1. The Special Appeal arises from a judgment of the learned Single Judge dated 5 December 2013, allowing the writ petition under Article 226 of the Constitution and setting aside an order of transfer issued in respect of the services of the respondent, who was working as a Cane Supervisor. The respondent was initially appointed on 24 June 1980 as Ganna Gram Sewak, which post was merged with the post of Cane Supervisor on 10 June 1988. On 30 August 1994, the respondent was posted in the office of the District Cane Officer, Mau where-after with effect from 2 September 2002, he was again posted in the office of the District Cane Officer, Azamgarh. The respondent admittedly worked for a period of about eleven years in the office of the District Cane Officer at Azamgarh until an order of transfer was issued on 28 May 2013 posting him from district Azamgarh to district Balrampur.
2. Taking into consideration a letter of the Deputy Cane Commissioner dated 29 May 2013, which highlighted the need to retain the respondent in view of an ensuing CAG Audit, the order of transfer was held in abeyance on 31 May 2013. Thereafter, with the approval of the State Government which was communicated on 28 June 2013, the order dated 31 May 2013 holding the transfer in abeyance was cancelled and the order of transfer was restored. An application was submitted by the spouse of the respondent seeking cancellation of the order of transfer of the respondent to Balrampur stating that she had two married daughters and was suffering from Blood Pressure and Diabetes. Following this representation, the State Government approved the transfer of the respondent to a nearby district and, accordingly, by an order of the Cane Commissioner dated 31 July 2013, the respondent was posted to district Mau under the same commissary in place of district Balrampur as was originally envisaged.
3. The learned Judge interfered with the order of transfer in exercise of the jurisdiction under Article 226 of the Constitution by the judgment, which is called in question in appeal by the State. The original record was summoned by the learned Judge. The judgment records that a letter dated 21 May 2013 was received from one Sri Awdhesh Mishra, President, of the Association, Ganna Vikas Samiti, U.P. in which he had alleged that the respondent as a Cane Supervisor at Azamgarh, had developed contacts and connections with the Cane Mafia''s which was resulting in the harassment of farmers. On this letter, an endorsement was made by the Principal Secretary, Sugar Development on 21 May 2013 directing that the respondent should be placed out of the district.
4. On 28 May 2013, the Principal Secretary, who was also, according, to the learned Single Judge holding the charge of the post of Cane Commissioner, issued a formal order of transfer. On these facts, the learned Single Judge took the view that the Principal Secretary acted on receiving the letter dated 21 May 2013 without application of mind. In regard to the subsequent order, which was passed on the representation of the spouse of the respondent, the learned Judge recorded the admission of the Standing Counsel that "there was no provision under which a representation of the spouse of the employee could be entertained''''. Thus, both the original order of transfer and the modified order have been quashed and set aside.
5. Learned Standing Counsel appearing on behalf of the appellants submits that; (i) the respondent had been posted at Azamgarh from 1980 to 1994 and once again for eleven years from. September 2002 till May, 2013; (ii) there was nothing incorrect or contrary to law with the Principal Secretary acting on the representation, which was submitted to him by the President of the Association, Ganna Vikas Samiti, U.P., particularly having regard to the law laid down by the Supreme Court in
6. On the other hand, it has been urged on behalf of the respondent that; (i) the averments contained in the counter-affidavit, which was filed by the State would indicate that Cane Supervisors are normally not transferred except on administrative exigency or in public interest or on personal grounds; (ii) in the present case the" order of transfer was passed purely on political considerations; (iii) though in view of the judgment of the Supreme Court, there is no embargo on considering the request of an elected representative (in the present case of the President of the Association, Ganna Vikas Samiti, U.P.), there was no independent application of mind before the order of transfer was passed.
7. The records before the Court indicate that the admitted position is that the respondent had worked in his post as Cane Supervisor at Azamgarh, between 2 September 2002 until 28 May 2013. Hence, for nearly eleven years immediately previous to the order of transfer; the respondent had worked at Azamgarh.
8. A considerable reliance has been placed on the averments made in paragraph-10 of the counter-affidavit filed by the State by the learned counsel appearing on behalf of the respondent and it will be appropriate to extract there from:
10. That the transfer order dated 31.7.2013 has been passed taking into consideration the personal request of the petitioner''s wife. There is no violation of the transfer policy. Earlier transfer orders have not been given effect to. It is stated that normally the Cane Supervisors and other Group C and D staff, who are well conversant with the local situation and taking into consideration the nature of their duties, are not transferred except on administrative exigencies or in public interest or on personal grounds. The Senior Cane Development Inspectors/Cane Development Inspectors who are also posted as Mantri/Secretary in the Cane Development Councils/Cane Societies are being normally transferred. The petitioner has been transferred following the transfer policy after taking necessary approval from competent authority as required by the policy. It is stated that the transfer policy issued by State Government from time to time is applicable to all Government employees and as such, employees of Cane Department are also transferred on the basis of the said transfer policy.
9. Now, paragraph-10 of the counter-affidavit would not support the averment that a Cane Supervisor cannot be transferred at all. The averment in paragraph-10 is that normally the Cane Supervisors and other Group C and D staff, who are conversant to the local situation, are not transferred except on administrative exigencies or in public interest or on personal grounds. This would indicate that a transfer can be made on administrative exigencies, or in public interest. The learned Judge was persuaded to find fault with the order of transfer which was passed by the Principal Secretary on the ground that it had been passed at the behest of the President of the Association, Ganna Vikas Samiti, U.P.
10. In our view, following the settled principles of law, there is no reason to hold that the order of transfer is mala fide or without application of mind. The following position was crystallized in the judgment of the Supreme Court in Mohd. Masood Ahmad (supra). In that case, an order of transfer had been passed at the instance of a member of the Legislative Assembly.
11. Dealing with the scope of judicial review in such a case, the Supreme Court observed as follows:
7. The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in
12. On the aspect whether an order of transfer can be interfered with when it has been made at the instance of an elected MLA, the Supreme Court observed as follows:
8. Learned counsel for the appellant submitted that the impugned transfer order of the appellant from Muzaffarnagar to Mawana, District Meerut was made at the instance of an MLA. On the other hand, it has been stated in the counter-affidavit filed on behalf of Respondents 1 and 2 that the appellant has been transferred due to complaints against him. In our opinion, even if the allegation of the appellant is correct that he was transferred on the recommendation of an MLA, that by itself would not vitiate the transfer order. After all, it is the duty of the representatives of the people in the legislature to express the grievances of the people and if there is any complaint against an official the State Government is certainly within its jurisdiction to transfer such an employee. There can be no hard-and-fast rule that every transfer at the instance of an MP or MLA would be vitiated. It all depends on the facts and circumstances of an individual case. In the present case, we see no infirmity in the impugned transfer order.
13. Applying the test, which has been formulated by the Supreme Court in the above judgment, it would have to be held that the learned Judge acted in excess of his jurisdiction under Article 226 of the Constitution by interfering with an order of transfer. The order of transfer dated 28 May 2013 indicates that it was passed in the exigencies of the administration. The fact that the order of transfer was held in abeyance for a brief while in view of the impending CAG Audit is not a reason to set aside the transfer. If the respondent is in fact an efficient employee, there is no reason why his services cannot, in the interest of administration, be availed of at an alternative location. The State has subsequently acted on the representation submitted by the spouse of the respondent by posting the respondent to a nearby district (Mau) in the same commissary. Technically speaking, the Standing Counsel was fair in admitting that there is no provision under which an application or representation of a spouse of an employee can be entertained but it is necessary for the Court to have a robust understanding of what has actually transpired. If the respondent was aggrieved by the modification of the transfer order, which was passed at the behest of his spouse, the State Government would be justified in reviewing the order of transfer and posting him in district Balrampur.
14. In the circumstances, the respondent may either opt to be posted at Mau, which posting was granted on the representation submitted by his spouse. If the respondent is not agreeable to the modification so effected, the State would be at liberty to post him to the original place of posting at Balrampur. In the circumstances and in view of the aforesaid observations, we are of the view that the judgment of the learned Single Judge interfering with the order of transfer dated 5 December 2013 is unsustainable and would have to be quashed and set aside. We, accordingly, allow the Special Appeal and set aside the impugned judgment and order dated 5 December 2013 passed by the learned Single Judge. The writ petition shall, accordingly, stand dismissed. In the event that the respondent, within a period of one week from today, conveys his disinclination to be posted -at a nearby district at Mau in terms of the modified transfer order which was passed on the request made by the spouse of the respondent, the appellants would be at liberty to post him at the original place of posting in accordance with the order of transfer dated 28 May 2013.
