1. Heard Sri Vishal Kumar Upadhyay, learned counsel for the petitioner, learned Standing Counsel for the respondents and perused the record.
2. The writ petition is directed against order of transfer dated 29th December, 2008 (Annexure No.1 to the writ petition) passed by respondent No.2 whereby the Chief Engineer, (Project and Planning), Irrigation Department, U.P. Lucknow has transferred the petitioner having found guilty of dereliction of duty pursuant to enquiry report submitted by enquiry authority to this effect.
3. It is contended that transfer by way of punishment is not permissible and therefore, the impugned order of transfer is liable to be set aside.
4. A counter affidavit has been filed by the respondents stating that impugned order of transfer has been passed on administrative grounds. However, it is not disputed that since the petitioner failed to discharge his responsibility and duties to the post and he has been found to mislead his higher officers, therefore he has been transferred. It is also admitted in para 9 of the counter affidavit that impugned order of transfer has been passed after making enquiry and receiving report of enquiry against the petitioner finding him guilty of certain acts and omission on the part of petitioner constituting misconduct.
5. The question up for consideration before this Court whether here is an order of transfer by way of punishment or it can be construed as a transfer made in exigency of service on administrative grounds.
6. The order of transfer impugned in this writ petition read as under:
^^'kklu ds Ik= la[;k [email protected]&27&fla&7&15¼24½@08] fnukad 14-11-2008 }kjk voxr djk;k x;k gS fd Jh jkds'k flag folsu] ofj"B fyfid ck<+ dk;Z [k.M xks.Mk ds fo:) f'kdk;rksa dh tkWap vk[;k ds vk/kkj ij Jh lHkkifr ikBd] ofj"B fyfid ¼dk;Zokgd eq[; fyfid½ dks vius in dk nkf;Ro HkyhHkkWafr fuoZgu u djus ,oa mPpkf/kdkfj;ksa dks xqejkg dj LFkkukUrj.k gsrq Ik= fy[kkus ds fy, nks"kh ik;s tkus ds QyLo:i iz'kklfud vk/kkj ij [k.M ls ckgj LFkkukUrj.k gsrq fu.kZ; fy;k x; gSA vr% Jh lHkkifr ikBd] ofj"B fyfid] ck<+ dk;Z [k.M xks.Mk dks muds orZeku rSukrh LFkku ls iz'kklfud vk/kkj ij LFkkukUrfjr djrs gq, uydwi [k.M xks.Mk esa ,rn~}kjk inLFkkfir fd;k tkrk gSA mijksDr vkns'k rkRdkfyd izHkko ls ykxw gksxsaA^^
7. Ex facie it does not show that it is a transfer not a consequence of departmental enquiry but something for other reasons. In fact the counter affidavit of respondent No.3 corroborate this fact that after receiving enquiry report and considering the recommendation of the enquiry officer the petitioner has been transferred. A transfer on administrative ground for various reasons is permissible and normally is not interfered by the Court. The term administrative ground/ exigency includes within its purview transfer to avoid shuffle between two employees at a particular place or to make an atmosphere more conducive which is being poisoned by both the employees and sometime not to allow an employee to do something wrong at a particular place. But then the order of transfer must show that the power of transfer has been exercised for administrative reasons without making the order of transfer a penalty.
8. The impugned order, in this case, clearly show that after receiving enquiry report and founded thereon the petitioner is being transferred. Thus the power of transfer has not been exercised by the transferring authority independently by his own application of mind but the impugned order of transfer is founded on the enquiry report. Fortunately, the enquiry report is part of the record which shows that enquiry officer has made recommendation for transfer besides above. The apex court while repeatedly observing that normally interference in an order of transfer should not be made but simultaneously it has also said that if an order of transfer is made as a punishment, the same cannot sustain unless permitted under the Rules. The reference is made to the Apex Court decision in Somesh Tiwari Vs. Union of India & Ors. JT 2009 (1) SC 96.
9. In view of the above, the impugned order of transfer cannot sustain. The writ petition is allowed. The order dated 29th December, 2008 is hereby quashed.
10. However, it is made clear that since three years have passed, this order shall not preclude the respondents from passing a fresh order as and when the circumstances required in accordance with law since it cannot be said that the petitioner has any vested right to continue at a particular place according to his own choice but privilege is that of competent transferring authority to pass appropriate authority in accordance with law in his own wisdom.
Order Date :- 3.5.2012 KA