Prem Narain Shukla vs State of U.P. and Others

Amitava Lala, J.—This special appeal has been filed by the Appellant challenging the order of the learned Single Judge dated 06th October, 2010 by saying that no personal hearing has been afforded to the Appellant by the appropriate authority before transferring him from Uttar Pradesh Cadre to the Uttaranchal Cadre. We find from the order impugned that the Court has considered the order passed by learned Single Judge in Civil Misc. Writ Petitioin No. 4624 of 2009 (Sanjay Kumar Singh and Anr. v. State of Uttar Pradesh and Ors. Civil Misc. Writ Petitioin No. 4624 of 2009) alongwith connected matters as well as the writ petition No. 13652 of 2009 (Mahendra Singh v. State of U.P. writ petition No. 13652 of 2009). Virtually the Court came to the conclusion on the basis of the judgment delivered in Writ Petition No. 52014 of 2009 (Pradeep Kumar Singh v. Union of India and Ors. Writ Petition No. 52014 of 2009). According to the learned Single Judge, the earlier writ petitions were dismissed by the Division Bench of this Court. However, Court has taken the ultimate view as follows:

Having heard Sri Vijay Gautam, learned Counsel for the petitoner as well as Sri Piyush Shukla, learned Standing Counsel for the State, I find that after considering the matter involving validity of cadre allocation orders of Government of India in detail, this Court (Hon''ble Sunil Ambwani,J.) passed a detailed order on 30.5.2009 and dismissed all the writ petitions led by Sanjay Kumar Singh and Ors. (supra). The Special Leave to appeal filed against Sanjay Kumar Singh''s judgment, was admitted by a Division Bench of this Court on 08.9.2009, but the interim order was refused. Where against special appeal was filed wherein order of status-quo was passed. But later on against the said judgment dated 30.7.2009 another Special appeal came up for consideration before a Division Bench and was decided finally on 9.10.2009, which order confirm the judgment of Single judge passed in the case of Sanjay Kumar Singh (supra). The Special appeal was dismissed on 9.10.2009.

Folllowing these two judgments, this Court (myself) decided another Writ Petition No. 52014 of 2009 Pradeep Kumar Singh (supra) on 28.10.2009, wherein some other arguments were also considered and negated. All the grounds taken in this writ petition are covered by the aforesaid decision in Sanjay Kumar Singh (supra), Mahendra Kumar Singh (supra) and Pradeep Kumar Singh (supra). Learned Counsel for the Petitioner could not make any submission to persuade this Court to take a different view.

In view of the above, writ petition lack merit, is dismissed. No order as to costs.

Mr.C.B. Yadav, learned Senior Counsel, appearing in support of the Appellant, contended before us that there is a genuine hardship on the part of the Appellant and as per the circular of the State of Uttar Pradesh dated 15.07.2002 personal hearing has to be given in respect of genuine hardship. The Appellant''s case for consideration of cause is as follows:

That in 1992 Petitioner was while posted in Haldwani District Nainital (Now in Uttaranchal) one hardened notorious criminal and mafia namely Mahendra Singh alias Munna was murdered on ITI gate Haldwani on 31.03.1992 and in this murder case the real younger brother of Petitioner was named as accused in F.I.R. due to this fact petitioiner and his family came in danger of life as the deceased Munna was hardened criminal and was wanted in dozen of hyeneous crime in District Nainital as the family member of deceased became active to finish Petitioner and his family the Petitioner made request for transfer out of zone where upon the Petitioner was transferred vide order dated 06.04.1992 and attached to Lucknow head quarter. The true copy of transfer order dated 06.04.1992 is being filed as Annexure No. 3 to this writ petition.

That thereafter petitioiner was transferred to Faizabad and some month after that he was posted as Assistant Conservator of forest/S.D.O. Social forestry Division Basti, District Basti till date.

About consideration of cause he has made the case in paragraph Nos. 20, 21 and 22 of the writ petition that he has made representations but he is not aware of the fate thereof.

However, from the affidavit of the Respondent-State of Uttrar Pradesh it appears that due consideration was made. Paragraph 15 of the Counter Affidavit of the State is quoted hereunder:

That the contents of paras 27 to 31 of the writ petition, as stated, are denied. Suitable reply in detal has already been explaned in the foregoing part of this counter affidavit, which may kindly be perused here. It is further stated that the matter of the Petitioner was duly considered, but he was allocated for Uttaranchal State due to the reason that he was junior most in his batch. It is further stated that vide Govt. of India''s order dt. 31.10.2006 the Petitioner was also allocated due to his being juniormost and placed at serial No. 62. A photocopy of the said order dt. 31.10.2006 is being filed herewith as Annxure No. CA.1.

According to us, no doubt in the seniority list te Appellant is at serial No. 27, which is lower in the post and as per scheme, the transfer will be made from the junior most candidate, which he is disputing by saying that he is not junior most.

However, Mr. Yadav has relied upon the judgment of this Bench as well as judgment of another Division Bench. So far as the judgment of this Bench is concerned, it is reported case in (2010) 1 UPLBEC 443 (Ram Pal Singh (III) v. State of U.P. and Ors.), whereunder the authority u/s 73 of the Uttar Pradesh Reorganisation Act, 2000 was directed to consider the cause upon giving fullest opportunity of hearing and by passing a reasoned order before giving effect of transfer. The Court was pleased to consider the ratio of the two Supreme Court judgments reported in Indradeo Paswan Vs. Union of India (UOI) and Others, which has followed the earlier judgment reported in 2006(9) SCC 458 (Purushottam Kumar Jha v. State of Jharkhand and Ors.). So far as the another Division Bench is concerned, the order passed directing the allocation of State of Uttaranchal will be given effect after considering their representations upon giving opportunity of hearing individually, to which the learned Counsel appearing for Union of India and State of Uttaranchal have submitted before us that such order was passed long back when question of tentative allocation arose. So far as our judgment in (Ram Pal Singh (III) v. State of U.P. and Ors.) (supra) is concerned, we have intervened since no consideration was made at all but in the present case ground is made for insufficient consideration. Both are different situations altogether. Consideration about danger of life of the Appellant can obviously be treated to be a special case in case there is immediate apparent danger not in the remotest case. A plea has been taken that such hardship is not correctly considered by the State. Simultaneously a plea has also been taken that the Central Government is the authority for consideration since it is a matter of two States. On the other hand, the learned Counsel appearing for Union of India has contended before us that broad principle for consideration has been laid down by Central Government which is as follows:

The broad principle of allocation of State Cadre employees which interalia include allocation first by ''option'', followed by domicile (Home District) and lastly by inclusion of junior most personnel in the reverse order of seniority. If the number of posts allocated to the successor State of Uttarakhand are more than the total number of ''optees'' and ''domicile'' (Home District), then the employees down in the seniority position in the cadre are considered for allocatioin even against their options, in order to fill up the balance post. However, the following are the exceptions to the above mentioned policy:

(i) Women employees-as far as possible, allocated based on option only.

(ii) Class IV employees-as far as possible, allocated based on option only.

(iii) Handicapped persons-as far as possible, allocated based on option only.

(iv) Spouce policy-as far as possible, both the spouce to be allocated to a singly successor state based on their opinion.

(v) Medical Hardships cases:

(a) Cancer patient-Self or Family *

(b) Blindness-Self only.

(c) Heart Bye-pass Surgery-Self only if done within two years from the date of representation is considered by the Committee.

(d) Kidney Transplantation/-Self or family*Kidney failure and Continuing on dialysis.

(e) Mental illness-Self or family*, restricted to indoortreatment for at least three months.*family include spouse, dependent children and dependentparents.

According to the Appellant, the reference has been made to the notification issued by the State of U.P. to the Forest Department on 05th August, 2002 with regard to representation of the Appellant for having slip disc, ciatica and danger of life. It appears to us that the same have been taken into account. The remaining question is personsal hearing has been given or not. The Supreme Court held in Indradeo Paswan Vs. Union of India (UOI) and Others, that the allocation should not be interfered on individual grievance relating to non acceptance of options exercised, unless clear illegality or Wednesbury unreasonableness is established.

According to us, the case of the Appellant is not on account of non consideration of the cause but due to insufficient consideration of the cause. Non consideration of the cause obviously relates to question of natural justice, therefore, writ Court interferes with the same. But insufficient consideration of the cause is a question of fact, which can only be gone into by the writ Court in rarest of the rare cases. Consideration of the cause, as made by the State, was forwarded to the Union of India who submitted before us vehemently in support of the consideration by the State. Therefore, there is no conflict in between the stand of the State and the Union of India, in transferring this incumbent from the State of Uttar Pradesh to the State of Uttranchal. Factually, it has been submitted that the incident of criminal activities of the year 1992 can remotely be a ground for transferring a person from one State to another now. If any criminal activity is apprehended, that could have been done irrespective of the Appellant''s presence in the State of Uttranchal. In other words, as we find, long after 1992 in the year 2000 the State of Uttar Pradesh was bifurcated forming two States but nothing had happened from 1992 even upto 2000. Therefore, it appears that the Appellant is trying to stall the transfer on some flimsy grounds, which can not be considered at all as real grievance. According to us, case of the Respondents stands on much stronger footing than that of the Appellant. Therefore, we do not find any reason to admit the appeal. Hence, the appeal is dismissed at the stage of admission, however, without imposing any cost.

In any event, it is open to the Appellant to approach the appropriate authority to get a personal hearing as expeditiously as possible before the effective date of transfer and if it is done by the authority, the same will not be open for challlenge any further. However, such consideration, if any, will be independent of the judgment and order passed by this Court.