DESHBANDHU Vs. STATE OF U P

JUDGEMENT

(1.) -Aggrieved by the transfer order dated 8th May, 2007 passed by the Director General, Medical Health and Family Welfare, U. P., Lucknow, the petitioner has filed this writ petition assailing the same on the ground that the transfer order has been issued during the period when the Code of conduct of Election Commission was in operation in the State of U. P. and further that the order is founded on a complaint made by the respondent No. 6 who is a Member of Legislative Assembly of ruling party in the State of U. P. and therefore, is vitiated on the ground of mala fide. In our view, however, the writ petition lacks merit on both the grounds. Coming to the second submission first we find that the alleged complaint of respondent No. 6 is dated 14th June, 2006 while the impugned transfer order has been passed on 8th May, 2007 pursuant to the Government order dated 17th April, 2007. It is not disputed by the learned counsel for petitioner that the competent authority transferring the petitioner is State Government who has passed the order of transfer. From the perusal of the transfer order in its entirety there is nothing to suggest that the aforesaid transfer order has been issued with reference to the alleged complaint made by respondent No. 6 which was made almost ten months back. Moreover, order of transfer even otherwise is valid and has been passed by the competent authority, cannot be vitiated merely for the reason that some complaint was made earlier at some point of time. A Division Bench of this Court in the case of Narendra Kumar Rai v. State of U. P. and others, 2002 (1) UPLBEC 369 : 2002 (1) AWC 365, while considering the transfers made on the recommendation of representative of people, i.e., M.L.A. or M. P. has held that the members of Legislative Assembly and Member of Parliament are entitled to bring to the notice of the Government the acts and omissions of Government servants. The relevant extract of the judgment is as under : "We are clearly of the opinion that from the mere fact that if a Government servant is transferred on the basis of a complaint made by a M.L.A. or M.P. or a leader of the political party, it cannot be held that the same is mala fide and the transfer order cannot be struck down on the said ground alone without there being anything more. A M.L.A. or M.P. is the representative of the people and common public has access to him. Often it is very difficult for a common man to meet the higher officers and to bring to their notice the misdeeds or the wrong way of functioning of a Government servant at a lower level. It is not possible for a common man to go to the capital of the State namely, Lucknow, and then to meet the higher officers to lodge a complaint against the wrong manner of functioning of a Government servant. The M.L.A. and M.P. visit their constituency frequently and meet the members of the public. It is far easier for the public to lodge a complaint against the improper functioning of a Government servant with their representative namely the M.L.A. or M.P. of the area than with the higher officers. If in such circumstances, the M.L.A. or M.P. takes up the matter and brings to the notice of the higher officers or the Minister of the concerned department about the misdeeds of a Government servant, no exception can be taken to such a course of action. The representatives of the people (M.L.A. and M.P.) hold responsible constitutional position and there is no presumption that whenever they drew attention to the misdeeds of a Government servant they do so with mala fide intention. A transfer order passed soon after a letter or complaint lodged by M.L.A. or M.P. or a political person cannot be branded as having been done at the dictate of such a person. 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. We are, 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 M.L.A. or M.P. 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."

(2.) NOW coming to the first submission, we find that the notification of the Election Commission dated 24th February, 2007, restrained transfers of only those employees who are connected in some electoral work and such employees and officers would not be transferred without permission of the Election Commission. There is nothing on record to show that the petitioner was engaged in any electoral work therefore, could not have been transferred. NOW the election is over and it is not disputed that till date petitioner has not been relieved. Therefore, transfer order does not require any interference on this ground.