- (1.) THE petitioner Sri Jokhu Prasad Tripathi who holds the post of Deputy Director Agriculture (Prasar) was transferred from Jhansi to Gorakhpur on 15-6-1997. Merely with in a period of less than three months he was transferred to Lucknow and posted as Project Officer (D. P. A. P/p. P. M. Cell) Secretariat. This order has been assailed in the present writ petition.
(2.) WE have heard Sri S. N. Shukla, learned Counsel appearing on behalf of the petitioner, Sri Umesh Narain Sharma, (who has filed an application for impleadment, which did not find favour with this Court but under the rules of the Court was allowed a hearing) as well as, the learned Standing Counsel and Sri Amrendra Nath Singh, learned Counsel appearing on be half of Sri Kunwar Fateh Bahadur Singh, respondent No. 4, at considerable length. The impugned order has been as sailed mainly on two grounds- firstly, that the order suffers from colourable ex ercise of power and secondly, that his son, who was earlier studying in Intermediate classes at Allahabad started his studies at Gorakhpur. His studies would suffer, if he would be shifted to Lucknow. The examination of the course i. e. Intermediate shall commence from middle of the March, 1998. It was submitted that the transfer of the petitioner in the midacade micsession was not appropriate. In support of the contention that order suffers from colourable exercise of power, it has been asserted that the petitioner has taken actions against the businessmen holding fertilizer licences alter taking samples, which were not Sound according to the norms. They made complaints against the petitioner as he had initiated action against them and lodged F. I. R. It was submitted that businessmen had formed a nexus with the District Agriculture Officer and one politician and Legislature, Sri Kunwar Fateh Bahadur Singh, who is now a Mini ster in Government of U. P. The District Magistrate, Gorakhpur, Sri Sanjiva Saran at the behest of those businessmen and pressure exercised upon him by the said politician, recommended the transfer of the petitioner to the State Government. Consequently, the petitioner was trans ferred to Lucknow, by means of an order passed by the Secretary, Agriculture, Government of U. P. Sri Sanjiva Saran, erstwhile the District Magistrate, Gorakhpur and Sri Kunwar Fateh Bahadur Singh, who was then a legislature and now a Minister in the Government of U. P. have been arrayed in their name as opposite parties to the writ petition. An affidavit of service upon them has been filed but Sri Sanjiva Saran the then Dis trict Magistrate has not filed his response. On behalf of Sri Kunwar Fateh Bahadur Singh a counter-affidavit sworn by one Rajesh Kumar Singh has been filed, where in it has been stated that Sri Kunwar Fateh Bahadur Singh had received certain complaints from the merchants against the petitioner, but the District Magistrate while recommending the transfer of the petitioner has exercised his independent mind. No allegation of any sort has been levelled against the Secretary, Ministry of Agriculture, who passed the impugned order. It cannot be presumed that a person to the rank of Secretary of an important Ministry would pass an order recklessly, only on the basis of the recommendation of the District Magistrate. He ought to have passed the order after considering the pros and cons of the controversy in volved. It is well settled that whenever allegation of mala fide against a person is levelled, that person should be impleaded as a party to the writ petition to rebut the allegation. The Secretary has not been impleaded by name, to rebut the al legation, that he passed the order only at the behest of any person or on the recom mendation or the report of the District Magistrate concerned. Hence, no charge of mala fide can be attributed to the Secretary, who passed the order of the transfer.
(3.) IT was vehemently argued by the learned Counsel for the petitioner that the impugned transfer order amounted to a punishment. The argument is miscon ceived. If that contention is accepted, even then in such situations, where complaints are made against an officer, two options are open before the appointing authority, either to proceed against such an officer by holding a disciplinary enquiry or to trans fer him from the present place of posting casting no stigma on his character and conduct. In the present case, the State Government opted to transfer the petitioner to Lucknow and attached him to Secretariat. Vnabani Kama Ray v. State of Orissa and others, 1995 Supp (4) Supreme Court Cases 169, it was observed: "it is settled law that a transfer which is an incident of service is not to be interfered with by the Courts unless it is shown to be clearly ar bitrary or vitiated by mala fides or infraction or any professed norm or principle governing the transfer.;