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CASE NO.: Appeal (civil)  408 of 2004

PETITIONER: State of U. P. & Ors.

RESPONDENT: Gobardhan Lal

DATE OF JUDGMENT: 23/03/2004

BENCH: Doraiswamy Raju & Arijit Pasayat.

JUDGMENT: J U D G M E N T

W I T H

CIVIL APPEAL No.409 OF 2004

D.B. Singh                                 Versus D.K. Shukla & Ors.                          

D. Raju, J.

       Since the challenge in these appeals relates to identical orders, they are  dealt with together.  In Civil Appeal No.408/2004, one Zila Desh Bhakta Society,  Meerut (U.P.), has filed an application for intervention.  In our view, the same  does not deserve to be countenanced having regard to the nature of the rights  and grievance involved for consideration in these appeals.  Hence, the  application is rejected.   

Civil Appeal No.408 of 2004:

       This appeal has been filed by the State of U.P. and others, who were  arrayed as respondents before the High Court, against the order dated 3.4.2000  of a Division Bench of the Allahabad High Court in Civil Misc. Writ Petition  No.2893 of 2000, whereunder the writ petition filed challenging the transfer of the  respondent came to be disposed of with certain directions \026 general and far- reaching in nature - affecting the rights of the Government and various officers of  the Government in the administrative hierarchy to pass orders of transfer of  Officers/Servants serving under them.  The salient and necessary facts relating  to the appeal are that the respondent, who was working as District Supply  Officer, Meerut, came to be transferred by an Office Order dated 8.12.1999 by  the Secretary, Food and Civil Supplies Department of the Government, to Head  Office \026 Office of Food Commissioner at Lucknow.  This Office Order involved  the posting of not only a substitute to the respondent at Meerut but the transfer of  another officer as well.  The grievance with which the said transfer order came to  be challenged before the High Court was that though by an order dated  10.4.1999 the respondent, who was serving at Unnao, was transferred to Meerut  and joined as such, he came to be transferred again by the impugned order due  to political pressure and influence, particularly that of the local MLA by name Atul  Kumar, to the Head Office at Lucknow in order to help another to be posted in his  place.  It seems to have been urged further that the District Magistrate of Meerut  has commended the services of the respondent in dealing with the public and  despite such views expressed, the transfer order came to be made for  extraneous purposes, at the behest of and in order to oblige the local MLA.   Carried away by the copies of the letters filed as Annexures before the High  Court, allegedly written by the MLA, the Court, while issuing notice, seems to

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have granted interim orders of stay as well.  The respondents filed counter  affidavit disputing the claims made in the Writ Petition as to the alleged motives  and baseless accusations relating thereto, and as found noticed in the order  under challenge, it was categorically asserted for the respondents before the  High Court that the so-called letter said to have been written by the MLA is a fake  one and it was neither written by him nor was it available in the files.  That apart,  it was also, among other things, contended that the performance of the  respondent in the previous stations as well came under a cloud and as a matter  of fact, he was suspended on 10.2.1997 for alleged serious irregularities and  misconduct while he was District Supply Officer at Hamirpur and Gonda.   Though, subsequently reinstated on 11.7.1997 and departmental proceedings  instituted were pending, once again he was said to have been suspended on  15.12.1997 for irregularities committed and reinstated on 20.3.1999, subject to  the condition that the departmental proceedings pending against him will  continue and as a matter of fact, two departmental proceedings were said to be  pending against him.  The respondent (Writ Petitioner before the High Court)  himself is said to be the real brother of an MLA, by name Shri Ram Pal Verma,  and through him and another MLA he was said to be bringing a lot of pressure to  bear on the authorities, at every stage to get favourable treatment.   In the light of  the above and the further claim made that the criminal proceedings have also  been sanctioned against him, it was contended that his transfer was purely in  public interest and necessitated by the exigencies of service to keep him away  from the field work and to take him into the Head Quarters Office on the  administrative side.

       The learned Judges of the Division Bench, after adverting to these claims  and counter claims made in the pleadings, though observed that in view of the  conflicting statements in the affidavits, it was not possible for them to decide the  disputed question of facts in writ jurisdiction as to whether the transfer order was  passed due to political pressure or not, the Bench, in our view, fell into an error in  attempting to lay down general principles relating to transfers and postings of  Government Servants keeping in view, as found noticed in the order under  challenge, some large-scale transfers said to have been taking place due to  political interference in the State as disclosed from certain proceedings said to  have been brought before the Court as well as some of the newspaper reports.   As part of its attempts and endeavours to obviate such happenings, the High  Court has not only directed the respondent to approach the Chief Secretary with  a representation as to his grievance besides making a consequential direction to  Chief Secretary to dispose of the same, but also issued the following directions: -

"Hence in such cases it is better for the government  servant to approach the Chief Secretary, U.P.  Government, and this internal mechanism will be better  for this purpose.  The Chief Secretary is a very senior  government officer with sufficient maturity and seniority  to withstand political or other extraneous pressure and  deal with the issue fairly and we are confident that he  will do justice in the matter to civil servants.  This will  also avoid or reduce the floodgate of litigation of this  nature in this Court.  As regards Class-I Officers, the  Civil Service Board shall be constituted for dealing with  their transfers and postings (as already directed by us  above)."

       Hence, this appeal.

Civil Appeal No.409 of 2004:               This appeal has been filed by the appellant, who was respondent No.3 in  the High Court in Civil Miscl. Writ Petition No.7429 of 2000, which came to be  filed by the first respondent herein challenging the promotion and appointment of  the appellant as Director of U.P. Local Fund and Audit Department.  It is  unnecessary for us to advert to the respective claims of parties for the reason  that when the Writ Petition came up for hearing, the very Division Bench, which  dealt with the other Writ Petition giving rise to the other appeal, after noticing the  fact that highly disputed facts are involved in this case, made reference to the

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judgment rendered by them in the other case and directed that the first  respondent, the appellant herein and any other person concerned may also  make a representation before the Chief Secretary, which may be considered by  the Chief Secretary or his nominee and pass appropriate orders thereon.  It is in  such circumstances that one of the respondents before the High Court has come  up before this Court by way of this appeal.  During the course of hearing, apart  from reiterating the stand taken in the pleadings, it has been further stated that  the first respondent is no longer in service and he came to be dismissed as a  sequel to the disciplinary proceedings initiated against him and that, therefore,  nothing survives in the appeal so far as the first respondent is concerned.  But  yet it has been urged that the general observations and directions made and  liberties granted to Government Servants, as a class, by the High Court in the  order under challenge ought not to be allowed to stand.

       The learned counsel appearing for the appellant-State contended that  once the High Court had come to the conclusion that disputed questions of facts  have been raised rendering it not possible to adjudicate on the facts as to  whether the transfer order was passed due to political pressure or not as also in  the other case relating to the promotion, the High Court ought to have rejected  the Writ Petitions leaving liberty with the parties concerned, if they felt so  aggrieved, to vindicate their rights, if any, in any other manner known to and in  accordance with law and ought not to have embarked upon generalising the  problems stated to be prevailing in the State with reference to transfer of public  servants or promotions and given such sweeping directions whittling down the  existing well-settled policies and guidelines regulating transfers and overriding  the competence, authority and powers vested with the concerned and competent  authorities of the State to deal with transfers of their subordinates, as was  permissible in law.  It has been also contended that pursuant to the directions of  the Court, the relevant Government Orders laying down the norms and principles  for regulating transfers, etc. have already been brought to the notice of the Court  and in spite of it some sweeping observations, which cannot be countenanced in  law, came to be passed by the Court.  So far as the other appeal is concerned, it  has been urged by the counsel for the State as well as the appellant that the  rights relating to conditions of service have got to be asserted and adjudicated in  accordance with law availing of the avenues of remedies provided therefor and  the same could not be short-circuited by relegating everything to the Chief  Secretary to be dealt with on mere administrative side, de hors the relevant  service rules, as well as other governing provisions of law and binding  instructions relating to the conditions of service of a Government servant.

       Per contra, the learned counsel for the respondents, having regard to the  efflux of time and also the subsequent developments and changed  circumstances, were not that serious as to defending the general directions of the  nature given in this case by the High Court.  Keeping in view all this, we find it  necessary to deal with the legality and propriety of the directions issued and also  the desirability or otherwise of the Court embarking upon such ventures, without  affecting the rights of individual parties, who approached the Court for relief in  these matters.  Since, as pointed out earlier, having regard to the efflux of time  the respondent in Civil Appeal No.408/2004 could not claim to continue in the  same place forever, apart from the fact that we have been told that he has  already been serving in a different station.  Likewise, so far as the first  respondent in Civil Appeal No.409/2004 is concerned, it is stated that he is no  longer in service and if he or any of the parties have any rights to be vindicated,  our orders in these appeals shall not stand in the way of their rights to pursue the  same in accordance with and as is permissible in law.  We reiterate that the  prime concern in these appeals, at the present stage, is only with reference to  the omnibus and general directions issued by the High Court placing an embargo  on the right of the competent and concerned authorities of the Government to  pass orders of transfers and also as to the remedial or other measures, if any, to  be provided for in such cases, apart from those as are available in law.

       It is too late in the day for any Government Servant to contend that once  appointed or posted in a particular place or position, he should continue in such  place or position as long as he desires.  Transfer of an employee is not only an  incident inherent in the terms of appointment but also implicit as an essential

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condition of service in the absence of any specific indication to the contra, in the  law governing or conditions of service.  Unless the order of transfer is shown to  be an outcome of a mala fide exercise of power or violative of any statutory  provision (an Act or Rule) or passed by an authority not competent to do so, an  order of transfer cannot lightly be interfered with as a matter of course or routine  for any or every type of grievance sought to be made.  Even administrative  guidelines for regulating transfers or containing transfer policies at best may  afford an opportunity to the officer or servant concerned to approach their higher  authorities for redress but cannot have the consequence of depriving or denying  the competent authority to transfer a particular officer/servant to any place in  public interest and as is found necessitated by exigencies of service as long as  the official status is not affected adversely and there is no infraction of any career  prospects such as seniority, scale of pay and secured emoluments.  This Court  has often reiterated that the order of transfer made even in transgression of  administrative guidelines cannot also be interfered with, as they do not confer  any legally enforceable rights, unless, as noticed supra, shown to be vitiated by  mala fides or is made in violation of any statutory provision.  

A challenge to an order of transfer should normally be eschewed and  should not be countenanced by the Courts or Tribunals as though they are  Appellate Authorities over such orders, which could assess the niceties of the  administrative needs and requirements of the situation concerned. This is for the  reason that Courts or Tribunals cannot substitute their own decisions in the  matter of transfer for that of competent authorities of the State and even  allegations of mala fides when made must be such as to inspire confidence in the  Court or are based on concrete materials and ought not to be entertained on the  mere making of it or on consideration borne out of conjectures or surmises and  except for strong and convincing reasons, no interference could ordinarily be  made with an order of transfer.

       The very questions involved, as found noticed by the High Court in these  cases, being disputed questions of facts, there was hardly any scope for the High  Court to generalise the situations based on its own appreciation and  understanding of the prevailing circumstances as disclosed from some write ups  in journals or newspaper reports.  Conditions of service or rights, which are  personal to the parties concerned, are to be governed by rules as also the inbuilt  powers of supervision and control in the hierarchy of the administration of State  or any Authority as well as the basic concepts and well-recognised powers and  jurisdiction inherent in the various authorities in the hierarchy.  All that cannot be  obliterated by sweeping observations and directions unmindful of the anarchy  which it may create in ensuring an effective supervision and control and running  of administration merely on certain assumed notions of orderliness expected  from the authorities effecting transfers. Even as the position stands, avenues are  open for being availed of by anyone aggrieved, with the concerned authorities,  the Courts and Tribunals, as the case may be, to seek relief even in relation to an  order of transfer or appointment or promotion or any order passed in disciplinary  proceedings on certain well-settled and recognized grounds or reasons, when  properly approached and sought to be vindicated in the manner known to and in  accordance with law.   No such generalised directions as have been given by the  High Court could ever be given leaving room for an inevitable impression that the  Courts are attempting to take over the reigns of executive administration.   Attempting to undertake an exercise of the nature could even be assailed as an  onslaught and encroachment on the respective fields or areas of jurisdiction  earmarked for the various other limbs of the State.  Giving room for such an  impression should be avoided with utmost care and seriously and zealously  courts endeavour to safeguard the rights of parties.

       For all the reasons stated above, we set aside the judgments of the High  Court under challenge.  The appeals are allowed accordingly, with no order as to  costs.