Mohisin Ali vs State of U.P. and Others

Hon''ble Anil Kumar, J.—Heard Sri S.P. Singh,learned counsel for petitioner and learned Standing Counsel as well as Sri Avdhesh Shukla, learned counsel for respondents.

By means of the present writ petition, the petitioner has challenged the impugned order of transfer dated 07.09.2011 (Annenxure No. 1) passed by O.P. No. 3/Zila Basic Adhikari, Unnao.

Learned counsel for petitioner while challenging the impugned order of transfer submits that the same is in contravention to the transfer policy dated 14.05.2011 (Annexure No. 3) as well as order dated 25.05.2011 (Anneuxre No. 4)passed by O.P. No. 2, in support of his argument, learned counsel for petitioner placed reliance to the judgment of this Court reported in 2006 (24) LCD 288 (Smt. Urmila Devi Pal Vs. State of U.P. and other).

I have heard learned counsel for parties and gone through the record.

In the instant case by the impugned transfer order the petitioner has been transferred form one primary school to another primary school situated in the same district, in the administrative exigency of services and in the interest of teaching.

It does not dispute by the learned counsel for petitioner that he is holding transferable post.

The law is well settled that transfer being exigency of service can be effected by the employer concerned in accordance with its 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 unelss it may be shown that transfer order is vitiated on account of the contravention of the statute, or lacks jurisdiction or mala fide as such in view of the judgment passed by the Hon''ble Supreme Court in the case of Mrs. Shilpi Bose and others Vs. State of Bihar and others, wherein Hon''ble Supreme Court has held as under:

In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer order are made in violation of any mandatory statutory rule or on the ground of mala fide. 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 ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department.

The aforesaid view has been reiterated by Hon''ble Supreme Court in the case of Union of India and another Vs. N.P. Thomas, and N.K. Singh Vs. Union of India and others, holding therein if a person holding a transferable post, is transferred, there is no violation of any statutory/ mandatory rules then the same is not subject to judicial review.

Further, in the case of Chief General Manager (Telecom), N.E. Telecom Circle and another Vs. Rajendra Ch. Bhattacharjee and others, Hon''ble Supreme Court has held as under:

It is needless to emphasise that a government employee or any servant of a public undertaking has no legal right to insist for being posted at any particular place. It cannot be disputed that the respondent holds a transferable post and unless specifically provided in his service conditions, he was no choice in the matter of posting. Since the respondent has no legal or statutory right to claim his posting at Agartala, therefore, there was no justification for the Tribunal to set aside the respondent''s transfer to Dimpur.

In view of the abovesaid facts, the submission as made by learned counsel for petitioner has got no force, moreover the law which has been cited by the learned counsel for petitioner is per inquerium and has got no binding force in view of the law as given by Hon''ble the Apex Court on point in issue as stated hereinabove. So the petitioner cannot derive any benefit from it.

For the foregoing reasons, the relief as claimed by petitioner in present writ petition cannot be granted under Article 226 of the Constitution of India.

However, as prayed by petitioners'' counsel, petitioner is permitted to make representation in respect to grievance which he has have raised in present writ petition to O.P. No. 2 /Director, Education (Basic, Lucknow within a period of one week from today annexing all relevant documents and material in support of his case as well as self addressed stamped envelop, and after receiving the same, O.P. No. 2 dispose of within a further period of three weeks thereafter with reasoned and speaking order and communicate the same to him.

With the above observation, writ petition is dismissed.