# ConstableNo.52617(830740060/83074004 4) Asghar Mehdi v. State of U.P. and Ors

- **Citation:** (2013) 3 ILRA 1279
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-01-04
- **Case number:** Civil Misc. Writ Petition No.42061 of 2013
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/constableno-52617-830740060-83074004-4-asghar-mehdi-v-state-of-u-p-and-ors-42687
- **Pages:** 4

## Headnote

Constitution of India, Art.-226- Service LawTransfer
order
challenged
on
grounddisciplinary proceeding pending since longsecondly being handicapped person can not
be
transferred-held-since
petitioner
remained posted for last 30 years at same
place-no bar about transfer during pendancy
of disciplinary proceeding-transfer being
exigency of service-can not be claimed a
particular place as matter of right-petition
dismissed.

Held: Para-5
So far as pendency of departmental
proceedings
before
Tribunal
is
concerned,
that
cannot
bar
the
authorities concerned from transferring
petitioner and in particular in exigency of
service on administrative ground when
the authorities find that during pendency
of
departmental
proceedings
the
petitioner must be transferred. It is not
the case of the petitioner that the
impugned order of transfer is against
statutory rules or has been passed by an
authority not competent to do so or is
vitiated on account of mala fide. The
service of the petitioner are transferable.
The transfer being exigency of service,
an employee is liable to be transferred
from one place to another and normally
no case for interference in Court of law is
called for unless the case is within
categories, as mentioned above.

Case Law discussed:
1999(2)UPLBEC 1407; AIR 2012 SC 232; 2009
(8) SCC 337; JT 2009 (2) SC 474; 1990(Supp.)
SCC 738; 1995(2) SCC 570; 1999 SCC(L&S)
646; AIR 2006 SC 2064; W.P. No. 6095(S/S)
of 1996.

## Text

3 All] Constable No. 52617(830740060/830740044) Asghar MehdiVs. State of U.P. and Ors. 1279
and 28 of the writ petition. However, we
refrain ourselves from expressing any
conclusive opinion in this regard, inasmuch
as, against the name of the petitioner
"provisional" was mentioned in the select list
dated 04.01.2013. Therefore, we leave this
issue to be considered by the Commission.

12. For the reasons detailed above, the
writ petition deserves to be allowed and is,
accordingly, allowed. The cancellation of the
candidature of the petitioner by the Public
Service Commission, U.P. for the post of
Lecturer in Mechanical Engineering, in
relation to the Advertisement No.6 of 20112012 dated 17.03.2012, is hereby quashed.
The Commission is directed to consider the
case of the petitioner as a candidate
belonging to the unreserved category and if
the petitioner is found to have succeeded as
an unreserved category candidate he would
be provided all consequential benefits.

13. The aforesaid exercise will be
completed by the respondents within a
period of three weeks from the date of
production of a certified copy of this
order before the respondent no.3.

14. There is no order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.08.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No.42061 of 2013

ConstableNo.52617(830740060/83074004
4) Asghar Mehdi ...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri S.K. A. Rizvy, Sri S.Z.A. Rizvi
Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226- Service LawTransfer
order
challenged
on
grounddisciplinary proceeding pending since longsecondly being handicapped person can not
be
transferred-held-since
petitioner
remained posted for last 30 years at same
place-no bar about transfer during pendancy
of disciplinary proceeding-transfer being
exigency of service-can not be claimed a
particular place as matter of right-petition
dismissed.

Held: Para-5
So far as pendency of departmental
proceedings
before
Tribunal
is
concerned,
that
cannot
bar
the
authorities concerned from transferring
petitioner and in particular in exigency of
service on administrative ground when
the authorities find that during pendency
of
departmental
proceedings
the
petitioner must be transferred. It is not
the case of the petitioner that the
impugned order of transfer is against
statutory rules or has been passed by an
authority not competent to do so or is
vitiated on account of mala fide. The
service of the petitioner are transferable.
The transfer being exigency of service,
an employee is liable to be transferred
from one place to another and normally
no case for interference in Court of law is
called for unless the case is within
categories, as mentioned above.

Case Law discussed:
1999(2)UPLBEC 1407; AIR 2012 SC 232; 2009
(8) SCC 337; JT 2009 (2) SC 474; 1990(Supp.)
SCC 738; 1995(2) SCC 570; 1999 SCC(L&S)
646; AIR 2006 SC 2064; W.P. No. 6095(S/S)
of 1996.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. This writ petition is directed
against the order of transfer dated
29.07.2013 passed by Commandant BGroup PAC 4th Battalion Allahabad.
1280 INDIAN LAW REPORTS ALLAHABAD SERIES

2. It appears that PAC Headquarter
passed
an
order
on
25.07.2013
transferring petitioner from 4th Battalion
PAC to 44th Battalion PAC, Meerut and
by
means
of
impugned
order
the
Commandant 4th Battalion PAC has
communicated the said order to petitioner
directing him that he shall stand relieved
on 31.07.2013 so as to join at transferred
place.

3. Learned counsel for the petitioner
firstly
contended
that
there
is
a
departmental inquiry initiated against
petitioner and the matter is pending before
U.P. Public Service Tribunal and since the
matter is sub-judice, therefore, he cannot
be transferred. He further submitted that
departmental proceedings have continued
for a quite long time, therefore, on the
ground of mere delay the same has to be
dropped in view of the judgment of this
Court in Mahaveer Prasad Sharma Vs.
Cane Commissioner, U.P., Lucknow
and others, 1999(2) UPLBEC 1407. He
lastly contended that petitioner is a
handicapped and, therefore, on equity
ground also he should not be transferred.

4. However, I find no force in any of
the above submissions. It is not in dispute
that petitioner was posted at Allahabad
sometimes in June, 1983, i.e., from the
date of his initial appointment, and since
then he has been continuing thereat and,
therefore, for last 30 years he has been
posted there.

5.

So
far
as
pendency
of
departmental proceedings before Tribunal
is
concerned,
that
cannot
bar
the
authorities concerned from transferring
petitioner and in particular in exigency of
service on administrative ground when
the authorities find that during pendency
of departmental proceedings the petitioner
must be transferred. It is not the case of
the petitioner that the impugned order of
transfer is against statutory rules or has
been
passed
by
an
authority
not
competent to do so or is vitiated on
account of mala fide. The service of the
petitioner are transferable. The transfer
being exigency of service, an employee is
liable to be transferred from one place to
another and normally no case for
interference in Court of law is called for
unless the case is within categories, as
mentioned above.

6. Recently in The Registrar
General High Court of Judicature at
Madras Vs. R. Perachi and Ors., AIR
2012 SC 232, the Court has observed:

"...transfer is an incident of service,
and one cannot make a grievance if a
transfer is made on the administrative
grounds, and without attaching any
stigma....".

7. The Court also referred to its
earlier decision in Airports Authority of
India Vs. Rajeev Ratan Pandey, 2009
(8) SCC 337 and said :

"in a matter of transfer of a govt.
employee, the scope of judicial review is
limited and the High Court would not
interfere with an order of transfer lightly, be
it at interim stage or final hearing. This is so
because the courts do not substitute their
own decision in the matter of transfer."

8.

A
transfer
is
made
in
administrative exigency, if there is a
complaint pending and instead of a
regular department enquiry, the authority
concerned decided to transfer a person
concerned. It would then be a transfer
3 All] Constable No. 52617(830740060/830740044) Asghar MehdiVs. State of U.P. and Ors. 1281
purely on administrative ground and not
by way of punishment etc. This approach
has been approved by Apex Court in The
Registrar
General
High
Court
of
Judicature at Madras (supra), and in para
27 of the judgment the Court observed:

"...the transfer was purely on the
administrative ground in view of the
pending complaint and departmental
enquiry against first Respondent. When a
complaint against the integrity of an
employee is being investigated, very often
he is transferred outside the concerned
unit. That is desirable from the point of
view of the administration as well as that
of the employee."

9. In Tushar D.Bhatt Vs. State of
Gujarat & Ors., JT 2009 (2) SC 474,
reiterating well established principle in
long chain of authority the Court said:

"The
legal
position
has
been
crystallized in number of judgments that
transfer is an incidence of service and
transfers
are
made
according
to
administrative exigencies."

10. So far as delay in departmental
proceeding is concerned, that is not
subject matter of challenge before this
Court and even otherwise it cannot be
said that departmental proceeding is suo
motu liable to be quashed on account of
mere delay without considering the other
aspect of matter. There is no principle of
law that an inquiry would stand vitiated
merely for the reason of delay. On the
contrary, whether delay in initiating
inquiry would be fatal or not would
depend
on
various
facts
and
circumstances. Dealing this question and
considering State of Madhya Pradesh
Vs. Bani Singh and another 1990
(Supp.) SCC 738 the Apex court in
State of Punjab Vs. Chaman Lal Goel,
1995 (2) SCC 570 said:-

"9. Now remains the question of delay.
There is undoubtedly a delay of five and half
years in serving the charges. The question is
whether the said delay warranted the
quashing of charges in this case. It is trite to
say that such disciplinary proceeding must be
conducted soon after the irregularities are
committed or soon after discovering the
irregularities. They cannot be initiated after
lapse of considerable time. It would not be
fair to the delinquent officer. Such delay also
makes the task of proving the charges
difficult and is thus not also in the interest of
administration.
Delayed
initiation
of
proceedings is bound to give room for
allegations of bias, mala fides and misuse of
power. If the delay is too long and is
unexplained the court may well interfere and
quash the charges. But how long a delay is
too long always depends upon the facts of
the given case. Moreover, if such delay is
likely to cause prejudice to the delinquent
officer in defending himself, the enquiry has
to be interdicted. Wherever such a plea is
raised, the court has to weigh the factors
appearing for and against the said plea and
take
a
decision
on
the
totality
of
circumstances. In other words, the court has
to indulge in a process of balancing."

11. In Additional Superintendent of
Police Vs. T. Natrajan, 1999 SCC (L &
S) 646 Apex Court held as under:-

"It is settled law that some delay in
initiating proceedings would not vitiate
the enquiry unless the delay results in
prejudice to the delinquent officer."

12. The same view was reiterated in
P.D. Agarwal Vs. State Bank of India
and others, AIR 2006 SC 2064.
1282 INDIAN LAW REPORTS ALLAHABAD SERIES

13. A Division Bench in Writ
Petition No. 6095 (S/S) of 1996 (State of
U.P. & another Vs. S.P. Singh Pundhir
and another) decided on 09.08.2007,
considering the aforesaid judgements of
the Apex Court, has also held as under:-

"There is no hard and fast rule that
disciplinary proceedings initiated after a long
time would be per se improper or illegal
merely for the reason that it has been initiated
after long lapse of time but it depends upon
the facts and circumstances of that case. For
example, if the delinquent employee could
show that after long lapse of time he has lost
evidence or has no capacity to defend
himself due to loss of memory etc. then
indulgence can be granted on this ground but
mere delay in the proceedings can not vitiate
the same."

14. In view of above, the writ
petition lacks merit. Dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.08.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No.42288 of 2013

Om Prakash Yadav
 ...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Vinod Sinha, Sri Mahesh Sharma

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226- Service
Law-Termination order-challenged after
8 years delay-court declined to interfere
on ground of latches coupled with
conduct
of
petitioner-transfer
order
passed long back in the year 1998-not
complied inspite of frequent petition
after 4th petition no relief grantedconsequently termination order passedheld-delay can be ground for denied to
interfere with order impugned.

Held: Para-10-
It is now a trite law that where the writ
petitioners approaches the High Court
after a long delay, reliefs prayed for may
be denied to them on account of delay
and laches irrespective of the fact that
they are similarly situated to other
candidates who have got the benefit.

Case Law discussed:
AIR 1989 SC 1433; AIR 2003 SC 1724; (2009)
11 SCC 678; 2007(4) SC 253; 1994 (6) SC 71;
1995(5) SCC 628; AIR 1961 SC 993; AIR 1976
SC 2617; 1976(3) SCC 579; AIR 2007 SC
1330-2007(1)Supreme 455; 2008(4)ESC 2423;
2009(1) SCC 297; 2009(2)SCC 479; 2009(3)
SCC 281; (1874) 5 PC 239.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. This is a case where an employee,
who was transferred as long back as in
May' 1998 could dare to defy order of
transfer for years together though there
was no authority in the shape of stay order
passed by this Court or by the executive
authorities.

2. It appears that challenging the order
of transfer passed on 29.5.1998, transferring
the petitioner from Tube Well Division, Etah,
Region Aligarh to Agra, he preferred Civil
Misc. Writ Petition No. 33046 of 1998 which
was disposed of on 4.10.1998 permitting the
petitioner to make a representation and the
authorities were directed to decide the same.
Admittedly, the order of transfer was neither
stayed nor the petitioner was otherwise had
any authority not to comply with the order of
transfer. The authority concerned rejected
petitioner's representation by order dated