Constable 2154 Rajesh Kumar Pandey vs State of U.P. and Others

Hon''ble Anil Kumar, J.—Heard Sri Vijai Shukla, learned counsel for petitioner, learned State counsel and perused the record.

Initially petitioner who is working on the post of constable, for redressal of his grievances approached this Court by filling writ petition No. 2255 (SS) of 2011, disposed of vide order dated 26.04.2011 with the following direction:

In view of above, with the consent of parties counsel, the writ petition is disposed of finally with the liberty to the petitioner to make a fresh representation within a period of 7 days'' from today and in case such a representation is made, the same shall be considered and decided by the DIG, Establishment, Police Headquarter, Allahabad in accordance with law, relevant rules, regulations and the Government Orders within a period of one month from the date a certified copy of this order along with copy of the representation is produced before him.

In pursuance to the same, the case of the petitioner has been considered by the competent authority and the same has been rejected vide order dated 03.11.2011 (Annexure No. 1). passed by O.P. No. 3 Aggrieved by the same, the present writ petition has been field by the petitioner.

Learned counsel for petitioner while assailing the order order dated 03.11.2011 (Annexure No. 1) submits that it is against the government transfer police, hence the same is arbitrary in nature.

Learned counsel for petitioner further argued that the impugned order of transfer has been passed in a mid-session in case if the petitioner is transferred in pursuance to the impugned order, the study of his children will suffer in the present era of competition. So, the impugned order of transfer is illegal, liable to be set aside.

I have heard learned counsel counsel for parties and perused the record.

The law is well settled that transfer being exigency of service can be effected by the employer concerned in accordance with administrative exigency, in the interest of administration and public interest at any point of time and that cannot be monitored and guided by this Court unless it may be shown that transfer order is vitiated on account of the contravention of the statute, or lacks jurisdiction or mala fide.

In the present case as argued by learned counsel for petitioenr that the impugned order of transfer is in violation of transfer policy is not correct because in the case of Union of India and Others Vs. S.L. Abbas, Hon''ble Apex Court has held as under :

The said guideline, however, does not confer upon the Government employee a legally enforceable right.

The said view has been reiterated by Hon''ble Supreme Court in the case of Rajendra Roy Vs. Union of India (UOI) and Another, wherein the Apex Court has held as under:

It is true that the order of transfer often causes a lot of difficulties and dislocation in the family set up of the concerned employees but on that score the Oder of transfer is not liable to be struck down. Unless such order is passed mala fide 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.

In the case of Bank of India Vs. Jagjit Singh Mehta, the Hon''ble Supreme Court has held as under:

The said observations in fact tend to negative the respondent''s contentions instead of supporting them. The judgment also does not support the Respondent''s contention that if such an order is questioned in a Court or the Tribunal, the authority is obliged to justify the transfer by adducing the reasons therefor. It does not also say that the Court or Tribunal can quash the order of transfer, if any of the administrative instructions/ guidelines are not followed, much less can be characterized as mala fide for that reason. To reiterate, the oder of transfer can be question in a Court or Tribunal only where it is passed mala fide or where it is made in violation of the statutory provisions.

The said view was again reiterated by Hon''ble Supreme Court in the case of National Hydroelectric Power Corporation Ltd. Vs. Shri Bhagwan and others,

Next argument advanced by learned counsel for the petitioner that the transfer order is against the principle of natural justice as the same has been passed during mid-session of the studies of his son/daughter, is also got no force as in the case of Rajendra Prasad Vs. Union of India 2005 (2) ESC 1224 after considering the judgment of Hon''ble Supreme Court in the case of Director of School Education Madras and others Vs. O Karuppa Thevan and another, 1996 (1) UPLBEC 347 this Court has held as under:

The issue of transfer in mid academic session was considered by the Hon''ble Supreme Court and it was held that" the fact that children of the employee are studying should be given due weight, if the exigencies of the service are not urgent." Therefore, it is for the employer to examine as to whether transfer of an employee can be deferred till the end of the current academic session. The Court has no means to assess as what is the real urgency of administrative exigency. Thus, the Court is not inclined to consider this submission at all.

The same view has been reiterated by Division Bench of this Court in the case of Gulzar Singh Vs. State of U.P. and Others, and another Division Bench of this Court in the case of State of U.P. and Another Vs. Damodar Dutt Sharma and Another, and also in the case of Jagendra Singh Vs. State of U.P. and others, (2009) 3 UPLBEC 2338.

For the foregoing reasons, I do not find any infirmity or irregularity in impugned order of order dated 03.11.2011 (Annexure No. 1) passed by O.P. No. 3, as such the present writ petition lacks merit and is dismissed.

No order as to costs.