# Amit Kumar v. State of U.P. & Ors

- **Citation:** (2023) 9 ILRA 803
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-24
- **Case number:** Writ-A No. 11797 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amit-kumar-v-state-of-u-p-ors-50758
- **Pages:** 7

## Headnote

C.S.C.

Transfer - challenge to - on ground that
wife of petitioner also in Govt. service
posted
recently
at
same
station
-
impugned transfer is arbitrary and against
Govt. policy mandating posting of both
spouses at same place - Held: policy being
executive in nature and not statutory - no
enforceable right arises - violation of
transfer policy alone not ground to
interfere unless malafide or violation of
statutory rule shown - petition disposed of
with direction to decide representation if
filed after joining.

Held:
Transfer is an incident of service and can only
be interfered with under Article 226 of the
Constitution where it is vitiated by malafides or
contravenes
a
statutory
provision.
A
government employee has no vested right to be
posted at a particular place. Mere infraction of
the executive transfer policy does not confer a
legal right or ground for judicial review. Reliance
on Deepa Vashishtha and Ram Awadh Ram
misplaced in light of binding precedent in S.L.
Abbas and Gobardhan Lal. However, liberty
granted to petitioner to file representation post
joining, to be decided expeditiously.

Case Law Discussed:

## Text

9 All. Amit Kumar Vs. State of U.P. & Ors.
803
of the fact that there has been no
independent application of mind by the
author of the said order. Though the order
notices that the fourth respondent was held
to be not fulfilling the conditions for grant
of
Lecturer
pay/Lecturer
post
on
26.11.2018 but taking clue of the fact that
clarification had been sought by the SC/ST
Commission and similar benefits have been
accorded to other benefits the writ
petitioner is entitled to the said benefits.
The said logic and reason assigned in the
order of the District Inspector of Schools,
Prayagraj dated 14.05.2023 is not at all
convincing as the author of the order
appears to be swayed away of certain
factors which are totally foreign to service
jurisprudence
and
uncalled
for.
Nonetheless, this Court cannot endorse the
view taken by the DIOS, Prayagraj that
since similar benefits have been accorded
to other Assistant Teachers, the same is to
be extended to the fourth responded
particularly in view of the fact that there is
no concept of negative equality as the
Courts of law are supposed to advance the
justice in such a manner that there is no
discrimination being meted out under
Article 14 of the Constitution of India,
meaning thereby, that any benefit extended
illegally to the similar circumstances
cannot be a ground to extend the same to an
incumbent who even otherwise is not
entitled for the same. Further, Sri Ojha,
learned Senior Counsel for the writ
petitioner though has made a feeble attempt
questioning the appointment of the fourth
respondent as Assistant Teacher (Physical
Education) on the ground of lack of
eligibility but he did not substantiate the
same. Pleadings in the writ petition are
completely lacking in that regard. Further
an attempt has been made somehow to a
limited extent to develop it in the rejoinder
affidavit but as already discussed it has not
been substantiated, thus, this Court is not
going into the said issue.

37.

Since
the
order
dated
14.05.2023 impugned in the writ petition
passed by the District Inspector of
Schools, Prayagraj, second respondent,
suffers
from
patent
and
manifest
illegality and the core and fundamental
issues have not been addressed, thus, in
the facts and circumstances of the case,
the order of the District Inspector of
Schools, Prayagraj cannot be sustained
in the eyes of law and it is liable to be
set aside.

38. Accordingly, the writ petition is
allowed, the order dated 14.05.2023 passed
by
the
second
respondent,
District
Inspector of Schools, Prayagraj is set aside.
The matter is remitted back to the second
respondent, District Inspector of Schools,
Prayagraj to pass a fresh order in the light
of the observations made hereinabove and
in accordance with law within a period of
two months from the date of production of
certified copy of the order after affording
opportunity of hearing to the concerned
/affected parties.
----------
(2023) 9 ILRA 803
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.07.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 11797 of 2023

Amit Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Lavlesh Kumar Shukla
804 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
C.S.C.

Transfer - challenge to - on ground that
wife of petitioner also in Govt. service
posted
recently
at
same
station
-
impugned transfer is arbitrary and against
Govt. policy mandating posting of both
spouses at same place - Held: policy being
executive in nature and not statutory - no
enforceable right arises - violation of
transfer policy alone not ground to
interfere unless malafide or violation of
statutory rule shown - petition disposed of
with direction to decide representation if
filed after joining.

Held:
Transfer is an incident of service and can only
be interfered with under Article 226 of the
Constitution where it is vitiated by malafides or
contravenes
a
statutory
provision.
A
government employee has no vested right to be
posted at a particular place. Mere infraction of
the executive transfer policy does not confer a
legal right or ground for judicial review. Reliance
on Deepa Vashishtha and Ram Awadh Ram
misplaced in light of binding precedent in S.L.
Abbas and Gobardhan Lal. However, liberty
granted to petitioner to file representation post
joining, to be decided expeditiously.

Case Law Discussed:

1. Deepa Vashishtha Vs St. of U.P., 1995 SCC
OnLine All 897

2. Ram Awadh Ram Vs St. of U.P., 2005 (5)
AWC 4379

3. Mrs. Shilpi Bose Vs St. of Bihar, AIR 1991 SC 532

4. U.O.I. Vs S.L. Abbas, (1993) 4 SCC 357

5. St. of U.P. Vs Gobardhan Lal, (2004) 11 SCC
402

Petition disposed of.

(Delivered by Hon'ble J.J. Munir, J.)

1. The petitioner has challenged his
transfer order dated 30.06.2023. The
petitioner is a Senior Auditor in the
establishment of the Director, Co-operative
Societies and Panchayat Audit, Lucknow,
U.P. The transfer order has been passed in
public interest.

2. The case of the petitioner is that his
wife, who is an Assistant Teacher in
Government Primary School, has been
transferred from Bahraich to Amroha, as
recently as on 26.06.2023. Her transfer has
been made in accordance with the service
rules and the transfer policy applicable to
her employer, which attempts to post
spouses at the same station.

3. It is pointed that the State
Government have issued a transfer policy
for the year 2022-23, where in paragraph
no. 5(iv), it is provided:

"iv. यस्द पस्त-पत्नी दोनों सरकारी सेवा में हों, तो
उन्हें यिासंिव एक ही जनपद / निर/ थिान पर तैनात करने हेतु
थिानान्तरण स्कया जा सकेिा"

4. It is harping on this policy that
learned Counsel for the petitioner submits
that
the
impugned
transfer
order
transferring him to another region located
200 k.m. away from Pilibhit, is maninfestly
illegal and arbitrary.

5. The submission further is that the
petitioner's wife's rights under the service
rules applicable to her, cannot be defeated,
particularly, once she has been recently
transferred to the petitioner's place of
posting, wherefrom he has been shunted
out. It is also argued that the respondents
have followed a policy of pick and choose
while ordering the impugned transfer.
9 All. Amit Kumar Vs. State of U.P. & Ors.
805

6. It is submitted that transfer though
an exigency of service, the power cannot be
exercised in an arbitrary and mechanical
manner, particularly for a punitive purpose.
It is argued that an order of transfer, that is
based on a policy of pick and choose, is
punitive in nature and not in public interest.

7. In support of his contention,
learned Counsel for the petitioner has relied
upon a Bench decision of this Court in
Deepa Vashishtha v. State of U.P. and
others, 1995 SCC OnLine All 897, where
it has been held:

"15.
However,
in
a
recent
pronouncement of the Apex Court rendered
in Home Secretary, U.T. Chandigarh v.
Darshjit Singh Grewal, JT 1993 (4) SC
387, their Lordships have ruled that policy
guidelines are relatable to the executive
power of the administration, and having
enunciated a policy of general application
and having
communicated
it
to
all
concerned, the administration is bound by
it. It can, no doubt, change the policy but
until that is done, it is bound to adhere to it.

16. Now, coming to the case in
hand,
the
Government
orders/guidelines/policy said to have not
been
adhered
to,
are
contained
in
Annexures-16, 17 and 18 to this petition
and they lay down thus:

1. If the couple is in education
department, they both should be kept at one
station at the time of appointment and
transfer.

2. If one of the husband and wife
belongs to education department and
another to different department, even then
efforts should be made to transfer one of
them to that place where the other is
posted.

3. Husband and wife posted at the
same station should not be transferred.

4. On account of their postings to
different places, husband and wife suffer
difficulties, therefore, as far as possible,
they should be kept at one place.

17. Thus, the guidelines in
respect of couple in Government service,
have taken care of that husband and wife
should be placed at one station. Placing the
words "as far as possible", it is couched not
in negative form and accordingly the same
is interpreted by the Apex Court.

18. Taking into account the
human considerations and social needs, the
aforesaid guidelines have been framed and
the basic idea behind it is that whole set up
of the family may not be disturbed
notwithstanding
the
fact
that
said
guidelines are not in imperative form.
Thus, it needs consideration with positive
approach till the policy is not changed or
amended in view of the decision in Home
Secretary, U.T. Chandigarh's case(supra),
and if it is not possible to keep husband and
wife at one place, cogent reasons in such
cases are expected to be assigned so that
transferee husband or wife, as the case may
be, able to know the reasons. If any policy
has been framed and still operative, the
executive actions are expected to be in
conformity with the same and not to negate
it.

19. In other words, in the garb of
public interest or administrative exigencies,
it is not at the whims of the authority to
disturb the family by transferring one of the
husband and wife to a different place since
the guidelines are not in imperative form or
they have no force of law. If the
administrative exigencies or public interest
806 INDIAN LAW REPORTS ALLAHABAD SERIES
so requires, certainly husband and wife
may be transferred to different places but
only in exceptional cases, Le., rarest of rare
cases, for which no illustration can be
given.

20. But now a days, it is
invariably seen that for the reasons best
known to the department this kind of
transfers are being made disturbing the
couple. In the opinion of this court, such
practice needs to be deprecated.

21. What kind of perplexities and
difficulties, a spouse could confront with in
the event of another being posted at a
different place, can easily be imagined by
anyone by putting himself/herself in that
situation and then it would be realised that
how torturous and painful it really is, to
leave husband and children at one place
and to lead a solitary life at the transferplace. Therefore, to avoid such disturbance
and mental agony, the aforesaid guidelines
are framed."

8. Reliance is next placed on the
decision of this Court in Ram Awadh Ram
v. State of U.P. and another, 2005 (5)
AWC 4379, where it has been held:

"15. This Court (D.B.) in Vijay
Kumar Chaurasia v. State of U.P. and
others, (2004) 3 UPLBEC 2463 has held
that ordinarily High Court cannot interfere
with the order of transfer made in exigency
of service as a part of conditions of
services, unless the transfer was found to
be made malafidely or service rules
prohibits such transfer.

16. I have heard learned Counsel
for the parties. I find that in view of the
analysis made above, the transfer in
question could not have been made in a
routine manner by a general transfer order,
as the petitioner was an office bearers of an
Union elected on 2.11.2003 and as
provided in the Government Order dated
3.6.2004 (Annexure-3 to the writ petition)
as well as in reference to the Rule 27 of the
Rules, 1980 his transfer was ab-initio
illegal. It is notable that there was nothing
or for no specific reason or presumption
transfer could not be avoided, whereas, the
transfer of the petitioner was made along
with others in a routine manner, which is in
derogation to the rules. By the subsequent
transfer
order
dated
9.7.2004
earlier
transfer order dated 29/30.6.2004 was not
cancelled, rather it is fresh transfer order,
which is also under challenge. In these
circumstances, the impugned order dated
29/30.6.2003 and subsequent transfer order
dated 9.7.2004 are not legally sustainable,
therefore, they are set aside."

9. Mr Roopesh Tiwari, learned
Standing Counsel appearing on behalf of
the respondents has resisted the grant of
relief that the petitioner seeks. He submits
that transfer is an exigency of service and
for the violation of provisions of the
transfer policy, a writ cannot be issued.

10. Upon hearing learned Counsel for
parties, this Court is of opinion that the law
by now has come to be fairly well settled.
Transfer is indeed an exigency of service
and interference by this Court in exercise of
our writ jurisdiction under Article 226 of
the Constitution of India is permissible
only in the event that the transfer is
actuated by malafides in fact or is vitiated
by malafides in law. Still, there is one more
avenue, where this Court can interfere with
a transfer order, and, that is where the
transfer order is in breach of a statutory
rule. However, in no event a transfer order
can be interfered with on the ground of
9 All. Amit Kumar Vs. State of U.P. & Ors.
807
infraction of the State's transfer policy. This
position of the law is well settled in view of
the decision of the Supreme Court in Mrs.
Shilpi Bose and others v. State of Bihar
and others, AIR 1991 SC 532.

11. In Mrs. Shilpi Bose (supra), it
was held:

"4.In our opinion, the courts
should not interfere with a transfer order
which are made in public interest and for
administrative reasons (unless the transfer
orders are made in violation of any
mandatory statutory rule or on the ground
of mala fide. A Government servant
holding a transferable post has no vested
right to remain posted at one place or the
other, he is liable to be transferred from one
place to the other. Transfer orders issued by
the competent authority do not violate any
of his legal rights. Even if a transfer order
is
passed
in
violation
of
executive
instructions or orders, the Courts ordinarily
should not interfere with the order instead
affected party should approach the higher
authorities in the Department. If the courts
continue to interfere with day-to-day
transfer orders issued by the Government
and its subordinate authorities, there will be
complete chaos in the Administration
which would not be conducive to public
interest. The High Court over looked these
aspects in interfering with the transfer
orders."

12. So far as the decision in Ram
Awadh Ram (supra) is concerned, this
Court finds that, in that case, there was a
violation of a Government Order that had
been issued under a certain rule of the U.P.
District Offices (Collectorates) Ministerial
Service Rules, 1980 and the Court found
the violation of a statutory rule a valid
ground to interfere with the transfer order.
The said decision is, therefore, not attracted
to the facts of this case. So far as Bench
decision in Deepa Vashishtha (supra) is
concerned, this Court is of opinion that in
view of the law laid down by the Supreme
Court in Union of India and others v. S.L.
Abbas, (1993) 4 SCC 357, the principle in
Deepa Vashishtha must be held, confined
to the facts of that case. In S.L. Abbas
(supra) the question arose in the context of
transfer of a husband and wife, both
employees of Central Government, where
the husband was resisting his transfer from
Shilong to Pauri (U.P.). The ground urged
was the transfer policy of the Government,
amongst others, which favoured posting of
spouses, if in the employ of the Central
Government at the same station. The policy
was
refererable
to
some
executive
instructions of the Government that did not
have statutory force. It was in the context
of the aforesaid facts that in S.L. Abbas, it
was held by their Lordships of the Supreme
Court:

"7. Who should be transferred
where, is a matter for the appropriate
authority to decide. Unless the order of
transfer is vitiated by mala fides or is made in
violation of any statutory provisions, the
court cannot interfere with it. While ordering
the transfer, there is no doubt, the authority
must keep in mind the guidelines issued by
the Government on the subject. Similarly if a
person makes any representation with respect
to his transfer, the appropriate authority must
consider the same having regard to the
exigencies of administration. The guidelines
say that as far as possible, husband and wife
must be posted at the same place. The said
guideline however does not confer upon the
Government employee a legally enforceable
right.

xxxxx
808 INDIAN LAW REPORTS ALLAHABAD SERIES

9. Shri Goswami, learned counsel
for the respondent relies upon the decision
of this Court in Bank of India v. Jagjit
Singh Mehta [(1992) 1 SCC 306 : 1992
SCC (L&S) 268 : (1992) 19 ATC 528]
rendered by a Bench of which one of us
(J.S. Verma, J.) was a member. On a
perusal of the judgment, we do not think it
supports the respondent in any manner. It is
observed therein: (SCC pp. 308-09, para 5 :
ATC pp. 530-31, para 5)

"There can be no doubt that
ordinarily and as far as practicable the
husband and wife who are both employed
should be posted at the same station even if
their
employers
be
different.
The
desirability of such a course is obvious.
However, this does not mean that their
place of posting should invariably be one of
their choice, even though their preference
may be taken into account while making
the decision in accordance with the
administrative needs. In the case of allIndia services, the hardship resulting from
the two being posted at different stations
may be unavoidable at times particularly
when they belong to different services and
one of them cannot be transferred to the
place of the other's posting. While choosing
the career and a particular service, the
couple have to bear in mind this factor and
be prepared to face such a hardship if the
administrative needs and transfer policy do
not permit the posting of both at one place
without sacrifice of the requirements of the
administration
and
needs
of
other
employees. In such a case the couple have
to make their choice at the threshold
between career prospects and family life.
After giving preference to the career
prospects by accepting such a promotion or
any appointment in an all-India service
with the incident of transfer to any place in
India, subordinating the need of the couple
living together at one station, they cannot
as of right claim to be relieved of the
ordinary incidents of all-India service and
avoid transfer to a different place on the
ground that the spouses thereby would be
posted at different places .... No doubt the
guidelines require the two spouses to be
posted at one place as far as practicable, but
that does not enable any spouse to claim
such a posting as of right if the
departmental authorities do not consider it
feasible. The only thing required is that the
departmental authorities should consider
this aspect along with the exigencies of
administration and enable the two spouses
to live together at one station if it is
possible without any detriment to the
administrative needs and the claim of other
employees."

(emphasis added)

10. The said observations in fact
tend
to
negative
the
respondent's
contentions instead of supporting them.
The judgment also does not support the
respondents' contention that if such an
order is questioned in a court or the
tribunal, the authority is obliged to justify
the transfer by adducing the reasons
therefor. It does not also say that the court
or the tribunal can quash the order of
transfer, if any of the administrative
instructions/guidelines are not followed,
much less can it be characterised as mala
fide for that reason. To reiterate, the order
of transfer can be questioned in a court or
tribunal only where it is passed mala fide or
where it is made in violation of the
statutory provisions."

13. If there were anything about the
propriety of following precedent, the Bench
decision in Deepa Vashishtha having
briefly referred to S.L. Abbas, the matter
9 All. Prabhat Bhatnagar Vs. State of U.P. & Ors.
809
stands concluded against the binding
authority of Deepa Vashishtha, in view of
a much later decision of the Supreme Court
in State of U.P. and others v. Gobardhan
Lal, (2004) 11 SCC 402. In Gobardhan
Lal (supra), spelling out the scope of
interference by this Court, in the exercise
of jurisdiction under Article 226 of the
Constitution of India, with an order of
transfer passed, even in violation of the
transfer policy, it was observed:

"7. It is too late in the day for any
government servant to contend that once
appointed or posted in a particular place or
position, he should continue in such place
or position as long as he desires. Transfer
of an employee is not only an incident
inherent in the terms of appointment but
also implicit as an essential condition of
service in the absence of any specific
indication to the contra, in the law
governing or conditions of service. Unless
the order of transfer is shown to be an
outcome of a mala fide exercise of power
or violative of any statutory provision (an
Act or rule) or passed by an authority not
competent to do so, an order of transfer
cannot lightly be interfered with as a matter
of course or routine for any or every type of
grievance sought to be made. Even
administrative guidelines for regulating
transfers or containing transfer policies at
best may afford an opportunity to the
officer or servant concerned to approach
their higher authorities for redress but
cannot have the consequence of depriving
or denying the competent authority to
transfer a particular officer/servant to any
place in public interest and as is found
necessitated by exigencies of service as
long as the official status is not affected
adversely and there is no infraction of any
career prospects such as seniority, scale of
pay and secured emoluments. This Court
has often reiterated that the order of
transfer made even in transgression of
administrative guidelines cannot also be
interfered with, as they do not confer any
legally enforceable rights, unless, as
noticed supra, shown to be vitiated by mala
fides or is made in violation of any
statutory provision."

14. In view of the law well settled, a
violation of the notified transfer policy of
the State, that is in the nature of
administrative guidelines, as distinguished
from statutory rules, does not afford a right
to
the
Government
Servants,
when
transferred in its violation, to assail the
transfer on that ground. This Court does not
find any good ground to interfere with the
impugned order.

15. However, in case after the
petitioner joins the station of transfer
and represents his case, the Director, Cooperative Societies and Panchayat Audit,
Lucknow, U.P is ordered to decide the
petitioner's representation within 15 days
of its receipt and communicate its result
to
the
petitioner
within
a
week
thereafter.

16. This petition is disposed of in
terms of the aforesaid orders. Costs easy.
----------
(2023) 9 ILRA 809
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.08.2023

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Writ-A No. 65946 of 2008

Prabhat Bhatnagar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents