Jagvir Singh Talan vs State of U.P. and Others

Palok Basu and M.C. Agarwal, JJ.—Being primarily aware that in rarest of the rare cases this Court exercises powers under Article 226 of the Constitution of India in so far as it relates to transfers of Government servants, this is one instance where this Court interfered by passing an interim order staying the transfer of the Petitioner Jagvir Singh Talan and calling for counter-affidavit. The standing counsel was given time and accordingly, counter-affidavit has been filed so much so that 0. P. No. 5 Ravindra Prasad who has been posted in place of the Petitioner, has also filed a counter-affidavit and has been heard through his counsel. Rejoinder-affidavit has been filed by the Petitioner. As prayed, the writ petition is finally disposed of at the admission stage.

Sri U. N. Sharma assisted by Sri S. K. Rai for the Petitioner, Sri Pradeep Kumar, standing counsel for the State and its officials and Km. Bharti Sapru for opposite party No. 5 Ravindra Prasad have been heard at substantial length and entire record has been perused. It may be mentioned here that the standing counsel has produced before the Court a complete photostat copies of the entire record of the department relating to the transfer matter.

The Petitioner is posted as Assistant Engineer (I), Mainpuri Division, Lower Ganga Canal Sub-Division-I, Mainpuri. By the impugned transfer order dated 10.9.96 the Petitioner has been transferred to another sub-division and in his place opposite party No. 5 Ravindra Prasad has been directed to be posted.

A perusal of Annexure ''8'' indicates that this transfer order has been issued at the instance of Joint Secretary, Irrigation. The Petitioner''s case is that the transfer order smacks political interference inasmuch as some local member of the Legislative Assembly (Ex) as well as some other political leaders have written to the officials including the advisor to the Governor for effecting the said transfer.

Copies of letter of the former member of the Legislative Assembly as also other letters of local persons having political background have been annexed with the writ petition.

It was contended on behalf of private opposite party that this transfer order should not be interfered with primarily for three reasons; (1) that the initial order of the transfer against the Petitioner which was passed in July was cancelled/recalled and then the impugned transfer order has been passed; (2) the impugned transfer order should not have interpreted as a continuous process beginning with the first transfer order and is the result of administrative action because the Government came across administrative/contingency to transfer the Petitioner and; (3) that there is no change of posting of the Petitioner even from the District and he continues to be posted in Mainpuri, this is not the occasion for this Court to exercise the powers under Article 226 of the Constitution of India. Standing counsel has also, apart from retreating the aforesaid three arguments raised by Km. Bharti Sapru, stated that it is normally an order of shifting of the Petitioner which should not be connected with transfer orders which may generally be passed after three years of posting.

Having considered the pros and cons of the arguments, let it be stated here that consequence of the impugned order is nothing but continuance of the process of shifting the Petitioner from the post where he was posted in July. The initial transfer order, if interfered with and cancelled by the Government, left no occasion for the impugned order to be passed within a month of recalling of the aforesaid order. Moreover, not only that presence of political interference can be assumed, it is smelling strongly from the record that the orders of the Chief Engineer are based on the recommendation made by the advisor to the Governor. The letter of the local persons having political background are forming part of the record.

It may be mentioned here that while the local members of the Legislative Assembly as well as Parliament oversee the working of the governmental agency and can. in their own right, take decision to recommend transfer or posting of some of the officials at some point of time. But, when it comes to the asking the posting of one or two officials by ignoring the normal rules so much so that one after another order is being passed, it can be looked upon as a case of political interference and not under some exigency depending upon legal demands. In this view of the matter, this is a fit case where a power under Article 226 of the Constitution of India should be exercised.

Before parting with, it, may be mentioned here that the Petitioner has worked on that post only for a period of 10 months when the impugned order was passed.

In view of what has been stated above, the writ petition succeeds and is allowed. The impugned order dated 10.9.1996 is quashed. Parties will bear costs.