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

- **Citation:** (2021) 9 ILRA 1214
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-20
- **Case number:** Service Single No. 21036 of 2021
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/avnesh-kumar-v-state-of-u-p-ors-47369
- **Pages:** 5

## Headnote

Service Law - Transfer - Grievance of the
petitioner that by means of impugned
9 All Avnesh Kumar Vs. State of U.P. & Ors.
1215
order dated 27.7.2021 and 28.7.2021, the
earlier transfer orders of the petitioner
have been cancelled is misconceived. The
said transfer order has been suspended for the
time being till any appropriate order is passed
by the competent authority, no final decision
has yet been taken. (Para 8)

By
means
of
impugned
order
dated
27.7.2021, all the transfer orders issued for
the transfer session 2021-22 have been
suspended until further orders. Appropriate
orders would be passed by the competent
authority, depending upon the report of fact
finding enquiry. In case the competent
authority finds that the earlier transfer orders
issued in favour of the petitioner and other
employees are appropriate orders, such
employees would be permitted to discharge
their respective duties at the transferred place
and if it is found that such transfer orders
were not passed strictly as per policy or law,
those transfer orders would be cancelled and
the employees would have to submit their
joining at the earlier places. (Para 8)

B. Place of posting remains unchanged -
Hon'ble Supreme Court has observed that the
employee may not insist for particular place
of posting. The present petitioner shall remain
posted at Farrukhabad in any eventuality i.e.,
whether the transfer order prevails or is
cancelled. Therefore, challenge to the present
transfer order is untenable. (Para 9)

Writ petition dismissed. (E-4)

Precedent followed:

## Text

1214 INDIAN LAW REPORTS ALLAHABAD SERIES
very limited. However, it is also equally
well-settled that the courts should interfere
with
the
administrative
decisions
pertaining to pay fixation and pay parity
when they find such a decision to be
unreasonable, unjust and prejudicial to a
section
of
employees
and
taken
in
ignorance of material and relevant factors.
[see K.T. Veerappa v. State of Karnataka
(2006) 9 SCC 406]"

25. In the case in hand, the benefit of
grade pay of Rs.1900/- has been extended to
Mate of PWD w.e.f. 16.11.2011. The
petitioners are also employees of State.
Though the departments are different, but the
nature of the job performed by them is
similar to the nature of the job performed by
Mate working in PWD. This fact is
discernible from the record as the benefit of
grade pay has been extended by the State of
U.P.
to
Mate
working
in
Irrigation
Department
in
Meerut,
Ghazipur
and
Lucknow Divisions, and also from several
recommendations which have been made by
Engineer-in-Chief
to
Deputy
Secretary,
Irrigation Department by placing reliance
upon Government Order dated 16.11.2011
extending the benefit of grade pay of
Rs.1900/- to Mate of PWD. Thus, from the
facts detailed above, the only conclusion
which can be drawn is that the nature and
duty performed by Mate of Irrigation
Department are similar to Mate of PWD and,
therefore, they are also entitled to benefit of
grade pay of Rs.1900/- to the petitioners.

26. Since the State Government is
sleeping over the matter since 20 July 2016
when the recommendation was made by
Engineer-in-Chief
to
Deputy
Secretary,
Irrigation Department, and petitioners are
facing financial loss on account of the
inaction of the State Government, therefore,
applying the principles laid down by the
Apex Court in the cases of G.S. Uppal
(supra) and K.T. Veerappa (supra), this
Court is of the opinion that it is a fit case
where the Court should intervene and
exercise its power under Article 226 of the
Constitution of India commanding the
respondents to extend the benefit of grade
pay of Rs.1900/- to the petitioners.

27. For the reasons given above, the
writ petition is allowed and a writ of
mandamus
is
issued
commanding
respondents no.1 & 2 to extend the benefit of
grade pay of Rs.1900/- to the petitioners
w.e.f. 16.11.2011 when such benefit has been
extended to Mate of PWD. It is further
directed to the respondents to fix the pay of
petitioners on the basis of grade pay of
Rs.1900/- and also calculate arrears of salary
w.e.f. 16.11.2011 and pay the same to the
petitioners within three months from the date
of production of the copy of this order before
them.
----------
(2021)09ILR A1214
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.09.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 21036 of 2021

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

Counsel for the Petitioner:
Jayashanker Shukla

Counsel for the Respondents:
C.S.C.

Service Law - Transfer - Grievance of the
petitioner that by means of impugned
9 All Avnesh Kumar Vs. State of U.P. & Ors.
1215
order dated 27.7.2021 and 28.7.2021, the
earlier transfer orders of the petitioner
have been cancelled is misconceived. The
said transfer order has been suspended for the
time being till any appropriate order is passed
by the competent authority, no final decision
has yet been taken. (Para 8)

By
means
of
impugned
order
dated
27.7.2021, all the transfer orders issued for
the transfer session 2021-22 have been
suspended until further orders. Appropriate
orders would be passed by the competent
authority, depending upon the report of fact
finding enquiry. In case the competent
authority finds that the earlier transfer orders
issued in favour of the petitioner and other
employees are appropriate orders, such
employees would be permitted to discharge
their respective duties at the transferred place
and if it is found that such transfer orders
were not passed strictly as per policy or law,
those transfer orders would be cancelled and
the employees would have to submit their
joining at the earlier places. (Para 8)

B. Place of posting remains unchanged -
Hon'ble Supreme Court has observed that the
employee may not insist for particular place
of posting. The present petitioner shall remain
posted at Farrukhabad in any eventuality i.e.,
whether the transfer order prevails or is
cancelled. Therefore, challenge to the present
transfer order is untenable. (Para 9)

Writ petition dismissed. (E-4)

Precedent followed:

1. Namrata Verma Vs The State of U.P. & ors.,
Special Leave to Appeal (C) No(s). 36717/2017
(Para 6)

Precedent cited:

1. Vishnu Traders Vs St. of Har. & ors., reported
in 1995 Supp. (1) SCC 461 (Para 4)

Present
petition
assails
order
dated
27.07.2021, passed by Special Secretary,
Finance (Services) Anubhag-1, Government
of U.P. and order dated 28.07.2021, passed
by Director, Internal Accounts and Audit
Examination, U.P., Lucknow.

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Jay Shanker Shukla,
learned counsel for the petitioner and Ms.
Jyoti Sikka, learned Additional Advocate
General of U.P. for the State-respondents.

2. By means of this petition, the
petitioner has assailed the order dated
27.7.2021 passed by the Special Secretary,
Finance
(Services)
Anubhag-1,
Government of U.P. addressing to the
Director, Internal Accounts and Audit
Examination, Lucknow suspending the
operation of all transfer orders of the
employees made for the session 2021-22
until further orders. The petitioner has also
assailed the office order dated 28.7.2021
passed by the Director, Internal Accounts
and Audit Examination, U.P., Lucknow in
compliance of the order dated 27.7.2021
staying the transfer orders issued from
22.6.2021 to 15.7.2021.

3. Contention of learned counsel for
the petitioner is that the petitioner, who is
serving on the post of Accountant in the
office of Superintendent, Central Jail,
Fatehgarh,
Farrukhabad,
has
been
transferred vide order dated 15.7.2021
(Annexure No.8) in the public interest to
the office of Finance Controller (Vittiya
Paramarshdata),
Zila
Panchayat,
Farrukhabad. Learned counsel for the
petitioner has contended that as soon as the
transfer order dated 15.7.2021 was passed,
the petitioner submitted his joining at the
transferred
place,
therefore,
after
submitting his joining at the transferred
place, his transfer order may not be
suspended by means of impugned order
1216 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 27.7.2021. Further, the consequential
order dated 28.7.2021 passed by the
Director concerned staying all transfer
orders is illegal.

4. Learned counsel for the petitioner has
further submitted that some identical writ
petitions are pending and in some of identical
writ petitions, interim orders have been
granted. Learned counsel for the petitioner
has drawn attention of this Court towards an
order dated 17.9.2021 passed by the Division
Bench of this Court in Special Appeal
No.339 of 2021 whereby the Division Bench
of this Court has stayed the order dated
27/28.7.2021 on the basis of principles of
parity observing that since the interim order
has been passed in favour of some
employees, therefore, the appellant before the
Division Bench is also entitled for the same
benefit in view of the dictum of the Hon'ble
Apex Court in re; Vishnu Traders vs. State
of Haryana and others, reported in 1995
Supp. (1) SCC 461. For the convenience, the
order dated 17.9.2021 passed by the Division
Bench in Special Appeal No.339 of 2021 is
being reproduced herein below:-

"This intra-court appeal has been
filed against the judgment and order dated
07.09.2021 passed by learned Single Judge
in Writ Petition No.19887 (SS) of 2021 in
re: Satya Narayan Gautam vs. State of U.P.
and others, whereby the writ petition
preferred by the petitioner/appellant has
been dismissed.

Heard.

Admit.

Issue notice.

Since
the
respondents
are
represented by learned Standing Counsel
no steps are required to be taken for
issuance of notice.

Learned counsel for the appellant
submits that vide order dated 15.07.2021
several persons were transferred on their
own request. The petitioner/appellant was
also transferred on his request on the post of
Accountant. The said transfer order was
subsequently
suspended
by
the
State
Government vide order dated 27.07.2021
after joining of the transferred persons
including the appellant on the transferred
place. The competent authority through his
order dated 28.07.2021 directed to join back
at the earlier place of posting. The aforesaid
orders were challenged by several persons by
filing separate writ petitions namely Writ
Petition No.17278 (SS) of 2021 in re:
Akansha Tripathi vs. State of U.P. and others,
Writ Petition No.9907 (SS) of 2021 in re:
Munish Kumar Srivastava vs. State of U.P.
and others, Writ Petition No.18115 (SS) of
2021 in re: Gyanendra Kumar vs. State of
U.P. and others, and Writ Petition No.19103
(SS) of 2021 in re: Shankar Lal Agrawal vs.
State of U.P. and others, wherein the Court
had granted indulgence and stayed the
impugned order dated 27/28.07.2021. The
submission of learned counsel for the
appellant is that the appellant/petitioner is
also entitled to get parity of the aforesaid
orders as he is similarly situated like the
others. However, learned Single Judge
dismissed the writ petition on the first day
itself. In support of his submission, learned
counsel for the appellant/petitioner has relief
on the case of Vishnu Traders vs. State of
Haryana and others reported in 1995 Supp.
(1) SCC 461, to emphasize that there should
be parity in grant of the interim orders.

We
have
considered
the
submissions of learned counsel for the
parties and gone through the records.
9 All Avnesh Kumar Vs. State of U.P. & Ors.
1217

Once the interim order has been
passed in the cases of similarly situated
persons,
the
appellant/petitioner
was
entitled to get parity. As such, we stay the
operation of the impugned judgment and
order dated 07.09.2021 as well as the order
dated 27/28.07.2021 till further orders of
this Court.

However, it would be open for the
respondents to pass fresh orders."

5. I have also granted interim order in
favour of the employee, who had sought
transfer at particular district apprising his
grievance and said transfer order was
passed on his request and thereafter, such
employee submitted his joining at the
transferred place, therefore, I was of the
opinion that when any transfer order is
passed considering the request of an
employee and such employee has submitted
his joining at the transferred place, such
transfer order should not be suspended by
way of general order staying all transfer
orders.

6. However, I had also an occasion to
decide an identical writ petition bearing
Writ Petition No.19965 (S/S) of 2021,
whereby the transfer of such employee was
made in public interest and he submitted
his joining pursuant to the earlier transfer
order. When his transfer order was
suspended by a general orders dated
27.7.2021 and 28.7.2021, he assailed such
order placing same analogy that once an
employee has submitted his joining at the
transferred place, his/ her transfer order
may not be suspended or withdrawn.
Dismissing that writ petition considering
the fact that place of said petitioner was
unchanged, therefore, no legal prejudice is
being caused to him and even his place of
posting is unchanged, no interference was
made in that transfer order in terms of order
dated 6.9.2021 passed by the Hon'ble Apex
Court in re; Namrata Verma v. The State
of Uttar Pradesh & Ors., Special Leave
to Appeal (C) No(s).36717/2017. For the
convenience, the order dated 6.9.2021
reads herein below:-

"Heard Mr. Parvez Bashista,
learned
counsel
appearing
for
the
petitioner and Mr. Sanjay Kumar Tyagi,
learned
counsel
appearing
for
the
respondent-State of U.P.

It is not for the employee to insist
to transfer him/her and/or not to transfer
him/her at a particular place. It is for the
employer
to
transfer
an
employee
considering the requirement.

The Special Leave Petition is
dismissed.

Pending
applications
stand
disposed of."

7. Ms. Jyoti Sikka, learned Additional
Advocate General has submitted that the
decision of the Hon'ble Apex Court in re;
Namrata Verma (supra) might have not
been placed for consideration before the
Division Bench of this Court and difference
of the facts being considered by this Court
might have not been apprised properly,
therefore, the order dated 17.9.2021 would
have been passed. However, she has
submitted that the State is willing to file
counter affidavit in the said special appeal
apprising each facts and circumstances in
detail including the order of the Hon'ble
Apex Court in re; Namrata Verma
(supra).

8. By means of impugned order dated
27.7.2021 (Annexure No.1), all the transfer
1218 INDIAN LAW REPORTS ALLAHABAD SERIES
orders issued for the transfer session 202122 have been suspended until further orders
and as per Ms. Sikka, the fact finding
enquiry is going on and as soon as the
report of fact finding enquiry is received to
the competent authority, appropriate orders
would be passed. In case the competent
authority finds that the earlier transfer
orders issued in favour of the petitioner and
other employees are appropriate orders,
such employees would be permitted to
discharge their respective duties at the
transferred place and if it is found that such
transfer orders were not passed strictly as
per policy or law, those transfer orders
would be cancelled and the employees
would have to submit their joining at the
earlier places. In any case, since no final
decision has yet been taken, therefore,
grievance of the petitioner that by means of
impugned order dated 27.7.2021 and
28.7.2021 (Annexure Nos.1 & 2), the
earlier transfer orders of the petitioner have
been cancelled is misconceived. The said
transfer order has been suspended for the
time being till any appropriate order is
passed by the competent authority.

9. Besides, if the transfer order of the
petitioner is permitted to be existed, in that
case he shall remain be posted at
Farrukhabad and in case his transfer order
is cancelled, even in that case he shall
remain be posted at Farrukhabad. The
present petitioner shall remain be posted at
Farrukhabad in any eventuality. Therefore,
I wonder as to why the present transfer
order has been challenged by the petitioner
when his place of posting is unchanged in
any circumstance. The Hon'ble Apex Court
has time and again and also in re; Namrata
Verma (supra) has categorically observed
that the employee may not insist for
particular place of posting.

10. In view of the above, I do not find
any infirmity or illegality in the impugned
orders dated 27.7.2021 passed by opposite
party no.2 and 28.7.2021 passed by
opposite party no.3 (Annexure Nos.1 & 2).

11. Therefore, the writ petition is
dismissed being misconceived.
----------
(2021)09ILR A1218
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.08.2021

BEFORE

THE HON'BLE IRSHAD ALI, J.

Service Single No. 29948 of 2018

Saghirul Hasan & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Pradeep Kumar Srivastava, Renu Misra

Counsel for the Respondents:
C.S.C.

A. Service Law - Qualifying service for the
grant of pension, gratuity and other retiral
benefits - While calculating the qualifying
service, ad hoc service rendered shall be
taken into consideration in grant of
pension and other retiral dues. (Para 4, 15,
16)

The petitioners are entitled for calculation of
their ad hoc service for reckoning the qualifying
service. It is evident that the petitioners were
granted ad hoc appointment by following the
procedure prescribed under the applicable rules.
They continued for a long spell of time and
taking into consideration their ad hoc service,
they have been regularized in service. (Para 9,
17)

Writ petition allowed. (E-4)