KARUNAKAR KHARE Vs. STATE OF U P

JUDGEMENT

(1.) HEARD Sri Arvind Srivastava, learned counsel for the petitioner and learned Standing Counsel for the respondents and have perused the record. The petitioner is aggrieved by the transfer order dated 2nd June, 09 passed by the D.I.G. Establishment, Allahabad, transferring him from Jhansi region to Dr. Bhim Rao Ambedkar Police Academy, Moradabad. Learned counsel for the petitioner submitted that the impugned order of transfer has been passed on account of mala fide. He further submitted that the aforesaid transfer order is in violation of Clause 3 of the Government Order dated 24th May, 2007 providing for transfer policy of the employees of State Government. In my view, the submissions are thoroughly misconceived. In order to entertain a plea of mala fide, persons against whom allegation of mala fide is levelled, should be impleaded eo nomine and in absence thereof, the Court shall not entertain the plea of mala fide. In the present case, no one has been impleaded eo nomine and, therefore, the plea of mala fide can not be entertained. So far as the violation of Government order dated 24th May, 07 is concerned, a bare perusal of the same shows that firstly that the same was issued by the State Government providing certain guidelines in respect of transfer in the year 2007-08. There is nothing on record to show that the said Government Order is still continuing. Secondly, Clause 3 of the aforesaid Government Order makes it mandatory for those employees who have been posted for more than 6 years in the same department, to transfer to some other place. It nowhere provides that a person who is posted at a place for more than 6 years, shall not be transferred. Thirdly, even if presuming that there is any violation of executive order laying down guidelines in respect to transfer, the same would not confer any right upon the incumbent concerned to challenge the order of transfer. Violation of a policy guideline in respect to transfer does not provide any right to challenge the order of transfer on the said ground as laid down by the Hon'ble Apex Court in the case of Union of India and others Vs. S.L. Abbas, AIR 1993 SC 2444. In para 7 of the said judgment, Their Lordships in the Apex Court held as under: "The said guideline however does not confer upon the Government employee a legally enforceable right." Learned counsel for the petitioner has relied upon the judgments of the Apex Court rendered in the cases of Surya Kant Kadam Vs. State of Karnataka and others AIR 2001 SC 2415 and A.P.Aggarwal Vs. Govt. of NCT of Delhi and another (2000)1 SCC 600. He submitted that even an executive order laying a policy if not followed, can give a right to a person to seek its enforcement. The submission is misconceived. In my view, the aforesaid judgments do not lay down any such wide proposition, as has been argued by the learned counsel for the petitioner. In A.P. Agarwal (Supra) the court found that executive order contained a policy in terms of the rules and has promoted the object of appointment, which was conferred in the Act, that is, the purpose for which the power was given, and in these circumstances it was held that if all the conditions set out in the office memorandum are satisfied, the Government must act accordingly and not otherwise. Similarly, in the case of Surya Kant Kadam (supra) appointment on compassionate basis was not governed by any statutory rules but only administrative instructions and Court found that the same administrative instructions were followed for making appointment of others but the Surya Kant was denied this benefits. It was held that denial of appointment to the appellant-Surya Kant Kadam, who satisfied the requirement under the executive instruction, was improper. None of the cases are either in respect to transfer nor have any such general exposition of law as said by Sri Srivastava. It can not be disputed that power of transfer in the State of U.P. in respect to the Government service is governed by statutory rules that is Chapter XXXIV of the Police Regulations framed under the Police Act, 1861. The executive order, which the learned counsel for the petitioner proposed to rely, could not restrict the said statutory rules . Moreover, it is also doubtful as to whether the said instruction is applicable to the police officials who are governed by the statutory rules framed under the Police Act, 1861. In any case, as I have already observed and discussed the said Government order does not provide that a person who has not worked for 10 years in a district can not be transferred. In the result, in view of the above discussion, I do not find any merit in this case. It is accordingly dismissed. No order as to costs.