RAMANAND Vs. STATE OF U P

JUDGEMENT

(1.) AMITAVA Lala, J. The petitioner has challenged the order of transfer dated 6th July, 2006 taking two grounds i. e. (i) mala fide (ii) without jurisdiction. The petitioner contended specifically taking two points. first that Chief Medical Officer (hereinafter called as C. M. O.) had no jurisdiction on 6th July, 2006 to transfer him from one place to another within the district. We find from the Annexure-5 of the rejoinder affidavit that C. M. O. is entrusted with such power only from 31st July, 2006, State has contended by filing counter- affidavit that such power of the C. M. O. was pre-existing from 22nd April, 1987. We have gone through the same and found that it will be applicable only in respect of Class-C and Class-D officers. So far as the clause-5 order impugned in vernacular is concerned, although the Government Order will be applicable in general, but for the later part of such Government Order it implies that there is a confusion whether the Level I and Level II officers can be transferred or not. Petitioner-contended that he is a Level II officer, therefore, he cannot be transferred. According to us, had the power existed there would not have any necessity of issuance of Government Order. In further in paragraph 3 of the Government Order dated 31st July, 2006 it is categorical that from now onwards such order will be effective meaning thereby such power is prospective. Therefore, the impugned order, which was passed earlier prior to the date of giving effect of such Government Order, cannot be made by the C. M. O. The second point, which has been taken by the petitioner, is in respect of mala fide exercise of power on the basis of a letter of a Minister dated 6th July, 2006 itself. The Minister is not the concerned Minister of the department. In the second paragraph of the letter being Annexure-2 to the writ petition he specifically directed the authority to transfer the petitioner from the place at the earliest. Therefore, it was a clear directive of a Minister who according to the learned Counsel appearing for the petitioner is not concerned about the affairs of the department. We have gone through two recent judgments delivered by the Supreme Court one of such reported in (2003) 11 SCC 740 (Sarvesh Kumar Awasthi v. U. P. Jal Nigam and Ors.) where under it was held that transfer of an officer is required to be effective on the basis of set norms or guidelines. The power of transferring an officer cannot be wielded arbitrarily, mala fide or an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned. For better administration the officers concerned must have freedom from fear of being harassed by repeated transfers or transfers ordered at the instance of someone who has nothing to do with the business of administration. In 2005 (2) LBESR 715 (SC) : (2005) 3 SCC 153 (Suresh Chandra Sharma v. Chairman U. P. S. E. B. and Ors.) it was held that interference in transfers and postings with political patronage has totally destroyed the autonomous nature of the authority therein i. e. the Electricity Board. Therefore, the same was discouraged by the Supreme Court.

(2.) LEARNED Standing Counsel contended before the Court by citing (2002) 1 UPLBEC 369, Narendra Kumar Rai v. State of U. P and Ors. , where under Division Bench of this Court held that there is no presumption that the authority passing the transfer orders has not applied his independent mind. It is quite likely that the authority was not aware of the situation and after the full and correct facts were brought to his notice he decides to take appropriate action on objective consideration. This Court is, therefore, clearly of the opinion that without there being anything more, the mere fact that a transfer order has been passed soon after a complaint has been sent by a MLA or MP or a political person to the minister or superior officers of the concerned department, it cannot be branded as having been passed without application of mind or on the dictate of a political person.

(3.) WE are of the opinion that since no Government Order available to the concerned C. M. O. at the relevant point of time, it appears that passing of the order of transfer was without jurisdiction, therefore, such order cannot be sustained. Hence the impugned order stands quashed.