JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the parties and perused the record.
2. A short counter affidavit has been filed on behalf of respondent No. 6. At the outset the Court enquired from the counsel for the petitioner whether he wants to file any rejoinder affidavit, but he answered in negative and stated that there is no need to file any rejoinder affidavit.
3. The facts of the case are that the petitioner was working as Executive Officer, Nagar Panchayat, Bithoor District Kanpur Nagar. The State Government transferred the petitioner vide order dated 18.1.2006 with immediate effect to Nagar Panchayat Sirathu, District Kaushambi. The petitioner joined at Nagar Panchayat Sirathu and submitted his joining dated 30.1.2006 to the District Magistrate, Kaushambi who directed the S.D.M. Sirathu, the Administrator of Nagar Panchayat, Sirathu to allow the petitioner to join his post. Consequently, One Bhagwati Prasad Mishra, who was working as Executive Officer, Nagar Panchayat, Jhusi District Allahabad and also holding additional charge of the work of Executive Officer, Nagar Panchayat, Sirathu District Kaushambi was directed to hand over his charge to the petitioner.
4. It is claimed that in pursuance of the order of transfer by the State Government dated 18.1.2006 the petitioner submitted his joining before the District Magistrate, Kaushambi on 30.1.2006 who in turn directed the Administrator to allow the petitioner to join his post. It is also claimed that the petitioner took charge of Executive Officer, Nagar Panchayat, Sirathu, District Kaushambi from Sri Bhagwati Prasad Misra along with all records on 30.1.2006 and started functioning as the Executive Officer at Nagar Panchayat, Sirathu after his signatures were attested on 31.1.2006 by the Upar Zila Magistrate/Upar Lekha Adhikari, Kaushambi. It appears that in the meantime the Commissioner Allahabad Division, Allahabad vide order dated 1.2.2006 posted Sri Bhagwati Prasad Mishra on his request to work as whole time Executive Officer at Nagar Panchayat, Sirathu, District Kaushambi.
5. It appears that records concerning the Nagar Panchayat, Sirathu were not handed over to the petitioner Sri Prakash Chandra Tiwari by Sri Bhagwati Prasad Mishra on 31.1.2006, hence the petitioner Sri Prakash Chandra Tiwari moved an application dated 2.2.2006 before the Administrator, Nagar Panchayat, Sirathu for directing Sri Bhagwati Prasad Mishra to hand over the complete files/records to him. On the said application the Administrator endorsed order dated 2.2.2006 requiring Sri B.P. Mishra to hand over the records to the petitioner.
6. It also appears from the record that the orders of the Divisional Commissioner, Allahabad dated 31.1.2006, by which Sri Bhagwati Prasad Misra was transferred and posted as whole time Executive Officer at Nagar Panchayat. Sirathu, were received in Nagar Panchayat on 1.2.2006. Thereafter the District Magistrate, Kaushambi vide letters dated 3.2.2006 and 15.2.2006 requested him to let the petitioner Prakash Chandra Tiwari work as Executive Officer at Sirathu stating that charge had already been handed over to him and to adjust/post Sri Bhagwati Prasad Mishra at Chail or to some other Nagar Panchayat where there is vacancy.
7. It is contended by the counsel for the petitioner that instead of respecting the order of transfer passed by the State Government dated 18.1.2006 by which the petitioner was transferred to Nagar Panchayat Sirathu, the Commissioner Allahabad Division Allahabad vide order dated 23.2.2006 transferred the petitioner from Nagar Panchayat, Sirathu to Nagar Panchayat, Chail District Allahabad arbitrarily upholding his earlier orders dated 31.1.2006 by which Sri Bhagwati Prasad Misra was transferred to Sirathu even though there was no vacancy as the petitioner had taken charge at Sirathu from respondent No. 6 on 31.1.2006 itself. It is also submitted that instead of complying with the orders passed on the application of the petitioner dated 2.2.2006 by the Administrator Nagar Panchayat Sirathu directing to hand over records and files to the petitioner, Sri Bhagwati Prasad Mishra did not hand over the same compelling the petitioner to submit another application on 7.2.2006 before the Additional District Magistrate in this regard as under:
^^dk;kZy; uxj iapk;r] fljkFkw dkS'kkEch lsok esa] vij ftykf/kdkjh fo jkg dkS'kkEch egksn;] 'kklu ds vkns'k fnukad 19-1-06 ds bl ojh rSukrh uxj iapk;r fljkFkw esa fjDr vf/k'kklh vf/kdkjh ds in ij dh xbZ gSA ftykf/kdkjh] dkS'kkEch ds vkns'k fnukad 30-1-06 ds }kjk eq>s dk;Zky; xzg.k djus dh Lohd`fr iznku dh xbZA Jh Hkxorh izlkn feJ lEc) vf/k'kklh vf/kdkjh fnukad 30-1-06 ls vc rd ugha vk;s rFkk dk;kZy; ds egRoiw.kZ vfHkys[k ds'k cqd osru iarh fuekZ.k dk;kZs ls lEcfU/kr i=kofy;kW rFkk vU; vfHkys[k Hkh vius ikl j[ks gq, gSA bl lEcU/k esa esjs }kjk ,d i= fnukad 2-2-06 dks iz'kkld] uxj iapk;r dks fn;k x;k ijUrq vc rd vfHkys[k izkIr ugha gq, gSaA d`I;k bl lEcU/k esa fu;ekuqlkj dk;Zokgh djus dk d"V djsaA iz'kkld @ u-ia- fljkFkw g viBuh; 07-2-06 vf/k'kklh vf/kdkjh] uxj iapk;r fljkFkw] fljkFkwA ;fn fnukad 10-2-2006 rd vfHkys[k lEcfU/kr deZpkjh }kjk ckotwn lwpuk ds u fn;k x;s rks Fkkuk esa ,Q-vkbZ-vkj- ntZ djk nh tk;s o lacaf/kr ds fuokl ij ls dfj;s iqfyl dkxtkr eaxok fy;s tk;sA ;fn dkxtkr dk;kZy; esa gh fdlh vkyekjh vkfn esa can gks rks ,d eftLV~sV uk-r- fu;qDr djsa ftlds le{k rkyk rksM dj vfHkys[kksa dh lwwph cuokdj vfHkys[k izkIr dj fy;s tk;sA g viBuh;
07-2-06**
8. It is apparent from the perusal of the application dated 7.2.2006 and the order on it of the same date that the petitioner had not been handed over charge of the Executive Officer of Nagar Panchayat, Kaushambi by 7.2.2006 and that the A.D.M. (RA) on this application of the petitioner directed that if Sri Bhagwati Prasad Misra does not hand over charge to Sri P.C. Tiwari by 10.2.2006 then F.I.R. be lodged against Sri Bhagwati Prasad Mishra and all records be taken from him through police and in case the records are in locked almirah the same may be opened before the Magistrate and inventory be prepared.
9. The counsel for the petitioner pleaded that a complaint (undated) was made by the District Audit Officer to the Additional Commissioner Allahabad Division in respect of the conduct of Sri Bhagwati Prasad Mishra during audit inspection on 30.5.2005 alleging that the Executive Officer used abusive language and hindered audit inspection, as such audit inspection would be made at a later date and contended that respondent no. 6 is not a reliable person. The Additional Commissioner. Allahabad Division, Allahabad directed the District Magistrate, Sirathu vide order dated 15.2.2006 to investigate the matter and submit complete report within three days and to ensure all records are sent to the Commissioner Allahabad Division, Allahabad through Executive Officer Sirathu regarding contract work done in the Nagar Panchayat through tender. It is vehemently urged that the District Magistrate had received complaints earlier also about the work done in Nagar Panchayat, Sirathu District Kaushambi upon which the Assistant Engineer, Minor Irrigation District Kausahmbi had been directed to make technical inspection and submit his report. Attention of the court has been drawn to order dated 11.11.2005 contained in Annexure 4 to the writ petition in this regard passed by the Divisional Commissioner, Allahabad and it is urged that orders had been passed to keep their vigil on the work of Sri B.P. Mishra who is being given additional charge of Executive Officer Sirathu and that payment in excess of Rs. 50.000 in respect of any bill should be made by the "Pargana Adhikari" after verification of work done. The order dated 11.11.2005 of the Divisional Commissioner is as under:
^^dk;kZy; vk;qDr] bykgkckn e.My] bykgkcknA i=kad fnukad% e.Myk;qDr] ds vkns'k fnukad 10-11-2005 ds vUrxsZr Jh ch-vkj- lksudj vf/k'kklh vf/kdkjh ds uxj iapk;r iV~Vh esa fjDr vf/k'kklh vf/kdkjh ds in ij rSukr dj fn;k x;k gS uxj iapk;r fljkFkw ds vf/k'kk"kh vf/kdkjh dk vfrfjDr dk;ZHkkj Jh Hkxorh izlkn feJ vf/k'kk"kh vf/kdkjh >wWBlh dks vfxze vkns'k gksus rd ds fy, lkSai fn;k x;k gS rFkk ftykf/kdkjh dkS'kkEch ,oa ijxukf/kdkjh fljkFkw&dkS'kkEch dks dMs funsZ'k fn;s x;s gSa fd Jh Hkxorh izlkn feJ ds dk;Z&dykiksa ij dMh utj j[ks rFkk Jh feJ 50]000 @& ls cMs fdlh Hkh fcy dk Hkqxrku ijxukf/kdkjh fljkFkw ds dk;Z lR;kiu ds ckn gh djsxsaA i= la[;k 5606 ,oa i= la- 5607 fnukad 12-09-2005 dk izfr mRrj nsus ds i'pkr fnukad 15-7-05 ls ua- /k- >walh la dk;ZHkkj djus ds iwoZ vc rd osru ns; gksxk mDr vkns'k dk vuqikyu rRdky izHkko ls lqfuf'pr fd;k tk;A Mk-dsnkj izlkn] vij vk;qDr] bykgkckn e.My]bykgkcknA la[;k 616&24 @ 21&2003&2004 fnukad 11-11-05**
10. Thereafter Sri Mool Behari Saxena, learned Counsel for the petitioner, made allegation of mala fide against Divisional Commissioner, Allahabad for issuing order of transfer and posting order dated 31.1.2006 of Sri Bhagwati Prasad Mishra, posting him as permanent Executive Officer, Nagar Panchayat, Sirathu District Kaushambi. It is impressed upon the Court that the work done by Sri Bhagwati Prasad Mishra as Executive Officer at Sirathu was being investigated on complaints, made against him and that his work was under strict vigil and that Sri B.P. Mishra was not empowered to make any payment of more than Rs. 50,000/- but he had made payments of more than 24 lacs on one day 31.1.2006 itself when the petitioner had already taken charge from him speaks volumes of the nexus between the Divisional Commissioner and respondent No. 6 is compelling the petitioner to file this writ petition challenging his transfer to Chail.
11. Counsel for respondent No. 6 submits that the contention of the counsel for the petitioner that the petitioner had received some files/records from the petitioner on 31.1.2006 and taken charge of the post of Executive Officer at Sirathu is incorrect and false as is evident from the own letter of the petitioner dated 7.2.2006 and orders of Additional District Magistrate (RA) on it. The respondent had been transferred to Nagar Panchayat, Sirathu in District Kaushambi permanently at his own request where he was holding additional charge of Executive Officer as Niharika Chauhan had also been transferred in place of respondent No. 6 at Jhusi, Allahabad from Nagar Panchayat, Handia on 31.1.2006. It is vehemently urged that from the letter dated 7.2.2006 filed by the petitioner it is evident that respondent No. 6 was not at Nagar Panchayat from 30.1.2006 upto 7.2.2006, hence question of his handing over charge, records and files to the petitioner does not arise. It is urged that in fact the documents filed by the petitioner along with the writ petition show that all the orders have been passed behind the back of respondent No. 6 or appear to have been prepared for the purpose of this case.
12. It is also submitted by the counsel for the respondent that had respondent No. 6 committed any irregularity in discharge of his duties as Executive Officer, he would not have been given additional charge of Executive Officer, Sirathu, district Kaushambi. Regarding keeping of strict vigilance on the conduct of the petitioner it is stated that it refers to the allegations made in the undated complaint of audit officer and not regarding any financial irregularities as the respondent has never committed any financial irregularity nor any enquiry was ever instituted or pending against him in this regard and that if respondent had committed any financial irregularity his financial power would have been ceased and he would have been suspended.
13. On basis of the averments made in the short counter affidavit he submits that the respondent is continuously working as Executive Officer, Nagar Panchayat, Sirathu District Kaushambi and the signatures of respondent No. 6 have also been attested on 24.2.2006 on his permanent posting.
14. The Standing Counsel also made strong objection to the allegations of imputing alleged mala fide and nexus between the Commissioner Allahabad Division, Allahabad and respondent No. 6 regarding order of transfer dated 31.1.2006.
15. It is further submitted that the Commissioner Allahabad Division, Allahabad had no knowledge by 1.2.2006 about joining of the petitioner on 30.1.2006 at Sirathu as there is no record or material to show that the Divisional Commissioner was ever been informed about taking over of the charge of the post of Executive Officer by the petitioner at Sirathu on 31.1.2006 which is falsified from the documents filed by the petitioner himself in the writ petition.
16. He stated that it is apparent from the records that the petitioner was himself transferred from Nagar Panchayat Bithoor, District Kanpur on administrative grounds. He had joined at Nagar Panchayat a day earlier only prior to issuance of order dated 1.2.2006 posting Sri Bhagwati Prasad Mishra as permanent Executive Officer at Nagar Panchayat, Sirathu in District Kaushambi on his own request as he was holding additional charge of Executive Officer there. He further submits that vide order dated 31.1.2006 one Kumari Niharika Singh Chauhan was transferred from Nagar Panchayat Handia to Nagar Panchayat Jhusi in place of respondent No. 6 Sri Bhagwati Prasad Mishra, as such he was posted from Nagar Panchayat Jhusi to Nagar Panchayat Kaushambi as he was holding additional charge of Executive Officer there. The order of transfer of Km. Niharika Singh is appended as Annexure S.C.A. 1 to the Short Counter Affidavit.
17. The Standing Counsel urged that if such baseless allegations are made by the learned Counsel for the petitioner against the responsible officers, he may be granted a week's time for filing counter affidavit on behalf of the respondents as it is a local matter. The Standing Counsel also drew the attention of the Court to the orders of the Additional District Magistrate (R.A.) dated 31.1.2006 attesting the signatures of the petitioner and order dated 7.2.2006 for filing F.I.R. against respondent No. 6 and submits that the conduct of the petitioner is not clean and above board and allegation of mala-fide against the Commissioner, Allahabad Division, Allahabad and officers at Kaushambi were being made in air and on baseless grounds.
18. In the circumstances the Court was inclined to give time to the Standing Counsel as prayed by him. At this stage Sri Mool Behari Saxena, learned Counsel for the petitioner lost all control and stated that he is a senior counsel and not born yesterday. He stated that by granting time to the Standing Counsel for filing counter affidavit the Court was estopping the petitioner from filing appeal in the matter. He insisted that instead of allowing time to the respondents the Court may dismiss the appeal on merits.
19. The short counter affidavit of respondent No. 6 is already on record. The counsel for the petitioner has already declined to file rejoinder-affidavit to this counter affidavit. He also has raised objection for granting short time to file counter affidavit to the State on the grounds of mala fide raised by him. Me further prays that his petition be dismissed in order to enable him to file appeal, hence instead of calling for counter affidavit from the Standing Counsel the Court is deciding the writ petition after hearing the parties on merits.
20. The whole controversy in this case centres around the dates 30.1.2006 and 31.1.2006 when
(i) Niharika Singh Chauhan was transferred from Handia to Jhusi in place of Bhagwati Prasad Mishra at Jhusi, Allahabad.
(ii) Respondent No. 6 Bhagwati Prasad Mishra was transferred to Sirathu, Kaushambi where he was holding additional charge as Executive Officer in Nagar Palika Parishad.
(iii) Petitioner Prakash Chandra Tiwari alleges to have taken charge from Bhagwati Prasad Mishra though this is falsified from his own letter dated 7.2.2006 and the order of Additional District Magistrate (RA) on it quoted above in the judgment.
(iv) Signatures of petitioner were attested by Additional District Magistrate (RA) apparently in absence of the petitioner (as appears from letter dated 7.2.2006) who had no authority to attest the signatures of the petitioner which could only have been attested by the Administrator.
(v) The order of transfer of respondent No. 6 as the Executive Officer had been received in Nagar Panchayat on 1.2.2006, hence there was no question of the petitioner's moving applications dated 2.2.2006 and 7.2.2006 as the Executive Officer Nagar Panchayat, Sirathu for order by the Additional District Magistrate directing Bhagwati Prasad Misra to hand over charge to the petitioner Prakash Chandra Tiwari.
(vi) In view of the averments of the petitioner in his letter dated 7.2.2006, it is evident that respondent was not in Nagar Panchayat, Sirathu since 30.1.2006 admittedly upto 7.2.2006 when Additional District Magistrate (RA) passed order for taking charge from the petitioner after intimating him about lodging of F.I.R. and taking charge from respondent if charge is not given by 10.2.2006.
(vii) The Divisional Commissioner is the highest authority in the Division and has the power and jurisdiction to transfer respondent No. 6 to Sirathu and that of the petitioner to Chail. The Additional District Magistrate (RA) had no authority to pass orders dated 2.2.2006 and 7.2.2006 ignoring the orders of the Divisional Commissioner dated 31.1.2006 which was admittedly received in Nagar Panchayat, Sirathu on 1.2.2006.
(viii) The Divisional Commissioner, Allahabad had no intimation or knowledge on 31.1.2006 that the signatures of the petitioner had been attested by the Additional District Magistrate (RA) on 31.1.2006 when he passed the order of transfer of respondent No. 6 to Sirathu. Even otherwise in view of General Manager, N.E. Railway, Gorakhpur and Ors. v. Jamait Ram Khatnani and Ors. 1975 (31) F.L.R. 246, the powers of respondent No. 6 stood transferred to Sirathu where he was holding additional charge wherein it has been held:
Once an employee is transferred and posted to a particular place acceptance of the transfer order by that employee is immaterial. Even though he may not join his duties or physically may not go to the new place of posting he will continue to be posted there in the eye of law. His place of posting cannot be deemed to have changed merely because he disobeys the transfer order.
In the instant case the respondent did not join his duties at Fatehgarh but that did not change his place of posting. His place of posting for all purposes continued to be at Fatehgarh.
21. It appears that for some reason the Additional District Magistrate (RA) went out of the way to attest the signatures of the petitioner on 31.1.2006; passed order dated 7.2.2006 on the application of the petitioner of even date, for lodging F.I.R. against the respondent and taking charge from him forcibly even after receipt of the order of transfer of respondent No. 6 dated 31.1.2006 which was admittedly reviewed in the Palika Parishad, Sirathu on 2.2.2006.
22. The petitioner has already been transferred as Executive Officer, Chail by order dated 22.2.2006 and signatures of respondent No. 6 have already been attested on 23.2.2006. The Additional District Magistrate (RA) had no authority or jurisdiction to pass any order on the application of the petitioner overlooking the orders of the Divisional Commissioner who was competent to pass the orders of transfer of the petitioner and respondent No. 6.
23. The argument of the counsel for the petitioner that the order of the Divisional Commissioner is mala fide as it has been passed in the teeth of the Government Order dated 18.1.2006 by which the petitioner was transferred to Sirathu is devoid of merit as the transfer order of the petitioner from Bithoor to Sirathu exhausted itself in the admitted circumstances that the petitioner had joined at Nagar Panchayat, Sirathu on 30.1.2006. Thereafter there was no embargo on transfer of the petitioner who was transferred to Chail by order dated 23.2.2006 where he has already joined.
24. The impugned order of transfer of the petitioner is not illegal, arbitrary, unwarranted or against the provisions of law and also does not suffer from vice of mala fide or legal infirmity.
25. Transfer is an incident of service and it does not require consent of employees. According to New Oxford English Dictionary, the term transfer means, "If you transfer or are transferred to a different place or job you move to a different place or job within the same organization.
26. Some of the principles laid down by the Apex Court in respect of judicial review of transfer cases are as under:
(a) An order of transfer is an incident of Government Service. Who should be transferred and where is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafides or is made in violation of any statutory provisions, the court cannot interfere with it.
(b) It may not be always possible to establish malice in fact in a straight cut manner. In an appropriate case, it is possible to draw reasonable inference or malafides action from the pleadings and antecedent facts and circumstances. But for such inference there must be firm foundation of facts pleaded and established. Such inference cannot be drawn on the basis of insinuation and vague suggestions.
(c) Assessment of work must be left to the bonafide decision of the superiors in service and their honest assessment must be accepted as a part of service discipline. Transfer of a government servant in a transferable service is a necessary incident of the service career. Assessment of the quality of men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. Several imponderables requiring formation of a subjective opinion in that sphere may be involved at times. The only realistic approach is to leave it to the wisdom of the hierarchical superiors to make that decision, unless the decision is vitiated by malafides or infraction of any professed norm or principle governing the transfer, which alone can be scrutinized judicially.
(d) There are no judicially manageable standards for scrutinizing all transfers and the courts lack the necessary expertise for personnel management of all Government departments. This must be left in public interest to the departmental heads subject to the limited judicial scrutiny as indicated above. Challenge of a transfer order, when the career prospectus remains unaffected and also there is no detriment to the Government servant must be eschewed and interference by courts should be rare. Such interference may be made only when a judicially manageable and permissible ground is made out.
27. It is settled law that a transfer which is an incident of service may not be interfered with by the courts unless it is shown to be clearly arbitrary or vitiated by malafides or infraction of any professed norm or principle governing the transfer. It is needless to emphasis that a Government employee or any servant of a public undertaking has no legal right to insist for being posted at any particular place. It cannot be disputed that concerned employee holds a transferable post and unless specifically provided in his service conditions, he has no choice in the matter of posting.
28. If the transfer order is challenged on ground of malafides, there has to be strong and convincing nature of evidence, which is to be proved in the judicial review of the order of transfer. The Courts should be slow in interfering with the transfer and come down with heavy hands where they found that the transfer was not bona fide.
29. Before parting with the case, the Court would like to observe that though Sri Mool Behari Saxena is not a declared Senior Advocate but he is quite senior at the Bar. His sudden outburst in the open Court will certainly affect the conduct of juniors present in Court. As a senior counsel he is expected to maintain the grace and dignity of the Court and should have control over his mind and actions and should not make a case his prestige issue and involved personally in the matter.
30. A simple matter of transfer of the petitioner dated 23.2.2006 has been hyped up beyond proportion by the counsel for the petitioner alleging mala-fide against every one. It is old saying that people living in glass houses should not throw stones on others'. The petitioner had been transferred for administrative reasons from Bithoor. He has already joined at Nagar Panchayat, Chail, as such the impugned order has also exhausted itself having been complied with by the petitioner. It is therefore not amenable to writ challenge. In the circumstances no case for interim order or on merits has been made out for interference under Article 226 of the Constitution of India.
31. In the result, the writ petition fails and is dismissed on merits as well as on the prayer of the learned Counsel for the petitioner. No orders as to costs.