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2018 Supreme(All) 2251
IN THE HIGH COURT OF ALLAHABAD
SUDHIR AGARWAL, NEERAJ TIWARI, JJ.
Km. Amita Varun - Petitioner
Versus
State Of U.P. and Others - Respondent
Writ - A No.10286 of 2018
Decided On : 27-11-2018
Advocate Appeared:
For the Petitioner: Prabhakar Awasthi, Shanti Dhar Dwivedi
For the Respondent: C.S.C., Amit Kumar, Ashish Kumar Singh
Headnote:
U.P. Palika (Centralized) Service Rules, 1966 – Constitution of India – Article 226 – Various order of transfers of petitioner made subsequent to her posting on ground of frequent transfer of petitioner and malicious exercise of power by Director, Local Bodies authority – Challenged – Held, In garb of exercising power of transfer as an exigency of service, petitioner has been harassed like anything and power of transfer is so frequent that it has ceased to be non-punitive exercise, but become punitive one and is also vitiated on ground of malice in law – powers supposed to exercise those powers and function without fear and favour, independently and with prime objective of public welfare and not for appeasement of political clout – Unfortunately, authority has not withstood to its independence and objectivity in exercise of powers of transfer of officers within its domain, but has shown meek surrender to wishes of political bosses and even Ministers of different departments – Petition allowed. (Paras, 28 to 31)
Facts of the court:
Sole petitioner issued by Special Secretary, U.P. Government communicating to Director Local Bodies that government in public interest decided to transfer petitioner from post of Executive Officer, to post of Executive Officer – Various order of transfers of petitioner made subsequent to her posting – Challenging on ground of frequent transfer of petitioner and malicious exercise of power.
Findings of the court:
In garb of exercising power of transfer as an exigency of service, petitioner has been harassed like anything and power of transfer is so frequent that it has ceased to be non-punitive exercise, but become punitive one and is also vitiated on ground of malice in law – powers supposed to exercise those powers and function without fear and favour, independently and with prime objective of public welfare and not for appeasement of political clout – Unfortunately, authority has not withstood to its independence and objectivity in exercise of powers of transfer of officers within its domain, but has shown meek surrender to wishes of political bosses and even Ministers of different departments.
Result: Petitioner allowed
SUDHIR AGARWAL, J.
1. Sri Prabhakar Awasthi, learned counsel for petitioner and learned Standing Counsel for respondents. On behalf of respondents no counter affidavit has been filed and it is stated that since original record pertaining to transfer of petitioner is being produced before Court for its perusal, matter may be considered and decided after perusal of record and also after hearing the respective arguments of counsel for parties. We, therefore, proceed to hear and decide this writ petition at this stage under Rules of the Court.
2. The writ petition under Article 226 has been filed by sole petitioner Km. Amita Varun assailing order dated 9.4.2018 issued by Special Secretary, U.P. Government communicating to Director Local Bodies that government in public interest has decided to transfer petitioner from the post of Executive Officer, Nagar Palika Parishad, Garhmukteshwar, District Hapur to the post of Executive Officer, Nagar Palika Parishad, Marhara, District Etah; and consequential order dated 12.4.2018 whereby Director, Local Bodies, giving effect to the letter dated 9.4.2018, has transferred petitioner to Nagar Palika Parishad, Marhara District Etah.
3. The order of transfer has been challenged on the ground of frequent transfer of petitioner and malicious exercise of power.
4. Petitioner joined the post of Executive Officer, Nagar Palika Parishad, Sikarpur, District Bulandshahar on 27.04.2007, after being selected by Uttar Pradesh Public Service Commission (hereinafter referred to as "UPPSC").
5. Post of Executive Officer, Nagar Palika Parishad is a centralized post. It is governed by U.P. Palika (Centralized) Service Rules, 1966 (hereinafter referred to as "Rules, 1966").
6. Various transfers of petitioner made subsequent to her posting at Nagar Palika Parishad, Sikarpur, District Bulandshahar, are detailed as under:-
Sl.No.
Date of Transfer
From
To
1
05.06.2008
Nagar Palika Parishad, Sikarpur, District Bulandshahar
Nagar Palika Parishad, Gursarai, District Jhansi
2
20.02.2009
Nagar Palika Parishad, Sursarai, District Jhansi
Nagar Palika Parishad, Mahrara, District Etah
3
05.02.2011
Nagar Palika Parishad, Mahrara, District Etah
Nagar Palika Parishad, Syana, District Bulandshahar
4
05.06.2013
Nagar Palika Parishad, Syana, District Bulandshahar
Nagar Palika Parishad, Bahjoi, District Sambhal
5
01.09.2014
Nagar Palika Parishad, Bahjoi, District Sambhal
Nagar Palika Parishad, Shamli, District Shamli
6
06.01.2016
Nagar Palika Parishad, Shamli, District Shamli
Nagar Palika Parishad, Jaswant Nagar, District Etawah
7
07/04.2016
Nagar Palika Parishad, Jaswant Nagar, District Etawah
Nagar Palika Parishad, Jahagirabad, District Bulandshahar
8
26.5.2016
Nagar Palika Parishad, Jahagirabad, District Bulandshahar
Nagar Palika Parishad, Sikarpur, District Bulandshahar
9
30.06.2017
Nagar Palika Parishad, Sikarpur, District Bulandshahar
Nagar Palika Parishad, Bilari, District Moradabad
10
25.10.2017
Nagar Palika Parishad, Bilari, District Moradabad
Nagar Palika Parishad, Muradnagar, District Ghaziabad
7. When petitioner was posted at Muradnagar, District Ghaziabad, one Shamim Ahmad was officiating as Executive Officer thereat. He was attached to Directorate Urban Local Bodies, Lucknow by order dated 25.10.2017, whereagainst, he filed Writ Petition No.26033 (SS) of 2017 stating that he is going to retire on 31.01.2018, therefore, his transfer is against transfer policy. Court, on 1.11.2017, while disposing of writ petition, passed following order:-
"Heard learned counsel for the parties.
Learned counsel for petitioner submits that the petitioner is to
