# Anoop Kumar Dubey v. State of U.P & Ors

- **Citation:** (2022) 4 ILRA 386
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-03
- **Case number:** Writ A No. 18664 of 2021
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anoop-kumar-dubey-v-state-of-u-p-ors-48335
- **Pages:** 5

## Headnote

A. Service Law - Transfer - Violation of
transfer policy - Scope of interference by
the court - Transfer, when can be
interfered with - Principle laid down -
Held, the Court cannot interfere with the
transfer
matter
as
the
Government
servant has no vested right to continue at
a place of his choice. The Government can
transfer
the
officer/employee
in
the
administrative exigency and in public
interest - However, if a transfer is made
against the executive instructions or
transfer policy, the competent authority
must record brief reason in the file for
deviating from the transfer policy or
executive instructions and the transfer
must be necessary in the public interest or
administrative exigency. (Para 12)
Writ petition dismissed .(E-1)
List of Cases cited :-

## Text

386 INDIAN LAW REPORTS ALLAHABAD SERIES

21. The reliance placed by the
petitioner upon the judgment of Delhi High
Court in the case of Ms. Nisha Vs. Union
of India and Others in W.C. (C) 6100/2012
&
CM
No.16465/2012
is
misplaced
inasmuch as in the said case the Court has
obtained a report from two members
committee and thereafter proceeded to
consider that the syllabus and course
contents in the degree of B.Tech. Electrical
and Electronics are equivalent to the degree
of B.Tech. Electrical.

22. The judgment of Ms. Nisha
(supra) has been rendered in different
factual backdrops inasmuch as in the case
in hand, necessary pleading that contents
and syllabus of three years in Diploma
Electrical and Electronics Engineering are
identical to three years Diploma in
Electrical Engineering are lacking.

23. In this view of the fact the
judgment of Ms. Nisha (supra) is of no
help to the petitioner.

24. It is relevant to note that merely
because the petitioner had appeared in the
examination and was called for document
verification does not mean that he has the
vested right to be appointed till he satisfies
all eligibility criteria including essential
qualification.

25. As in the instant case, the
petitioner admittedly possesses three years
Diploma in Electrical and Electronics
Engineering and does not have three years
Diploma
in
Electrical
Engineering,
therefore, this Court does not find merit in
the writ petition.

26. Accordingly, the writ petition
lacks merit and is dismissed with no order
as to costs.
----------
(2022)04ILR A386
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2022

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Writ A No. 18664 of 2021

Anoop Kumar Dubey ...Petitioner
Versus
State of U.P & Ors. ...Respondents

Counsel for the Petitioner:
Smt. Savita Dubey, Sri R.S. Dubey

Counsel for the Respondents:
C.S.C.

A. Service Law - Transfer - Violation of
transfer policy - Scope of interference by
the court - Transfer, when can be
interfered with - Principle laid down -
Held, the Court cannot interfere with the
transfer
matter
as
the
Government
servant has no vested right to continue at
a place of his choice. The Government can
transfer
the
officer/employee
in
the
administrative exigency and in public
interest - However, if a transfer is made
against the executive instructions or
transfer policy, the competent authority
must record brief reason in the file for
deviating from the transfer policy or
executive instructions and the transfer
must be necessary in the public interest or
administrative exigency. (Para 12)
Writ petition dismissed .(E-1)
List of Cases cited :-
1. B. Varadha Rao Vs St. of Karn. & ors.; (1986)
4 SCC 131
2. Shilpi Bose (Mrs) & ors. Vs St. of Bihar & ors.;
1991 Supp (2) SCC 659
3.U.O.I. & ors. Vs S.L. Abbas; (1993) 4 SCC 357
4 All. Anoop Kumar Dubey Vs. State of U.P. & Ors.
387
4. N.K. Singh Vs U.O.I. & ors.; (1994) 6 SCC 98
5. Dharmendra Kumar Saxena Vs St. of U.P. &
ors.;2013 (7) ADJ 53
(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Mr. R S Dubey, learned
counsel for the petitioner and the learned
Standing Counsel for the State-respondents.

2. This writ petition has been filed
interalia for the following relief:-

"a. Issue a writ, order or
direction in the nature of certiorari
quashing the order dated 30.10.2021
passed by respondent no.2 (Annexure no.8)
as
well
as
order
dated
25.11.2021
(Annexure no.9), passed by respondent no.4
and further directed to respondents to not
transfer the petitioner from district Deoria
to District Banda."

3. Learned counsel for the petitioner
submits that initially, the petitioner, who
was posted as Junior Assistant at C.H.C.
Mahen, District-Deoria, was transferred to
C.M.O. Banda and on the same date by
another
order
dated
15.07.2021,
the
petitioner was transferred from C.M.O.,
Mahen, Deoria to the office of C.M.O.,
Deoria.
However,
vide
order
dated
05.08.2021, the Chief Medical Officer,
Deoria has required the petitioner to join as
Senior Assistant at his office at DistrictDeoria, pursuant to which the petitioner has
joined at the office of respondent no.4Additioanl
Chief
Medical
Officer,
Transport Protocol, Deoria, District-Deoria
on 10.08.2021. Subsequently, due to some
confusion, two orders have been passed
wherein
the
petitioner
has
shown
absconding as one of the orders dated
15.07.2021 required the petitioner to join at
Banda.
He
further
submits
that
by
impugned order dated 30.10.2021, the
petitioner, who is working as Senior
Assistant
has
been
transferred
from
District-Deoria to Banda on the ground that
he remained there nearly since 20 years,
which is against the Government Policy.
The petitioner vide order dated 25.11.2021
has been relieved from the office of
respondent no.4, however, he could not join
at the place of posting as he had met with
an accident and is on medical leave. He
further submits that transfer of the
petitioner is in violation of the transfer
policy of the State Government as the
petitioner has been transferred second time
within
three
months,
therefore,
the
aforesaid
impugned
orders
are
not
sustainable in the eye of law.

4. Per contra, learned Standing
Counsel for the State-respondents submits
that there is no illegality in the transfer
order as the petitioner has been transferred
on the ground that he has remained at
Deoria since last 20 years. Even otherwise,
he was transferred from Deoria where he
was working as Junior Assistant and has
now been posted as Senior Assistant at
Banda.

5. The law on the transfer is too
settled to reiterate that if the transfer is
made contrary to transfer policy or
executive order, it does not confer any
vested right upon an employee to challenge
it.

6. The reference may be made to the
judgement of the Apex Court in the Case of
B. Varadha Rao v. State of Karnataka and
others, reported in (1986) 4 SCC 131,
wherein it has been held that the occasion
to consider a short point whether an order
of transfer is appealable under Rule 19 of
388 INDIAN LAW REPORTS ALLAHABAD SERIES
the
Karnataka
Civil
Services
(Classification, Control and Appeal) Rules,
1957, and the Supreme Court held in
paragraphs- 4 and 6 as under: -

"4. ........ It is well understood that
transfer of a government servant who is
appointed
to
a
particular
cadre
of
transferable posts from one place to
another is an ordinary incident of service
and therefore does not result in any
alteration of any of the conditions of
service to his disadvantage. That a
government
servant
is
liable
to
be
transferred to a similar post in the same
cadre is a normal feature and incident of
government service and no government
servant can claim to remain in a particular
place or in a particular post unless, of
course, his appointment itself is to a
specified, non-transferable post. ....."

"6. .......But, at the same time, it
cannot be forgotten that so far as superior
or more responsible posts are concerned,
continued posting at one station or in one
department of the government is not
conducive to good administration. It
creates vested interest and therefore we find
that even from the British times the general
policy has been to restrict the period of
posting for a definite period. We wish to
add that the position of class III and class
IV employees stand on a different footing.
We trust that the government will keep
these considerations in view while making
an order of transfer"

7. The Supreme Court in the case of
Shilpi Bose (Mrs) and others v. State of
Bihar and others, reported in 1991 Supp (2)
SCC 659, was dealing with the case of
transfer of some lady teachers in Primary
Schools in the State of Bihar. They were
transferred, on their own request, to places
where their husbands were posted. The
transfer orders were made by the District
Education Establishment Committee. The
teachers, who were displaced, challenged the
transfer order before the Patna High Court on
the
ground
that
District
Education
Establishment Committee had no jurisdiction.
Patna High Court allowed the petition, set
aside the transfer order and directed for reposting of the respondents. Ultimately, the
matter was carried to the Supreme Court and
the Supreme Court set aside the judgment of
the Patna High Court and held as under:

"4. In our opinion, the courts
should not interfere with a transfer order
which is 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 overlooked
these aspects in interfering with the transfer
orders."

8. The law laid down in Shilpi Bose
(supra) was again reiterated by the
Supreme Court in the case of Union of
India and others v. S.L. Abbas, reported
in (1993) 4 SCC 357, and observed as
under:
4 All. Anoop Kumar Dubey Vs. State of U.P. & Ors.
389

"6. An order of transfer is an
incident
of
Government
service.
Fundamental Rule 11 says that "the whole
time of a Government servant is at the
disposal of the Government which pays him
and he may be employed in any manner
required
by
proper
authority".
Fundamental Rule 15 says that "the
President may transfer a Government
servant from one post to another". That the
respondent is liable to transfer anywhere in
India is not in dispute. .."

9. In the case of N.K. Singh v. Union
of India and others, reported in (1994) 6
SCC 98, the appellant Sri N.K.Singh was
an I.P.S. Officer. He was allocated to State
cadre of Orissa. He was I.G., C.I.D. in
Orissa. His services were placed on
deputation to Ministry of Home Affairs and
was posted as Joint Director in Central
Bureau of Investigation (C.B.I.). He was
In-charge of a Special Investigation Group
conducting some sensitive investigation.
He was abruptly transferred to Border
Security Force (B.S.F.) in an equivalent
post of I.G.P.. He challenged his transfer
order on the ground of malafide against the
then Prime Minister Shri Chandrashekhar
and the then Union Law Minister Dr.
Subramanyam Swami. The grievance of the
appellant therein was that he was In-charge
of
a
Special
Investigation
Group
investigating into St. Kitts affair. Therefore,
he was eased out from the C.B.I. to scuttle
the
fair
investigation.
Against
this
background, the Supreme Court ruled as
under: -

"6. .................., 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 mala
fides 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."

"24. ...Challenge in courts of a
transfer when the career prospects remain
unaffected and there is no detriment to the
government servant must be eschewed and
interference by courts should be rare, only
when
a
judicially
manageable
and
permissible ground is made out. This
litigation was ill-advised."

10. This Court in the case of
Dharmendra Kumar Saxena v. State of U.P.
and others reported in 2013 (7) ADJ 53 has
held that it is true that violation of transfer
policy or executive order does not confer any
vested right on an employee to challenge it,
but the Government is bound by executive
orders/ policies, and the guidelines are made
to follow it and not to breach it without any
justifiable reason. The Court also held that in
case a transfer is made contrary to transfer
policy or executive order, the officer
concerned should record reasons for defying
the transfer policy or executive order.
Recording of reasons are necessary in view of
the fact that in case any representation is
made to the higher authority, he may be
apprised of the reasons for violation of the
transfer policy or the Government order. The
Court also followed the view consistently
taken by the Supreme Court. Relevant
paragraph of the order read as under: -

"24...the Government is bound by
executive orders/policies. The guidelines
are made to follow it and not to breach it
390 INDIAN LAW REPORTS ALLAHABAD SERIES
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
challenged 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 violative of Article 14
of the Constitution. The authorities cannot
justify their orders that breach of executive
orders do not give legally enforceable right
to aggrieved person. As observed by Justice
Frankfurter "An executive agency must be
rigorously held to the standards by which it
professes its action to be judged".

11. The petitioner in the present case
has been transferred on the ground that he has
stayed at the said place for more than twenty
years and hence, the same is not in violation
of any transfer policy or Government Order.

12. After considering the submission
made by the parties as well as careful
consideration of the law laid down by the
Supreme Court, I am of the view that this
Court cannot interfere with the transfer matter
as the Government servant has no vested
right to continue at a place of his choice. The
Government
can
transfer
the
officer/employee
in
the
administrative
exigency and in public interest. However, if a
transfer is made against the executive
instructions or transfer policy, the competent
authority must record brief reason in the file
for deviating from the transfer policy or
executive instructions and the transfer must
be necessary in the public interest or
administrative exigency.

13. This writ petition is, accordingly,
dismissed. There shall be no order as to costs.
----------
(2022)04ILR A390
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.03.2022

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Writ A No. 18950 of 2021

Prasidh Narayan Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sanjay Kumar Pandey

Counsel for the Respondents:
C.S.C., A.S.G.I., Sri Sushil Kumar Mishra

Constitution of India,1950 - Article 226 -
Writ of Mandamus - Laches & Delay -
Unexplained & inordinate delay - Held -
person, who is not vigilant and dormant
about his right, cannot be allowed to
agitate his right - time-barred cases should
not be entertained by Courts & Court
should dismiss the writ petition on the
ground of unexplained inordinate delay as
the rights, which have accrued to others by
reason of delay in approaching the Court,
cannot be allowed to be disturbed unless
there is a reasonable explanation for the
delay
-
there
must
be
satisfactory
explanation by the petitioner as how he
could not come to the Court well in time

A show cause notice issued to petitioner on
06.02.2010 - petitioner submitted his reply to
the show cause notice on 07.02.2010 - After
about 12 years in the year 2021 writ petition
filed with a prayer to decide representation
dated 07.02.2010 - not even a single word
mentioned in the writ petition with regard to
delay in filing same - Held - writ petition
hopelessly
barred
by
limitation
as
such
dismissed on the ground of inordinate delay
(Para 3, 4, 11)