I.D.Tripathi vs Chairman Uttar Pradesh State Electricity Board,Lucknow & Ors.

B.K. Sharina, J.—In this writ petition, the petitioner who was an Assistant Engineer posted as SubDivisional Officer, IIIrd U.P. State Electricity Board at Noida had sought quashing of the letter dated 2661998 (actually 276 1998) sent by Sri Atul Chaturvedi, Secretary to the Energy Department, U.P. Government to the Chairman U.P. State Electricity Board, Lucknow conveying certain directions made by the Energy Minister in regard to the 11 officers/officials mentioned therein including the present petitioner (Annexure6 to the writ petition) and the order (office memorandum) dated 3061998 passed by the U.P. State Electricity Board transferring him to 400 KVSubstation, Unnao (APTP) Annexure7 to the writ petition) passed in pursuance to the said letter (Annexure6 to the writ petition).

The petitioner had initially not impleaded the U.P. State as a party ir. this writ petition but later on the U.P. State was also imp leaded as a party in this writ petition. Respondent Nos. 1, 2, & 3 have filed counteraffidavit in this case and the U.P. State had also. filed a separate counteraffidavit. Rejoinder Affidavit had been filed by the petitioner and a supplementary affidavit had also been filed by him and so supplementary counteraffidavit had also been filed on behalf of the respondent Nos. 1, 2 &3.

3, The petitioner was posted as SubDivisional OfficerIll U.P. State Electricity Board at Noida since 881997. One Shree Kant Prasad S.E. posted at Noida was transferred on 731998 and Sri B.S. Agrawal was posted in his place. Though, Sri Agrawal was never posted earlier at Noida in any capacity, lot of news items were published in ''Dainik Jagran, Rashtriya Sahara and Amar Ujala'' against the said posting on different dates starting from 1031998. In these news items some imputations were also made against the Energy Minister Sri Naresh Agrawal. Some news items also appeared about the differences between the Energy Minister and the Deputy Minister Sri Rang Nath Mishra. Against this back ground, an enquiry committee was constituted consisting of the Special Secretary (Energy) and the Chief Zonal Engineer, Meerut by a Government Order dated 1831998 to inquire into as to who gave the information regarding the transfer matter in the news papers dated 16/1731998 and who was responsible for it, whether there is metering at every 11KV feeder and whether the meters are working and lastly what are the line losses of greater Noida and as compared to it what are the line losses in Noida. Regarding the first point, the committee could not give a categorical finding but said that by indirectly collecting information from some sources, the possibilities of express or implied assistance by 11 officers named therein appeared. The present petitioner was at SI. No. 1 in the list. The report said that all these 11 persons were posted in Noida. It appears that some of the officers of the U.P. State Electricity Board gave written evidence before the committee About item No. 3, the committee gave a comparative chart showing the line losses of Noida in the year 199697 and 199798 to be much higher as compared to the respective line losses, in greater Noida in the said years.

In the letter dated 2761998 from Sri Atul Chaturvedi, Secretary Energy Department, after referring to the inquiry from the said committee, it was said that all the said 11 persons as named in the report of the committee were found to beexpressly or impliedly involved in the same (the present petitioner was at SI. No. 1 in this list). The letter of the energy secretary further said that after due consideration the Energy Minister has passed the following orders:

(i) that adverse entry to be given to all those officers whose names have been mentioned by the committee in its report.

(ii) that an eye be kept on the figures of line losses and recoveries at the places where these officers are posted and the percentage of the recovery of these officers per month be intimated.

(iii) in future all these officers be posted only in nonworking division and it be ensured that in future they are not posted on any post in Noida or in a district of Meerut Division. The Energy Secretary in this letter asked the Chairman of the U.P. State Electricity Board to ensure action accordingly at the level of the Board and also called upon him that if anyone of these officers/employees is posted at present in Noida, then they be transferred out side Noida/Meerut Division.

Thereafter the U.P. State Electricity Board vide its order dated 3061998 passed an order of transfer in respect of 6 officers of the Board "in the interest of the U.P.S.E.B. works". The name of the present petitioner Sri R.D. Tripathi was at SI. No.1 among them. He was transferred from the City Electricity Distribution Circle Noida Zone to 400 KV SubStation Unnao APTP and two more officers whose names were included in the letter of the Energy Secretary were transferred from the City Electricity Distribution Noida Zone to 400 KV SubStation Agra. The other 3 officers in this composite transfer order did not figure in the letter of the Energy Secretary. Admittedly, no adverse entry has been recorded in the character roll of the petitioner pursuance of the aforementioned directive No. 1 contained in the letter of the Energy Secretary.

The petitioner claimed that he was initially appointed as Assistant Engineer in the UPSEB on 2231987. He was posted at Noida on 3171997 where he was appointed as A.B. (Metres) on 881997 and since then had been given various posts at Noida, that Sri Shree Kant Prasad S.B. was very popular and extremely dedicated and had earned reputation in the department and in the masses as well, that the consumers were extremely satisfied during his tenure, that Sri Shree Kant Prasad was transferred from Noida to Bulandshahr to accommodate Sri B.S. Agrawal at his place. It was claimed that Sri B.S. Agrawal had a chequered history of being superseded but was known as blue eyed boy of Sri Naresh Agrawal, Energy Minister, that posting of Sri Agrawal was received with lot of resentment by public at large which led to the various news items in the press. The details of these news items need not be reproduced in this judgment. It was stated in the writ petition that in the aforesaid backdrop (of adverse news paper publicity) Sri D.P. Singh was posted as Superintending Engineer at Noida in place of Sri B.S. Agrawal. It is claimed that the aforesaid adverse publicity had compelled this steps.

Now the learned counsel for the petitioner has challenged the transfer order dated 3061998 on various grounds. The main ground is that this order is in the nature of punitive action because it was passed in pursuance of the directions of the Energy Minister contained in the letter dated 2771998. It was claimed that according to the established norms, an officer had to work normally for a period of 3 years at a place of posting. So it was claimed that there has been violation of the norms laid down by the UPSEB with regard to the policy of transfer. The policy guidelines dated 2961994, were filed with the writ petition.

It was also claimed that in the process of inquiry referred to in the letter dated 2761998 from the Energy Secretary, he was not given an opportunity of being heard, that neither he was contacted nor his statement was recorded by any inquiry committee, so the enquiry was exparte and the report given by the committee did not fulfil the requirements of reasonable and fair inquiry. It has also been claimed that the transfer order was arbitrary, unreasonable and unfair. It was claimed that the cause of institution of inquiry, the recommendations and the order of transfer were an example of authoratic action of the respondents under the influence of the Minister whose ago stood hurt in view of the public recentment which had resulted from the posting of a corrupt officer at the cost or a well known officer of Noida.

In the counteraffidavit filed by Sri Hari Shankar Dixit, Dy. Secretary (E.M. 4), U.P.S.E.B. it was said that the petitioner was relieved in absentia from the aforesaid Urban Distribution Circle, Noida on 1571998. It was further stated that the petitioner was initially appointed in UPSEB on 1831998 as Assistant Engineer. It was said that actually the performance of Shree Kant Prasad J.E. was not up to the desired level and it was for this reason that he was transferred in the interest of the work of the UPSEB and Sri B.S. Agrawal was transferred from the Electricity Distribution Circle, Noida in the interest of the work of the UPSEB by order dated 931998. It is further stated that by the same order/office memorandum dated 931998 in the interest of the work of the UPSEB, several other Superintendenting Engineers were also transferred, Regarding the allegations made in the petition that the said B.S. Agrawal was in the good books of the Energy Minister, it was said that this averment was made in order to give colour to the case, that in his written statement submitted to the aforesaid committee Sri B.S. Agrawal denied having any relationship with the Energy Minister. Further, in reply to the averments of the petition that Sri B.S. Agrawal had a chequered history of being superceded it was stated that actually Sri Agrawal had been selected on the promotional posts of Executing Engineer and

Superintending Engineer as and when due. It was pointed out that Sri B.S. Agrawal was being posted at Noida for the first time by order dated 931998 and that the transfer order in respect of Sri B.S. Agrawal was cancelled in the interest of the work of the UPSEB by office memorandum dated 2031998 on administrative considerations and that Sri D.P. Singh S.E., another officer was transferred and posted to Noida by order dated 441998 and further that by the order dated 441998 by which Sri D.P. Singh was posted at Noida, several other S.Es. were also transferred in the interest of the work of the UPSEB. It was further stated in this counteraffidavit that after receiving the communication dated 2761998 from the Secretary, Energy Department, the matter was examined at various levels in the UPSEB and ultimately the office memorandum dated 3061998 (impugned in this petition) was issued interalia transferring the petitioner from the Electricity Urban Distribution Circle Noida to 400 KV SubStation Unnao in the interest of the work of UPSEB. Regarding the transfer policy contained in the guidelines relied upon by the petitioner in the petition, it was said that the guidelines show that it is permissible to deviate from the said guidelines in special circumstances on administrative ground or in the interest of the work of the UPSEB. It was further pointed out in this counteraffidavit that the UPSEB had issued fresh guidelines vide office memorandum dated 20121997 which showed that all the posts at Noida (except attached posts) were categorised as highly sensitive posts and the maximum tenure of officers on the said highly sensitive posts is only 2 years and further that a reference to these guidelines shows that it is permissible to deviate from the said guidelines in the special circumstances on administrative ground or in the interest of the work of the UPSEB.

A separate counteraffidavit was filed by Sri P. Singh Joint Secretary, Energy Department, U.P. Government on behalf of the State of U.P. The material averments on oath in this counteraffidavit were that it is incorrect to say that Sri S.K. Prasad was transferred just to accommodate Sri B.S. Agrawal, that actually the transfer of Sri S.K. Prasad was done in routine manner. It was stated that there was no resentment by the public at large, that some persons have got news item published in the newspaper which were fabricated and false and that these were published by the interested persons just to create disturbance in the working of the department. With regard to the letter of the Energy Secretary, it was said that the respondents have taken into consideration all the circumstances and the matter was examined by the UPSEB and thereafter the office memorandum dated 3061998 was issued transferring the petitioner from ''Noida to Unnao in the interest of the work of the U.P.S.E.B. It was further said in this counteraffidavit that the inquiry which was conducted was an open inquiry and all the persons who wanted to give their evidence appeared before the inquiry committee and gave their statements that the petitioner himself had not chosen to appear before the inquiry committee and to give his statement and so he cannot claim that the inquiry was exparte or against the principle of natural justice.

Lastly, it was said that the transfer of the petitioner has been made on administrative ground after considering the whole aspect of the matter in the interest of the department and the public and so the order was not liable to be interfered with.

By a supplementary affidavit, the petitioner claimed that since the transfer order was from his present post which was a sensitive posting to the post which was a nonsensitive posting, it amounted to reversion from superior posting to inferior posting. It has been daimed that clauses 3.01 and 3.03 and the directive of the UPSEB in the matters of postings make it clear that the posting of an Assistant Engineer at a nonsensitive division is done only in first five years of his career and that after completion of the aforesaid period of 5 years alone an Assistant Engineer became entitled to be posted at sensitive posting. It is claimed that for this reason also, the impugned order of transfer is a punitive order. It was also claimed in this supplementary affidavit by the petitioner that with regard to line losses, accountability of the various engineers posted at Noida had not been determined in the report of the committee and so the petitioner cannot be said to be responsible for the line losses. It was also claimed that the comparison with greater Noida was not based upon any logical rationale but was based upon malafide.

A supplementary counteraffidavit of Sri Hari Shankar Dixit, Deputy Secretary UPSEB was filed in which it was said that specification of various posts under the UPSEB as sensitive/highly sensitive is shown under the guidelines issued from time to time merely to ensure the smooth functioning of various wings of UPSEB and to enable the UPSEB to properly discharge its functions, responsibilities and duties, that normally as mentioned in this said guidelines, the officers having longer experience are posted on posts specified as sensitive/highly sensitive, however, it does not mean that the officer having longer experience cannot be posted on posts which are not specified as sensitive/highly sensitive and that the officers having longer experience maybe/are posted on posts which are specified as sensitive/highly sensitive as well as on posts which are not so specified. It has been categorically stated in this supplementary counteraffidavit that the employees in the cadre of Assistant Engineers under the UPSEB are all of the same rank and may be posted anywhere in U.P. or even out side in view of the UPSEB Employees (Transfer) Regulation, 1980 and that the transfer and posting of an employee under UPSEB is done keeping in view the requirements and the interest of the work of the UPSEB. It has also been categorically stated in the supplementary counteraffidavit that the posting of an employee on nonsensitive posts (i.e. the posts which are not specified as sensitive/highly sensitive) did not amount to reversion to any inferior post. It was also stated in this supplementary counteraffidavit that in accordance with the guide lines contained in the office memorandum dated 20121997 (Annexure) C.A. 5 to the counteraffidavit) the engineers who have completed 10 years of service on sensitive posts in same capacity will be posted on non sensitive posts. It has also been stated that the transfer of the petitioner has been made in the interest of the work of the UPSEB. It was further stated that at the said 400 KV Substation, Unnao to which the petitioner has been transferred, there are posts which are sensitive as well as nonsensitive, that the petitioner''s posting at the 400 KV SubStation Unnao is on nonsensitive post but his posting, does not amount to reversion to inferior post as all the posts the sensitive/nonsensitive are treated alike and the posting of any officer can be done in rotational manner. It was also said in this supplementary counteraffidavit that the petitioner while posted as an Assistant Engineer/S.D.O. was duly bound to supervise/control subdivision/unit and cannot be absolved of the responsibility of the supervision and that allegation of malafide is misconceived and incorrect.

The learned counsel for the petitioner, the learned counsel for the respondent Nos. 1 & 2 (SEB) and the learned Additional Standing Counsel for the State have been heard at length.

Now the law regarding transfers is well settled by a series of judicial decisions. Transfers are an incident of service and so orders of transfer of Government Servants are not to be lightly interfered with by the Courts. Interference may be made only when the transfer is violative of any statutory rule or is malafide. The transfer cannot be interferred with though it is in breach of executive instructions. The off quoted observations of the apex Court in the case of Mrs. Shilpi Base and others v. State of Bihar and others, AIR 1991 S.C. 532, are worth mention.

"In our opinion, the courts should not interfere with transfer order which are made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of malafide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights Even if a transfer order is passed in violation of executive instructions or orders, the courts ordjnarily should not interfere with the order instead affected party should approach the higher authorities in the Department. If the courts continue to interfere with daytoday transfer orders issued by the Government and its subordinate authorities there will be complete chaos in the Administration which would not be conductive to public interest."

In the case of Union of India v. S.I. Abbas, JT1993 (3) SC 678, the apex Court said:

"Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafides or is made in violation of any statutory provisions, the court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The said guideline however does not confer upon the Government employee a legally enforceable right."

In the case of Union of India and others v. H.M. Kirtania, 1989 3 SCC 447, the apex court said:

The respondent being a Central Government employee held a transferable post and he was liable to be transferred from one place to the other in the country, he has no legal right to insist for his posting at Calcutta or at any other place of his choice. We do not approve of the cavalier manner in which the impugned orders (stay orders) have been issued without considering the correct legal position. Transfer of a public servant made on administrative grounds or in public interest should not be interferred with unless there are strong and pressing grounds rendering the transfer order illegal on the ground of violation of statutory rules or on ground of malafides."

In the case of Union of India and anotherv. N.P. Thomas, AIR 1993 SC 1605, the apex Court relied upon the cases of Kirtania and Shilpi Bose and said that it cannot be said that the transfer order of the respondent transferring him out of Kerala Circle is violative of any statutory rule or that the transfer order suffers on the ground of malafide and upheld the transfer order.

In the case ofSriAbani Kanta Ray v. State of Orissa and others, JT 1995 (7) SC 467, the apex court said" It is settled that a transfer which is an incident of service is not to be interferred with by the courts unless it is shown to be clearly arbitrary or vitiated by malafldes or the transfer".

The same was the view taken in the case of State of U.P. v. Ashok Kumar Saxena and another, 1998 ESC 484 (SC).

There is also a Division Bench authority of this court Vinod Shankar Shukla v. Conservator of Forest Social Forestee Circle, Allahabad and others, 1998 (1) AWC346, in which it was held;

It is well settled that if a transfer order has been passed in violation of guidelines laid down by the Government, this court cannot interfere with such an order under Article 226 of the Constitution of India. Proper forum for redressal of the grievances against such an order is the Government itself before which the person aggrieved should make representation."

Now in the present case the transfer orders of petitioners have been passed by the U.P. State Electricity Board, to be exact, by the Secretary of the U.P. State Electricity Board. No malafide has been imputed to the authorities of the U.P. State Electricity Board anywhere in the writ petition nor has any motive been imputed to the three officers who constituted the committee that made the general enquiry on the 3 points referred to it. It may also be noted here that no imputations have been made against the Energy Secretary who wrote the letter dated 2761998 to the UPSEB. Motive has, no doubt been imputed to the Energy Minister but the Minister has not been impleaded as respondent by the petitioner in this writ petition either by name or by designation and as pointed cut by the learned counsel for UPSEB and as observed by the apex court in the authority National Federation of State Bank Officers and anothers v. Union of India and others, JT 1996 (8) SC 550 and by a Division Bench of this Court in the case of Shiv Shanker Singh Yadav v. State of U.P. through the Secretary Forest Department Lucknow and others, 1997 (2) AWC 752, it is not permissible to make allegation of malafide against a person who is not a party.

The Energy Minister was responsible to the legislature for the proper functioning of the Energy Department and the UPSEB. The Minister could ill afford to allow the functioning of the Energy Department and the UPSEB to be jeopardised by such news items appearing in press. Administrative action was, therefore, required to save the situation from further deteriorating and in crder to have the smooth working of the working of the UPSEB at Noida. So no exception could be taken to the instituting of an enquiry and the constitution of a committee in which the Energy Department and the UPSEB both were represented to inquire into the whole episode.

Much has been said from the side of the petitioner against the report of the committee as noted above. However, here it is not the enquiry which is a matter in issue because no punishment, as such, has been awarded to the petitioner as a result of the enquiry. Moreover, the enquiry was not directed against the petitioner or any other officer of the department. It was a general enquiry into the episode in which various news items had appeared touching the working of the Minister in the transfer of Sri B.S. Agrawal to Noida. From the counteraffidavit filed on behalf of the UP. State, it is clear that it was an open enquiry and certain officers of the UPSEB even gave statements therein and considering the nature of the enquiry, the petitioner could have approached the committee to take his evidence in the matter but admittedly he did do so. It cannot be said that a notice was necessary to be issued to him for appearing in the enquiry. No principles of natural justice were involved. As noted earlier, no categorical finding was given by the committee holding the petitioner and/or any other officer or official of the department responsible for the scandalous news items in the newspapers. All that the report indicated was that direct or indirect involvement of the petitioner and certain other officers/officials might have been there. Nevertheless, it cannot be doubted that the adverse news items that appeared in the press touching the matter could not have been published but for the direct or indirect involvement of some officers/officials of the Hydel department (UPSEB) posted at Noida because it is an undisputed fact that Sri B.S. Agarwal whose posting to Noida had been the target in these news items was never posted earlier in Noida district at any time and so if there was anything adverse against that officer or his career in the department, the same could not have appeared in the press unless some officer/officers and/or official/officials of the UPSEB posted at Noida at the time who were either antithetic to that officer (B.S. Agrawal) or interested in the outgoing officer Sri Shri Kant Prasad supplied the adverse material to the press and in case there were nothing adverse against Sri. B.S. Agrawal in that case furnished some twisted facts, regard being had to the common course of events and human conduct. The general public of Noida could not have had any such knowledge of the past career of an officer who was being posted in the district for the first time even though his post involved dealing with the general public (the consumers). News items against the posting of such an officer (with no previous posting at the place) at the instance of the public could come only if the public got disguested with the working of such an officer after watching his public dealing for quite some time. The general public was also quite unlikely to start its agitation through press for retaining an outgoings officer in his chair, however satisfying his public dealings might have been when every body knew that in the ordinary course officers came and go on transferable posts. Obviously, there were some elements in the UPSEB itself in the district who were behind the back of all that had happened.

It is needless to conjecture if the committee could have come to some more definite conclusions about the person/persons behind the whole episode if it had exerted itself a little more. It is sufficient to note that its report did not categorically hold any of the eleven persons named by it as responsible for the episode. It did find malfunctioning of the department in Noida district resulting in substantially more line losses as compared to Greater Noida in the years 199697 and 199798 but did not probe deeper to apportion responsibility between the different officers and officials posted at Noida at the relevant times.

Against the background of facts noted so far it was not surprising that the Energy Minister passed orders directing that the eleven officers/officials whose names were mentioned in the report of the committee be awarded adverse entries in their character rolls, that they be transferred from Noida/Meerut Division if still posted there and directing that in future they be posted only in nonworking divisions.

The UPSEB did not make a blind compliance of the directions. It did not record any adverse entry against the petitioner or indeed any other person named in the report of the committee, nor did it transfer all the eleven officers/officials in accordance with the directions of the Minister but transferred only some of these persons and even though they were sent to nonworking i.e. nonsensitive posts it did not pass any order directing that in future, these officers/officials would never be posted in any working division under the UPSEB. It appeared that there were two broad categories of posts, working and nonworking one where there was public dealing and the other in which there was no such contact. But the department has clarified that actually in the present classification of sensitive/nonsensitive posts, there are posts at the power house also which are of the sensitive category. Against this back ground, it is difficult to agree with the contentions of the learned counsel for the petitioner that his transfer is penal or even penal in nature. The only order that has been communicated to the petitioner is that of his transfer. The directions made by the Minister as contained in the letter of the Energy Secretary to the Chairman of the UPSEB for making adverse entry and of posting only in nonworking division was never communicated to the petitioner and if the petitioner had managed to obtain surreptitiously a copy of the said letter and filed it with this writ petition, he cannot be allowed to seek quashing of these directions contained in this letter of the Energy Secretary. Otherwise, also it is unnecessary and premature at this stage to consider the question whether these directions were illegal or invalid.

Further more, so far as the directions contained in the letter of the Energy Secretary for keeping an eye on the line losses at the places where these officers/officials are posted is concerned, no exception could be taken to it. Further more line losses and recoveries appear to be primarily, if not exclusively related to posts involving dealing with public i.e. sensitive posts and so it will tend to show that the 3rd direction in so for it related to permanent denial of posting in working divisions i.e. on sensitive posts was not sought to be enforced for all times.

The learned counsel for the UPSEB has rightly drawn distinction between the operative reason for the action taken by the UPSEB namely the transfer and the motive inducing the order. The learned counsel has relied in this regard on the authority E.P. Rayappa v. State of Tamil Nadu and another, AIR 1974 SC 555 in which it was said that where the operative reason for state action, as distinguished from the motive inducing from the antechamber of the mind is not legitimate and relevant but is extraneous and out side the area of permissible considerations, it would amount to malafide exercise of power. It was claimed that the impugned transfer stated that the transfer was being made in the interest of the U.P.S.E. Board and that it was a legitimate and relevant consideration.

It cannot be doubted that the transfer order of the petitioner had followed the letter of the Energy Secretary containing the directions given by the Energy Minister and the UPSEB has also not denied it but the claim of the UPSEB is that the order of transfer was passed after considering the whole aspect of the matter and applying its mind thereto, in the interest of the work of the UPSEB, It was said in the counteraffidavit of Sri P. Singh Joint Secretary, Energy Department that the respondents had taken into consideration all the circumstances and the matter was examined by the UPSEB and thereafter the memorandum dated 3061998 was issued transferring the petitioner from Noida to Unnao in the interest of the work of the UPSEB. In the counteraffidavit filed by Sri Shankar Dixit, Deputy Secretary UPSEB, it was stated that on receiving the communication dated 2761998 from the Secretary Energy Department, the matter was examined at various levels in the UPSEB and ultimately the order/office memorandum dated 3061998 impugned in the petition by which the petitioner was transferred, was issued. It cannot be said that the impugned transfer of the petitioner was malafide or was arbitrary nor can it be said that it was penal in nature.

The learned counsel for the UPSEB has rightly urged that the only proper course open to the UPSEB was to make selective transfer of some of the officers/officials who appeared or were likely to be directly or indirectly behind the publication of the adverse news items damaging the image of the Energy Minister, Energy Department and the UPSEB and so no exception could be taken to the course adopted by the UPSEB.

As held by the apex court in the State of Madhya Pradesh v. 5.5. Kaurav and others, AIR 1965 SC. 1056, the courts are not appellate forums to decide on transfers of officers on administrative grounds. The apex court observed:

"The wheels of administration should be allowed to run smoothly and the courts or Tribunals are not expected to interdict the working of the administrative system by transferring the officers at proper place. It is for the administration to take appropriate decision and such decision shall stand unless they are vitiated either by malafides or by extraneous consideration without any factual backgrounds foundation."

There are certain authorities dealing with the matters of transfer on complaints. In Sageer Ahmad v. Superintending Engineer, Minor Irrigation Circle, Bareilfy, 1994 (68) F.L.R. 1083, a single Judge authority of this court it was observed, "there is no prohibition against transfer on the basis of complaints. If from the perusal of the complaint it appears to the authorities that in order to have smooth working in the office, prompt administrative action is required to save the situation from further deterioration, it is open to them to transfer the concerned employee so as to defuse the situation." This judgment was rendered by Hon''ble R.A. Sharma.J.

The learned counsel for the petitioner relied upon a single Judge authority Pradeep Goel v. Regional Manager, 1992 (64) F.L.R. 467(ALL) rendered by Hon''ble R.A. Sharma.''J. In Pradeep Gael''s case the Hon''ble Single Judge of this court had quashed the transfer order relating to a Bank employee on the ground of his suspected involvement in fradulent transaction treating it to be by way of punishment. Sageer Ahmad''s case also had come up for adjudication before the same single Judge (Hon''ble R.A. Sharma) Before him another authority State of U.P. v. Sheshmani, 1991 (2) UPLBES, 1303) was also cited on behalf of the petitioner in support of his claim that the order of transfer was bad because it was passed on the basis of complaint. The learned Single Judge (Hon''ble R.A. Sharma, J.) made the following observations with regard to these two authorities:

"Decisions of Single Judge of this court in Pradeep God v. Regional Manager and that of a Division Bench in State of U.P. v. Shesh Mani Tripathi, which have been relied upon by the learned counsel for the petitioner, cannot be of any help to him, in as much as Single Judge decision has been overruled in special Appeal and aforesaid decision in the case of Shesh Mani Tripathi (Supra) has been overruled by Supreme Court in State of U.P. v. Shesh Mani Tripathi, decided on 2241992 (C.A. No. 1856 of 1992). The Supreme Court in the above case, while overruling the Division Bench decision of this court, has laid down as under;

"On report of assault there was as stated in the counter, considerable resentment and hostility amongst the members of the staff which necessitated prompt administrative deterioration."

"If such was the situation, one of the remedies was to transfer the concerned officer so that the situation can be defused. It is not that the only solution is to institute an inquiry. An inquiry would take some time but where immediate and prompt action is required one of the remedies is transfer, in the circumstances, it cannot be said that the transfer is not for administrative reasons."

Consequently the learned Single Judge dismissed the writ petition of Sageer Ahmad for quashing the transfer order with regard to him.

We have already noted the observations in the authority Smt. Shilpi Base v. State of Bihar.

There was another Single Judge Authority Behari Lal v. Superintending Engineer, Lift Irrigation Mandal Varanasi, 1998 1 UPLBES, 519, in which an employee of lift Irrigation Department of the State of U.P. had challenged his transfer made on the ground of administrative exigency. In this case the learned Single Judge while dismissing the writ petition observed as follows:

"Where any complaint is made against an employee before the authority concerned and such authority taking into consideration the attending circumstances and the conduct of the employee thinks it proper for smooth running of the administration that such employee should be transferred, such order of transfer will be in the administrative exigency. It is true that an employee cannot be transferred merely because a complaint ha? been lodged against him but if on receiving the complaint the authority concerned finds that the transfer will be in the interest of administration the order of transfer cannot be challenged on the ground that it is either arbitrary or it has been passed by way of punishment. It is a province of the employer to consider all relevant factors on receiving a complaint. Once the order of transfer is found to be bonafide, the courts are not to interfere with such order of transfer."

There was also a Division Bench authority of this court Govind Pratap Singh v. Managing Director (Personnel) UPSRTC, 1997 (1) U.P.L.B.E.C. 421. In this authority, it was said:

"In the present case, the order of transfer has been passed taking into consideration the law and order situation, public interest and to maintain efficiency in the administration of the Corporation. The police had submitted a report that law and order situation was created by the appellant which necessitated the order of transfer. The matter was also taken into consideration by the Senior Superintendent of Police and the District Magistrate. Where complaints have been received and there does exist a valid ground for transfer in administrative exigencies, such order of transfer cannot be held to be arbitrary or passed by way of punishment. It is always open to a competent authority, on receipt of complaint, to consider whether such an employee should be transferred and other employee should be posted in his place in administrative exigencies."

So the point of importance is that transfer could be affected in public interest or in the exigencies of administrative purpose and it cannot be said that such a transfer is vitiated unless one could show that the transfer order is malafide.

Learned counsel for the petitioner has relied on the authority Director of School of Education Madras and others v. O. Karuppa Thevan and another, 1994 (Suppl) (2) SCC 666, wherein, the transfer order of the Opposite party made in midsession while his children were studying was quashed by the Hon''ble Supreme Court observing that in affecting transfer, the fact that the children of an employee are studying should be given due wight if the exigencies of the service are not urgent, in that case, apparently there were no exigencies of administration involved and so this authority could not be of help to the petitioner. It may be mentioned here that there is an observation in this authority that no law requires an employee to be heard before his transfer when the authority makes the transfer for the exigencies of administration and this observation goes in favour of the respondents. It cannot be doubted that there was acute exigency of the situation in the present case and the transfer orders regarding the petitioner were made bonafide.

The learned counsel for the petitioner has produced before us a certified copy of the interim orders passed by a single Judge of this Court (Hon''ble M. Katju, J.) in writ petition No. 29758 of 1998, Phool Devi v. State of U.P. and others. In that case, it was observed that the transfer and posting should be done only by the concerned officer of the department concerned and not at the instance of the Ministers/M.L.As, any politician observing that the task of a Minister is to lay down the policy and not make transfers/postings. Copy of an updated order passed by the same single Judge in Writ Petition No. 30624 of 199& Smt. Mohsina Begum v. State of U.P. and others, was also produced. In my view the tentative similar views expressed in the interim orders in that case also did not help the present petitioner.

The present is a case in which at one hand, there is the Energy Department of the State Government headed by the Energy Minister and on the other, there is the UPSEB. There is special relationship between the State Government and the UPSEB in respect of which Section 78A of the Electricity Supply Act, 1948 makes provisions. Section 78A (1) states that in the discharge of its functions, the Board shall be guided by such directions on question of policy as may be given to it by the State Government. Thus under Section 78A (1), the power of the State Government extended to giving directions to the UPSEB in question of policy for guiding it (the UPSEB) in discharge of its functions. The Additional Standing Counsel for U.P. State has claim that the UPSEB is bound to carry out the directions given by the Energy Minister to it. What are matters of policy and what are not are spheres which have not been categorically defined in the aforesaid Act. The Act contains provisions for arbitration in case a dispute arises between the Government and the UPSEB whether a question is or is not a question of policy but this clause has not been invoked by the Government or the UPSEB and there is nothing to show that the Government has sought or pressed for any further implementation of the directions contained in the aforesaid letter from the Energy Secretary beyond what has been done already by the UPSEB namely the selected transfers made by UPSEB by its office memorandum dated 3061998 aforesaid.

While it has been claimed for the petitioner that there was non application of mind by the UPSEB while passing the office memorandum AnnexureVII for transfer of the petitioner and certain others, the obvious fact is that the UPSEB has applied its mind to the directions of the Energy Minister communicated by the Energy Secretary vide letter dated 2761998 to the Chairman of the UPSEB and passed these orders as these were unquestionably urgently required by the attending circumstances considering the interest of the work of UPSEB and the administrative exigencies. As noted earlier the UPSEB shuffled only some of the officers/officials posted at Noida at the relevant time when the adverse newspaper publicity started and continued regarding posting of Sri B.S. Agrawal, who were named in the letter of the Energy Secretary.

In the situation that developed at the time when orders of posting Sri B.S. Agrawal at Noida as Superintending Engineer were passed and in the light of the report of the 3 members committee and on the facts and circumstances, the Energy Minister must be taken to have the necessary jurisdiction and authority under Section 78A (1) aforesaid to deal with the grave situation arising out of the publication of scandalous material in the news gapers consequent upon the posting of Sri .S. Agrawal at Noida and to issue appropriate directions to resolve the situation. It may be mentioned here that there is no allegation much less proof that it was the Minister who had directed posting of Sri B.S. Agarwal Superintending Engineer at Noida. Admittedly, his transfer orders have been made by the UPSEB and the modification of the same too was done by the UPSEB. In the circumstances of the case the directions for transfers must be taken to be policy directions for dealing with the emergent situation particularly because the section does not give any restrictive definition as to the scope of policy. The scope appears to have been left undefined for use to suit the situation.

Taking into view the over all situation and the findings and observations of the committee and the directions emanating from the Energy Minister, if the UPSEB passed the office memorandum Annexure7 i.e., transfer orders relating to the petitioner and certain other persons and that too selectively, it cannot be said that the order passed by the UPSEB is malafide or arbitrary. It cannot be said that this order amounted to imposing penalty or was penal in nature or otherwise illegal.

It is clear in this case that the UPSEB has been acting in the light of the interest of the smooth functioning of its various wings. As noted earlier, the UPSEB revoked the order of posting of Sri B.S. Agrawal to Noida in view of the ugly situation created by the adverse news paper items, obviously engineered by those elements in the UPSEB who did not see eye to eye with Sri B.S. Agrawal. The petitioner has himself made allegations against Sri B.S. Agrawal relating to his past career in the UPSEB and also claimed that he (Sri B.S. Agrawal) was a blue eyed boy of the Energy Minister. These allegations do not go in his favour. Far from it. Then whether or not Sri B.S. Agrawal was blue eyed boy of the Energy Minister, the UPSEB quickly replaced him with a view to normalising the situation and ensuring the smooth functioning of the wing of the UPSEB that existed at Noida. In the light of this ugly situation created by the elements among the officer/official of the UPSEB that were directly or indirectly antithetic with the posting and continuance of Sri B.S. Agrawal at Noida, Sri B.S. Agrawal has been transferred away from Noida, though obviously, he was not at all, responsible for the creation of the ugly situation at Noida but was rather a victim of it. If he could be transferred away from Noida in the interest of the smooth functioning of the UPSEB why not some of the officers/officials of the department UPSEB who were supposedly directly/indirectly behind the creation of the ugly situation at Noida aforesaid ? The petitioner might be having stakes in staying at Noida, but he had no legal right to remain posted at Noida at the post where he was when the ugly situation developed. The Board has not passed any order that he will be always posted to nonworking or nonsensitive division or posts. That being the situation, it cannot be said that the transfer order relating to him was malafide, arbitrary or penal in nature.

It has been argued by the counsel for the petitioner that in normal tenure of posting at one post was 3 years while he had served at the present post (from which he has been transferred by the impugned order dated 361998) only since 881997. It maybe mentioned here that the UPSEB had pointed out in the counteraffidavit filed on its behalf by Shree Shanker Dixit, Deputy Secretary, itself that the transfer policy contained in the guidelines of the PSEB relied upon by the petitioner, themselves showed that it was permissible to deviate from the guidelines in special circumstances on administrative ground or in the interest of the work of the UPSEB. It was also pointed out by the Deputy Secretary UPSEB in the counteraffidavit that the UPSEB has issued fresh guidelines vide office memorandum dated 20121997 which showed all the posts at Noida (except attached posts of the category of highly sensitive post and that the maximum tenure of an officer on the said highly sensitive posts is only two years and it is permissible to deviate from these guidelines too in the special circumstances on administrative ground or in the interest of the work of the UPSEB. It has also been averred in the counteraffidavit filed by the Joint Secretary, Energy Department that the transfer was made on administrative ground after considering the whole aspect of the matter in the interest of the department and the public.

Regarding the belated claim of the .petitioner who was not an outsider to the UPSEB but an officer serving in it since the year 1987, that since the transfer from a sensitive posting to the post which was a nonsensitive category it amounted to reversion, it is enough to say that it is wholly untenable. The UPSEB has clarified in its supplementary counteraffidavit that the specification of various posts under the UPSEB as sensitive highly sensitive is shown under the guidelines issued from time to time merely to ensue the smooth functioning of various wings of UPSEB and to enable the UPSEB to properly discharge its functions, responsibility and duties, that normally as mentioned in these guidelines, the, officers having longer experience are posted on posts specified as sensitive/highly sensitive, however it did not mean that the officer having longer experience could not be posted on posts which were not specified as sensitive highly sensitive and that the officers having longer experience may be/are posted on posts which are specified as sensitive, highly sensitive as well as on posts which are not to be specified. It has been categorically stated in this supplementary counteraffidavit that the employees in the cadre of Assistant Engineers under the UPSEB are all of the same rank and may be posted any where in U.P. or even out side in view of the UPSEB Employees (Transfer) Regulation, 1980 and that the transfer and posting of an employee under UPSEB is done keeping in view the requirements and the interest of the work of the UPSEB. It has also been categorically stated in the supplementary counteraffidavit that me posting of an employee on nonsensitive posts (i.e. the posts which are not specified as sensitive/Highly sensitive) did not amount to reversion to any inferior post. It was also stated in this supplementary counteraffidavit that in accordance with the guidelines contained in the office memorandum dated 20121997 (Annexure C.A.5 to the counteraffidavit ) the engineers who have completed 10 years of service on sensitive posts in same capacity will be posted on nonsensitive posts. It has also been stated on oath that the transfer of the petitioner has been made in the interest of the work of the UPSEB. It was further stated that at the said 400 KV sub station, Unnao some of the posts are sensitive and some as nonsensitive that though the petitioner''s posting at the 400 KV substation Unnao is non sensitive post but is posting does not amount to reversion to inferior post as all the posts sensitive/non sensitive are treated alike and the posting of any officer can be done in rotational manner.

This is the categorical position to which no exception can be validly taken by the petitioner. That being so, it cannot be said that the impugned transfer order amounted to reversion and that it was bad on that account. The Transfer order contained in Annexure7 did not amount to reversion and was certainly not invalid.

The learned counsel for the petitioner had relied on the authority State of U.P and others v.Jagdev Singh, AIR 1984 S.C. 1115. That was a case where the respondent was found negligent in the discharge of his duties and he was reverted from the post in which he was incharge of the police station and a misconduct entry was made in his character role and because of the findings of the negligence he was transferred and posted as a second officer and in the peculiar circumstances of the case, the provisions of Section 7 (d) of the Police Act No. 5 of 1961 were attracted which speaks of the punishment of removal from any office of "special emoluments" and in the case before the apex Court, the respondent was drawing the special emoluments as S.H.O. of which he was deprived. The apex Court itself make it clear that any transfer of a police officer from one police station to another will not amount to punishment even if it involved the last and special emoluments and thai if a police officer is transferred from one charge to another in the ordinary course of administrative exigencies, Section7 of the Police Act will not be attracted but would apply only if the transfer is made by way of punishment. In the present case, we have found that the transfer was not by way of punishment.

The learned counsel for the petitioner had relied on the authorityAjai Kumar Mittal v. ViceChancellor, Roorkee University and others, reported in 1991 AWC, 64. That was a case of rustication of a student on an enquiry report regarding to a scuffle between the petitioner and certain other students and there was disproportion in the punishment awarded to different persons who participated in the transaction but it is not a case even remotely near the facts of the present case. This ruling does not help the petitioner at all.

The other authority relied upon by the learned counsel for the petitioner was Smt. Kamlesh Gupta v. State of U.P. and others, reported in 1994 A.W.C. 65 in this authori'', , the petitioner had been appointed as Librariancumclerk and his appointment had been approved by the RIGS and affirmed by the DDE but subsequently, her appointment was held illegal on the basis of a report of an alleged high level enquiry committee which inquiry was conducted behind her back and in those circumstances, it was held that the impugned order holding the appointment to be illegal was vitiated because those were passed in utter disregard of the principles of natural justice.

In the present case, the petitioner has not been deprived of his job but has merely been transferred from one post to another in the administrative exigency of the situation. The case of Smt. Kamlesh Gupta has no application.

The writ petition has thus no force and is consequently dismissed.

I agree with the ultimate conclusion of my respected brother, Hon''ble B.K. Sharma, J. The parties will bear costs.