# Devendra Kumar Sharma v. State of U.P. & Ors

- **Citation:** (2022) 11 ILRA 551
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-11
- **Case number:** Writ-A No. 9256 of 2021
- **Bench:** Saumitra Dayal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/devendra-kumar-sharma-v-state-of-u-p-ors-47868
- **Pages:** 5

## Headnote

552 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Service Law - Transfer - Government
Order dated 18.04.2018 - Clause 3, 4(4),
5, 10 - To allow the respondents to
transfer a teacher serving satisfactorily on
a post only to accommodate a person
seeking transfer on that post would be to
permit
uncontrolled
arbitrariness
and
whimsical action to the administrative
authorities. That itself is sufficient to annul the
transfer of the petitioner. (Para 13)

Perusal of the GO dated 18.04.2018
reveals, it provides for mechanism to
transfer teachers on their own request,
only. It does not contain a general policy
statement to enable transfer of teachers,
on
administrative
considerations
or
generally. Even to transfer teachers on their
own request, applications could be made to
seek transfer to a post mentioned in the list of
vacant
posts
only
(available
at
various
institutions at different districts), as notified and
uploaded on the related website in terms of
Clause 4(4) of the GO dated 18.04.2018. By
virtue of Clause 4(5) of that GO, the desirous
could apply for transfer only against such
notified vacant posts, and no other. No
disclosure has been made in the counter
affidavit as to the then existing vacancy
position
at
different
institutions
at
different districts, against which one teacher,
Smt. Pooja Tyagi may have applied, to be
transferred. (Para 6)

Undisputedly,
the
post
of
Assistant
Teacher (Mathematics) at Government
Inter College, Nandgram, Ghaziabad was
never vacant. The petitioner was serving
at that institution from before. He had not
applied for transfer. (Para 7)

In absence of any clause under the
government policy allowing for transfer to
be made generally, the discretion of the
administrative
authority
to
give
preference to the said Smt. Pooja Tyagi,
could not be exercised to dislodge the
petitioner from the post on which he was
working satisfactorily. No complaint or
objection exists as to the working of the
petitioner as Assistant Teacher (Mathematics) at
Government
Inter
College,
Nandgram,
Ghaziabad. (Para 12)
B. This action (of transfer) if permitted
would amount to a penalty imposed on
the teacher dislodged from his settled
place of posting, for no fault; without
sanction of law and without initiating any
disciplinary proceeding. (Para 13)

Consequently,
the
transfer
orders
dated
13.07.2021
(Nandgram
to
Tyodi)
and
03.09.2021 (Tyodi, Ghaziabad to Anooppur,
Dibai, Hapur) in so far as they seek to transfer
out the petitioner from the Government Inter
College, Nandgram, Ghaziabad are wholly
conflicted to law. They are wholly unsustainable.
Accordingly, the transfer orders are quashed.
(Para 14)

Writ petition allowed. (E-4)

Present petition assails transfer order
dated 13.07.2021, whereby the petitioner,
who was then working as Assistant
Teacher (Mathematics) at Government
Inter College, Nandgram, Ghaziabad, was
transferred intra-district, to Government
Inter College, Tyodi, Ghaziabad.

## Text

11 All. Devendra Kumar Sharma Vs. State of U.P. & Ors.
551
Curt as well as Hon'ble Supreme Court
after more than four years from his
retirement to P. Ayyamperumal, therefore
the appellant also is entitled for getting the
notional increment after his retirement.

F. Because, P. Ayyamperumal was
retired on 30.06.2013 and the notional
increment was ordered to him from
01.07.2013 after his retirement and after
ending the relationship of master and
servant by the Hon'ble Supreme Court as
well as Hon'ble Madras High Court in the
case of P.Ayyamperumal. Hence the
appellant is also entitled for getting the
benefit of last notional increment after his
retirement on 30.06.2015 which fail due on
01.07.2015."

13. For ready reference, grounds B
and E of the memo of Special Appeal are
quoted as under:-

"B. Because, the petitioner is entitled
for getting the last notional increment for
the purpose of pensionery benefits in
pursuance of law laid by the Hon'ble
Madras High Court as well as Hon'ble
Supreme Court in the case of P.
Ayyamperumal vs. The Registrar, Central
Administrative Tribunal and Others but
the claim of the petitioner had been
rejected illegally and arbitrarily by the
respondent
by
making
wrong
interpretation of law laid down by the
Hon'ble Supreme Court.

E.
Because,
just
after
getting
knowledge of the above said order dated
15.09.2017
and
23.07.2015,
petitioner/appellant without making any
delay moved his representation dated
29.10.2018
before
the
appropriate
authority and claimed his annual increment
due on 01 July, 2015 in pursuance of law
laid down in the P. Ayyamperumal case
(supra) within three months."

14. A bare glance over the quoted
grounds taken in the special appeal and in
the
review
application
would
clear
reflects that in fact applicant is seeking
rehearing of the appeal, which according
to him was dismissed by an erroneous
judgment.

15. Admittedly, all such grounds were
available to the petitioner before the Writ
Court as well as before the Special
Appellate Court.

16. We do not find that the present
review
application
falls
within
the
parameters of the Order XLVII, rule 1
C.P.C. and we are not satisfied with the
argument advanced by the learned counsel
for the applicant particularly on the
strength of grounds D, E and F, which,
admittedly, had already been taken before
the Bench of which one of us (Justice Ajay
Bhanot) was a member, review whereof is
being sought.

17. Review application, accordingly,
stands rejected.
----------
(2022) 11 ILRA 551
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.11.2022

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.

Writ-A No. 9256 of 2021

Devendra Kumar Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Santosh Kumar Shukla

Counsel for the Respondents:
C.S.C.
552 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Service Law - Transfer - Government
Order dated 18.04.2018 - Clause 3, 4(4),
5, 10 - To allow the respondents to
transfer a teacher serving satisfactorily on
a post only to accommodate a person
seeking transfer on that post would be to
permit
uncontrolled
arbitrariness
and
whimsical action to the administrative
authorities. That itself is sufficient to annul the
transfer of the petitioner. (Para 13)

Perusal of the GO dated 18.04.2018
reveals, it provides for mechanism to
transfer teachers on their own request,
only. It does not contain a general policy
statement to enable transfer of teachers,
on
administrative
considerations
or
generally. Even to transfer teachers on their
own request, applications could be made to
seek transfer to a post mentioned in the list of
vacant
posts
only
(available
at
various
institutions at different districts), as notified and
uploaded on the related website in terms of
Clause 4(4) of the GO dated 18.04.2018. By
virtue of Clause 4(5) of that GO, the desirous
could apply for transfer only against such
notified vacant posts, and no other. No
disclosure has been made in the counter
affidavit as to the then existing vacancy
position
at
different
institutions
at
different districts, against which one teacher,
Smt. Pooja Tyagi may have applied, to be
transferred. (Para 6)

Undisputedly,
the
post
of
Assistant
Teacher (Mathematics) at Government
Inter College, Nandgram, Ghaziabad was
never vacant. The petitioner was serving
at that institution from before. He had not
applied for transfer. (Para 7)

In absence of any clause under the
government policy allowing for transfer to
be made generally, the discretion of the
administrative
authority
to
give
preference to the said Smt. Pooja Tyagi,
could not be exercised to dislodge the
petitioner from the post on which he was
working satisfactorily. No complaint or
objection exists as to the working of the
petitioner as Assistant Teacher (Mathematics) at
Government
Inter
College,
Nandgram,
Ghaziabad. (Para 12)
B. This action (of transfer) if permitted
would amount to a penalty imposed on
the teacher dislodged from his settled
place of posting, for no fault; without
sanction of law and without initiating any
disciplinary proceeding. (Para 13)

Consequently,
the
transfer
orders
dated
13.07.2021
(Nandgram
to
Tyodi)
and
03.09.2021 (Tyodi, Ghaziabad to Anooppur,
Dibai, Hapur) in so far as they seek to transfer
out the petitioner from the Government Inter
College, Nandgram, Ghaziabad are wholly
conflicted to law. They are wholly unsustainable.
Accordingly, the transfer orders are quashed.
(Para 14)

Writ petition allowed. (E-4)

Present petition assails transfer order
dated 13.07.2021, whereby the petitioner,
who was then working as Assistant
Teacher (Mathematics) at Government
Inter College, Nandgram, Ghaziabad, was
transferred intra-district, to Government
Inter College, Tyodi, Ghaziabad.

(Delivered by Hon'ble Saumitra Dayal
Singh, J.)

1. Heard Shri Santosh Kumar Shukla,
learned counsel for the petitioner and
learned Standing Counsel for the State.

2. Originally, the present petition was
filed to challenge the transfer order dated
13.07.2021 whereby the petitioner, who
was then working as Assistant Teacher
(Mathematics)
at
Government
Inter
College,
Nandgram,
Ghaziabad,
was
transferred intra-district, to Government
Inter College, Tyodi, Ghaziabad.

3. Perusal of the aforesaid order
reveals, it provided for a solitary transfer of
the petitioner. There was no other or
corresponding transfer contemplated or
disclosed therein. Upon the petition being
entertained, vide order dated 20.09.2021, it
11 All. Devendra Kumar Sharma Vs. State of U.P. & Ors.
553
was provided, the petitioner may not be
relieved unless he has already been
relieved. As a fact, the petitioner came to
be relieved.

4. On 03.09.2021, another transfer
order came to be passed whereby the
petitioner was transferred, this time interdistrict, from Government Inter College,
Tyodi, Ghaziabad to Government Inter
College
Anooppur,
Dibai,
Hapur.
Accordingly,
the
petitioner
sought
amendment to the writ petition. It was
allowed. Order dated 03.09.2021 (annexed
to the C.M. Amendment Application No. 2
of 2021), also speaks of a single transfer -
of the petitioner, from Government Inter
College, Tyodi, Ghaziabad to Government
Inter College Anooppur, Dibai, Hapur.

5. The counter affidavit reveals, the
transfer
of
the
petitioner
was
not
occasioned by any request of the petitioner.
Rather, the initial transfer was made under
the 4% Minister's quota contemplated
under Clause 10 of the Government Order
dated 18.04.2018, as made applicable to the
academic session 2021-22. That discretion
was exercised solely to accommodate one
Smt. Pooja Tyagi at Government Inter
College, Nandgram, Ghaziabad. She was
earlier working as an Assistant Teacher at
Government Higher Secondary School,
Salempur Gurjar, Gautam Budh Nagar.
Then, the second transfer order was
occasioned on part acceptance of the
objection of the petitioner being found true
i.e., there did not exist any vacant post of
Assistant
Teacher
(Mathematics)
at
Government
Inter
College,
Tyodi,
Ghaziabad. No other reason has been
disclosed.

6. As to legality of the action/transfer
order, perusal of the Government Order
dated 18.04.2018 reveals, it provides for
mechanism to transfer teachers on their
own request, only. It does not contain a
general policy statement to enable transfer
of
teachers,
on
administrative
considerations
or
generally.
Even
to
transfer teachers on their own request,
applications could be made to seek transfer
to a post mentioned in the list of vacant
posts only (available at various institutions
at different districts), as notified and
uploaded on the related website in terms of
Clause 4(4) of the Government Order dated
18.04.2018. By virtue of Clause 4(5) of that
Government Order, the desirous could
apply for transfer only against such notified
vacant posts, and no other. No disclosure
has been made in the counter affidavit as to
the then existing vacancy position at
different institutions at different districts,
against which the said Smt. Pooja Tyagi
may have applied, to be transferred.

7. Suffice to note, undisputedly, the
post of Assistant Teacher (Mathematics) at
Government Inter College, Nandgram,
Ghaziabad was never vacant. The petitioner
was serving at that institution from before.
He had not applied for transfer. Second
feature of that transfer policy is ? inter-se
preference to be given in consideration to
be made on all transfer applications. In that
four categories of applicants were specified
in Clauses 3 (i), (ii), (iii) and (iv) of the
Government Order dated 18.04.2018. They
were entitled to preferential consideration.

8. Prima facie, Smt. Pooja Tyagi does
not appear to qualify for preferential
consideration
under
any
of
those
categories. While she had claimed death of
both her parents and had further claimed
ill-health of her mother-in-law, those
facts/circumstances were not included
under any of the above noted clauses to
554 INDIAN LAW REPORTS ALLAHABAD SERIES
grant preference to consider her transfer
application, irrespective of her seniority
position. At the same time, it may be
recorded, that issue would remain relevant
and material for consideration of the claim
set up by Smt. Pooja Tyagi. Inasmuch as
the petitioner is not aggrieved by the
transfer sought by Smt. Pooja Tyagi from
Government Higher Secondary School,
Salempur Gurjar, Gautam Budh Nagar, no
binding observation is being made with
respect to that.

9. For the present purpose, Clause 5
of the Government Order dated 18.04.2018
allowed for exercise of choice of five
institution/s to which an applicant may seek
transfer to. In view of the Clause 4(4) of
that Government Order providing for
notification of vacant posts at different
institutions, in different districts read with
the further stipulation of "pradarshit
riktiyon" contained in Clause 4(5) thereof,
such choice could have been exercised by
an applicant and acted upon by the
respondents only with respect to such
notified vacant post/s only and not against
any post/s that was/were occupied or filled
up or which may not have been notified as
a vacant post.

10. Looked in that light, Clause 10 of
the Government Order dated 18.04.2018
reads as below:

"िनवहत में संिगण के प्रवतशत की सीमा
तक माननीय वििागीय मंत्री िी द्वारा वकसी
वशक्षक / वशवक्षका क अनुर ध के आिेिन ं पर
थिानान्तररत वकये िाने के आिेश विए िा
सकेंगे।"

11. In view of the above, the
discretion given to the administrative
authority under the above noted Clause 10
of the Government Order is not an
exception to the general policy but an aid to
the same. That discretion could be
exercised to transfer Smt. Pooja Tyagi to a
notified vacant post in preference over
other applicants, though she may not have
been
entitled
to
any
preferential
consideration under any of the four
categories of Clause 3 of the Government
Order dated 18.04.2018 and though she
may have stood lower in seniority and
therefore preference, for consideration of
transfer, first.

12. In absence of any clause under the
government policy allowing for transfer to
be made generally, the discretion of the
administrative authority to give preference
to Smt. Pooja Tyagi, could not be exercised
to dislodge the petitioner from the post on
which he was working satisfactorily. No
complaint or objection exists as to the
working of the petitioner as Assistant
Teacher (Mathematics) at Government
Inter College, Nandgram, Ghaziabad. The
petitioner never applied or consented to be
transferred
out
from
that
institution.
Therefore, the action taken to transfer the
petitioner to accommodate Smt. Pooja
Tyagi, is unauthorised and impermissible in
law.

13. To allow the respondents to
transfer a teacher serving satisfactorily on a
post only to accommodate a person seeking
transfer on that post would be to permit
uncontrolled arbitrariness and whimsical
action to the administrative authorities.
That itself is sufficient to annul the transfer
of the petitioner. Second, that action if
permitted would amount to a penalty
imposed on the teacher dislodged from his
settled place of posting, for no fault;
without sanction of law and without
initiating
any disciplinary
proceeding.
11 All. Yogendra Singh Yadav Vs. State of U.P. & Ors.
555
Third, apparently, the respondents are
themselves of that view, in as much as they
did not seek to transfer the Assistant
Teacher (Mathematics) at Government
Inter
College,
Tyodi,
Ghaziabad,
to
accommodate the petitioner. Rather they
have transferred the petitioner to such post
that was lying vacant at Government Inter
College Anooppur, Dibai, Hapur. Yet, that
very
principle
was
violated
while
displacing the petitioner from Government
Inter College, Nandgram, Ghaziabad, in the
first place. That is the extent of whimsical
exercise if not abuse of discretion.

14. Consequently, the transfer orders
dated 13.07.2021 and 03.09.2021 in so far
as they seek to transfer out the petitioner
from
the
Government
Inter
College,
Nandgram,
Ghaziabad
are
wholly
conflicted to law. They are wholly
unsustainable. Accordingly, the transfer
orders dated 13.07.2021 and 03.09.2021
transferring
the
petitioner
from
Government Inter College, Nandgram,
Ghaziabad, to Government Inter College,
Tyodi, Ghaziabad and from Government
Inter
College,
Tyodi,
Ghaziabad
to
Government
Inter
College
Anooppur,
Dibai, Hapur are quashed.

15. The petitioner be allowed to re-join
the Government Inter College, Nandgram,
Ghaziabad forthwith, without prejudice to the
rights of Smt. Pooja Tyagi to transfer under the
Government Order dated 18.04.2018. That
request may be reconsidered afresh, in
accordance
with
law,
considering
the
observations made above. That exercise be
completed within a one month from today,
against prior notice to her in that regard.
Meanwhile, she may continue to render service
at Government Inter College, Nandgram,
Ghaziabad, along with the petitioner.

16. Since the petitioner has been
wholly wronged, for no fault, and has been
forced to litigate, he is also found entitled
to costs that are assessed at Rs. 10,000/- per
month, for the period when the petitioner
could not work at Government Inter
College, Nandgram, Ghaziabad. Let costs
be paid out by the first respondent within
one month from today.

17. The petition stands allowed with
costs as above.
----------
(2022) 11 ILRA 555
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.10.2022

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Writ A No. 6422 of 2021

Yogendra Singh Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Pratik Chandra, Sr. Advocate, Sri Ashok
Khare

Counsel for the Respondents:
C.S.C., Sri Purnendu Kumar Singh

A. Service Law - Promotion - Prevention
of Corruption Act, 1988: Section 13(1)(C),
13(1)(D), 13(2) - Promotion etc. cannot
be
withheld
merely
because
some
disciplinary/criminal
proceedings
are
proposed to be initiated against the
employee concerned.

Disciplinary proceedings can be said to be
pending only when charge sheet is issued
to the delinquent employee. Criminal
proceedings can be said to be pending
only when charge sheet is submitted by