JUDGMENT A.K. Yog and M.A. Khan, JJ.
1. Present writ petition under Article 226, Constitution of India has been instituted against the impugned order of Transfer dated 28.10.2003 /Annexure-1 to the writ petition, by one Ajay Jauhari (petitioner before us) working as Assistant Registrar, Firms. Societies and Chits, U.P., Allahabad, whereby he is transferred on the post of Finance and Account Officer, Office of Excise Commissioner, U.P., Allahabad. Arvind Kumar/respondent No. 5, holding said post (of Finance and Account Officer, Office of Excise Commissioner, U.P., Allahabad) has been transferred and posted in place of Ajay Jauhari as Assistant Registrar, Firms, Societies and Chits, U.P., Allahabad.
2. The backdrop of events has interesting though unusual setting.
3. Ajay Jauhari initially held the post of Assistant Registrar, Firms, Societies and Chits, U.P., Allahabad. Directorate Treasury, U.P., Lucknow. A general order of transfer dated 12th July, 2000 including said Ajay Jauhari, Additional Treasury Officer, Varanasi on the post of Assistant Registrar, Firms, Societies and Chits. U.P., Allahabad, called 'Assistant Registrar, Allahabad', (on his own request), against vacant post was passed, Annexure 2 to the writ petition. Petitioner joined over the post of Assistant Registrar, Allahabad on 17.7.2000 (Annexure-3 to the writ petition).
4. Another composite general order of transfer dated June 12, 2003 issued by Directorate Treasury U.P., Lucknow transferring Ajay Jauhari as Finance and Accounts Officer, Directorate of Animal Husbandary. U.P., Lucknow (Annexure-4 to the writ petition). Shortly thereafter on June 30, 2003 earlier transfer order dated 12th June, 2003 was modified with the sanction of the Governor (Annexure-5 to the writ petition) transferring Ajay Jauhari back to the post of Assistant Registrar, Allahabad and cancelling earlier order of transfer to the extent it concerned Ajay Jauhari (whereby he was transferred to Directorate of Animal Husbandary, U.P., Lucknow).
5. As a consequence of aforesaid order dated 30th June, 2003 Ajay Jauhari was allowed to continue on the post of Assistant Registrar, Allahabad, photocopy of charge certificate dated 1st July, 2003 (Annexure-6 to the writ petition).
6. In the instant case, we had sent for original record and perused it carefully.
7. The original record shows that the petitioner (Ajay Jauhari) was brought back on the post of Assistant Registrar, Allahabad under order dated 30th June, 2003 for one year.
8. Aforesaid transfer/re-transfer order were passed, as the original record shows, in the following circumstances.
9. One Mohd. Mujtaba Siddiqui, M.L.A. (B.S.P.) Soraon, Allahabad made complaint dated 16.4.2003 (addressed to the Secretary to the Chief Minister, U.P. Government, Lucknow) alleging : (i) petitioner's work style was not good, (ii) there were several serious administrative complaints against him, and (iii) he indulges in anti-S.C./S.T. activities and further case of Arvind Kumar (impleaded as respondent No. 5 in the petition) be sympathetically considered for being posted on the post of Assistant Registrar, Allahabad (Annexure-7 to the writ petition).
10. Deputy Secretary, U. P. Government sent letter dated 27th May, 2003 to the Directorate Treasury, U.P., Lucknow for submitting his comments (Annexure-8 to the writ petition).
11. The above referred order dated 12th June, 2003/Annexure-4 to the writ petition, purporting to transfer Ajay Jauhari from the post of Assistant Registrar, Allahabad to the post of Directorate of Animal Husbandary, Lucknow was the fallout of said complaint.
12. On the file of original record we also find letter dated 5.6.2003 of Sri Hari Shanker Tiwari, Minister of Stamp, Court Fee Registration and Department of Entertainment Tax, Government of U.P. and letter dated 14.6.2003 written by Sri Suresh Pasi, M.P. (Lok Sabha) from Allahabad to the then Chief Minister (Mayawati) recommending continuation of Ajay Jauhari on the post of Assistant Registrar (Chits), Allahabad.
13. The original record shows that on 24th July, 2003 Additional Director, Treasury and Pension. Allahabad Region, Allahabad issued letter dated 16th April, 2003, annexing above referred M.L.A.'s letter, requiring an explanation within three days from Ajay Jauhari and failing which enquiry was to be completed on the complaint made against him.
14. The Director Treasury U.P., Lucknow vide letter dated No. 2619/36 (616)/97/Ko Ne/Istha dated 6th September, 2003 informed Deputy Secretary, Finance (Services) U.P., Lucknow that petitioner Ajay Jauhari has been continued on the post of Assistant Registrar, Allahabad under order dated 30th June, 2003 (Annexure-5 to the writ petition) and hence requested the State Government to take decision in the matter at its level.
15. Then came letter dated 22nd September, 2003 written by Secretary, Chief Minister, U.P., Lucknow, (from the office of Chief Minister U.P.) addressed to the Principal Secretary (Finance) directing Arvind Kumar, respondent No. 5 (who was working on the post of Account Officer in Excise Department) to be posted on the post of Assistant Registrar (the post held by Ajay Jauhari the petitioner).
16. On record there is another letter dated 2.10.2003 written by the father of Arvind Kumar, respondent No. 5 mentioning that (a) services of his son were not properly utilised ; (b) he was posted on an unimportant post (i.e., post of Finance and Accounts Officer, Excise Department, Allahabad) for last two and half years ; and (c) requested that Arvind Kumar be posted as Assistant Registrar, Firms, Societies and Chits, U.P., Allahabad so that this capabilities be utilised and purpose of Government be fulfilled.
17. On the said letter, Special Secretary, Chief Minister, U.P. Government made an endorsement dated 3.10.2003, addressed to Principal Secretary (Finance), informing that directions have been given for the transfer of Arvind Kumar.
18. It appears that Ajay Jauhari was also aware of aforesaid developments and hence he wrote letter dated October 8, 2003 addressed to Principal Secretary (Finance) U.P. Government Lucknow referring to the letter of aforementioned M.L.A., Mohd. Mujtaba Siddiqui (BSP) and complaints pointing out that it was initiated at the behest of aforementioned Arvind Kumar as a malicious act.
19. In the meanwhile, as original record shows, Smt. Benu Jauhari (wife of Ajay Jauhari-petitioner) approached M.L.A. of Jaunpur who sent letter addressed to the Secretary, Chief Minister, U.P. Government recommending that Ajay Jauhari should not be transferred from the post of Assistant Registrar, Allahabad. The Secretary, Chief Minister endorsed said letter to Principal Secretary (Finance) for necessary action during 15th October to 18th December, 2003.
20. Sri Reoti Raman Singh, Transport Minister, U.P. Government, Allahabad also wrote letter dated 12.10.2003 to the Secretary, Chief Ministef, U.P. with reference to the representation of aforesaid Smt. Benu Jauhari, recommending stay of Ajay Jauhari as Assistant Registrar at Allahabad on the ground that his work was very good.
21. One Mahesh Narain Singh, M.L.A. (Handia), Allahabad, also sent similar letter and mentioned that he had never recommended for transfer of Ajay Jauhari and in Public interest Ajay Jauhari be allowed to stay on his original post at Allahabad. The said letter has been endorsed as letter No. 820/P.F.S. on original record.
22. Sri Shailendra Yadav 'Lalai' State Minister Social Welfare, U. P. Government also wrote letter dated 15.10.2003 addressed to the Chief Minister recommending stay of Ajay Jauhari on original post at Allahabad.
23. Sri Jawahar Singh Yadav, District President of Samajwadi Party Allahabad, (Ex) M.L.A./M.L.C.. also wrote similar letter addressed by name to the Chief Minister, U.P. recommending stay of Ajay Jauhari at Allahabad in public interest.
24. In addition to the above. Janeshwar Mishra, Member of Parliament (Rajya Sabha) also wrote, similar letter dated 23.10.2003 addressed by name to the present Chief Minister, U.P. Government making recommendation in favour of Ajay Jauhari (petitioner).
25. From the letters and documents on original record, it is abundantly clear that the petitioner as well as respondent No. 5 both have been exerting political pressure and did indulge in hob-nobbing with the functioning of Government Machinery.
26. Perusal of the impugned order shows that its copy has been marked apart from the others to the Secretary (Finance) with reference to his letter dated 24.10.2003.
27. We have perused the aforesaid letter dated 24.10.2003 (on original record) and find that it refers to the letter dated 6.9.2003, Annexure-10 to the writ petition, wherein Director had desired the Government to take decision at its level. The State Government, however, issued impugned order of transfer-purported to have been issued after due deliberations and Government thereafter having decided to transfer and post Arvind Kumar to the post of Assistant Registrar, Firms, Societies and Chits, U.P., Allahabad and on the post of Finance and Accounts Officer, Excise Department, Allahabad Ajay Jauhari has been shifted.
28. Petitioner has approached this Court seeking to challenge impugned transfer order dated 28.10.2003, Annexure-1 to the writ petition on the ground that said transfer order has not been passed in 'administrative exigency' and/or 'public interest'. Requisite pleadings are contained in paras 7 and 14 of the writ petition with corresponding legal ground Nos. 1, 2 and 3 in the writ petition.
29. Petitioner is aggrieved on the ground that impugned order has been passed on the complaint of Sri Mohd. Mujtaba Siddiqul, M.L.A. (B.S.P.) and it contains serious allegations against him in respect of which he was required to submit his explanation. According to him, such a transfer order is punitive in nature based on serious allegation against which he had no 'opportunity of hearing' in his defence.
30. On the other hand learned counsel for respondent No. 5, Arvind Kumar submits that the transfer order in question is not on the basis of letter of aforesaid M.L.A. and in support of his contention he draw our notice to the impugned order of transfer and pointed out that there is no reference of the M.L.A's. letter/complaint dated 16.4.2003.
31. With regard to the aforementioned contention of the learned counsel for the petitioner, we enquired from the learned standing counsel as well as the counsel for respondent No. 5 to show anything that order was passed on the ground of 'administrative exigency' or 'in public interest'. Both the counsels failed to point out any thing or to place any material from original record to show that transfer order was passed by the concerned authority exercising its unprejudiced discretion in 'public interest' or 'administrative exigency'.
32. Notings, several letters/ complaints of the politicians-public representative, on original record has ample material to show that both the parties are equally responsible in putting political pressure in order to seek posting on a particular post irrespective of the interest of the public. The attending facts proved on original record speak for themselves lead oneself to draw an irresistible conclusion that impugned order of transfer has been passed due to considerations other public general good and because of political pressure due to personal considerations.
33. We also notice that subsequent transfer order has not been issued with the concurrence and approval of the Governor, as was done when earlier order of transfer dated 30th June, 2003/Annexure-5 to the writ petition was made.
34. Learned counsel for the petitioner in the end referred to the decision in the case of Nathi Lal v. Secretary, Ministry of Agriculture, U.P. Government, Lucknow and Ors., 1995 (2) UPLBEC 1115 (para 23). For ready reference which is reproduced below :
"In the aforesaid background of decision and the law relating to transfer in the present case as apparent from the various annexures that the Secretary, Ministry of Agriculture, U.P. Government (Hon'ble Chief Minister holding the charge of Agriculture Ministry) if instructed the Director Mandi Parishad about the desire of the concerned Minister as to posting of Mr. R.N. Singh, the respondent No. 7. Consideration never appeared to be the interest of the administration but merely the interest of the said respondent No. 7 and it is apparent that the alterations of the said transfer orders were made, from time to time, ultimately resulting the transfer of the petitioner which is impugned here in the present case."
35. Division Bench of our own High Court in the case of Laxmi Narain Khera v. Secretary, Panchayat Raj, 2000 (84) FLR 520, held that transfer on the direction of M.L.A. is bad. Another Division Bench in case in 1991 (2) UPLBEC 1303, held that an order of transfer without 'rhyme or reason' is bad.
36. Courts have time and again pointed that transfer orders, which are mala fide, arbitrary, under political pressure and bereft of public interest/administrative exigency, are vitiated as they tend to demoralise honest Government officer, refer to the case in 1997 (2) ESC 762 (DB) (All) and 2000 (1) ESC 105.
37. There is a catena of decisions on the issue. Government cannot be allowed to act arbitrarily or with political whims. In the present case there is no doubt that petitioner and respondent No. 5 both sought to put political pressure to influence the Government decision in the matter of posting. Government did not apply its mind to the relevant consideration in law, i.e., whether transfer in question is justifiable on the touchstone of administrative exigency or public interest.
38. What particular or personal interest has the petitioner or the respondent No. 5 to hold the post of Assistant Registrar, Chits and Societies Registration Act, is a matter of speculation or guess ; as none has disclosed any genuine reason to stick to this very post particular when they remain at Allahabad, even if shifted under impugned order.
39. In case transfer order is warranted in administrative exigency or public interest, it is always open to the concerned authority to take appropriate decision dispassionately without being influenced by 'personal or political considerations'.
40. In the peculiar circumstances of the case, we leave it open for the Government/concerned competent authority to consider desirability of aforesaid Government employees to continue on their respective post at Allahabad or not.
41. Impugned order of Transfer is clearly vitiated and hence liable to be quashed.
42. Accordingly, we quash the impugned order of transfer dated 28.10.2003, Annexure-1 to the writ petition.
43. Writ petition stands allowed. No order as to costs.