Om Pal Singh vs State of U.P. and Others

Sudhir Agarwal, J.—Writ petition is directed against the order of transfer dated 26.11.2011 whereby Secretary, U.P. Awas Evam Vikas Parishad, has transferred the petitioner from Construction Division-24, Moradabad under District Bijnore to Construction Unit, Ghazipur under District Ballia. It is submitted that impugned order of transfer is founded on a complaint made by Member of Legislative Council belonging to ruling party and my attention is drawn to letter dated 31.8.2010 (Annexure 1 to supplementary affidavit) of Legislative Council U.P. whereupon it appears that some enquiry was made against petitioner by Assistant Housing Secretary conducted enquiry. He submitted report on 3.11.2011 recording his finding that complaints made against petitioner are not substantiated and the said complaints are incorrect. Besides it is also mentioned therein that the transfer being under the Government policy, no comment can be made. Hosing Commissioner thereafter has passed the order which has been communicated by Joint Housing Commissioner which is impugned in writ petition. A perusal of impugned order does not show that it is founded on the alleged complaint of the Member of Legislative Council which attained finality on a report submitted by Assistant Housing Commissioner on 3.11.2011 recording finding in favour of petitioner.

Learned counsel for petitioner submitted that the order of attachment is illegal since he cannot be attached with the Office. The order of attachment is nothing but a kind of transfer from one place to another to a post which is basically connected with the office of superior authority. It is not the case of petitioner that there is no sanctioned post at the place where the petitioner has been attached or the aforesaid order of transfer will affect his emoluments or salary etc.

It is contended that impugned order of transfer is contrary to Government Policy under the guidelines which says that no transfer shall be made in the year 2011-12.

It is now well settled that an order of transfer can not be assailed on the ground of being violative of Government Orders.

In Mrs. Shilpi Bose and others Vs. State of Bihar and others, dealing with a similar issue, the Apex Court said that 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.

In Union of India and Others Vs. S.L. Abbas, , in para 7 of the judgment, Apex Court held as under:

The said guideline however does not confer upon the Government employee a legally enforceable right.

It would be appropriate at this stage to reproduce caution in the words of the Apex court as expressed in State of U.P. and Others Vs. Gobardhan Lal, as under:

A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fide when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer.

A Division Bench of this Court (in which I was a member) in Writ Petition No. 243(S/B)/2007, Uma Shanker Rai Vs. State of U.P. & Others decided on 31.07.2007 has taken the same view

Then it is contended that petitioner could not have been transferred in the mid session. No such legal principle or statutory provision which says that no person can be transferred in mid session has been placed before this Court.

In the circumstances, I find no merit in the writ petition.

Dismissed.