JUDGMENT
A. Chakrabarti, J.
1. The petitioner has challenged the order dated June 14, 1994 and July 16, 1994 transferring the petitioner from Harduaganj.
2. The case made out in the writ petition in brief is as follows:
3. The petitioner was appointed on the post of Chemist Grade-II on August 12, 1977 and was regularised on the post by memorandum dated January 21, 1994 with effect from August 12, 1982 and was confirmed with effect from April 1, 1986 by memorandum dated February 26, 1994. The petitioner’s service was meritorious and he was twice given the time-bound pay-scale. The petitioner is the General Secretary of the U.P. Vidyut Mazdoor Sangh which is a registered trade union and is affiliated to Bhartiya Mazdoor sangh a federation of Trade Unions duly recognised by Government of India. The respondent No. 6, the City President, Bahujan Samaj Party by letter dated May 3, 1994 made false allegations against the petitioner to the Chief Minister of the State. The substance of the allegations was harassing the members of the backward class and blackmail ing them. The said letter at Annexure 3 to the writ petition also enclosed a letter addressed to the Chief Minister dated May 1, 1994 wherein similar allegations were made. The respondent No. 6, the City President of Bahujan Samaj Party handed over his letter dated May 3, 1994 to the then Education Minister of U.P. The Education Minister wrote a letter to the Chief Minister dated May 11, 1994 (Annexure 5 to the writ petition) wherein complaint was made against the petitioner of communal activities and thereby harassing the members of backward class with a request to transfer the petitioner to some other place. The Secretary to the Chief Minister by his letter dated May 20, 1994 addressed the Chairman,
U.P. State Electricity Board asking him to peruse the letter of the Education Minister dated May 11, 1994 and the request of the Chief Minister to transfer the petitioner from Harduaganj. He further stated that the Chief Minister desired the transfer and so to act accordingly and to intimate the Education Minister about the same. On the said letter the direction of the Chairman, U.P. State Electricity Board has been noted directing the Secretary to transfer the petitioner to Tanda. Such noting was made on May 27, 1994. The said letter itself indicates action taken by the authorities on such direction from the Chief Minister admittedly on the basis of the letter of the Education Minister. Ultimately, the transfer order dated June 14, 1994 (Annexure-1 to the writ petition) was issued transferring the petitioner from Harduaganj to Anpara. The said transfer order was followed by another order dated July 16, 1994 (Annexure-2 to the writ petition) whereby the earlier transfer order dated June 14, 1994 was partially modified by making the transfer to Tanda instead of Anpara. The petitioner contends that the said transfer order is only on complaint from political people against the petitioner because of political rivalry and without any assessment as to the truth of the said allegations by any appropriate authority at all. Thus, the transfer order being absolutely mala fide and not on administrative exigency or in public interest is liable to be set aside.
4. The respondents contested the proceeding initially by filing a short counter-affidavit disclosing the only fact that the petitioner already stood relieved on June 18, 1994. The said short counter-affidavit was followed by a supplementary counter affidavit. In the said supplementary counter affidavit, the respondent contended that on certain complaints against the petitioner of the year 1992 and a recommendation for his
transfer on such complaints in the year 1992 and that by communication dated April 5, 1994, the Project at Anpara requested for posting one Chemist Grade II for a vacant post there. It has been stated that considering the overall circumstances and administrative exigencies as also the requirement of Chemist Grade II at Anpara and the long stay of the petitioner at Harduaganj, the impugned transfer order dated June 14, 1994 was issued. It has further been stated that upon a communication by the President, Akhil Bhartiya Vidyut Mazdoor Sangh and keeping in view the difficulty of the petitioner the place of his transfer was changed from Anpara to Tanda. The letters at the various levels of the Political people and the Ministers were not denied but it has been contended that the transfer of the petitioner was not issued on the basis of the said letter and that the transfer order was issued only on administrative ground in the interest of the Board and not on complaints, or under the direction of the Education Minister.
5. The petitioner by filing the rejoinder affidavit denied service of the letter dated June 18, 1994 relieving him from Harduaganj. The petitioner also contends that two persons, Lekhraj Singh and Sunil Kumar Gupta both Chemist Grade-II were transferred from Harduaganj to Anpara in 1992 and 1993 respectively and the writ petition by Lekhraj Singh challenging such transfer order was dismissed by this Court on September 23, 1993 but still such transfers were cancelled by order dated May 5, 1994. The petitioner contends that the said fact itself shows that the demand for Chemist Grade II on May 5, 1994 is mala fide and is being used as a defence.
6. The contentions of the petioner relying upon the documents annexed to the writ petition particularly at Annexures 1 and 2 indicate that the transfer order was passed on political reference without any enquiry by any competent officer. The Chairman of the U.P. State Electricity Board appears to have put an instruction upon the Secretary of the Board to effect transfer of the petitioner. No record has been produced showing consideration of any administrative exigency or public interest in respect of the transfer of the petitioner. The denials made in the counter affidavit do not bear support from any document or records produced at the time of hearing and also do not appear to be convincing. The complaint of the political personnel, its reference by the Education Minister and the instruction of the Chief Minister on that basis followed by the direction of the Chairman of the U.P. State Electricity Board for transfer upon the letter written on behalf of the Chief Minister show convincingly that the entire matter of transfer of the petitioner was based on political complaint and influence. It does not appear for what reason the Education Minister was acting in the matter of transfer of an employee of U.P. State Electricity Board and the only consideration was political. It does not appear, that the Chief Minister considered the matter as the Head of the State and no record was produced at the time of hearing showing the consideration of matter by the Chief Minister as the Head of the State. On the contrary, the letter at Annexure-6 simply refers to the letter of the Education Minister requesting for transfer of the petitioner which was the basis of the direction of the Chief Minister also. The said letter at Annexure-6 itself bears the instruction of the Chairman, U.P. State Electricity Board to the Secretary directing transfer of the petitioner from Harduaganj. In the said facts of the case, I am convinced that the petitioner’s transfer was on political consideration and complaints and not at all was considered from the angle of administrative exigency or public interest.
7. The learned counsel for the petitioner relied upon the case of Sheo Kumar Sharma v. Basic Shiksha Adhikari, Kanpur Dehat and Ors. (1991) 1 UPLBEC 690. The observation of the High Court in the said case is as follows:
“It is regretted that a Minister should pass a transfer order which function is to be discharged by the Competent authority in the Department. If any thing adverse to the conduct of the incumbent comes to the knowledge of a Vidhayak or some other public representative then he may forward it to the competent authority requesting him to consider the same and do the needful in the matter, but interference by directing transfer straightaway is not compatible to the principles of rules of law, by which a country having. democratic set up is to be governed. All the persons in position should know that this is not the Government of the men howsoever high position they may occupy but is the Government of laws”.
8. Learned counsel also referred to the case of Tulsi Ram v. State and Ors. 1993 HVD (Alld) Vol. II at page 79 wherein the order of suspension passed by the Food Commissioner was quashed holding that the order was passed not in his own discretion but at the dictate of the Minister and as such is not lawful. The further reference was made to the case of Pradeep Kumar Agrawal v. Director, Local Bodies, U.P. and Anr. 1994 HVD (Alld) Vol. I at page 6. Therein the Division Bench of this Court was pleased to hold that transfer is to be done only in administrative exigencies and in public interest not on the basis of political pressure. Considering the facts of the case it was observed by the Division Bench:
“…… transfers are to be done only in administrative exigencies and in public interest, but in (he instant case the letter written by the aforesaid M.P. Addressed to Minister for Urban Development bearing endorsement of the officers of the State Government indicates that instant transfer has neither been made in administrative exigency nor in public interest. It is not only a matter of surprise but highly objectionable that bureaucrats are dancing at the tunes of such letters ignoring the well settled norms meant for transfer,”
9. On behalf of the respondents reference was made to various cases laying down the law relating to transfer. The first reference was, made to the case of E.P. Rayappa v. State of Tamil Nadu (1974-I-LLJ-172)(SC). In the said case the transfer of the Chief Secretary of the state was being considered in the background that the Chief Minister as the Head of the Government is in ultimate charge of the administration and it is he who is politically answerable to the people for the achievement and failure of the government and, therefore, if for any valid reason, the chief Secretary forfeits the confidence of the Chief Minister, the Chief Minister may ultimately in the larger interest of administration shift the Chief Secretary to another post. The said case, upon perusal, appears to be on the principles laid down in the aforesaid background and the same does not lay down the general principles of transfer. The next case referred was the case of Shanti Kumari v. Regional Deputy Director (1981-II-LLJ-312)(SC) wherein it has been held that transfer of a Government servant may be due to exigency of service or due to administrative reason and the courts cannot interfere in such matters. The said principle also does not apply, in my opinion, in the present case as no allegation of mala fide was being considered therein. Similarly, the next case referred to on behalf of the respondents being the case of Gujarat Electricity Board v. Atma Ram 1989 (59) FLR 474 (SC) also is not applicable in the present case as the consequences of not obeying the transfer order was the subject matter of consideration therein. Similarly, the case of Mrs. Shilpi Bose and Ors. v. State of Bihar and Ors. (1991-II-LLJ-591)(SC) does not help foe respondents as the findings therein is that the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer order is made in violation of any mandatory statutory rule or on the ground of mala fide. The present case, in any event, being one wherein transfer order has been challenged on the ground of political consideration and as such mala fide, the law laid down in the case of Shilpi Bose (supra) does not help the respondents. Similarly, the case of M. Sankaranarayana, I. A. S. v. State of Karnataka and Ors. AIR 1993 SC 763 is also the case of transfer of the Chief Secretary and the special circumstances in view of the relation between the Chief Secretary and the Chief Minister being the sole consideration, the law laid down therein does not help the respondents in the present case. Again the case of Union of India v. S.L. Abbas (1993-II-LLJ-626) (SC) and relied upon by the respondents does not help the respondents in the present case as the consideration therein is that guidelines issued by the Government though must be kept in mind while ordering the transfer of Government employee, but the said guidelines do not confer upon the Government employee a legal enforceable right and unless the order of transfer is vitiated by mala fide or is made in violation of any statutory provision, the Court cannot interfere with it,
10. The seven fold arguments of the respondents relying upon the law as aforesaid cannot help upholding the impugned transfer order particularly in view of the fact that the respondents, case of impugned transfer on administrative ground or in public interest, has not been found to be believable. In view of the law laid down in respect of exercise of power and the corrupt motive in paragraphs 6 and 7 of me case of S. Partap Singh v. State of Punjab AIR 1964 SC 72 the contentions of the respondents relating to malafide and consequent maintainability of the writ petition are not tenable. The contention relating to requirement at Anpara also cannot stand as transfer, as it stands ultimately is to Tanda not at Anpara. As to the disputed question of fact relating to administrative ground, me objection cannot stand in view of the fact that the matter can be decided from the admitted documents and no further enquiry is required to be made. The contention relating to the power to transfer even on complaints by political parties treating the same to be administrative ground is in my opinion, misconceived as political considerations have been held to be not proper consideration in the matter of administrative functions particularly in the level of the petitioner. In this respect the observations of this Court is referred to hereinabove made in the case of Sheo Kumar Sharma and Pradeep Kumar Agrawal (supra) are relevant.
11. In the aforesaid background on fact as it has been found hereinabove and in law as discussed herein, the impugned transfer order cannot stand. Accordingly, the writ petition is allowed. The impugned orders of transfer at Annexures 1 and 2 to the writ petition dated June 14, 1994 and July 16, 1994 respectively are set aside. There will be no order as to costs.