A.K.Banerji - (1.) BY means of this writ petition, the petitioner has challenged the order dated 2-11-1992, passed by respondent No. 1. Cancelling the transfer order of the petitioner dated 14-10-1992, and re-transferring the petitioner to the place of his last posting. The petitioner has also sought a writ of mandamus commanding the respondents not to appoint any other person on the post of secretary, Krishi Utpadan Mandi Sandmiti, Bareilly.
(2.) BRIEF facts are that the petitioner was working in the post of Secretary, Krishi Utpadan Mandi Samiti. In the year 1990, the petitioner was posted as Secretary, Krishi Utpadan Mandi Samiti, Aligarh After a stay of over one year at Aligarh, the petitioner was transferred to Mathura and hereafter, to Hathras in the year 1992. The petitioner had only worked for about three months at Hathras when vide order dated 24-10-1992, he was transferred to the Krishi Utpadan Mandi Samiti, Bareilly. The petitioner was relieved at Hathras on 23-10-1992 and joined at Bareilly on 24-10-1992 where he submitted the joining report. The petitioner was served with the Impugned order dated 2-11-1992 informing him that his transfer order dated 14-10 1992, transferring him to Bareilly, has been cancelled and he should revert back to Hathras, It is this order which has been challenged by the petitioner in the instant writ petition on the ground that the order was malafide and due to political pressure, besides after the petitioner had joined at Bareilly, the transfer order had exhausted itself and the same could not be cancelled and the petitioner reverted back to the last place of his posting. The order has also been challenged on the: ground as arbitrary, unfair and bad as no reasons have been given for cancelling the transfer order. On 20-11-1992, this Court while entertaining the writ petition granted two weeks' time to Shri B. D. Mandhyan learned 'counsel for the respondents for filing the counter affidavit and directed the matter to be listed for admission on 6-1- 1993. This Court also passed an order to the effect that if the petitioner has joined as Secretary, Krishi Unpadan Mandi Samiti, Bareilly, he shall be permitted to continue to function as Secretary. Counter and rejoinder affidavits have since been exchanged between the parties. The counsel for the petitioner has also filed supplementary affidavit and supplementary rejoinder affidavit in support of his petition. I have heard Shri Mahesh Gautam, learned counsel for the petitioner and Shri B. D. Mandhyan, learned counsel appearing for the respondents. I have also perused the record of the writ petition. With the consent of the learned counsel for the parties, the writ petition is being finally decided at the admission stage itself. The learned counsel for the petitioner has strongly urged that the impugned order cancelling the transfer order dated, 14-10-1992, by which the petitioner was posted at Bareilly, was passed malafide due to the political pressure and as the Agricultural Minister wanted his own man to be posted at Bareilly. He has also contended that the petitioner was transferred from Hathras to Bareilly in public interest but the order cancelling the petitioner's transfer order does not disclose any reasons as to why the said order was cancelled. Besides, once the transfer order was passed and the petitioner had Joined at Bareilly, the transfer order had exhausted itself and the same could not be cancelled. In support of his submissions, the learned counsel has relied upon certain decisions of our Court as well as the Supreme Court.
(3.) ON the other hands, the learned counsel for the respondents has submitted that the order transferring the petitioner from Hathras to Bareilly was by oversight and due to, a bonafide mistake as Bareilly was a Class I Mandi and only senior persons could be posted at the said place. The petitioner was in the Class III category of Secretaries and, therefore, under some mistake he was posted in the Class I Mandi of Bareilly and for that reason, the transfer order was cancelled and he was reverted back at Hathras which was the place of last posting The learned counsel had further contended that in such circumstances, no reasons were required to be given and neither it was necessary to mention that the order cancelling the transfer order was on account of public interest. It was further urged that the allegations of mala-fide are absolutely incorrect and without any basis. I have carefully considered the respective arguments of the learned counsel for the parties It cannot be in dispute that transfer is an incident and concomitant of service and is not to be interfered with by the Courts in the exercise of their jurisdiction under Article 226 of the Constitution of India save in cases where it is against any statutory mandatory rules or is malafide or made in colourable exercise of power with a view to harass the employee. It Is sole and exclusive discretion of the appropriate Government to transfer and post its employees where it is necessary to do so considering administrative reasons and in public interest, but this power has to be exercised in a fair and reasonable manner and not arbitrarily (See E. P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555 ; V. Vardha Rao v. The State of Karnataka, AIR 1986 SC 1955, Mrs. Shilpi Bose v. State of Bihar, AIR 1991 SC 532 ; Union of India v. S. L. Abbas, JT 1993 (3) SC 678).;