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."
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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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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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