# Mohd. Zeeshan v. State of U.P. and others

- **Citation:** (2008) 1 ILRA 211
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-02-25
- **Case number:** Civil Misc. Writ Petition No. 7825 of 2008
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-zeeshan-v-state-of-u-p-and-others-41015
- **Pages:** 4

## Headnote

Constitution of India, Art. 226-Service
Law-Transfer
Order-passed
by
Chief
Secretary of the Department-on the
complaint of Ex. M.P. of affiliation ruling
party-having no concern with the affairsnon
representing
the
people-heldarbitrary, malafiedy-total non application
of mind-unsustainable.

Held: Para 13

A former M.P., on whose request the
transfer is made is not a person who
represents the public in general. He is
only a political person and therefore his
letter if being acted upon would result in
giving political mileage to such a person
and would not be an action in public
interest or administrative exigency. I am
therefore of the view that the power of
transferring
an
officer
can
not
be
wielded arbitrarily, malafidly or at the
instance of politicians who no longer
represent the public. If it is for the better
administration
that
the
employee
concerned must have freedom from fear
of being harassed by repeated transfer
or transfer orders at the instance of
someone who has nothing to do with the
administration
of
the
department
concerned. Thus, in the above facts and
circumstances the impugned order is
unsustainable and suffers from total non
application of mind which has been
passed only to please a leader affiliated
to the Ruling party. The impugned order
dated 31.1.2008 (Annexure-1 to the writ
petition) is therefore quashed.
Case law discussed:
2007 (8) SCC 150, 2003 (11) SCC 740, 2005
(3) SCC 153, 1998 (1) AWC 27, 2000(2) AWC
1515, 2004 (1) AWC 940

## Text

1 All] Mohd. Zeeshan V. State of U.P. and others
211
ground of availability of alternative
remedy when there is blatant error in the
order.

12. For the foregoing reasons, this
appeal succeeds on this point alone. In the
result, this appeal is allowed. The
impugned order dated 12.9.2007 passed
by the Senior Superintendent of Police,
Agra dismissing the appellant from
service and the judgment of the Hon'ble
Single Judge dated 1.10.2007 are hereby
set aside. However, it would be open to
the respondents to proceed against the
appellant in accordance with law, either
by initiating proceedings after regular
enquiry or dispensing with the regular
proceedings by recording reasons under
Section 8 (2) (b) of the Rules. There shall
be no order as to costs. Appeal allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.02.2008

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 7825 of 2008

Mohd. Zeeshan

...Petitioner
Versus
State of U. P. and others ...Respondents

Counsel for the Petitioner:
Sri Umesh Narain Sharma
Sri Sunnet Kumar

Counsel for the Respondents:
Sri S.F.A. Naqvi
S.C.

Constitution of India, Art. 226-Service
Law-Transfer
Order-passed
by
Chief
Secretary of the Department-on the
complaint of Ex. M.P. of affiliation ruling
party-having no concern with the affairsnon
representing
the
people-heldarbitrary, malafiedy-total non application
of mind-unsustainable.

Held: Para 13

A former M.P., on whose request the
transfer is made is not a person who
represents the public in general. He is
only a political person and therefore his
letter if being acted upon would result in
giving political mileage to such a person
and would not be an action in public
interest or administrative exigency. I am
therefore of the view that the power of
transferring
an
officer
can
not
be
wielded arbitrarily, malafidly or at the
instance of politicians who no longer
represent the public. If it is for the better
administration
that
the
employee
concerned must have freedom from fear
of being harassed by repeated transfer
or transfer orders at the instance of
someone who has nothing to do with the
administration
of
the
department
concerned. Thus, in the above facts and
circumstances the impugned order is
unsustainable and suffers from total non
application of mind which has been
passed only to please a leader affiliated
to the Ruling party. The impugned order
dated 31.1.2008 (Annexure-1 to the writ
petition) is therefore quashed.
Case law discussed:
2007 (8) SCC 150, 2003 (11) SCC 740, 2005
(3) SCC 153, 1998 (1) AWC 27, 2000(2) AWC
1515, 2004 (1) AWC 940

(Delivered by Hon'ble Pankaj Mithal, J.)

1. The petitioner is an Assistant Tax
Superintendent
(Tax
and
Revenue
Inspector) which is a class III post
governed by the U.P. Palika Centralized
Services, Rules, 1966. Rule 25 of the
aforesaid Rules empowers the State
Government to transfer any officer of the
Centralized Service from one Palika to
another.
212 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
2. In exercise of the said power, the
petitioner has been transferred from
Nagar Palilka, Parishad Chandpur, Bijnor
and has been attached to the Directorate
without assigning any duties. This order
of transfer/attachment dated 31st January
2008 passed by the Chief Secretary has
been impugned in the writ petition on the
ground of malafidies and on the ground
that it has been passed without application
of mind by the authority concerned
simply on the dictates of a political
personality.

3. The writ petition was entertained
by an order dated 18.2.2008 and in view
of the fact that the transfer order was not a
routine order of transfer but was an order
made under the head VIP, the Court had
directed the standing counsel to produce
the record. The record has been produced
and has been seen by me.

4. Heard learned counsel for the
parties. All of them are agreeable for the
disposal of this petition at this stage itself
on the basis of the record without any
further opportunity to file any counter or
rejoinder affidavits.

5. Sri U.N. Sharma, learned Senior
Advocate assisted by Sri Suneet Kumar,
learned counsel for the petitioner has
submitted that the petitioner has been
transferred only on the basis of a letter
written by one former member of the Lok
Sabha and the Zila Parabhari, Bijnor U.P.,
of the BSP to the effect that the workers
of the BSP have made complaints to him
that the petitioner is working in the
interest of the Samajwadi Party and his
actions are contrary to the policies of the
BSP. Therefore, he should be transferred
from Chandpur.

6. The record produced do reveals
the existence of the above letter of the
former Member of Parliament (in short
M.P.) of the Bijnor and that the impugned
transfer order has been passed without
verifying the substance in the complaints
made against the petitioner simply to
please the said political person.

7. Learned standing counsel has
defended the order on the ground that the
Chief Secretary was within its power to
transfer the petitioner, even if it has been
passed on the dictates of a political person
and in support thereof he has placed
reliance upon a Division Bench decision
of the Supreme Court 2007 (8) SCC 150
Mohd. Masood Ahmad Vs. State of U.P.,
and others. Sri Farman Naqvi who has
appeared for the Nagar Palika Parishad
Chandpur respondents No.3 and 4 by
filing counter affidavit has defended the
order on an additional ground that the
petitioner is a resident of Bijnor and
therefore he can not be posted in the home
district and in support has brought
documents such as voters list of the year
2006 and the certificates of the school to
establish that the petitioner is basically
resident of district Bijnor.

8. There is no dispute to the settled
legal preposition that where an employee
holds a transferable post the transfer being
part of the service condition of the
employee
should
not
ordinarily
be
interfered with by the Court unless, it is
established that the order is malafide and
has been passed in contravention of the
service Rules or by an authority who is
not competent to pass the same. In Mohd.
Masood Ahmad (supra) the Supreme
Court has held that even if an employee
has
been
transferred
on
the
recommendation of a MLA that by itself
1 All] Mohd. Zeeshan V. State of U.P. and others
213
would not vitiate the transfer order as it is
the duty of the representative of the
people to express the grievances of the
people and the State government is
certainly empowered to transfer such
employee on his behalf.

9. In 2003 (11) SCC 740 Sarvesh
Kumar Awasthi Vs. Jal Nigam and
others Apex Court while dealing with the
transfer of an employee effected at the
recommendations either of Minister or
MLAs, MPs and MLCs observed that the
transfer of an officer is required to be
made on the basis of set norms and
guidelines
without
any
political
interference. Some what similar view was
expressed by the three Judges Bench of
the Supreme Court in 2005 (3) SCC 153
Suresh Chandra Sharmd Vs. Chairman,
U.P.S.E.C., and others and it was held
that interference in transfer and posting
with political patronage has totally
disturbed the autonomous nature of the
Electricity
Board.
Accordingly,
the
practice of transferring the officers and
employees at the behest of politicians was
discouraged by the Supreme Court.

10. A Division Bench of this Court
in the case of Lokesh Kumar Vs. State of
U.P., and others 1998 (1) AWC 27 held
that
the
transfer
without
any
administrative exigency or pubic interest
merely for political reasons is not
sustainable.

11. This has been followed by the
Division Bench decision in the case of
Goverdhan Lal vs. State of U.P., and
others 2000(2) AWC 1515 wherein also
the practice of transferring employees on
political pressure was deprecated.

12. Another Division Bench of this
Court Ajai Jauhari Vs. State of U.P., and
others 2004 (1) AWC 940 has held that
the transfer of a government servant on
political pressure can not be sustained
when the government has not applied
mind to the relevant consideration as to
whether the transfer is justifiable on the
touch stone of administrative exigency or
public interest.

13. In view of the above legal
position the principal that emerges is that
ordinarily transfer should be made only
on set norms either looking to the
administrative exigency or the public
interest
and
transfers
on
the
request/complaints or dictates of MLAs
and MPs would not normally stand
vitiated provided they are made on the
administrative grounds after verifying the
substance of the complaints or public
interest. In other words, transfers at the
behest of politicians are permitted only to
the limited extent where the authority
concerned applies its mind and founds
some
substance
in
the
request
or
complaints of the politicians of the
officers/employees concerned. In nutshell,
without
there
being
anything
to
substantiate the complaints or to support
the request the order of transfer passed
merely because a politician has requested,
can not be justified. Even, in the case of
Mohd. Masood Ahmad (Supra) it is said
that every transfer at the behest of a
politicians would not stand vitiated but it
all
depends
upon
the
facts
and
circumstances of the individual case. In
the instant case the transfer has been
made merely in view of the letter of the
former M. P., on the allegation that he has
received complaints that the petitioner is
patronizing the policies of the previous
government and as such his actions are
214 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
against government in power. This
complaint has not been verified and there
is nothing on record to show that the
Chief Secretary had found any substance
in the same. The transfer in the instant
case as such has not been made on any
administrative exigency or in public
interest. Moreover, this was not a request
or complaint made by a sitting MLA or
MP
who
may
be
said
to
be
a
representative of the public. It is a letter
by the former MP which does not
represent anybody as on date. He is
nobody to inter meddle with the affairs of
the department concerned on behalf of the
public. In view of the aforesaid facts and
circumstances
the
decision
of
the
Supreme Court in the case of Mohd
Masood Ahmad (Supra) would not be
applicable in the present case. A former
M.P., on whose request the transfer is
made is not a person who represents the
public in general. He is only a political
person and therefore his letter if being
acted upon would result in giving political
mileage to such a person and would not
be an action in public interest or
administrative exigency. I am therefore of
the view that the power of transferring an
officer can not be wielded arbitrarily,
malafidly or at the instance of politicians
who no longer represent the public. If it is
for the better administration that the
employee concerned must have freedom
from fear of being harassed by repeated
transfer or transfer orders at the instance
of someone who has nothing to do with
the administration of the department
concerned. Thus, in the above facts and
circumstances the impugned order is
unsustainable and suffers from total non
application of mind which has been
passed only to please a leader affiliated to
the Ruling party. The impugned order
dated 31.1.2008 (Annexure-1 to the writ
petition) is therefore quashed.

14. However, before parting it
would be suffice to add that the
contention raised by Sri Naqvi that the
petitioner is a resident of district Bijnor
and therefore he should not be posted in
the home district is a matter which is
required
to
be
considered
after
verification of the facts. Therefore, it is
not necessary to deal with the said aspect
of the matter in exercise of the writ
jurisdiction. The respondents are left free
to take necessary action in this regard in
accordance with law.

Petition allowed. No order is passed
as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.02.2009

BEFORE
THE HON'BLE R.K. RASTOGI, J.
THE HON'BLE A.K. ROOPANWAL, J.

Habeas Corpus Petition No. 45113 of
2008

Anil Pal

...Petitioner(In Jail)
Versus
Superintendent, District Jail, Basti and
others

...Respondents

Counsel for the Petitioner:
Sri Daya Shanker Mishra
Sri Chandra Kesh Mishra

Counsel for the Respondents:
Sri R.D. Tiwari
A.G.A.
Addl. Solicitor General of India

Constitution of India-Art. 226-National
Security
Act-Section
3
(2)-Detention