# Shami Ahmad / v. State of U.P. and others

- **Citation:** (2007) 2 ILRA 351
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-02-01
- **Case number:** Special Appeal No. 138 of 2007
- **Bench:** S. Rafat Alam, Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shami-ahmad-v-state-of-u-p-and-others-40912
- **Pages:** 4

## Headnote

Constitution of India, Art. 226-Service
Law-Transfer-at
behest
of
concern
minister
of
department-held-Minister
being responsible for acts and omissions
of his department-direction issued in
public interest-can not be vitiated in law.

Held: Para 7

Therefore the Minister of the concerned
department being responsible for the
acts and omissions of his department,
has issued certain directions, it cannot
be said that he has no business or reason
to direct the subordinate authorities to
act in a particular manner so long as
such direction is not inconsistent with
any statutory provision.
Case law discussed:
2002 (1) UPLBEC-369
1997 (1) SCC-35
AIR 1997 SC-3297

## Text

2 All] Shami Ahmad V. State of U.P. and others
351
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.02.2007

BEFORE
THE HON'BLE S. RAFAT ALAM, J.
THE HON'BLE SUDHIR AGARWAL, J.

Special Appeal No. 138 of 2007

Shami Ahmad ...Appellant/Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Appellant:
Sri Surendra Kumar Mishra

Counsel for the Respondents:
S.C.

Constitution of India, Art. 226-Service
Law-Transfer-at
behest
of
concern
minister
of
department-held-Minister
being responsible for acts and omissions
of his department-direction issued in
public interest-can not be vitiated in law.

Held: Para 7

Therefore the Minister of the concerned
department being responsible for the
acts and omissions of his department,
has issued certain directions, it cannot
be said that he has no business or reason
to direct the subordinate authorities to
act in a particular manner so long as
such direction is not inconsistent with
any statutory provision.
Case law discussed:
2002 (1) UPLBEC-369
1997 (1) SCC-35
AIR 1997 SC-3297

(Delivered by Hon'ble S. Rafat Alam, A.C.J.)

1. Heard Sri S.K. Mishra, learned
counsel for the appellant and also perused
the judgment of the Hon'ble Single Judge
dismissing the appellant's writ petition
challenging the order of his transfer.
2. Learned counsel for the appellant
vehemently contended that the impugned
order of transfer having been passed at the
behest of the Minister, Animal Husbandry
and hence it is malicious in law and
cannot be sustained.

3. After perusing the record as well
as the judgment under appeal we are of
the view that no interference is called for
in this appeal. It appears that initially the
appellant was posted as Live Stock
Extension Officer at Cattle Care Centre,
Niyamtabad,
District
Chandauli
wherefrom he was transferred to Cattle
Care
Centre,
Dulhipur
vide
Chief
Veterinary Officer, District Chandauli's
order dated 14.8.2006 and in his place one
Ram Awadh Yadav, Live Stock Extension
Officer was posted at Niyamtabad.
Subsequently vide order dated 24.8.2006
the earlier order of transfer was modified
and
the
appellant
was
posted
at
Kamalpur/Dhanapur instead of Dulhipur
and one Mohd. Hafiz was transferred
from Bhismpur Chakia to Niyamtabad.
The order dated 24.8.2006 thereafter was
cancelled by order dated 12.9.2006
pursuant to the direction issued by Deputy
Director, Animal Husbandry, Varanasi. It
appears that the Ministry of Animal
Husbandry
thereafter intervened
and
pursuant to the Government Order dated
28.11.2006, the cancellation order dated
12.9.2006 was recalled. Thereafter by
order dated 2.1.2007 the appellant has
been posted at Bhismpur Chakia i.e. the
place wherefrom Sri Mohd. Hafiz was
transferred to Niyamtabad and the said Sri
Mohd. Hafiz has been sent Niyamtabad
whereagainst the appellant filed the
aforesaid writ petition which has been
dismissed by the Hon'ble Single Judge.
The only ground which has been taken by
the appellant and argued before us is that
352 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
the impugned order of transfer having
been passed pursuant to the orders of the
Minister of the concerned department,
therefore, per se it is vitiated in law. We
do not find any force in the submission. A
Minister of the department in our view
can give suitable direction in the interest
of
the
department
to
the
officers
concerned, since for effective functioning
of the department he is answerable to the
representatives of the people in the
House. A Division Bench in Narendra
Kumar Rai Vs. State of U.P. and
others, 2002(1) UPLBEC 369 while
considering the transfers made on the
representation of representative of people
i.e. M.L.A. or M.P. observed as under:-

"We are clearly of the opinion that
from the mere fact that in a Government
servant is transferred on the basis of a
complaint made by a MLA or MP or a
leader of the political party, it cannot be
held that the same is mala fide and the
transfer order cannot be struck down on
the said ground alone without there being
anything more. A MLA or MP is the
representative of the people and common
public has access to him. Often it is very
difficult for a common man to meet the
higher officers and to bring to their notice
the misdeeds or the wrong way of
functioning of a Government servant at a
lower level. It is not possible for a
common man to go to the capital of the
State namely, Lucknow, and then to meet
the higher officers to lodge a complaint
against the wrong manner of functioning
of a Government servant. The MLA and
MP visit their constituency frequently and
meet the members of the public. It is far
easier for the public to lodge a complaint
against the improper functioning of a
Government
servant
with
their
representative namely the MLA or MP of
the area than with the higher officers. If
in such circumstances, the MLA or MP
takes up the matter and brings to the
notice of the higher officers or the
minister of the concerned department
about the misdeeds of a Government
servant, no exception can be taken to such
a course of action. The representatives of
the
people
(MLA
and
MP)
hold
responsible constitutional position and
there is no presumption that whenever
they drew attention to the misdeeds of a
Government servant they do so with mala
fide intention. A transfer order passed
soon after a letter or complaint lodged by
MLA or MP or a political person cannot
be branded as having been done at the
dictate of such a person. There is no
presumption that the authority passing the
transfer orders has not applied his
independent mind. It is quite likely that
the authority was not aware of the
situation and after the full and correct
facts were brought to his notice he
decides to take appropriate action on
objective
consideration.
We
are,
therefore, clearly of the opinion that
without there being anything more, the
mere fact that a transfer order has been
passed soon after a complaint has been
sent by MLA or MP or a political person
to the minister or superior officers of the
concerned department, it cannot be
branded as having been passed without
application of mind or on the dictate of a
political person."

4. The position of a Minister of the
Department stands on a much higher
footing. The executive power of the state
is exercised in the manner provided in the
constitution and the various provisions
made thereunder. The Governor runs the
executive Government of State with the
aid and advice of the Chief Minister and
2 All] Shami Ahmad V. State of U.P. and others
353
the counsel of Ministers which exercise
powers and perform its duties by the
individual Ministers as public officers
with the assistance of the bureaucracy
working in various departments and
corporate
sectors
etc.
Though
the
executive orders are required to be
authenticated in the manner prescribed
under Article 166(3) i.e. they are
expressed in the name of the Governor
but each Minister is individually and
collectively responsible for the actions,
acts and policies. They are accountable
and answerable to the people. Their
powers and duties are regulated by law
and the rules. The legal and moral
responsibility or the liability for the acts
or omissions, duties performed and policy
laid down rest solely on the Minister of
the Department. In Secretary, Jaipur
Development Authority, Jaipur Vs.
Daulat Mal Jain and others 1997 (1)
SCC 35 the Apex Court in respect to the
Minister of the Department observed as
under:-

"They
are
indictable
for
their
conduct or omission, or misconduct or
misappropriation.
The
Council
of
Ministers
are
jointly
and
severally
responsible to the legislature. He/they
is/are also publicly accountable for the
acts or conducts in the performance of
duties."

5. The position of Minister of
Department was further explained in para
12 and 13 of the judgment as under:-

"12. When a Government in office
misuses its powers figuratively, we refer
to the individual Minister/Council of
Ministers who are constituents of the
Government.
The
Government
acts
through its bureaucrats, who shape its
social,
economic
and
administrative
policies to further the social stability and
progress
socially,
economically
and
politically. Actions of the Government,
should be accounted for social morality.
Therefore, the actions of the individuals
would reflect on the actions of the
Government. The actions are intended to
further the goals set down in the
Constitution, the laws or administrative
policy. The action would, therefore, bear
necessary integral connection between the
''purpose' and the end object of public
welfare and not personal gain. The action
cannot be divorced from that of the
individual actor. The end is something
aimed at and only individuals can have
and shape the aims to further the social,
economic
and
political
goals.
The
ministerial responsibility thereat comes
into
consideration.
The
Minister
is
responsible not only for his actions but
also for the job of the bureaucrats who
work or have worked under him. He owes
the responsibility to the electors for all his
actions taken in the name of the Governor
in relation to the Department of which he
is the head. If the Minister, in fact, is
responsible for all the detailed workings
of his department, then clearly ministerial
responsibility
must
cover
a
wider
spectrum than mere moral responsibility:
for
no
Minister
can
possibly
get
acquainted with all the detailed decisions
involved in the working of his department.
The ministerial responsibility, therefore,
would be that the Minister must be
prepared to answer questions in the
House about the actions of his department
and the resultant enforcement of the
policies.
He
owes
them
moral
responsibility. But for actions performed
without his concurrence also, he will be
required to provide explanations and also
bear responsibility for the actions of the
354 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
bureaucrats
who
work
under
him.
Therefore, he bears not only moral
responsibility but also in relation to all
the actions of the bureaucrats who work
under him, bearing actual responsibility
in the working of the department under
his ministerial responsibility.

13. All purposes or actions for which
moral responsibility can be attached are
actions performed by individual persons
composing
the
department.
All
government actions, therefore, means
actions performed by individual persons
to further the objectives set down in the
Constitution,
the
laws
and
the
administrative
policies
to
develop
democratic
traditions,
social
and
economic democracy set down in the
Preamble, Part III and Part IV of the
Constitution. The intention behind the
government actions and purposes is to
further the public welfare and the
national
interest.
Public
good
is
synonymous
with
protection
of
the
interests of the citizens as a territorial
unit or nation as a whole. It also aims to
further the public policies. The limitations
of the policies are kept along with the
public interest to prevent the exploitation
or misuse or abuse of the office or the
executive actions for personal gain or for
illegal gratification."

6. The same view has been reiterated
in Samatha Vs. State of Andhra
Pradesh and others AIR 1997 SC 3297.

7. Therefore the Minister of the
concerned department being responsible
for the acts and omissions of his
department, has issued certain directions,
it cannot be said that he has no business
or reason to direct the subordinate
authorities to act in a particular manner so
long as such direction is not inconsistent
with any statutory provision. If under the
rules something is required to be done in a
particular manner and by a particular
authority in such case obviously a
minister even if holding a high office
would not be competent to direct such
authority to exercise statutory power in a
particular manner but in the absence of
such provision the action taken on the
directions of Minister cannot be said to be
vitiated in law per se. There is nothing on
record to show that the order issued by the
Minister is not in public interest or not in
the interest of department.

8. In the circumstances, we do not
find any fault in the judgment under
appeal and of the view that the writ
petition has rightly been dismissed by the
Hon'ble Single Judge. This appeal,
therefore, lacks merit and is accordingly
dismissed summarily. Appeal dismissed
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.02.2007

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

Crl. Misc. Application no. 3076 of 2007

Shamsher and others
...Applicants
Versus
The State of U.P.
 ...Opposite Parties

Counsel for the Applicants:
Sri S.R. Singh
Sri Rajesh Maurya

Counsel for the Opposite Parties:
A.G.A.

(A) Code of Criminal Procedure-Session
Trail pending since 1993-after closure of
evidence-application
to
list
both-the