Court No. - 38 Case :- WRIT - A No. - 42833 of 2010 Petitioner :- Munajir Hussain Respondent :- State Of U.P. & Others Petitioner Counsel :- Chandrakesh Mishra,Daya Shanker Mishra Respondent Counsel :- C.S.C. Hon'ble Shishir Kumar,J.
Heard Sri Daya Shanker Mishra, leaned counsel for the petitioner
and learned Standing Counsel.
This is the third inning of the petitioner before this Court against
the order of transfer dated 28.01.2010. Petitioner, who is a Lekhpal
has been transferred from one Tehsil to another, that is Tehsil
Sadar to Tehsil Sambhal in the same district that is Moradabad. He
was not satisfied with the order of transfer then he filed a writ
petition before this Court being writ petition No.8339 of 2010,
which was finally disposed on 17.02.2010 with a direction to
authority concerned to consider the representation of the petitioner
within a period of six weeks. According to the petitioner the same
was not considered within a period of mentioned by this Court,
then he again filed a writ petition before this Court being 22954 of
2010, the same was dismissed on the ground that it is not
maintainable in view of the fact that in case the petitioner is
aggrieved by the action of the respondent, he can filed a contempt
petition because this Court has already directed to decide the
grievances of the petitioner within a specific period. Now it
appears that in pursuance of the order, direction issued by this
Court the competent authority by order dated 23.06.2010 has
rejected the claim of the petitioner, same is under challenge by the
petitioner in the present writ petition.
Leaned counsel for the petitioner submits that in view of the
Government order, a person who has not completed 10 years of
service in a particular Tehsil cannot be transferred though the
petitioner has not completed 10 years, but he has been transferred
in contravention of the Government order and policy adopted by
the State Government. Further submission has been made that
relevant authorities while considering the claim of the petitioner
has not considered the issue to the effect that petitioner has been
assigned the work of census, therefore, in view of notification the
Election Commissioner petitioner cannot be transferred. During
this period, petitioner being a booth level Officer cannot be
transferred unless and until an approval is obtained.
Petitioner has placed reliance upon an order dated 28.01.2010
issued by the Tehsildar, which is the list of 21 persons were
working in the particular Tehsil for more than 10 years and in view
of the Government order he has recommended the transfer of those
persons. According to the petitioner, name of the petitioner is not
in the said list. Therefore, the petitioner cannot be transferred.
I have considered the submission of the learned counsel for the
parties. The order of transfer clearly shows that petitioner has been
transferred on an administrative ground. As regards the submission
of the petitioner regarding assigning of the census working that
cannot be accepted in view of the fact that the work assigned to the
petitioner is after the order dated 28.01.2010. Further in the first
writ petition field by the petitioner against the order dated
28.01.2010 petitioner has not disclosed this fact or taken a ground
regarding involvement in the census activities. According to the
petitioner, he has taken a ground but form the order passed by this
Court it does not appear that the same was accepted or mentioned
in the order, therefore, legally, there is a presumption that the said
argument or relief sought by the petitioner has not been accepted
and was rejected. As regards the non consideration of the claim of
the petitioner on the basis of representation, it is clear that the
authority concerned has considered the issue in detail and in the
order impugned dated 23.06.2010, has clearly stated that petitioner
has been transferred on administrative ground and further it has
been stated that each and every persons, who have been transferred
have joined the post except the petitioner, it has already been
mentioned in the order that earlier petitioner was suspended and he
was dismissed from service, but upon the appeal filed by the
petitioner, the order of termination has been set aside and as regard
the punishment of minimum scale. The writ petition is pending
before this court and on the basis of the interim order, petitioner is
getting salary. Further as it is to be noted that the petitioner has
avoided the order of transfer for a period of seven months on the
pretext by filing the writ petition before aftger writ petition this
Court.
It is settled in law that transfer being an exigency of service, an
employee cannot claim as a matter of right that he is entitled to
remain at a particular place. There cannot be any interference
unless and until it is proved from the record that order of transfer is
malafide, has been passed by an authority, who is having no
authority, or the order of transfer is by way of punishment . From
perusal of the order of transfer, it is not clear that any three
ingredients are available to the petitioner to submit before this
Court. In such circumstances, I see no justification to interfere in
the order of transfer. The writ petition devoid on merit, and hereby
dismissed.
It is however open to the petitioner to raise a grievance before the
higher authorities regarding the fact that the persons in spite of the
recommendation by the Tehsildar concerned regarding the fact that
they have completed 10 years tenure in a particular Tehsil have not
been transferred, but the petitioner has been transferred.
No order as to costs.
Order Date :- 23.7.2010
Pr/-