Dismissed

Vijit Goswami v. State of U.P. and 3 Others

Allahabad HC21 May 2019SPLA/616/2019

Case brief

AI extract

What is this about?

This Court dismissed a special appeal against an order rejecting a transfer representation of an Assistant Clerk. The Court held that without specific evidence of malafide or violation of service rules, interference in administrative transfers is not warranted. The single judge's order was found to be correct.

What did the court decide?

None. The Special Appeal is dismissed. No order as to costs.

Vijit Goswami Vs State of U.P. and 3 Others — Labour and Industrial Disputes | Allahabad HC (2019)

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Court No. - 21

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Case :- SPECIAL APPEAL No. - 616 of 2019

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Appellant :- Vijit Goswami Respondent :- State Of U.P. And 3 Others Counsel for Appellant :- Ashish Nigam,Sundeep Agarwal Counsel for Respondent :- C.S.C.

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Hon'ble Pradeep Kumar Singh Baghel,J. Hon'ble Rohit Ranjan Agarwal,J.

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The appellant has preferred this special appeal against an order of the learned Single Judge dated 15.4.2019 whereby the writ petition was dismissed.

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The facts of the case in brief are; the appellant was appointed on compassionate ground on the post of Assistant Clerk in Handicapped Welfare Department, Vikas Bhawan, Agra, U.P. By the impugned order, he has been transferred from Agra to Chitrakoot. Prior to the said transfer order, he was transferred from Moradabad to Sambhal district, which he has challenged by means of Civil Misc Writ Petition No.58163 of 2013. His transfer order was stayed by this Court on 23.10.2013, the said writ petition is still pending. Thereafter, the petitioner was again transferred from Moradabad to Agra on 13.7.2017. It is stated that while the petitioner was working in Agra, he was subjected to the disciplinary proceedings, which is still pending. In the meantime, petitioner was transferred vide order dated 26.10.2018 from Agra to Chitrakoot, which he challenged in Writ-A No. 25469 of 2018. The said writ petition was disposed of 4.12.2018 with a direction upon the respondent-authority to decide the petitioner's representation. In compliance thereof, the petitioner submitted a representation before the authority concerned on 15.12.2018. A copy of the said representation is on record as Annexure 15 to the writ petition. The representation of the petitioner has been rejected vide order impugned dated 3.1.2019, which has been challenged by the petitioner in Writ-A No. 5698 of 2019. It has been dismissed by the learned Single Judge on the ground that he has failed to make out any ground for interference under Article 226 of the Constitution of India.

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Learned Counsel for the petitioner submits that the learned Single Judge has not

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noted the submissions made by the petitioner. He further submits that the mother of the petitioner has indifferent health hence, if he is transferred from Agra to Chitrakoot she would be made to suffer. No other submission has been made.

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During the course of arguments, learned Counsel for petitioner submits that earlier writ petition of the petitioner bearing Writ-A No. 58163 of 2013 has become infructuous as, later on, the petitioner was transferred from Moradabad to Agra. We have summoned the record of said writ petition, and dismissed the writ petition as infructuous.

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We have heard learned Counsel for the appellant and Sri Harikesh Singh, learned Standing Counsel for the State.

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The Supreme Court in a long line of decisions has settled the law that transfer is an exigency of service. Ordinarily the Court should not interfere in the matter of transfer except on the limited grounds i.e. violation of statutory rule and malafide. Violation of transfer policy or executive order does not confer any vested right on the employee to challenge the transfer order in the Court. Reference may be made to the judgments of the Supreme Court in Union of India and others v. S.L. Abbas, (1993) 4 SCC 357; Shilpi Bose (Mrs.) and others v. State of Bihar and others, 1991 Supp 2 SCC 659; and, N.K. Singh v. Union of India and others, (1994) 6 SCC 98.

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The Supreme Court in the case of S. Pratap Singh v. State of Punjab, AIR 1964 SC 72, has held that in case there is any allegation of malafide, the person against whom malafide is alleged, should be made party in the writ petition and the allegation with regard to malafide should not be general and vague but there should be specific details and pleadings in that regard.

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From a perusal of the pleadings of the writ petition and from the submission made by the petitioner, no ground exists in the present case. Learned Counsel for the appellant has failed to point out any violation of statutory provision or service rules. As regards malafide, the said fact has not been taken in the writ petition, nor submission has been advanced on the said point.

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In view of the above, we do not find any record to demonstrate that the learned counsel for the appellant-petitioner made submissions before the learned Single Judge but the learned Single Judge has not recorded the same. It is suffice to mention that a Constitution Bench of Supreme Court in case of A.R. Antulay Vs. R.S. Nayak and another, (1998) 2 SCC 602 has held as under:-

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The pronouncements of every Division Bench of this Court are pronouncements of the court itself. A larger Bench, merely on the strength of its numbers, cannot undo the finality of the decisions of other Division Benches. If the decision suffers from an error the only way to correct it, is to go in review under Article 137 read with Order 40 Rule 1 framed under Article 145 before "as far as is practicable" the same judges. This is not a matter merely of some dispensable procedural 'form' but the requirement of substance. The reported decisions on the review power under the Civil Procedure Code when it had a similar provision for the same judges hearing the matter demonstrate the high purpose sought to be served thereby."

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Thus, where submission of petitioner is not recorded in the order by the learned Single Judge, petitioner shall move an application before the same Judge for the correction of the record, in case, no such application is moved by the petitioner, it will not be considered by the Superior Court.

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In addition to above, we also find in the impugned order that the transfer of the petitioner has been made on administrative ground. The learned Counsel for the appellant has failed to advance any submission that findings recorded in the impugned order regarding the ground for taking administrative action, is incorrect.

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Having due regard to the facts and circumstances of the case, we find that the order of the learned Single Judge does not warrant any interference by this Court.

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Accordingly the Special Appeal is dismissed . There shall be no order as to costs.

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Let a copy of this order be placed on record in Writ-A No. 58163 of 2013.

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Order Date :- 21.5.2019 S. Singh

Vijit Goswami v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Vijit Goswami v. State of U.P. and 3 Others

Case brief

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What did the court decide?

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