Shiv Shanker Ram vs State of U.P. and Others

Pradeep Kant and Ajai Kumar Singh, JJ.—The petitioner, feeling aggrieved by his transfer order dated 9.7.2004 transferring him from Lucknow to Jhansi as Joint Director, Technical Education, has filed this writ petition alleging that this transfer was managed only to accommodate and retain respondent No. 3 Smt. Sushma Gaur at Lucknow, who otherwise had been at Lucknow since the very inception of her service in the department but for a few breaks of few months or days, whereafter she again managed to come to Lucknow and has stayed till dated.

Learning all other facts, which have not been disputed by the private respondent and cannot be disputed, as the record itself speaks that the private respondent, who was appointed in Lucknow in the year 1979 has been allowed to continue at Lucknow and till date only three transfer orders were passed against her and those transfer orders were cancelled and she was again brought to Lucknow. She worked only at Barabanki, a nearby district of Lucknow, where she hardly remained posted from June, 1995 to August, 1995 and then she again was transferred to Lucknow. On 13.1.2003 she was posted at Kanpur, only 90 km. away from Lucknow and she remained at Kanpur till 19th June, 2003 and thereafter she was again brought to Lucknow on one post or the other. Recently during the pendency of the writ petition, respondent No. 3 was again transferred to Kanpur, vide order dated 9.6.2006 but that order has been cancelled and she has again been, brought to Lucknow. The petitioner had joined at Jhansi in pursuance of the interim order issued by this Court that his joining would be subject to further orders passed in the writ petition.

The affidavits have been exchanged but no ground, what to say of any satisfactory ground have been stated either by private respondent or by the State justifying the retention of respondent No. 3 at Lucknow for the last 17 years but for the few breaks aforesaid. It has also not been explained by the respondents that why and under what circumstances and for what reasons whatsoever if the transfer .order was issued, the same was put to sought and within a short span she was again brought to Lucknow and every time the transfer order was cancelled and why respondent No. 3 was posted again and again in Lucknow.

Though transfer and posting of a Government servant is within the domain and discretion of the State Government but where the transfer and posting is actuated of mala fide, may be the mala fide of fact or law, and the order is passed for accommodating a particular person which has affected the right of other employee, the Court can interfere in such matters. The petitioner, who had his stay approximately for two years at Lucknow, was transferred from. Lucknow to Jhansi and the respondent No. 3, who was already working in Lucknow on a different post was shifted from that post and posted on the post which the petitioner was holding. No reasons have been indicated in the affidavits of the respondents as to why this shifting was effected and why the respondent No. 3 could not be transferred out of Lucknow. Issuance of transfer order dated 9.6.2006 and thereafter cancelling the same again in August, 2006 itself not only speaks but reflects upon the bona fides of the State Government when the two earlier orders of transfer were cancelled, within a very short span.

A Government servant cannot choose his posting according to his/her choice but it is the administrative exigency, which requires his/her posting at a particular place.

Sri Raj Kumar, appearing for respondent No. 3 has fairly stated that there cannot be any justification for respondent No. 3 to stay at Lucknow and, therefore, on her behalf he has submitted that respondent No. 3 is prepared to go on any posting as the State Government may make and for that matter, some time may be granted to her, preferably upto 15th May, 2007, in view of the existing general elections.

We, in view of the consideration of the aforesaid facts and the legal position, are of the view that the impugned order in so far, it transfers the petitioner front Lucknow to Jhansi cannot be sustained, nor the posting of respondent No. 3 in place of the petitioner can be upheld and,-therefore, the same is liable to be quashed, which is hereby quashed, so far as petitioner and respondent No. 3 are concerned. However, during the pendency of the writ petition, the order of transfer dated 9.6.2006 transferring respondent No. 3 to Kanpur has been cancelled and she has been allowed to continue at Lucknow, vide order dated 22.8.2006, we direct that respondent No. 3 may remain at Lucknow upto 15th May, 2007 and in the meantime, the Slate Government shall pass a fresh order of transfer posting her at any other place outside Lucknow.

Sri Raj Kumar says that his client undertakes that she would join at the transferred place by 15th of May, 2007. The petitioner would immediately thereafter be allowed to come to Lucknow and shall be allowed to continue as such. Since respondent No. 3 has been working in place of the petitioner at Lucknow, necessary orders shall be passed by the State Government within the time provided so that no inconvenience is caused to any party i.e. the petitioner and respondent No. 3.

The writ petition is allowed. No order as to costs.