# Dr. Ramanand v. State of U.P. and others - **Citation:** (2007) 1 ILRA 76 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2006-09-13 - **Case number:** Civil Misc. Writ Petition No.39727 of 2006 - **Bench:** Amitava Lala, V.C. Misra - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-ramanand-v-state-of-u-p-and-others-40885 - **Pages:** 3 ## Headnote Constitution of India, Art. 226-Transfer Order-Challenged as-without jurisdiction-petitioner a class-II officerChief Medical Officer on the letter of such minister having no concerned with medical Department-No. G.O. or circular produced empowering C.M.O. to pass transfer order of a class-II officers-heldorder of Transfer without jurisdiction can not be-sustained. Held: Para 5 We are of the opinion that since no Government Order available to the concerned C.M.O. at the relevant point of time, it appears that passing of the order of transfer was without jurisdiction, therefore, such order cannot be sustained. Hence the impugned order stands quashed. Case law discussed: 2003 (11) SCC-740 2005 (3) SCC-153 2002 (1) UPLBEC-369 2004 (III) UPLBEC-2225 ## Text 76 INDIAN LAW REPORTS ALLAHABAD SERIES [2007 petitioner was not given any opportunity and there is also non-application of mind. Since no reasons have been given, the impugned order suffers from error apparent on the face of the record and is liable to be quashed. 17. As a result of foregoing discussion, the writ petition succeeds and is allowed and the impugned order dated 10.4.2006 is quashed. The Opposite party is directed to declare result after evaluation of answer-sheets. 18. In the facts and circumstances of the case, there would be no order as to costs. Petition Allowed. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 13.09.2006 BEFORE THE HON'BLE AMITAVA LALA, J. THE HON'BLE V.C. MISRA, J. Civil Misc. Writ Petition No.39727 of 2006 Dr. Ramanand ...Petitioner Versus State of U.P. and others ...Respondents Counsel for the Petitioner: Sri Suneet Kumar Counsel for the Respondents: Sri Ramanand Pandey Sri Abhishek Kumar Sri R.S. Sengar S.C. Constitution of India, Art. 226-Transfer Order-Challenged as-without jurisdiction-petitioner a class-II officerChief Medical Officer on the letter of such minister having no concerned with medical Department-No. G.O. or circular produced empowering C.M.O. to pass transfer order of a class-II officers-heldorder of Transfer without jurisdiction can not be-sustained. Held: Para 5 We are of the opinion that since no Government Order available to the concerned C.M.O. at the relevant point of time, it appears that passing of the order of transfer was without jurisdiction, therefore, such order cannot be sustained. Hence the impugned order stands quashed. Case law discussed: 2003 (11) SCC-740 2005 (3) SCC-153 2002 (1) UPLBEC-369 2004 (III) UPLBEC-2225 (Delivered by Hon'ble Amitava Lala, J.) Amitava Lala, J.- 1. The petitioner has challenged the order of transfer dated 6th July, 2006 taking two grounds i.e. (i) mala fide (ii) without jurisdiction. The petitioner contended specifically taking two points, first that Chief Medical Officer (hereinafter called as C.M.O.) had no jurisdiction on 6th July, 2006 to transfer him from one place to another within the district. We find from the annexure-5 of the rejoinder affidavit that C.M.O. is entrusted with such power only from 31st July, 2006. State has contended by filing counter affidavit that such power of the C.M.O. was preexisting from 22nd April, 1987. We have gone through the same and found that it will be applicable only in respect of Class-C and Class-D officers. So far as the clause-5 order impugned in vernacular is concerned, although the Government Order will be applicable in general, but for the later part of such Government Order it implies that there is a confusion whether the Level I and Level II officers can be transferred or not. Petitioner contended that he is a 1 All] Dr. Ramanand V. State of U.P. and others 77 Level II officer, therefore, he cannot be transferred. According to us, had the power existed there would no have any necessity of issuance of Government Order. In further in paragraph 3 of the Government Order dated 31st July, 2006 it is categorical that from now onwards such order will be effective meaning thereby such power is prospective. Therefore, the impugned order, which was passed earlier prior to the date of giving effect of such Government Order, cannot be made by the C.M.O. The second point, which has been taken by the petitioner, is in respect of mala fide exercise of power on the basis of a letter of a Minister dated 6th July, 2006 itself. The Minister is not the concerned Minister of the department. In the second paragraph of the letter being annexure-2 to the writ petition he specifically directed the authority to transfer the petitioner from the place at the earliest. Therefore, it was a clear directive of a Minister who according to the learned counsel appearing for the petitioner is not concerned about the affairs of the department. We have gone through two recent judgments delivered by the Supreme Court one of such reported in (2003) 11 SCC 740 (Sarvesh Kumar Awasthi v. U.P. Jal Nigam and others) where under it was held that transfer of an officer is required to be effective on the basis of set norms or guidelines. The power of transferring an officer cannot be wielded arbitrarily, mala fide or an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned. For better administration the officers concerned must have freedom from fear of being harassed by repeated transfers or transfers ordered at the instance of someone who has nothing to do with the business of administration. In (2005) 3 SCC 153 (Suresh Chandra Sharma v. Chairman U.P.SEB and others) it was held that interference in transfers and posting with political patronage has totally destroyed the autonomous nature of the authority therein i.e. the Electricity Board. Therefore, the same was discouraged by the Supreme Court. 2. Learned Standing Counsel contended before the Court by citing (2002) 1 UPLBEC 369 (Narendra Kumar Rai v. State of U.P. and others) where under Division Bench of this Court held that there is no presumption that the authority passing the transfer orders has not applied his independent mind. It is quite likely that the authority was not aware of the situation and after the full and correct facts were brought to his notice he decides to take appropriate action on objective consideration. This Court is, therefore, clearly of the opinion that without there being anything more, the mere fact that a transfer order has been passed soon after a complaint has been sent by a MLA or MP or a political person to the minister or superior officers of the concerned department, it cannot be branded as having been passed without application of mind or on the dictate of a political person. 3. In fact the Division Bench of this Court wanted to make a line in between not to transfer anybody on the basis of letter of MLA, MP or political persons or to take steps with mala fide intention. 4. Further in (2004) 3 UPLBEC 2225 (State of U.P. and others v. Gobardhan Lal) Supreme Court again held that this Court often reiterated that the order of transfer made even in 78 INDIAN LAW REPORTS ALLAHABAD SERIES [2007 transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless it is shown to be vitiated by mala fides or is made in violation of any statutory provision. 5. We are of the opinion that since no Government Order available to the concerned C.M.O. at the relevant point of time, it appears that passing of the order of transfer was without jurisdiction, therefore, such order cannot be sustained. Hence the impugned order stands quashed. 6. The writ petition is allowed. 7. However, no order is passed as to costs. But passing of this order will not debar the authority concerned to pass such order afresh in accordance with law. Petition Allowed. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 19.09.2006 BEFORE THE HON'BLE SUDHIR AGARWAL, J. Civil Misc. Writ Petition No. 40677 of 2004 Smt. Kusum Singh ...Petitioner Versus State of U.P. and others ...Respondents Counsel for the Petitioner: Sri R.K. Pandey Sri S.K. Shukla Counsel for the Respondents: Sri Abhinav Upadhyay S.C. Constitution of India, Art. 226-Service Law-Right of appointment-Shiksha Mitra-life of appointment-one yearprovision for renewal is subsequent year governed by the G.O.-petitioner stood top most candidate in merit list-denial on the ground-her mother-in-law is village Pradhan-being president of selection committee falls under prohibited relationship under G.O. dated 1.7.2000even under Rule 105 (5) of U.P. Panchayat Raj Rules 1947-mother-inlaw not specified-contention about denied of her claim by efflux of timeinfractuous-not available-pendency of writ petition-shall not vanish the right her appointment and to right for consideration of renewal of terms. Held: Para 12 Since the petitioner has been denied appointment on the post of Shiksha Mitra, she also stand denuded of her right to be considered for renewal of the term as per para 5 of the aforesaid Government Order. The pendency of this case before this Court shall not vanish the right of petitioner to get appointment on the post of Shiksha Mitra and also to loose right to be considered for renewal of the term. The scheme laid down in the aforesaid Government Orders makes it clear that once a person is selected as Shiksha Mitra, and has performed satisfactory, he is not be terminated or substituted by another person. In these circumstances, it cannot be said that the writ petition is rendered infructuous by efflux of time. Case law discussed: 2005 (2) E.S.C.-1199 relied on. (Delivered by Hon'ble Sudhir Agarwal, J.) 1. Heard Sri R.K. Pandey, learned counsel for the petitioner and Sri Abhinav Upadhyay, learned Standing Counsel for the respondents.