MURARI SHAH SISODIA Vs. STATE OF U P

JUDGEMENT

(1.) This Special Appeal has been filed against the judgment and order of the learned Single Judge dated 12.05.2005, by which the writ petition of the present appellant against the impugned transfer order has been dismissed, though the petition of the respondent No. 5 has been allowed.

(2.) The facts and circumstances giving rise to this case are that vide order dated 10.07.2004, Dharam Pal Singh, the respondent No. 5 was transferred from Agra to Etah. By the same transfer order, the present appellant was transferred from Etah to Jhansi on the post of Farm Superintendent. Appellant filed a writ petition before the Lucknow Bench of this Court challenging his transfer order from Etah to Jhansi dated 10.07.2004. However, the same stood dismissed as withdrawn. The appellant, then made a representation before the State Government and succeeded in getting the transfer order dated 10.07.2004 cancelled vide order dated 27.10.2004. On the basis of the siad order, it is submitted that the appellant tried to join at Etah but by that time, the respondent No. 5 had already joined. Being aggrieved, the respondent No. 5 filed Writ Petition No. 47069 of 2004 challenging the order dated 27.10.2004 on the ground that the order dated 10.07.2004 had already been given effect to as he had joined at Etah on 3rd August, 2004. This Court, vide interim order dated 05.11.2004 stayed the operation of the order dated 27.10.2004. Subsequently, a fresh order dated 09.11.2004 was passed transferring the respondent No. 5 from Etah to Jhansi but it was also not given effect to. It was clarified vide order dated 09.02.2005 that the appellant as well as the respondent No. 5 would remain at Etah and both will get their salary but the charge and work would be done only by the appellant. The orders dated 09.11.2004 and 09.02.2005 were also challenged by the respondent No. 5 moving an amendment application in the said writ petition. The administration again vide order dated 05.03.2005 clarified that the appellant as well as the respondent No. 5 would stay at Etah and shall draw their salary but work would be done only by respondent No. 5. The appellant challenged the said order by filing Writ Petition No. 23266 of 2005. Respondent No. 5 also filed Contempt Petition No. 5371 of 2005 raising the grievance of non-compliance of the order passed by this Court on 05.11.2004 and the said contempt petition was entertained by a detailed order dated 23.02.2005. Both the writ petitions were heard and disposed of by the learned Single Judge taking a view that once the earlier transfer order dated 10.07.2004 had been given effect to, there was no occasion for the State authorities to pass order dated 27.10.2004 nullifying the same as the transfer order stood exhausted. Hence this appeal.

(3.) The issue of transfer and posting has been considered time and again by the Apex Court and entire law has been settled by catena of decisions. It is entirely upon the competent authority to decide when, where and at what point of time a public servant is to be transferred from his present posting. Whether a transfer order is in the public interest or on administrative ground requires factual adjudication, which is not permissible to be made in a writ jurisdiction. Transfer is not merely an incident of service but a condition of service and is to be passed in public interest and for efficiency in public administration. No employee can claim a right to remain posted at a particular place or for a further period unless his appointment itself is made specifically on a non-transferable post. The writ Court cannot interfere against a transfer order unless shown as an outcome of mala fide exercise of power or in violation of statutory provisions. In absence of these two conditions, the transfer order cannot be a subject matter of judicial scrutiny. (Vide Union of India v. S.L. Abbas, AIR 1993 SC 2444; Shilpi Bose v. State of Bihar, AIR 1991 SC 532; Union of India v. N.P. Thomas, AIR 1991 SC 1605; Bank of India v. Jagjit Singh Mehta, AIR 1992 SC 519; Chief Manager (Tel.) N.E. Telecom Circle v. Rajendra Ch. Bhattacharjee, AIR 1995 SC 813; State of U.P. v. Dr. V.N. Prasad, 1995 (Suppl) 2 SCC 151; Union of India and Ors. v. Ganesh Dan Singh, 1995 (Suppl) 3 SCC 214; N.K. Singh v. Union of India and Ors., (1994) 6 SCC 98; Abani Kante Ray v. State of Orissa, 1995 (Suppl) 4 SCC 169; State Bank of India v. Anjan Sanyal and Ors., AIR 2001 SC 1748; National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan, (2001) 8 SCC 574; V. Jagannatha Rao v. State of A.P. and Ors., AIR 2002 SC 77; Public Service Tribunal Bar Association v. State of U.P. and Ors., AIR 2003 sc 1115; state of Rajasthan v. Anand Prakash Solanki, (2003) 7 SCC 403; State of U.P. v. Gobardhan Lal, AIR 2004 SC 4121; State of U.P. v. Siya Ram, AIR 2004 SC 4165; Union of India v. Janardhan Debanath, (2004) 4 SCC 245).