C.P. Arora vs State of U.P. and Another

B.M. Lai and B. Dikshit, JJ.—Heard Sri W.H. Khan, learned Counsel for the Petitioner and Sri O.P. Singh, learned standing counsel for the Respondents.

By this petition, Petitioner has sought an order, direction or writ in the nature of certiorari quashing the impugned order dated 31.7.95 (Annexure 6 to the writ petition) transferring the Petitioner from Nagar Nigam. Allahabad to Nagar Nigam, Varanasi and order dated 16.8.1995 (Annexure S.A. 1 to the supplementary affidavit) retransferring the Petitioner to Nagar Nigam, Gorakhpur instead of Nagar Nigam, Varanasi.

The Petitioner who is in the centralised services of State Government, serving as Chief Engineer in Nagar Nigam, Allahabad, has only 10 months to attain the age of superannuation. Despite that, as is apparent from the impugned orders referred to above, he has been transferred from Allahabad to Varanasi and then to Gorakhpur within the short span of time. Besides, after the aforesaid two transfer orders were stayed by this Court vide order dated 22.8.1995, the Petitioner has been attached to the office of Mukhya Nagar Adhikari, Allahabad, thereby for the third time he has been put in a new position.

Here it may be made clear that in transfer matters no interference in writ jurisdiction is normally called for as ordinarily transfers are made In administrative exigencies and thus are concomitant of service. But where apparently it appears that the transfers are made in colorable exercise of powers or are actuated with malice or are made frequently within a short span of time, the courts are not lagging behind in quashing such transfers on this touchstone if instant case is tested, it comes in the category of frequent transfers within the short span of time.

In the instant case, notwithstanding the fact that the Petitioner is due for retirement within next 10 months, firstly he was transferred from Allahabad to Varanasi on 31.7.1995, thereafter on 16.8.1995 he was transferred to Gorakhpur instead of Varanasi and then he was attached to the office of Mukhya Nagar Adhikari, Allahabad, consequent upon the stay order dated 22.8.95 passed by this Court, as stated above.

In this regard, it is to be made clear that when both the transfer orders dated 31.7.95 and 16.8.95 were stayed by this Court, the natural effect of the stay order was that Petitioner was relegated to his original position, i.e., the position occupied by the Petitioner prior to 31.7.95, therefore, in case the stay order passed by this Court was to be complied with, the Petitioner was to be left in his position as it was prior to 31.7.95. But In the instant case, by the order dated 30.8.95, instead of relegating the Petitioner to original position, he has been attached to the office of Mukhya Nagar Adhikari.

This case was taken up on 6.9.95 and this Court vide Its order dated 6.9.95 directed the State Government to justify its order dated 30.8.95 by which the Petitioner is divested from his office of Chief Engineer, Nagar Nigam, Allahabad within three days.

Today, i.e., on 18.9.95, this case is again taken up. Three days'' time allowed by this Court expired on 9.9.95 but no justification is brought on record by the Respondents as directed by this Court vide order dated 6.9.95.

In the matters where the orders of transfer have been stayed by the court, the transferring authority is supposed to restore the position prevalent before passing of the transfer order and to maintain the same position till the order passed by the court is recalled, modified or set aside by the competent court but any device to circumvent the order passed by the court amounting to disobedience of the court must be deprecated, as the same warrants stringent action.

Under the circumstances of present case, this Court is of the considered opinion that impugned orders of transfers are liable to be quashed, as they fall in the category of frequent transfers within the short span of time.

In the result, writ petition succeeds and is allowed. The impugned orders of transfer dated 31.7,95. 16.8.95 and 30.8.95 are quashed. It is made clear that the Petitioner shall be placed in the same position in which he was before 31.7.95. There shall be no order as To costs.