# Amit Narayan Rai & Ors v. State of U.P. & Ors

- **Citation:** (2023) 2 ILRA 486
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-23
- **Case number:** Writ-A No. 15574 of 2022
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amit-narayan-rai-ors-v-state-of-u-p-ors-49210
- **Pages:** 9

## Headnote

A. Civil Law - Service Matter - Constitution
of India,1950 - Art. 226 - Interference in
transfer order - Violation of Transfer
policy - transfer policy is merely a
guidelines and though it must be adhered
but its infraction does not give rise to any
enforceable rights to an aggrieved party -
no employee have a vested right to serve
at any given place of his choice - transfer
is an incidence of service and if an
employee who is holding a transferrable
post, is transferred, he cannot urge that
there is any violation of a legal right -
order of transfer is an administrative
order and the Courts are reluctant to
interfere with transfer order unless the
order of transfer is shown to be an
outcome of malafides or in violation of
statutory provisions prohibiting any such
transfer - employer being best suited to
judge the suitability of the employee and
2 All. Amit Narayan Rai & Ors. Vs. State of U.P. & Ors.
487
the place at which work is to be taken
cannot be interfered with by the Court in
exercise of the writ jurisdiction (Para 25,
31, 33)

B. Civil Law - Service Matter - Transfer
policy of 2022-23 - Transfer order - Validity
- Clause 12 of the Transfer Policy provides
that in case a transfer is to be made of an
office bearers of the District Level then
prior approval of the District Magistrate is to
be taken - Held - each of the petitioners
have been in their place of posting for about
20 years & have already joined on their
place of posting, in consequence of transfer
order - In the instant case prior approval of
the Authority one rank higher than the
Appointing Authority has been taken, which
authority is even higher than the District
Magistrate - In absence of any clear
prejudice established, mere deviation in
compliance of Clause 12 is cosmetic,
especially when the service conditions does
not place any embargo on such transfer, not
vitiates transfer order - No Interference
(Para 25, 31, 33)

Dismissed. (E-5)

List of Cases cited:

## Text

486 INDIAN LAW REPORTS ALLAHABAD SERIES
legislation can be found in the judgments of
Hon'ble Supreme Court in Hukum Chand
vs. Union of India, (1972) 2 SCC 601,
General Officer Commanding-in-Chief
vs.
Subhash
Chandra
Yadav
and
another, (1988) 2 SCC 351, Additional
District
Magistrate
(Rev.)
Delhi
Administration vs. Siri Ram, (2000) 5
SCC 451, Sukhdev Singh and others vs.
Bhagatram Sardar Singh Raghuvanshi
and another, (1975) 1 SCC 421, State of
Karnataka and another vs. H. Ganesh
Kamath and others, (1983) 2 SCC 402,
Kunj Behari Lal Butail and others vs.
State of H.P. and others, (2000) 3 SCC
40, Union of India vs. M/s G.S. Chatha
Rice Mill, (2021) 2 SCC 209 and
judgment dated 16.12.2022 in Civil
Appeal Nos.9252-9253 of 2022 (Kerala
State Electricity Board and others vs.
Thomas Joseph @ Thomas M.J. and
others).

32. We have already found rational
behind prescribing additional qualification
to be Sanskrit as a subject in Intermediate
in addition to the graduation in Hindi and
B.Ed. for the post of Assistant Teachers in
Hindi to teach students of Class 9th and
10th in Government owned colleges so as
to maintain standard of education. The
academic qualification as provided under
Rule 8(6) of the Rules 1983, as already
held; is neither in conflict with the
regulation
framed
under
the
U.P.
Intermediate Education Act, 1921 nor in
conflict with Regulation 4 of the NCTE
Regulation, 2014 nor it is beyond the rule
making power of the State Government.
Therefore, the impugned Rules are wholly
valid. The State Government has not
transgressed its power under Article 309 of
the Constitution of India to frame the
Rules, 1983 prescribing qualification for
Assistant Teachers (Men/Women) - Hindi
under Rule 8(6). Thus, the impugned rules
and the impugned advertisement are wholly
valid. All the writ petitions have no merit
and, therefore, deserves to be dismissed.

33. For all the reasons aforestated, all
the writ petitions are dismissed.
----------
(2023) 2 ILRA 486
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.01.2022

BEFORE

THE HON'BLE JASPREET SINGH, J.

Writ-A No. 15574 of 2022

Amit Narayan Rai & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Srishti Gupta, Sri Kartikeya Saran, Sri M.C.
Chaturvedi (Sr. Advocate)

Counsel for the Respondents:
C.S.C.

A. Civil Law - Service Matter - Constitution
of India,1950 - Art. 226 - Interference in
transfer order - Violation of Transfer
policy - transfer policy is merely a
guidelines and though it must be adhered
but its infraction does not give rise to any
enforceable rights to an aggrieved party -
no employee have a vested right to serve
at any given place of his choice - transfer
is an incidence of service and if an
employee who is holding a transferrable
post, is transferred, he cannot urge that
there is any violation of a legal right -
order of transfer is an administrative
order and the Courts are reluctant to
interfere with transfer order unless the
order of transfer is shown to be an
outcome of malafides or in violation of
statutory provisions prohibiting any such
transfer - employer being best suited to
judge the suitability of the employee and
2 All. Amit Narayan Rai & Ors. Vs. State of U.P. & Ors.
487
the place at which work is to be taken
cannot be interfered with by the Court in
exercise of the writ jurisdiction (Para 25,
31, 33)

B. Civil Law - Service Matter - Transfer
policy of 2022-23 - Transfer order - Validity
- Clause 12 of the Transfer Policy provides
that in case a transfer is to be made of an
office bearers of the District Level then
prior approval of the District Magistrate is to
be taken - Held - each of the petitioners
have been in their place of posting for about
20 years & have already joined on their
place of posting, in consequence of transfer
order - In the instant case prior approval of
the Authority one rank higher than the
Appointing Authority has been taken, which
authority is even higher than the District
Magistrate - In absence of any clear
prejudice established, mere deviation in
compliance of Clause 12 is cosmetic,
especially when the service conditions does
not place any embargo on such transfer, not
vitiates transfer order - No Interference
(Para 25, 31, 33)

Dismissed. (E-5)

List of Cases cited:

1. S.K. Naushad Rahaman & ors. Vs U.O.I. &
ors.; AIR 2022 SC 1494

2. Shanti Kumari Vs Regional Deputy Director,
Health Services, Patna Division, Patna & ors.;
(1981) 2 SCC 72

3. Gujarat Electricity Board & anr. Vs Atmaram
Sungomal Poshani; 1989 (2) SCC 602

4.U.O.I. & ors. Vs S.L. Abbas; 1993 (4) SCC 351

5. N.K. Singh Vs U.O.I. & ors. (1994) 6 SCC 98

6. S.C. Saxena Vs U.O.I. & ors.; (2006) 9 SCC 583

7. Rajendra Singh & ors. Vs St. of U. P. & ors.
(2009) 15 SCC 178

8. Dharmendra Kumar Saxena Vs St. of U.P. &
ors. 2013 (7) ADJ 53
9. Ajay Kumar Srivastava Vs St. of U.P. & ors.
Special Appeal No. 411 of 2022 dt 11.10.2022

(Delivered by Hon'ble Jaspreet Singh, J.)

1. Heard Sri Kartikeya Saran, learned
counsel for the petitioner as well as Sri
M.C. Chaturvedi, learned Senior Counsel
along with Sri Ankit Gaud, learned counsel
for the State-respondents.

2. The present petitioners pray for
issuance of a writ in the nature of certiorari
quashing the impugned transfer order dated
20.06.2022 and 06th July, 2022 passed by
the respondent no. 2. The primary ground
of challenge to the aforesaid transfer order
is that it is in violation of the transfer policy
of 2022-23 in so far as it relates to the
petitioner.

3. The case as setup by the petitioners
is that they are all selected and appointed as
Class-III Clerical employees and are
presently discharging their duties at various
places in the State of Uttar Pradesh. It is
also stated that all the petitioners being the
ministerial employees are also the office
bearers of the Uttar Pradesh Medical and
Public Health Ministerial Association. The
details of each of the petitioners along with
his post, place of posting, date on which
each was elected when they were elected in
the respondent no.4-Association and where
have they been transferred has been
indicated in a chart which is the part of
paragraph 4 of the petition.

4. The learned counsel for the
petitioner Sri Saran submits that the
Government had modified the transfer
policy for the year 2022-23 on 15.06.2022.
Heavy reliance has been placed on Clause
12 of the Transfer Policy to buttress the
submission that the said clause makes it
488 INDIAN LAW REPORTS ALLAHABAD SERIES
very clear that in case a transfer is to be
made of an office bearers of the District
Level (which is the case of the present
petitioners) then prior approval of the
District Magistrate is to be taken in the said
case. It is urged that in the present case,
there is no approval of the District
Magistrate rather only a general approval
has been granted by the Director General
(Medical and Health Services) Uttar
Pradesh which is de-hors the transfer
policy.

5. It is also urged that the Director
General (Medical and Health Services)
Uttar Pradesh just a day prior to his
retirement on 30.06.2022 had given the
approval to transfer 260 ministerial staff
which included the present petitioners. An
attempt has been made to show that the
said transfer order has been passed in a
malafide manner as 260 employees have
been approved for transfer in one go which
indicates that there is no application of
mind. It is also urged that there is a clear
violation of Clause 12 of the transfer policy
and for the said reason, the order of transfer
in so far as it relates to the petitioner is
concerned, is bad and accordingly deserves
to be set aside.

6. The learned counsel for the State
Sri Ankit Gaud while opposing the
aforesaid submissions submits that there is
no violation of Clause 12, inasmuch as,
prior approval of the Authority one rank
higher than the Appointing Authority has
been taken. It has been urged that similar
issue was raised by another set of Class-III
Ministerial Employees who had challenged
their transfer before this Court at Lucknow
in the case of Ajay Kumar Srivastava Vs.
State of U.P. and others bearing Writ-A
No. 4766 of 2022 which was connected
with Writ-A no. 5568 of 2022 wherein
similar grounds were taken and the said
petition came to be dismissed by means of
order dated 12.09.2022 holding that the
transfer was valid.

7. It is further urged that the said
order of the learned Single Judge was
assailed in Special Appeal No. 411 of 2022
where again this issue including Clause 12
of the transfer policy was considered and
thereafter it was held that there is no error
or ground to interfere with the transfer and
as such the Special Appeal was dismissed
by means of order dated 11.10.2022.

8. It is thus urged that once the issue
of transfer has been considered and decided
by a coordinate Bench of this Court which
has been affirmed in Special Appeal, the
issue regarding the invalidity of the transfer
that Clause 12 of the transfer policy has
been violated is not open to be canvassed
any more and it is liable to be rejected. It
has also been submitted that all the
petitioners have joined on their respective
places of posting and it has further been
pointed out that in so far as the petitioner
no. 13 and 19 is concerned, they have been
transferred on their volition as they had
made a request for transfer by moving an
application to the Competent Authority on
the online portal.

9. It has also been pointed out that in
so far as the petitioners are concerned, the
respondent had received two lists of office
bearers of different rival groups of Uttar
Pradesh Medical Public Health Ministerial
Association and in pursuance of the
Government Order dated 16.01.2009, the
steps are being taken for holding fresh
elections. Since the fresh elections are to
take place and by cancelling earlier
elections, hence, it cannot be said that the
petitioners are the elected office bearers of
2 All. Amit Narayan Rai & Ors. Vs. State of U.P. & Ors.
489
the District Level Associations, hence, for
the said reason as well, Clause 12 has no
applicability.

10. It has also been pointed out that
almost all the petitioners have been posted
for more than 15 years in their place of
posting/region and thus for this reason as
well there is no error which can be pointed
out in the transfer order which may require
any interference from this Court and the
writ petition deserves to be dismissed.

11. Sri Saran, learned counsel for the
petitioners responding to the aforesaid
submissions in rejoinder has pointed out
that the Uttar Pradesh Medical and Public
Health Ministerial Association has already
filed a writ petition bearing No. 35634
(writ-C) of 2022 wherein the Court found
that the elections for the Association are
held for two years and the last election was
held on 14.08.2021 and after a lapse of one
year, the State-Authorities have woken up
to the representations of certain individuals
and has passed the impugned order and
taking note of the aforesaid granted
indulgence by means of order dated
25.11.2022 and provided that even though
the elections may take place but the final
results will not be declared.

12. It has also been pointed out that
the Division Bench of this Court in its
order dated 30.11.2022 had recorded the
statement of the learned Standing Counsel
to the effect that the results of the elections
have been kept in a sealed cover and they
have not been implemented as on date and
that the charge continues to be with the
earlier elected individuals.

13. It is thus urged on the strength of
the aforesaid orders that in so far as the
present petitioners are concerned they were
elected in the election which took place in
the year 2021 and as admitted to the other
side, the charge is still with the previously
elected office-bearers which includes the
petitioners, hence, in the instant case, the
submission of learned counsel for the
respondents that Clause-12 of the transfer
policy does not have any bearing is
absolutely misconceived.

14. It is also urged that there is a clear
violation of Clause-12 and though the State
has filed its counter affidavit but it could
not dispute that there is no prior approval
of the District Magistrate before passing
the order of transfer, hence, for the said
reasons, the transfer order is bad.

15. The Court has heard the learned
counsel for the parties and also perused the
material on record including the decision of
a coordinate Bench of this Court in the case
of Ajay Kumar Srivastava (supra) and the
decision of the Division Bench of this
Court dated 11.10.2022 in Special Appeal
No. 411 of 2022 (Ajay Kumar Srivastava
Vs. State of U.P. and others) also the
interim orders passed in Writ-C No. 35634
of 2022 (Uttar Pradesh Medical and Public
Health Ministerial Association and another
Vs. State of U.P. and others) dated
25.11.2022 and 30.11.2022.

16. Before considering the rival
contentions, it will be appropriate to draw
the contours within which this Court in
exercise of powers under Article 226 of the
Constitution of India can interfere in an
order of transfer by taking aid of judicial
pronouncements.

17. Recently, the Apex Court in S.K.
Naushad Rahaman and others vs. Union
of India and others; AIR 2022 SC 1494
had the occasion to consider the basic
490 INDIAN LAW REPORTS ALLAHABAD SERIES
precepts of service jurisprudence relating to
transfer and the relevant paragraphs of the
said decision reads as under:-

24. First and foremost, transfer in an
All India Service is an incident of service,
Whether, and if so where, an employee
should be posted are matters which are
governed by the exigencies of service. An
employee has no fundamental right or, for
that mater, a vested right to claim a
transfer or posting of their choice.

25. Second, executive instructions and
administrative
directions
concerning
transfers and postings do not confer an
indefeasible right to claim a transfer or
posting. Individual convenience of persons
who are employed in the service is subject
to
the
overreaching
needs
of
the
administration.

26. Third, policies which stipulate that
the
posting
of
spouses
should
be
preferrably, and to that extent practicable,
at the same station are subject to the
requirement of the administration.

27. The above principle was cited with
approval in Union of India vs. SL. Abbas,
where the Court held that transfer is an
incident of service.

.................

28. Fourth, norms applicable to the
recruitment and conditions of service of
officers belonging to the civil services can
be stipulaed in;

(I) A law enacted by the competent
legislature;

(ii) Rules made under the proviso to
Article 309 of the Constitution; and

(iii) Executive instructions issued
under Article 73 of the Constitution, in the
case of civil services under the Union and
Article 162, in the case of Civil services
under the States.

29. Fifth, where there is a conflict
between exectutive instructions and rules
framed under Article 309, the rules must
prevail. In the event of a conflict between the
rules framed under Article 309 and a law
made by the appropriate legislature, the law
prevails. Where the rules are skeletal or in a
situation when there is a gap in the rules,
executive instructions can supplement what is
stated in the rules.
29. Sixth, a policy decision taken in terms of
the power conferred under Article 73 of the
Constitution on the Union and Article 162 on
the States is subservient to the recruitment
rules that have been framed under a
legislative enactment or the rules under the
proviso to Article 309 of the Constitution.

18. In the case of Shanti Kumari Vs.
Regional Deputy Director, Health Services,
Patna Division, Patna and others; (1981) 2
SCC 72, the Apex Court has held as under:-

" 2. Having heard learned counsel for
the parties, we are of the opinion that the
High Court rightly declined to interfere with
the
impugned
order.
Transfer
of
a
Government
servant
may
be
due
to
exigencies of service or due to administrative
reason. The Courts cannot interfere in such
matters. Shri Grover, learned counsel for the
appellant,
however,
contends
that
the
impugned order was in breach of the
Government instructions with regard to
transfers in the Health Department. If that be
so, the authorities will look into the matter
and redress the grievance of the appellant."

19. In Gujarat Electricity Board and
Another Vs. Atmaram Sungomal Poshani
; 1989 (2) SCC 602. the Apex Court held as
under:-

" 4. Transfer of a Government servant
appointed
to
a
particular
cadre
of
transferable posts from one place to other
is an incident of service. No Government
2 All. Amit Narayan Rai & Ors. Vs. State of U.P. & Ors.
491
servant or employee of public undertaking
has legal right for being posted at any
particular place. Transfer from one place
to other is generally a condition of service
and the employee has no choice in the
matter. Transfer from one place to other is
necessary in public interest and efficiency
in the public administration. Whenever, a
public servant is transferred he must
comply with the order but if there be any
genuine difficulty in proceeding on transfer
it is open to him to make representation to
the
competent
authority
for
stay,
modification, or cancellation of the transfer
order. If the order of transfer is not stayed,
modified or cancelled the concerned public
servant must carry out the order of transfer.
If he fails to proceed on transfer in
compliance to the transfer order, he would
expose himself to disciplinary action under
the relevant rules, as has happened in the
instant case. The respondent lost his service
as he refused to comply with the order of
his transfer from one place to the other."

20. In Union of India and others Vs.
S.L. Abbas; 1993 (4) SCC 351 wherein the
Apex Court held as under:-

"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 subeject.
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."

21. In N.K. Singh Vs. Union of India
and others (1994) 6 SCC 98 wherein the
Apex Court held as under:-

"6. Shri Ram Jethmalani, learned
counsel for the appellant did not dispute
that the scope of judicial review in matters
of transfer of a Government servant to an
equivalent
post
without
any adverse
consequence on the service or career
prospects is very limited being confined
only to the grounds of malafides and
violation of any specific provision or
guideline
regulating
such
transfers
amounting to arbitrariness. In reply, the
learned Additional Solicitor General and
the learned counsel for Respondent 2 did
not dispute the above principle, but they
urged that no such ground is made out; and
there is no foundation to indicate any
prejudice to public interest."

22. In S.C. Saxena Vs. Union of
India and others; (2006) 9 SCC 583;
wherein the Apex Court held as under:-

" 6. We have perused the record with
the help of the learned counsel and heard
the learned counsel very patiently. We find
that
no
case
for
our
interference
whatsoever has been made out. In the first
place, a Government servant cannot
disobey a transfer order by not reporting at
the place of posting and then go to a Court
to ventilate his grievances. It is his duty to
first report for work where he is transferred
and make a representation as to what may
be his personal problems. This tendency of
not reporting at the place of posting and
indulging in litigation needs to be curbed.
Apart therefrom, if the appellant really had
492 INDIAN LAW REPORTS ALLAHABAD SERIES
some genuine difficulty in reporting for
work at Tezpur, he could have reported for
duty at Amritsar where he was so posted.
We too decline to believe the story of his
remaining sick. Assuming there was some
sickness, we are not satisfied that it
prevented him from joining duty either at
Tezpur or at Amritsar. The medical
certificate issue by Dr. Ram Manohar
Lohia Hospital proves this point. In the
circumstances, we too are of the opinion
that the appellant was guilty of the
misconduct of unauthorisedly remaining
absent from duty."

23. In Rajendra Singh and others Vs.
Sate of Uttar Pradesh and others (2009)
15 SCC 178, wherein the Apex Court held
as under:-

"8. A Government servant has no
vested right to remain posted at a place of
his choice nor can he insist that he must be
posted at one place or the other. He is
liable
to
be
transferred
in
the
administrative exigencies from one place to
the other. 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
contrary. No Government can function if
the Government servant insists that once
appointed or posted in a particular place
or position, he should continue in such
place or position as long as he desires (see
State
of
U.P.
v.
Gobardhan
Lal,
MANU/SC/0281/2004 ; (2004) 11 SCC
402; 2005 SCC (L&S) 55, SCC p. 406,
para 7)."

24. In Dharmendra Kumar Saxena
Vs. State of U.P. and others 2013 (7) ADJ
53; wherein a coordinate Bench of this
Court held as under:-

"24. From the aforementioned cases, it
is evident that the Government is bound by
executive order/policies. The guidelines are
made to follow it and not to breach it
without any justifiable reasons. Whenever
the
Government
deviates
from
its
policies/guidelines/executive
instructions,
there must be cogent and strong reasons to
justify the order; when transfer order is
challenge by way of representation, there
must be material on record to establish that
the decision was in public interest and it
does not violate any statutory provision,
otherwise the order may be struck down as
being arbitrary and violate of Article 14 of
the Constitution. The authorities cannot
justify their orders that breach of executive
orders do not give legally inforceable right
to aggrieved person. As observed by Justice
Frankfurter "An executive agency must be
rigorously held to standards by which it
professes its action to be judged."

25. Having taken note of the settled
legal principles in respect of the scope of
interference in matters relating to transfer,
it is now well settled that no employee can
seek a vested right to serve at any given
place of his choice. The transfer is an
incidence of service and an employee who
is holding a transferrable post and if
transferred cannot urge that there is any
violation of a legal right. The order of
transfer needless to say is an administrative
order and the Courts are reluctant to
interfere with transfer order which are
made
in
public
interest
and
for
administrative reasons unless the order of
transfer is shown to be an outcome of
malafides or in violation of statutory
provisions prohibiting any such transfer.

26. In the aforesaid backdrop, if the
impugned order is examined, it would
reveal that the transfer order under
2 All. Amit Narayan Rai & Ors. Vs. State of U.P. & Ors.
493
challenge cannot said to be an outcome of
malafides nor it has been so alleged.
Neither can it be said to be in violation of
any statutory provision which prohibits
such a transfer. However, the pith and
substance of the submission of the learned
counsel for the petitioner is that the said
transfer order is in violation of the Clause
12 of the transfer policy dated 15.06.2022.

27. For appropriate consideration,
Clause 12 of the transfer policy is being
reproduced hereinafter for ready reference:-

"12. सरकारी कमषचाररयोां के मान्यिा प्राप्त
सेवा सांघो के पिादधकाररयोां के स्थानान्तरणः-

सरकारी सेवकोां के मान्यिा प्राप्त सेवा सांघोां
के अध्यक्ष/सदचव, दजनमें दजला शाखाओां के
अध्यक्ष एवां सदचव भी सस्िदलि हैं, के स्थानान्तरण,
उनके द्वारा सांगठन में पिधाररि करने की दिदथ से
02 वर्ष िक न दकये जायें। यदि स्थानान्तरण दकया
जाना अपररहायष हो, िो स्थानान्तरण हेिु प्रादधकृि
अदधकाररयोां से एक स्तर उच्च अदधकारी का
पूवाषनुमोिन प्राप्त दकया जाय। दजला शाखाओां के
पिादधकाररयोां के स्थानान्तरण प्रकरणोां पर
दजलादधकारी की पूवाषनुमदि प्राप्त की जाए।"

28. The aforesaid Clause only provides
that such employees who are the office
bearers which also includes the President and
Secretary of the Association which are
recognized should not be transferred for a
period of two years from the date they
assume the charge of office bearers, however,
in case if the transfer is necessary then the
approval of one rank higher authority than the
Prescribed Authority must be taken and in
respect
of
office
bearers
of
District
Associates, the prior approval of the District
Magistrate be taken.

29. It will also be relevant to notice
that in Dharmendra Kumar Saxena
(supra), this Court after considering the
decisions of the Apex Court held that
transfer policy is not binding as it does not
give rise to a legally enforceable right to an
aggrieved person. In the instant case, it is
not disputed that the prior approval of one
rank higher authority than the Prescribed
Authority has been taken and the same has
also been noticed by a Division Bench of
this Court in its judgment dated 11.10.2022
in Special Appeal No. 411 of 2022 (Ajay
Kumar Srivastava Vs. State of U.P. and
others) wherein Clause 12 of the transfer
policy was considered and noticed.

30. The learned counsel for the
petitioner has also urged that in the case of
Ajay Kumar Srivastava (supra), the
Division Bench did make a reference to
Clause 12 but it did not deal with the issue
regarding the non-compliance of prior
approval from the District Magistrate
where it relates to the office bearers of
District Level Associations.

31. Be that as it may, the issue regarding
Clause 12 has been noticed by the Division
Bench and turned down. As already noted
above, the transfer policy is merely a guidelines
and though it must be adhered but its infraction
does not give rise to any enforceable rights to an
aggrieved party. Moreover, the petitioners could
not demonstrate any visible prejudice caused
only for the reason that though the approval
exists from one rank higher authority which is
even higher than the District Magistrate but not
from the District Magistrate itself. In absence of
any clear prejudice established, mere deviation
in compliance of Clause 12 appears to be
cosmetic,
especially
when
the
service
conditions does not place any embargo on such
transfer.

32. The learned counsel for the
petitioners could not dispute the fact that all
494 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioners have been in their place of
posting for more than 15 years prior to the
impugned transfer and the details as
mentioned in paragraph 5 of the counter
affidavit filed by the State relating to each
of the petitioners clearly indicates the fact
that all the petitioners have been at one
place for last almost 20 years. In so far as
the petitioner nos. 13 and 19 are concerned,
they themselves have sought their transfer
on their own volition.

 33.

Considering
the
aforesaid
material,
submissions
made
by
the
respective parties and taking a holistic view
including the fact that the petitioners have
already joined on their place of posting and
drawing
strength
from
settled
legal
principles
culled
out
from
the
pronouncements noted hereinabove, this
Court does not find that there is any cogent
reason for this Court to interfere in the
transfer order. The larger public interest as
well as the fact that each of the petitioners
have been in their place of posting for
about 20 years and more in itself in terms
of the transfer policy requires consideration
and for the said reason, the employer being
best suited to judge the suitability of the
employee and the place at which work is to
be taken cannot be interfered with by the
Court in exercise of the writ jurisdiction.

34. For the reasons as detailed
hereinabove, this Court does not find
favour with the petitioner and the petition is
sans merit, accordingly, it is dismissed. In
the facts and circumstances, there shall be
no order as to costs.
----------
(2023) 2 ILRA 494
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.02.2023

BEFORE
THE HON'BLE KSHITIJ SHAILENDRA, J.

Writ-C No. 4745 of 2023

Leellu ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Amish Kumar Srivastava, Ms. Sanju Lata

Counsel for the Respondents:
C.S.C., Sri Kaushal Kishore Mani

A. Civil Law - U.P. Revenue Code, 2006 -
Sections 67, 225-A & 233 - U.P. Revenue
Code Rules, 2016 - Rules 67, 186 & 192 -
unauthorized
occupation
of
Gram
Panchayat
property
-

Eviction
proceedings - Natural Justice - In view of
Rule 192, proceedings u/s 67 are
summary
proceedings,
and
therefore,
adherence to the principles of Natural
Justice is a statutory mandate, as per Rule
186 - Time to notice to show cause u/s
67(2) - though no specific period has
been prescribed to show cause but still
sufficient time must be given to the notice
to submit objections - Violation of
Principles of Natural Justice - Court
deprecated the conduct of the Tahsildar,
who
initiated
and
concluded
the
proceedings u/s 67 within no time i.e.
within a period of 11 days from the date of
their inception - Petitioner was granted
only two days' time to show cause against
the proposed dispossession - petitioner
was deprived of his say in the matter -
Court held that the principles of Natural
Justice and the scheme of the Code & the
Rules were not followed by the Tahsildar -
Impugned order quashed (Para 8, 22,
33,35, 36)

B. Constitution of India,1950 - Art.226 -
Judicial review - Administrative Law -
Proportionality and Wednesbury principles
-
To
judge
the
validity
of
any
administrative
order
normally
the
Wednesbury test is to be applied to find
out if the decision was illegal or suffered
from procedural improprieties or was