# Mahendra Kumar Yadav v. State of U.P. and others

- **Citation:** (2013) 2 ILRA 678
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-04-12
- **Bench:** Amreshwar Pratap Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-kumar-yadav-v-state-of-u-p-and-others-42549
- **Pages:** 2

## Headnote

Constitution Of India-Art. 226- Service
Law-transfer in garb of complaints-on
direction of such minister having no
concern
with
Basic
education
department denotes complete surrender
of power by authority concern-being
malice
in
law-held-not
sustainablequashed.

Held: Para-6
The Minister of another department can
only make a request and he cannot pass an
order for the transfer of an Assistant
Coordinator
who
is
under
the
Basic
Education
Department.
The
Minister,
therefore, transgressed his authority and
the Basic Education Officer committed a
manifest error by surrendering to the
jurisdiction of the concerned Minister. If the
head of another department is allowed to
pass orders for a different department, the
entire administration would go haywire and
would, to an extent, violate the rules of
business. The order, therefore, suffers from
malice in law.

## Text

678 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
and that compensation would be equivalent
to fifteen days' average pay for every
completed year of service order of service or
any part thereof.

9. From the aforesaid, it is clear that
Section-6-N would come into play, if a
workman is retrenched for any reason
whatsoever except by way of disciplinary
action. If disciplinary action is adopted and the
services of the workman is terminated on
account of a disciplinary action, then
retrenchment compensation is not payable and
Section 6-N is not applicable.

10. In the light of the aforesaid, the
provision of Section-6- N is not attracted till
such time as the order of termination is not
set aside. Consequently, the impugned award
can not be sustained and is quashed.

11. The writ petition is allowed
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.04.2013

BEFORE
THE HON'BLE AMRESHWAR PRATAP
SAHI, J.

Civil Misc. Writ Petition No. 20087 Of 2013

Mahendra Kumar Yadav
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Vijay Kumar Pandey
Sri Bhrigu Ram Ji (Pandey)

Counsel for the Respondents:
C.S.C., Sri Mrig Raj Singh
Sri Sanjay Kumar Prajapati

Constitution Of India-Art. 226- Service
Law-transfer in garb of complaints-on
direction of such minister having no
concern
with
Basic
education
department denotes complete surrender
of power by authority concern-being
malice
in
law-held-not
sustainablequashed.

Held: Para-6
The Minister of another department can
only make a request and he cannot pass an
order for the transfer of an Assistant
Coordinator
who
is
under
the
Basic
Education
Department.
The
Minister,
therefore, transgressed his authority and
the Basic Education Officer committed a
manifest error by surrendering to the
jurisdiction of the concerned Minister. If the
head of another department is allowed to
pass orders for a different department, the
entire administration would go haywire and
would, to an extent, violate the rules of
business. The order, therefore, suffers from
malice in law.

(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)

1. Heard Sri B.R.J. Pandey, learned
counsel for the petitioner, and Sri Sanjay
Kumar Prajapati, learned counsel for the
respondent No.5 and Sri Mrig Raj Singh
learned counsel for the Respondent No.4
and learned Standing Counsel for the
Respondent Nos. 1,2 and 3 who all have
assisted the Court in relation to the
impugned transfer order dated 2nd April,
2013. This transfer order has been opposed
reciting that it is on account of certain
allegations made against the petitioner and
complaints received that he is being
transferred from Dharmapur to Muftiganj.
Learned counsel submits that this recital is
absolutely false inasmuch as neither the
petitioner was made aware of any such
complaint nor any such inquiry has been
communicated so as to gather that there is a
complaint against the petitioner while
working as an Assistant Coordinator.
2 All] Mahendra Kumar Yadav Vs. State of U.P. and others
679

2. Sri Pandey submits that this entire
transfer order is based on the request of
the Respondent-Shashi Kant Yadav who
moved an application before Dr. Paras
Nath Yadav a Minister of the State
Government of the Department of Minor
Irrigation and Animal Husbandry.

3. It is urged that the said Minister
passed an order on 30.1.2013 which is
endorsed on the application filed by Sri
Shashi Kant Yadav copy whereof is
Annexure-6 to the Writ petition. The
Minister has categorically directed the
Basic Education Officer to carry out the
transfer order as per the request of Shashi
Kant Yadav. Sri Pandey submits that it is
the request of Sri Shashi Kant Yadav
which has been translated into the transfer
order without there being any basis for the
complaint as alleged.

4. Sri Pandey, therefore, contends
that the order amounts to clear surrender
of jurisdiction before the Minister of
another
department
by
the
Basic
Education Officer on a totally false
pretext. He, therefore, submits the order
suffers from malice in law and deserves to
be set aside.

5. Sri Mrig Raj Singh contends that
there was a complaint against the
petitioner and that he is in possession of
the said complaint letter which has been
made the basis of the transfer.

6. Be that as it may, it remains
undisputed that the transfer may have
been apparently triggered on an alleged
complaint but it also stands established on
record that Mr. Shashi Kant Yadav was
accommodated against the same post on
the direction issued by the Minor
Irrigation
and
Animal
Husbandry
Minister. It is, therefore, clear to the Court
that the subsequent alleged complaint is
nothing else but a device to give cover to
the transfer order and, therefore, the order
suffers from malice in law. The Minister
of another department can only make a
request and he cannot pass an order for
the transfer of an Assistant Coordinator
who is under the Basic Education
Department. The Minister, therefore,
transgressed his authority and the Basic
Education Officer committed a manifest
error by surrendering to the jurisdiction of
the concerned Minister. If the head of
another department is allowed to pass
orders for a different department, the
entire administration would go haywire
and would, to an extent, violate the rules
of business. The order, therefore, suffers
from malice in law.

7. The impugned order dated
2.4.2013 is quashed.

8. The petitioner shall not be
disturbed from the place of his posting
under the impugned order.

9. So far as Sri Shashi Kant Yadav is
concerned, in the event he wants a
transfer on his own request, it is open to
him to approach the Basic Education
Oficer for the redressal of his grievance.

10. The writ petition is allowed.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.04.2013

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 20172 Of 2013

Smt. Pooja and another
..Petitioners