Krishna Chandra Srivastava vs State of U.P. and others

Dilip Gupta, J.

The petitioner who is a Class III employee in the Local Fund Audit Department is aggrieved by the transfer order dated 29th June, 2006 whereby he has been transferred from Allahabad to Saharanpur.

Sri S.D. Kautilya, learned counsel appearing for the petitioner submitted that the said transfer is against the transfer policy dated 15th May, 2008 framed by the State Government; that the transfer order has been passed because of the malafides of respondent no.3, R.V.S. Yadav, who is the Director, Local Fund Audit Directorate, Allahabad and that the said transfer has been made in order to accommodate private respondent no.4, Om Prakash Sharma.

Learned Standing Counsel appearing for the respondent nos. 1 and 2 has supported the transfer order and has placed reliance upon various averments made in the counter affidavit which show that the petitioner has remained at Allahabad for a sufficiently long period.

Sri C.B. Yadav, learned counsel for respondent no.4 has also supported the transfer order and has contended that he had made a request for transfer which request was acceded to by the Director on the recommendation made by the Assistant Director.

I have heard learned counsel for the parties and perused the materials available on record.

It is not in dispute that the petitioner holds a transferable Class III post. It is also not in dispute that the petitioner was appointed on 1st January, 1976 and was posted at Allahabad from 1st January, 1976 upto 29th June, 1988 whereafter he was transferred to Gonda, and Pratapgarh where he was posted upto 1991 but from 6th June, 1991 till the date of his transfer in June, 2008 he has again been posted at Allahabad.

A perusal of the transfer order dated 29th June, 2008 shows that Om Prakash Sharma, respondent no.4, had made a request for transfer to Allahabad since he was suffering from kidney disorder and on his request he was posted at Allahabad and since the petitioner had the longest posting at Allahabad he was transferred to Saharanpur. In the Counter affidavit filed on behalf of the State, the application submitted by the respondent no.4 for seeking his transfer has been annexed and it also contains the recommendation made by the Assistant Director, Faizabad Region, Faizabad for transfer of respondent no.4.

The first contention of learned counsel for the petitioner is that the said transfer is against the transfer policy formulated by the State Government by the order dated 15th May, 2008. A perusal of the said policy shows that there is no bar in transferring Class III employees on administrative grounds though it is correct that under Clause 1(chha) only certain categories of Class III post employees are required to be transferred after 6 years of service and the petitioner does not fall within this category but then under Clause 1(ka), any Class III employee can be transferred on administrative grounds. In the present case, as the records speak, the petitioner has served at Allahabad for a sufficiently long period of about 11 years from 1976 to 1988 and then again for about 17 years from 1991 to 2008. The petitioner does not have a vested right to stay at one place since he holds a transferable post. He has been transferred by the competent authority. It also needs to be mentioned that on the date when the transfer order was passed, the petitioner had more than 2 years of service left and, therefore, it cannot be said that the petitioner could not be transferred under Clause 9 of the policy dated 15th May, 2008.

In support of his contention that the transfer order had been passed because of malafides of respondent no.3, learned counsel for the petitioner has placed reliance upon paragraphs 13, 14, 15 and 16 of the writ petition wherein it has been stated that since the petitioner had objected to the arbitrary action of respondent no.3 before the higher authorities, the Director who is the transferring authority passed the order on 29th June, 2008 which was a Sunday. The allegations made against the respondent no.3 are absolutely vague and do not inspire confidence. The transfer list dated 25th June, 2008 was issued by the Director in which the name of the petitioner is not mentioned. If the Director had any ill will towards the petitioner, he would have included his name in the said transfer list but that was not done. It is apparent that on the application moved by respondent no.4 on which recommendation was made by the Assistant Director, the petitioner had been transferred on 29th June, 2008. It is true that 29th June, 2008 was a Sunday but then the transfer orders were required to be passed before 30th June, 2008 and, therefore, in such circumstances, it cannot be said that the Director acted in a malafide manner since the impugned order was passed on Sunday.

Learned counsel appearing for the petitioner further submitted that even if respondent no.4 was ill then too since he was being treated at Sanjay Gandhi Post Graduate Institute, Raibareilly, there was no necessity to transfer him to Allahabad. This contention cannot be accepted. The medical certificates also indicate that the respondent no.4 had also been treated at Allahabad. In such circumstances, the decision taken by the Director to transfer respondent no.4 to Allahabad cannot be faulted on this ground as it is for the Authority to take appropriate decisions in such matters.

Learned counsel for the petitioner also submitted that some employees who were also suffering from ailments had not been transferred and the Director could not have singled out respondent no.4 for this benefit. It is for the Director to take decisions in such matters and the decision had been taken by the Director on the basis of the recommendation made by the Assistant Director. The decision cannot be said to be arbitrary merely because in other cases the employees were not transferred.

There is, therefore, no infirmity in the impugned order. The writ petition is, accordingly, dismissed. Interim order shall stand discharged. The respondents shall now give effect to the transfer order at the earliest.