Sibbal at the end of February. She threatened me that on behalf of that letter I have to allow Pankaj to sit in examination or me has to face the charge of spoiling career of a scheduled caste student.

9. A lawyer placed a RTI application in the end of March, 2012 asking questions regarding this admission as a result of which Mrs. Neeta Bahl and Mr. Braham Prakash made these complaints against Mr. Kapil Mohan Sharma, Mr. R.T.Sharma and Mr. Pramod Kumar Sharma (Admission In charge).

7. The Principal has given statement to the single effect to the S.H.O. Kashmiri Gate, Police Station. The applicant in his rejoinder has submitted the copy of the Inquiry Report by the Committee comprising of two lady Principals. The relevant para of the report is self-contained, which reads as under:-

In this connection, it is pertinent to mention that earlier a complaint was received from Shri Kapil Mohan Sharma also against Mrs. Neeta Bahl, PGT (Physics) with the following allegations:-

1. That Mrs, Neeta Bahl, PGT (Physics) herself and with the help of some parents have been making forged complaint in police against him and other staff members.

2. That Mrs. Neeta Bahl, PGT (Physics) made charge against him of using un parliamentary language in the presence of Principal and other staff members. Principal and staff members denied her allegations stating this allegation baseless and same report was send to the Police officials. Now she instigated Mr. Braham Prakash father of a student for making allegation against him and other staff members under SC/ST (Prevention of Atrocities) Act.

In the inquiry report, it has been concluded that :-

The Committee is of the firm opinion that the complaint of Shri Kapil Mohan Sharma is very genuine. Evidences clearly indicate that Mrs. Neeta Bahl misused her gender and misbehaved with Shir Kapil Mohan Sharma and manipulated and lodge the complaints in the police station contrary to general belief of harassed person being harassed. Not only that Mrs. Neeta Bahl is misguiding and instigating the students and parents to get cheap popularity. Here are much evidences to establish that Mrs. Neeta Bahl may go to any extent to maintain her supremacy and to pressurize the male staff members and principal of the school. She mingle with them and went to their colony as is evident from her threat as stated by Vice Chairman of PTA and supported by General Secretary of PTA who happens to be a female too.

From the above, it appears that there is some conflict going on between these two officials and due to personal feud they are making allegations and counter allegations against each other. In view of above, it may be in the fitness of the things that both the officials should be transferred from the School. Further, it is learnt from the bio-data of the official that Shri Kapil Mohan Sharma has already been transferred to SBV, Gokhle Marg, Delhi on promotion as PGT.

8. It is very true that in the matters of transfer, the Courts/Tribunals are not required to intervene. In normal circumstances, intervention of the court would be only confined to such cases where either malafide is alleged and proved or there is a violation of some statute or where the laws of natural justice have not been respected. It is fully considered that the courts are not to go into the issue like justification of the administrative orders. However, it is definitely within the competence of the Tribunals/Courts to go into the transfer order where the transfer on administrative grounds is not justified of the scales that have been enumerated earlier. In Sarvesh Kumar Awasthi versus U.P. Jal Nigam and Others [2003(11)SCC 740] wherein the Honble Supreme Court has held as under:-

3. In our view, transfer of officers is required to be effected on the basis of set norms or guidelines. The power of transferring an officer cannot be wielded arbitrarily, mala fide or an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned. For better administration the officers concerned must have freedom from fear of being harassed by repeated transfers or transfers ordered at the instance of someone who has nothing to do with the business of administration. In Somesh Tiwari Vs. Union of India & Others [AIR 2009 SC 1399], the Honble Supreme Court has held as under :-

19. Indsiputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds- one malice in fact and the second malice in law.

20.. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal.

9. It is for the Tribunal to ensure that the administrative authorities do not run contrary to the instructions and settle their scores with the employee by transferring them without any justification. It is also to be remembered that frequent transfers can also break the morals of an employee that is the reason norms of transfer have been set in two organizations. These norms are normally to be respected as such.

10. The facts narrated above clearly reveal that there were strong differences between the applicant and the said Neeta Bahl over the number of issues including the issue of admission of one Pankaj. The report of the Principal clearly initiated that the said Neeta Bahl pressurized the School Authority to admit Pankaj. Ultimately, the stand of the applicant and the school authority prevailed in as much as Pankaj could not procure admission after the stand of the applicant having been by the two successive Committees yet another Committee was set up. I am left wondering that even when the reports of the earlier two Committees were on record then where was the necessity to set up the third Committee. I also find that learned counsel for the respondents has nowhere in the counter affidavit covered the allegations of the applicant pertaining to violation of principles of natural justice and not involving him in the inquiry by Suman Kataria Committee.

11. I further take note of the fact that the applicant had already stood transferred out of the place of conflict on 18.10.2012 and not later on account of their promotion as soon as one of the conflicting parties was removed from the scene. The code of Administrative action was over. The administration has rightly transferred said Neeta Bahl from the school of Mori Gate as she has been serving there for 18 years.

11. It is admitted fact that the applicant has been transferred from present post SBV North to Dhakka-GBSSS prior to completion of ten years. It only indicates that somehow the authority was determined to find some kind of equity to conflicting party being the applicant and said Neeta Bahl. There cannot be an equity between the wrongdoer and his victim. Any system that is not able to differentiate between the two is basically unjust. Admittedly report submitted by the two lady Principals copy of which has been submitted by the respondents has followed the processes prescribed for inquiry. To the contrary the Suman Kataria Committee has not involved the applicant or the school authorities equating the injured with the wrongdoer. Therefore, to disregard this report and to rely upon the report of the said Suman Kataria is tantamount to the injury whatever conflict that might have existed stood resolved with the transfer of the applicant on promotion to Government Boys School, Dhakka on 26.09.2012. There is no administrative ground served by transferring the applicant from the SBV, Mori Gate.

12. In totality of facts and circumstances of the case, I am of the considered view that the impugned order is hit by legal malice and is not sustainable being bad in law. Therefore, the impugned transfer order dated 25.04.2013 is quashed and set aside. Resultantly, the instant OA stands allowed with no order as to costs.

( Dr. Birendra Kumar Sinha ) Member (A) uma



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Good Transfer Order - - नजीर ट्रांसफर ऑर्डर, कोर्ट सामान्यत ट्रांसफर में दखल नहीं देती लेकिन जब दुर्भावना , गाइड लाइन के विपरीत , या प्रशासनिक या पब्लिक आवश्यकताओं को देखे बगैर ट्रांसफर में अड़चन आती है तो फिर कोर्ट दखल दे सकती है , उसे श्रेणी में ट्रांसफर का यह आर्डर भी बना है एक नजीर

Good Transfer Order - - 
नजीर ट्रांसफर ऑर्डर, कोर्ट सामान्यत ट्रांसफर में दखल नहीं देती  लेकिन जब दुर्भावना , गाइड लाइन के विपरीत , या प्रशासनिक या पब्लिक आवश्यकताओं को देखे बगैर ट्रांसफर में अड़चन आती है तो फिर कोर्ट दखल दे सकती है , उसे श्रेणी में ट्रांसफर का यह आर्डर भी बना है एक नजीर 




In Sarvesh Kumar Awasthi vs. U.P.Jal Nigam and others, (2003) 11 SCC 740, the Supreme Court held:- 
"In our view, transfer of officers is required to be effected on the basis of set norms or guidelines. The power of transferring an officer cannot be wielded arbitrarily, mala fide on an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned. For better administration the officers concerned must have freedom from fear of being harassed by repeated transfers or transfers ordered at the instance of someone who has nothing to do with the business of administration." 
***********
and the writ petitions are allowed. In the circumstances of the case, there shall be no order as to cost
************




HIGH COURT OF JUDICATURE AT ALLAHABAD 

RESERVED 

Civil Misc. Writ Petition No. 35092 of 2005 
Sarvendra Singh......................................................Petitioner 
Versus 
State of U.P. and others........................................Respondents. 

Connected with 

1. Civil Misc. Writ Petition No. 35082 of 2005 
Raj Kumar Singh Rathore..........................................Petitioner 
Versus 
State of U.P. and others........................................Respondents. 

And 
2. Civil Misc. Writ Petition No. 35089 of 2005 
Chheda Lal Sharma..................................................Petitioner 
Versus 
State of U.P. and others........................................Respondents. 

******** 

Hon.Tarun Agarwala,J. 

Three Sub Inspectors posted in district Badaun have been transferred to various places by separate orders. They have filed separate writ petitions challenging the transfer order on identical grounds. Consequently, all the three writ petitions are being decided together. For facility, the writ petition of Sarvendra Singh is being taken as the leading case and the affidavits in this petition is being referred to in the judgement. 
The petitioner, Sarvendra Singh, was working as a Sub Inspector in District Badaun and has been transferred by an order dated 11.4.2005 issued by the Inspector General of Police(Establishment), U.P., Lucknow to A.S.I.O. Rihand in district Sonebhadra. By another order of the same date, the petitioner was relieved. The petitioner, Raj Kumar Singh Rathore, was working as a Sub Inspector and has been transferred by an order dated 12.4.2005 issued by the Inspector General of Police (Establishment), U.P. from Police Station Wazirgarh, district Badaun to Inter State Border Force. By another order of the same date, the petitioner was relieved by the Senior Superintendent of Police Badaun. The petitioner Cheda Lal Sharma was working as a Sub Inspector and was transferred from Kotwali Ujhani to Economic Crime Branch, Lucknow by an order dated 12.4.2005 issued by the Inspector General of Police, U.P., and by another order of the same date, he has been relieved by the Senior Superintendent of Police. 
All the three petitioners contend that they had recently been posted in 2004 and, that within a year, they have again been transferred at the behest of a Minister and an M.L.A. of the ruling party and, therefore, the transfer order which had been passed on political pressure, was purely malafide and liable to be quashed. The petitioner's further contended that the transfer order was also in violation of the transfer policy. The petitioner's were entitled to remain in a particular district for a period of five years, whereas, the petitioner's were being transferred within a year. The petitioner's further alleged that the transfer was neither in public interest nor was issued on administrative grounds and, was issued on the political grounds. 
The petitioner's alleged that one Sri Banwari Singh Yadav, State Minister for Protocol Civil Aviation and State Property and Sri Onkar Singh Yadav, M.L.A., Samajwadi Party had written a letter dated 4.4.2005 to the Chief Minister, stating therein, that the petitioner Sarvendra Singh is a Khattri by caste and was not looking after the interest of the workers of the Samajwadi Party and that the interest of the Samajwadi Party was at stake and, therefore, he should be transferred to some other place so that the interest of the Samajwadi Party was not disturbed. Similar letters were written by the Minister and the M.L.A. complaining about the other two petitioners. The petitioner's submitted that based on these letters, the Inspector General of Police, Lucknow had issued the transfer orders which was sent to the Senior Superintendent of Police by Fax and the petitioners were relieved on the same date by the Senior Superintendent of Police, Badaun. 
A counter affidavit has been filed on behalf of respondent nos.1 to 5 denying the allegations made in the writ petition. In paragraph 5 of the counter affidavit, the respondents have contended that the Government is functioning in a computer age and that once the order of transfer was passed, the same was sent through Fax and, therefore, there was nothing wrong in relieving the petitioners on the same date by the Senior Superintendent of Police. The transfer order has been passed as per "the command" issued by the Inspector General of U.P., Lucknow and the same has been carried out by the Senior Superintendent of Police. The respondents further alleged that the order of transfer was passed in the exigency of the administration of the service and that no reasons were required to be given in the order of transfer. The respondents further submitted that no political pressure was mounted in transferring the petitioners and that the Sub Inspector of Police was not such a big authority for whose transfer a political pressure was required to be mounted. The transfer of any particular employee was the prerogative of an officer who had power to transfer him. In paragraph 8 of the counter affidavit the respondents have stated that the transfer order of the petitioner was made in a routine manner because the petitioner Sarvendra Singh was a competent and efficient officer and was required to be posted at Sonebhadra. In paragraph 9, the respondent admits that Badaun was a V.V.I.P. place because the Chief Minister, had once represented the Sambhal Parliamentary constituency and now his cousin was representing this constituency. In paragraph 10 the respondents alleged that the guidelines has no statutory force and that the transfer had been made in public interest. 
For facility, certain portions of some of the paragraphs of the counter affidavit are quoted herein:- 
"That the contents of paragraphs 5, 6 and 7 of the writ petition are not admitted in the manner as are stated hence denied. In reply thereto it is submitted that the petitioner is surprising just for nothing because now a days the Government is functioning in computer age. Once the order of transfer is passed, the same are sent through fax and because the order of transfer dated 12.04.2005 was containing that the petitioner shall be relieved forthwith. The petitioner was relieved on 12.04.2005 by the Senior Superintendent of Police in compliance to the order of transfer dated 12.4.2005 issued by the Inspector General of Police (Establishment) U.P. at Lucknow. Compliance of the order issued by the Higher Authorities does not come within the purview of any kind of adverse because once the order of transfer has been passed as per command issued by the Inspector General (Establishment) U.P. At Lucknow, the Senior Superintendent of Police has rightly relieved the petitioner forthwith after receiving the order of transfer dated 12.04.2005. As such the contrary averments made by the petitioner in paragraphs under reply are totally misconceived hence denied. The order of transfer is passed in exigencies of administration of service. No reasons are required to be assigned in the order of transfer. It is further relevant to make a mention here that no political pressure has been mounted in transferring the petitioner. Sub-Inspector of Police is not such a big authority for whose transfer political pressure has been mounted in transferring the petitioner. Sub-Inspector of Police is not such a big authority for whose transfer political pressures are mounted. The transfer of any particular government servant is the prerogative of the Officer who has been empowered to transfer him. However, the contrary averments made by the petitioner in paragraphs under reply are totally misconceived hence denied. 

In routine manner the petitioner has been transferred from Badaun to Local Intelligence Unit, Rihand Bandh, Sonbhadra. It is further relevant to mention here that Local Intelligence Unit, Rihand Bandh, Sonbhadra is very important branch of Civil Police, where the competent and efficient officers are required to be posted. The petitioner has been awarded and has been brought in the category of most efficient Police Officer, and therefore, he has been selected for posting in Local Intelligence Unit, Rihand Bandh, Sonbhadra. 

That in reply to the contents of paragraph 10 of the writ petition it is submitted that no doubt earlier the Chief Minister has represented the Sambhal Parliamentary Constituency and now his cousin is representing and no doubt the district Badaun is said to be V.V.I.P. place , but that is no basis for drawing any inference as referred by the petitioner, that the petitioner transfer has been made on account of any political pressure. If the Chief Minister is cause of transfer, then he is the Chief of the State dignitary and nothing is personal. The Chief Minister has got very vital issue to be considered and it is very surprising that a Sub-Inspector is making such allegations by taking name of Chief Minister, and Members of his family only in order to obtain interim order in his favour from Court of Law." 
A supplementary counter affidavit dated 22.5.2005 sworn by Sri Kiran Pal Singh, Deputy Superintendent of Police, was filed. In paragraph 4 of the affidavit, it was alleged that the transfer had been issued at the behest of the Principal Secretary, Home, Government of U.P. on the basis of the need and the exigency of the service. Another supplementary counter affidavit by respondent no.3 dated 16.5.2005 sworn by Shiv Shanker Singh, Superintendent of Police, Allahabad was filed, stating therein, that the transfer of the petitioner was made in pursuance of the transfer policy and that the petitioner, Sarvendra Singh, was posted in Badaun from 10.10.1985 to 23.8.1991 and thereafter again from 12.6.2004 to 12.4.2005 and, therefore, was posted in Badaun for a total number of 6 years, 8 months 12 days and, therefore, was liable to be transferred to another place. 
Another supplementary counter affidavit dated 23.5.2005, sworn by Sri Shrikant Singh, Additional Superintendent of Police, was filed, in which two letters dated 16.5.2005 written by Sri B.S.Yadav, State Minister and Sri Onkar Singh Yadav, M.L.A. were written to the Government Advocate, High Court, Allahabad stating therein that they had never issued the letters to the Chief Minister and that it transpires that a computer generated signature had been manufactured on their letter pad. 
Initially, when the writ petition was entertained, notices to the Minister and M.L.A. was not issued but, subsequently after the aforesaid letters had been filed through respondent Nos.1 to 5, this Court issued notices to the Minister as well as to the M.L.A. who appeared and filed a common counter affidavit. In their counter affidavit, the Minister and the M.L.A. have reiterated that they had never written the letter and that the said letter was a forged document on account of the fact that the said letter does not contain any despatch number or reference number. The counter affidavit further stated that they are close relatives and that they interact with each other and, therefore, the question of writing two separate letters does not arise. 
Heard Sri P.N.Saxena, the learned Senior Advocate assisted by Sri S.C.Dwivedi, the learned counsel for the petitioner and Sri Adesh Agarwal, the learned Additional Advocate General assisted by Sri V.K.Rai, Standing Counsel for respondent nos.1 to 5 and Sri Vijendra Singh, the learned counsel appearing for the Minister and the M.L.A. 
An allegation of political pressure has been levelled by the petitioners. The petitioners categorically stated that the Minister and the M.L.A. had written letters to the Chief Minister alleging that the petitioners were not looking after the interest of the Samajwadi Party workers as they belonged to a different caste and, therefore, they should be transferred to another place. Respondent nos.1 to 5 have denied this fact and submitted that the petitioner's had been transferred in public interest as well as on administrative grounds, on account of the exigency of service, as they were required elsewhere because they were good police officers. Strangely, respondent nos.1 to 5, annexed letters dated 16.5.2005 written by the Minister and M.L.A. even when this Court did not issue any notice to the Minister or the M.L.A. Annexing the letters of the Minister and the M.L.A. signifies that the police authorities had either approached the Minister and the M.L.A. or the Minister and the M.L.A. had approached the police authorities. One thing is clear, that the Minister and the M.L.A. were working in tandem with the police authorities. There was a link between them. This creates a suspicion with regard to their modus operandi and the functioning of the Ministers and the M.L.As. with the other authorities. 
The Minister and the M.L.A. filed their counter affidavit denying the issuance of the letters annexed in the writ petition and contended that those letters are forged and that a computer generated signature had been obtained on their letter pads. The Minister and the M.L.A. categorically stated that the letters are forged as it does not contain any dispatch number or reference number, whereas, all theirs letters contains a dispatch and reference number. 
Ministers and M.L.A. are elected by the people. When a Minister or an M.L.A. comes forward and makes a statement on an affidavit, there is no reason for the Court to doubt the veracity of their statements. But, on a closer scrutiny, this Court finds that the reasons given by them that their letters are forged documents is not entirely correct for the simple reason, that if all their letters contains a dispatch number or a reference number, in that situation, the letters written by them dated 16.5.2005 addressed to the Government Advocate High Court, Allahabad should also have contained the dispatch number and/or the reference number. Those letters do not contain any dispatch number or reference number. Those letters have been annexed by the respondents in their counter affidavit. Consequently, I am unable to agree with the statement made by the Minister and the M.L.A. that the letters annexed to the writ petition are forged. In my opinion, the stand taken by the Minister and the M.L.A. are contradictory. The affidavit filed by them are not reliable. Ministers and M.L.A. are elected by the public. The public reposes confidence in them. They have an onerous task upon them in fulfilling the desires and wishes of the people. To the public at large, the Ministers and the M.L.A. are called "honourable men". But are these "honourable men" acting fairly? Are they coming forward with clean hands ? Marc Anthony in Shakespeare's "Julius Caesar" sarcastically referred to shrewd and corrupt politicians and custodians of public office as "honourable men". The same situation exists in modern day times. 
It should not be lost sight of the fact that the sitting Member of the Parliament of Sambhal Parliamentary constituency is the brother of the present Chief Minister. This constituency comes in district Badaun. The M.L.A. has been elected from the Gunnaur Vidhan Sabha which comes under the Sambhal constituency. The State Minister is also from this area. This district Badaun is, therefore, a V.V.I.P. area, as admitted by the respondents themselves. Therefore, from a perusal of the record and from the affidavits filed, it is a clear case, where the transfer order has been issued at the behest of the political leaders. 
There is another aspect. The language and the tone of the contents of the counter affidavit indicate the mindset and the attitude of the respondents. The usage of the words, "nowadays the Government is working in computer age", "order of transfer sent through fax", "transfer as per the command issued by the Inspector General", " Sub Inspector of Police is not such a big authority" and "if the Chief Minister is the cause of transfer, then he is the Chief of the State dignitary and nothing is personal", speaks volumes of the attitude and high handedness of the authorities in tackling this matter. The tenor of the language in the counter affidavit is indicative of the brazen attitude adopted by the respondents in the handling of the situation in the present writ petition. The tone and the tenor in counter affidavit has, to a large extent, helped the cause of the petitioners. The petitioners has, therefore, been successful in proving the malafides. 
The respondents have stated that the petitioners were transferred on the exigency of service and at the behest of the Principal Secretary, Home. The record has been produced by the Additional Advocate General who invited the attention of the Court to a letter dated 6.4.2005, written by the Principal Secretary to the Inspector General U.P., Lucknow, which indicated that a request had been made to fill up the vacant posts. This letter does not indicate anything with regard to the transfer of the petitioner's on account of the need and exigency of service. The record does not indicate that the transfer of the petitioners was made on the basis of the letter of the Principal Secretary, Home. Consequently, the submission of the respondents that the petitioners were transferred at the behest of the Principal Secretary is patently erroneous. 
The respondents have justified their stand stating that the transfer of the petitioners was in accordance with the guidelines dated 16.11.2004 and 2.12.2004. According to the respondents, the petitioner, Sarvendra Singh, was posted in Badaun for a total period of 6 years, 8 months and 12 days and, therefore, in view of the transfer policy, the petitioner having worked for more than 6 years, was liable to be transferred. Paragraph 2 of the policy dated 16.11.2004, indicates that a Police Officer can serve in one district for a maximum period of 10 years. Therefore, according to the respondents, the petitioner Sarvendra Singh remained in Badaun for a total length of 6 years, 8 months and 12 days and had not completed 10 years of posting in that district. Therefore, the respondents were not justified in stating that the transfer of the petitioner was in accordance with the transfer policy. 
The respondents have also made an attempt to state that the transfer policy had no statutory force and, therefore, no reliance can be taken on this policy by the petitioner. In my view, the submission raised by the respondents is totally erroneous. Even though the transfer policy has no statutory force, nonetheless, it is binding upon the authorities. In Virender S. Hooda and others vs. State of Haryana and others, JT 1999(5)SC 621, the Supreme Court held:- 

"The view taken by the High Court that the administrative instructions cannot be enforced by the appellant and that vacancies became available after the initiation of the process of recruitment would be looking at the matter from a narrow and wrong angle. When a policy has been declared by the State as to the manner of filling up the post and that policy is declared in terms of rules and instructions issued to the Public Service Commission from time to time and so long as these instruction are not contrary to the rules, the respondents ought to follow the same." 

In Home Secretary,U.T. Of Chandigarh and another vs. Darshjit Singh Grewal and others (1993)4 SCC 25, the Supreme Court held that the policy guidelines are relatable to the executive powers of the administration and having enunciated a policy of general application and having communicated to all concerned, the administration was bound by it till such time as the policy was changed. 
In Smt. Deepa Vashishtha vs. State of Uttar Pradesh and another, (1996)1 UPLBEC 54, a Division Bench of this Court held that the department is bound by its transfer policy till such time as the guidelines are changed. 
In Phoola Devi vs. State of U.P. And others, 1999(1) AWC 179, this Hon'ble Court held:- 

"In my opinion, if politicians keep ordering transfers and postings the result will be the total collapse of administration and opening of the floodgates for corruption and crime. The time has come when this practice of politicians ordering transfer and postings must be stopped and we must follow the British system where the bureaucracy is really independent and non-political and can function without political interference." 

In Lokesh Kumar vs. State of U.P. And others, 1998(1)A.W.C. 27(L.B.), this Hon'ble Court held:- 

"Public interest is not abstract to be found in the Dictionaries but must be obvious and visible. Politicising services would be unproductive and detrimental against the interest of the country." 


In Pradeep Kumar Agarwal vs. Director, Local Bodies, U.P. IV, Lucknow and others,(1994)1UPLBEC 189, a Division Bench of this Court held- 
"It would be appropriate to observe here that in a democratic set up like ours, bureaucrats are expected to act and discharge their executive functions impartially and strictly in accordance with the Rules and Regulations. No doubt, as of right no Government servant can claim to be posted either on a particular station or post, therefore, the transfers are to be done only in administrative exigencies and in public interest, but in the instant case the letter written by the aforesaid M.P. addressed to Minister for Urban Development bearing endorsement of the officers of the State Government, indicates that instant transfer has neither been made in administrative exigency nor in public interest. It is not only a matter of surprise but highly objectionable that bureaucrats are dancing at the tunes of such letters ignoring the well settled norms meant for transfer." 

In Dr. Bal Krishna Bansal vs. State of U.P. and others, 1996(Suppl.)A.W.C.441, State of U.P. And others, a Division Bench of this Court held that the transfer order passed at the behest of the local M.L.A. is not a transfer order in public interest but is an order in personal interest. 
In my view, the aforesaid principles propounded squarely applies to the present facts and circumstances of the case. 

In Sarvesh Kumar Awasthi vs. U.P.Jal Nigam and others, (2003) 11 SCC 740, the Supreme Court held:- 
"In our view, transfer of officers is required to be effected on the basis of set norms or guidelines. The power of transferring an officer cannot be wielded arbitrarily, mala fide on an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned. For better administration the officers concerned must have freedom from fear of being harassed by repeated transfers or transfers ordered at the instance of someone who has nothing to do with the business of administration." 

In view of the aforesaid, the transfer order is malafide and has been issued at the instance of the politicians against efficient officers who were not toeing the line of the political bosses. In my opinion, the transfer order has been issued in a brazen manner unabashedly at the instance of a Minister and a M.L.A. Although the Courts are reluctant to interfere in the transfer orders, yet in view of the fact, that the transfer order has been issued malafidely at the behest of the Minister and the M.L.A., this Court has no option but to interfere with the transfer order, coupled with the fact that the transfer order was also against the guidelines framed by the department itself. 
In view of the aforesaid, the impugned transfer orders are quashed and the writ petitions are allowed. In the circumstances of the case, there shall be no order as to cost. 

Dated: 25.8.2005 
AKJ. 





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