JUDGMENT S. Rafat Alam and Sudhir Agarwal, JJ.
1. This Special Appeal under the Rules of this Court arises out of order dated 14.2.2006 of the learned Single Judge, dismissing the appellant's writ petition challenging order dated 12.1.2006 transferring petitioner-appellant from Mandi Samit, Bareilly to Mandi Samiti, Bahedi i.e. within the same district.
2. Sri Mahesh Gautam, learned Counsel for the appellant vehemently contended that under Regulation 24(2) of Uttar Pradesh Agricultural Produce Market Committees (Centralized) Service Regulations 1984 (hereinafter referred to as 1984 Regulation), group 'D' employee of the Mandi Samiti cannot be transferred even within the district or region, if there does not exist any special circumstance. It is contended that in the absence of any special circumstance, the Deputy Director (Administration) has no authority or jurisdiction to transfer any group 'D' employee. It is also submitted that the order impugned in the writ petition transferring the appellant does not disclose the existence of special circumstance and this aspect has not been correctly appreciated by the learned Single Judge.
3. Sri B.D. Mandhyan, the learned Senior counsel assisted by Sri Satish Mandhyan submitted that the transfer of the appellant is strictly in accordance with Regulation 24(2) of 1984 Regulation. He further stated that Mandi Samit, Bareilly has a large quantum of transactions on account of its bigger size and deficiency in collection of Mandi fee caused serious losses to the respondents, and, therefore, in such circumstance, the appellant has been transferred to Mandi Samiti, Baheri which is within the same district but being a smaller Mandi Samiti, the quantum of work is lesser. He submits that this satisfy the requirement of Regulation 24(2).
4. After hearing learned Counsel for the parties, we find that entire bone of contention revolves around Regulation 24(2) of 1984 Regulation and the impugned order of transfer as to whether it complied with the said statutory provision. It would be appropriate to reproduce Regulation 24 of 1984 Regulations:
24(1) a member of centralized service (other than the employees mentioned in Sub-regulation (2) may be transferred from one Market Committee to another Market Committee in the region by the order of the Director, or Additional Director or the regional Deputy Director (Administration) and from one region to another region by the order of the Director or the Additional Director. The transfer travelling allowances of members of the centralized service shall be borne by the Market Committee to which he is transferred.
(2) The Director or the Additional Director or the Regional Deputy Director (Administration) may in special circumstances transfer any Mandi Sahayak (Kamdar) from one Market Committee to another Market Committee, within the region or any member of the service holding Group 'D' post other than Mandi Sahayak (Kamdar) from one Market Committee to another Market Committee within the district.
5. A bare perusal shows that the transfer contemplated under Regulation 24(2) is not punitive but contemplates existence of special circumstance warranting transfer within the region in case of Mandi Sahayak (Kamdar) and within district (in case of holding group 'D' post) other than Mandi Sahayak (Kamdar). What would construe to be a special circumstance depends on multiple factors and there may exist thousand and one special circumstances justifying the action of authority making transfer under Regulation 24(2).
6. Learned Counsel for the appellant tried to identify the special circumstance with the act and omission construing serious allegations amounting to misconduct, but we are unable to agree with such submission. Transfer under Regulation 24 whether under Clause (1) or (2) is not by way of punishment. It is a plain and simple power of transfer possessed by employer to post an employee from one place to another. In respect of certain class of employees it requires as a condition precedent that it should be only when warranted by special circumstance and not in a routine manner. If the contention of learned Counsel for the appellant is accepted, in such case, order of transfer passed on account of misconduct would vitiate unless an opportunity is afforded to the employee and departmental enquiry is conducted. Moreover it would amount to add a few words in the aforesaid provision which is not permissible.
7. In our view the circumstances which in the opinion of the authorities are adequate warranting shifting of an employee from one place to another under Regulation 24(2), may satisfy the requirement of "special circumstance". Addition of the word "special" before "circumstance", is only to stress that it should not be illusory and non existence but should actually exist and identifiable. Where the authorities treat certain reasons constituting "special circumstances" justifying transfer under Regulation 24(2), the Court will not sit in appeal to consider the adequacy or sufficiency of such opinion of the competent authority. The only scope of judicial review is whether special circumstance exists or not, and that the nature of the circumstance is not so petty or illusory rendering the decision of the authority arbitrary based on non-est factor. This is subjective opinion formed on objective consideration and in all other respect, the power under Regulation 24(2) recognizes the otherwise prerogative of the employer to transfer and post an employee from one place to another. The existence of "special circumstance" should be based on material considered by the authority forming its subjective satisfaction. We have no doubt that the order of transfer under Regulation 24(2) is not an order of punishment.
8. In the case in hand, the impugned order states that due to poor performance in respect of recovery of Mandi fee at Mandi Samiti Bareilly, as per microlevel information made available by Secretary, Mandi Samiti, Bareilly vide letter No. 1759 dated 9.1.2006, the petitioner is being transferred from Mandi Samiti, Bareilly to Mandi Samiti, Baheri on administrative ground.
9. In our view unsatisfactory performance of an employee at a particular place causing deficiency in revenue to the employer can be a special circumstance justifying shifting of such person to another place. The employer is always within its right to manage its affairs in such a way that it functions in best efficient possible manner without incurring any avoidable loss and inconvenience.
10. Learned Counsel for the appellant drew our attention to certain judgments of the Hon'ble single Judge in support of his submission, but we find that none of the judgments support his case and are inapplicable to the facts of the present case.
11. In Parashu Ram Savita v. Dy. Director (Administration) and Ors.- Writ Petition No. 143 of 1997 decided on 10.1.1997 (Annexure-3 to the writ petition), an employee working as Mandi (Sahayak) was transferred from Mandi Samiti, Maudaha district Hamirpur to Lalitpur. Both the Mandi Samitis were in the same region but in different districts. The order of transfer mentions reason for transfer as "the interest of administration". This Court held that the order does not mention any special circumstance and the term interest of administration is a general reason applicable in all cases of transfer. It further appears that the respondents in the aforesaid case said in the counter-affidavit that there were certain complaints against the employee on account thereof he was transferred which was not accepted by the Court.
12. In Shashi Kant and Anr. v. The additional Director and Ors.- Writ Petition No. 27721 of 1996, decided on 6.9.96 the transfer of an employee working as Mandi Sahayak was made outside the region which was not permissible under Regulation 24(2), therefore, the same was set aside. The aforesaid case is clearly distinguishable as the facts are different in the present case.
13. In Prakash Chandra Saxena v. The Dy. Director (Administration) and Ors.- Writ Petition No. 36356 of 2004 decided on 12.1.2005, against an order of transfer of the petitioner working as Mandi Sahayak who was transferred from Mandi Samiti, Bareilly to Mandi Samit, Tilhar district Shahjahanpur, the transferring authority did not mention any reason or existence of special circumstance in the order of transfer as provided in Regulation 24(2) of 1984 Regulations. Therefore, the Court held that in absence of special circumstance such transfer is not permissible.
14. In Ram Prakash gangwar v. State of U.P. and Ors.- Writ petition No. 71420 of 2005, the order dated 21.11.2005 of this Court is an interim order. Since the transfer order did not mention the special circumstance except interest of Mandi, the operation of the said order was stayed.
15. In Om Prakash Mavi v. The Director, Rajya Krishi Utpadan Mandi Paishad and Ors.- Writ Petition No. 14733 of 2000, decided on 22.4.2000, the order of suspension was under challenge on the ground that the there had been an unprecedented decline in the realization of Mandi fee. The said judgment has no relevance for the issue in the present case.
16. In the circumstances, we are clearly of the view that poor performance in collection of Mandi fee construe existence of special circumstance justifying the order under Regulation 24(2) transferring an employee from one place to another and the authorities therefore, were within their competence and justified in passing the order of transfer impugned in the present writ petition. Therefore, the judgment under appeal does not warrant any interference in this appeal.
17. The appeal being devoid of merit, is accordingly dismissed.