Dr. Prem Kumar vs State of U.P. and Others

R.A. Sharma, J.—Petitioner is Veterinary Officer In the service of the State Government having been appointed in the year 1990. By order dated 5.10.1995, he was transferred from Rampur to Gangoh, district Saharanpur in place of Dr. Balraj Singh Pawar, who was transferred from Gangoh to Garotha, district Jhansi. In compliance of the above order, Petitioner joined at Gangoh on 6.10.1995. On the representation of the father of Dr. Balraj Singh Pawar, Government of U.P. by order dated 29.11.1995 has cancelled the aforesaid order dated 5.10.1995 and has retained Dr. Pawar at Gangoh, district Saharanpur. By the same order, Petitioner has been transferred to Lalganj, district Haridwar. Being aggrieved by this order, Petitioner has filed this writ petition in which on * 14.12.1995 this Court passed an interim order staying the operation of the aforesaid order dated 29.11.1995.

Dr. Balraj Singh Pawar has made two applications, i.e.. one for his impleadment in the writ petition and the other for the vacation of the interim order. Dr. Pawar has also filed a counter--affidavit. We have allowed the application for impleadment of Dr. Pawar, who has been directed to be impleaded as Respondent No. 5 to the writ petition. Learned Standing Counsel has also filed a counter--affidavit and the Petitioner has filed rejoinder affidavits in reply thereto. Learned Standing Counsel has also produced the original file/record pertaining to the transfer of the Petitioner and Dr. Pawar. We have heard the learned Counsel for the parties.

The sole contention of the learned Counsel for the Petitioner in support of the writ petition is that the impugned order has been passed on political consideration, which is not permissible under law. Learned Standing Counsel on the other hand has disputed the said contention.

An employee holding a transferable post is liable to be transferred from one place to another by the Government/Competent Authority on account of administrative exigencies and/or public interest; but transfer of an employee on extraneous consideration, including political consideration is not permissible under law. One of us (Hon''ble Alok Chakrobarti, J.) has dealt with this aspect in detail in Pawan Kumar Srivastava Vs. U.P. State Electricity Board and Others, , wherein after considering the relevant case law on the point, it was laid down that an employee cannot be transferred on political consideration.

A Full Bench of this Court in Director, Rajya Krishi Utpadan Mandi Parishad, Lucknow v. Natthi Lal 1995 (2) UPLBEC 1128, has held that an order of transfer even after its implementation can be cancelled by the Government. It was further laid down that such an order can be challenged for "reasons akin to those on which an order of transfer may be questioned." Therefore, an order of transfer cannot be cancelled on political or other extraneous consideration. Although the Government/Competent Authority has the power to cancel a transfer order even after its implementation; but, as such an order is likely to cause hardship to the employee, who has already joined his duties at the place to which he was transferred, it is the duty of the Government/Competent Authority to take this aspect also into consideration before cancelling the order of transfer. However, no employee is entitled to be given an opportunity of hearing before an order cancelling the transfer is passed. But it is open to the aggrieved employee to make a representation before the appropriate authority against such an order and if such a representation is made, same is liable to be decided at the earliest.

It is true that neither an order of transfer nor an order of its cancellation can be passed on political or other extraneous considerations but such consideration cannot be inferred merely on the ground that some politician has recommended the case of the employee for transfer or its cancellation. If the Competent Authority passes an order of transfer or an order of its cancellation merely on the basis of such recommendation, it cannot be sustained; but if after receiving such recommendation the concerned authority his made necessary inquiries and thereafter passed the order on the basis of the facts and circumstances of the case, no exception can be taken to it. Such an order cannot be said to have been passed on the basis of political consideration even though there was recommendation in favour of the concerned employee by a person belonging to a political party.

In the instant case, learned Standing Counsel has produced before us the original record of the case, from the perusal of which it is quite apparent that the Government has not passed the impugned order, cancelling the transfer, merely on the basis of the recommendation of certain persons belonging to a political party. The Government after receiving the representation has called for the comments and report from the concerned authorities and thereafter has considered the matter taking into account the relevant facts and circumstances, specially the fact that the father of Dr. Pawar is an ailing old man of 94 years undergoing medical treatment at Gangoh, district Saharanpur. Such an order cannot be said to have been passed on political consideration.

For the reasons given above, this writ petition is dismissed. Petitioner will, however, have the liberty to make a representation before the Government, if he is aggrieved by his transfer to Lalganj, district Haridwar, and if such a representation is made, the same shall be considered and decided within a period of one month after receipt of the representation, alongwith the certified copy of this order. In view of the facts and circumstances of the case, there shall be no order as to costs.