# Mahendra Pratap Singh v. State of U.P. & Ors

- **Citation:** (2023) 12 ILRA 592
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-30
- **Case number:** Writ-A No. 8246 of 2023
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-pratap-singh-v-state-of-u-p-ors-49484
- **Pages:** 5

## Headnote

of public interest - Challenge to transfer order
citing it to be stigmatic and punitive - Initial
transfer order merely St.d to be in public
interest - No stigma reflected therein -
Subsequent order passed in compliance of court
direction
considered
past
conduct
and
complaints - Such reference cannot render the
original order stigmatic or punitive - Long stay
of 32 years at one place also a valid ground for
transfer - Transfer is an incidence of service
and scope of judicial review is limited - No
interference warranted.

Case Law Discussed:

## Text

592 INDIAN LAW REPORTS ALLAHABAD SERIES
the considered opinion of this Court, the
judgment rendered by Hon'ble the Supreme
Court in the case of Maniben (supra) is
therefore clearly applicable upon AWWs,
AWHs engaged in Anganwadi Centers in
the State of U.P.

16. In view of judgment rendered by
Hon'ble the Supreme Court in the case of
Maniben Maganbhai
Bhariya
versus
District Development Officer Dahod &
Ors. Civil Appeal No.3153 of 2022 and
exercising extra ordinary power under
Article 226 of the Constitution of India,
opposite parties collectively are directed to
extend benefits of payment of Gratuity Act,
1972 to all eligible AWWs & AWHs
within a period of four months from the
date a certified copy of this order is
produced before the concerned authority.

17. Resultantly, the petition succeeds
and is allowed. The parties to bear their
own costs.
----------
(2023) 12 ILRA 592
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.11.2023

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ-A No. 8246 of 2023

Mahendra Pratap Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Rohit Nandan Shukla

Counsel for the Respondents:
C.S.C.

Held:
Transfer - Administrative transfer - Grounds
of public interest - Challenge to transfer order
citing it to be stigmatic and punitive - Initial
transfer order merely St.d to be in public
interest - No stigma reflected therein -
Subsequent order passed in compliance of court
direction
considered
past
conduct
and
complaints - Such reference cannot render the
original order stigmatic or punitive - Long stay
of 32 years at one place also a valid ground for
transfer - Transfer is an incidence of service
and scope of judicial review is limited - No
interference warranted.

Case Law Discussed:

1. Somesh Tiwari Vs U.O.I., (2009) 2 SCC 592

2. Kalabharati Advertising Vs Hemant Vimalnath
Narichania, (2010) 9 SCC 437

3. Registrar General, Madras High Court Vs R.
Perachi, (2011) 12 SCC 137

4. Sabhapati Pathak Vs St. of U.P., 2012 (30)
LCD 1344

5. Dharmendra Kumar Saxena Vs St. of U.P.,
2013 (7) ADJ 53

6. Dinesh Kumar P. Vs St. of U.P., Writ-A No.
7338 of 2023, decided on 03.11.2023

7. Ramakrishna Pal Vs St. of U.P., Writ Petition
No.
17746
(S/S)
of
2018,
decided
on
29.08.2018

Petition Dismissed.

(Delivered by Hon'ble Manish Mathur, J.)

1. Heard learned counsel for petitioner
and Mr. Aniruddh Singh, learned State
Counsel appearing for opposite parties 1 to
8.Affidavit of service has been filed
indicating notice upon opposite party no.9
who has however not put in appearance.

2. Petition has been filed challenging
order dated 30.06.2023and relieving dated
12 All. Mahendra Pratap Singh Vs. State of U.P. & Ors.
593
01.07.2023
whereby
petitioner
has
beentransferred from District Bahraich to
District Gonda on the post of Assistant
Development Officer (Panchayat Raj). Also
under challenge are consequential orders
dated 03.07.2023, report dated 29.08.2023
as well as order dated 11.09.2023 whereby
petitioner's representation against transfer
has been rejected.

3. It has been submitted that earlier
petitioner had filed WRIT - A No. - 6092
of 2023 challenging transfer order which
was
disposed
of
vide
order
dated
21.08.2023
directing
the
authority
concerned
to
consider
and
decide
petitioner's representation by a reasoned
and speaking order.It is in pursuance
thereof that order dated 11.09.2023 has
been
passed
rejecting
petitioner's
representation.

4. Learned counsel for petitioner has
drawn attention to fact that although
impugned transfer order dated 30.06.2023
simply indicates transfer of petitioner on
administrative/publicinterest grounds but in
impugned order dated 11.09.2023, fact that
petitioner has been transferred on stigmatic
grounds, which indicates malice in law, has
been adverted.

5. Learned counsel for petitioner has
indicated various portions of order dated
11.09.2023 to submit that a detailed
analysis has been given by opposite parties
for effecting impugned transfer order which
is therefore based only on complaints and
earlier enquiries held against petitioner in
which he was punished. Learned counsel
forpetitioner has also submitted that since
petitioner has already been punished for the
alleged misconduct, present transfer order
would amount to double jeopardy.It is
submitted that a bare perusal of impugned
order will make it evident that it has been
passed as a measure of punishment, which
is therefore in violation of Rule 15(a) of the
Fundamental
Rules
applicable
upon
petitioner.It is also submitted that since
impugned order is based only on the report
dated 29.08.2023, the order indicates nonapplication of mind by authority concerned
while passing the impugned order.Learned
counsel has placed reliance on following
judgments:-

(1) Somesh Tiwari v. Union of
India and others reported in (2009) 2 SCC
592 [Hon'ble the Supreme Court];

(2) Kalabharati Advertising v.
Hemant
Vimalnath
Narichania
and
others reported in (2010) 9 SCC 437
[Hon'ble the Supreme Court];

(3) The Registrar General High
Court of Judicature at Madras v. R.
Perachi and others reported in (2011) 12
SCC 137 [Hon'ble the Supreme Court];

(4) Sabhapati Pathakv. State of
U.P. and others reported in 2012(30) LCD
1344 [a coordinate Bench of this Court];

(5)
Dharmendra
Kumar
Saxenav. State of U.P. and others
reported in 2013(7) ADJ 53 [a coordinate
Bench of this Court]; and

(6)
Dinesh
Kumar
Pno.
182462102v.
State
of
U.P.
and
others,WRIT - A No. - 7338 of 2023
decided by this Bench on03.11.2023.

6. Learned State Counsel has refuted
the submissions advanced by learned
counsel for petitionerwith submissions that
a perusal of order dated 30.06.2023 will
make it evident that the same has been
594 INDIAN LAW REPORTS ALLAHABAD SERIES
passed only as a measure of administrative
transfer in public interest without attaching
any stigma to aforesaid transfer and it is
only
in
pursuance
of
decision
on
petitioner's representation that order dated
11.09.2023 has been passed.As such it is
submitted that transfer order cannot be said
to be stigmatic in nature.He has also placed
reliance
on
judgment
renderedby
a
coordinate
Bench
of
this
Court
in
Ramakrishna Pal (Pradhan Sahayak) v.
State of U.P. & others [Writ Petition
No.17746(S/S)
of
2018]
decided
on29.08.2018.

7. Upon consideration of submissions
advanced by learned counsel for the parties
and perusal of material on record, it is
evident that initially transfer order dated
30.06.2023 merely indicated transfer of
petitioner on administrative/public interest
grounds.There is no narration of any other
aspect in the transfer order.However, the
said order was challenged as indicated
herein
above
and
vide
order
dated
21.08.2023, the concerned authority was
directed
to
consider
and
decide
representation
of
petitioner
dated
03.07.2023 by a reasoned and speaking
order.It is in pursuance thereof, impugned
order dated 11.09.2023 has been passed.

8. A perusal of impugned order dated
11.09.2023 makes it evident that it is based
on the report dated 29.08.2023 submitted
by District Panchayat Raj Officer, Bahraich
and indicates various disciplinary actions
taken against petitioner and orders of
punishment passed against him during
course of his employment.The authority
thereafter
has
rejected
petitioner's
representationon ground that petitioner's
conduct is not in accordance with the
Conduct Rules, which would require him
not to continue in service in the present
place of posting.The orderhowever also
indicates the fact that petitioner has been
continuously posted in the present place of
posting for the past 32 years.

9. The aspect as to whether an order of
transfer can be issued by the employer on
stigmatic grounds have already been
considered in a number of judgments which
have been relied upon by learned counsel
for petitioner. In Somesh Tiwari(supra)
following has been indicated:-

"16.Indisputably an order of
transfer is an administrative order. There
cannot be any doubt whatsoever that
transfer, which is ordinarily an incident of
service should not be interfered with, save
in cases where inter alia mala fide on the
part of the authority is proved. Mala fide is
of two kinds?one malice in fact and the
second malice in law. The order in question
would attract the principle of malice in law
as it was not based on any factor germane
for passing an order of transfer and based
on an irrelevant ground i.e. on the
allegations made against the appellant in
the anonymous complaint. It is one thing to
say that the employer is entitled to pass an
order
of
transfer
in
administrative
exigencies but it is another thing to say that
the order of transfer is passed by way of or
in lieu of punishment. When an order of
transfer is passed in lieu of punishment, the
same is liable to be set aside being wholly
illegal."

10. Aforesaid reasoning has also been
adopted in various other judgments on that
point.

11. However, a coordinate Bench of
this Courtin Ramakrishna Pal(supra) has
taken a divergent view and has sought to
distinguish judgment rendered by Hon'ble
12 All. Mahendra Pratap Singh Vs. State of U.P. & Ors.
595
the
Supreme
Court
in
Somesh
Tiwari(supra) in the following manner:-

"19. When the facts of the instant
case are seen in the light of the principles
of law laid down by the Hon'ble Supreme
Court in the case of R.Perachi (supra),
Rajendra Singh (supra) and Janardhan
Debnath (supra) what clearly comes out is
that once transfer order itself indicates that
the same is being passed in a routine
manner then it would be desirable from the
point of view of the administration that
even if complaints are there, the employee
can be transferred out of unit/place
concerned. The employee concerned is not
faced with any stigma or any insinuation as
the order does not indicate so and
consequently, no interference would be
required in such a transfer order. To the
same effect is the Division Bench judgment
of this Court of Dr. Anil Kumar Pradhan
Vs. State of U.P."

"20. So far as the judgment in the
case of Somesh Tiwari (supra) over which
reliance has been placed by learned
counsel for the petitioner suffice to state
that subsequent to the said judgment of the
year 2008, the Hon'ble Supreme Court has
considered the matter in the case of R.
Perachi (supra) in the year 2011 as well as
in the case of Rajendra Singh (supra) in the
year 2009 and as such the aforesaid
subsequent judgments would prevail. Even
otherwise the question before the Hon'ble
Supreme Court in the case of Somesh
Tiwari (supra) was as to whether the High
Court while quashing the order of transfer
passed against the employee was correct in
directing that he would not be entitled to
the salary for the period after the modified
order of transfer till the date he joined at
the original place of transfer and was not a
question pertaining to punitive transfer.
Also, the order of transfer in the case of
Somesh Tiwari (supra) is not reflected in
the judgment of Hon'ble Supreme Court
and consequently it cannot be said whether
the said order itself reflected any allegation
or insinuation or complaint against the
employee concerned so as to have rendered
it a punitive order of transfer."

12. Upon applicability of aforesaid
judgments
in
the
present
facts
and
circumstances of the case, it is quite
evident that initial order pertaining to
transfer ofpetitioner dated 30.06.2023 does
not indicate any stigmatic ground against
petitioner and states that petitioner is being
transferred simply on administrative/public
interest grounds.It is only when aforesaid
order of transfer was challenged before this
Court that a specific direction was issued to
authority
concerned
to
advert
to
representation of petitioner and decide the
same
by
a
reasoned
and
speaking
order.Naturally in doing so the authority
concerned would be required to advert to
all the submissions raised by petitioner in
his
representation.Therefore
the
order
having been passed in compliance of
directions issued by this Court cannot be
termed to indicate transfer order having
been passed as a mode of punishment.

13. A perusal of judgments relied
upon by learned counsel for petitioner in
his favour are on the aspect that an order of
transfer cannot be effected as a mode of
punishment and cannot be on stigmatic
grounds.In the considered opinion of this
Court,aforesaid
judgments
would
be
applicable
in
the
present
facts
and
circumstances but in favour of the opposite
parties since there is no stigma attached to
the initial order of transfer of petitioner
dated
30.06.2023.Even
otherwise,
the
impugned order has also been passed on the
596 INDIAN LAW REPORTS ALLAHABAD SERIES
ground that petitioner has been posted in a
particular district for the past 32 years.

14. It is admitted by learned counsel
for the parties that transfer is an incidence
of service as has already been held in a
number of judgments which does not
require reiteration.An absolute leeway is to
be granted to the State authoritiesfor
transfer and postings of its employees.The
aspect of judicial review in such transfer
and postings is on a very limited scope,
which does not appear to be made out in
the present case.

15. Although, the impugned order
appears to be based on report dated
29.08.2023 but the same does indicate the
fact of conduct of petitioner as well as fact
that he has been posted in a particular place
for the past 32 years. Once a composite
order has been passed on various grounds,
no segregationof grounds indicated in the
order are required to be undertakenand the
order has to be seen in its composite sense
particularly when, as in the present case
where the order also indicates prolonged
continuance of petitioner in a particular
district.

16. Courts are not required to embark
upon a fishing expedition to find out ways
and means to scuttle routine transfer orders,
which prima facie are not stigmatic.There
may be instances where considering the
nature and conduct of an employee, a full
fledged enquiry is not required but at the
same time, his further continuance in view
of long posting at a particular place may
also not be desirable.

17. In considered opinion of this
Court, in such a situation, if transfer order
is issued as a routine transfer without any
reflection on conduct/complaints against
the employee, it would not come within
purview of judgment rendered in Somesh
Tiwari(supra).

18. In view discussions made herein
above, in the considered opinion of this
Court, the transfer order against petitioner
does not appear to be stigmatic in nature at
all.It is only the subsequent order dated
11.09.2023 which can be termed to be
stigmatic but such reasons were required to
be recorded by authorities concerned in
view of directions issued while disposing
of petitioner's earlier petition.In fact not
having recorded anysuch reasons would
have been deemed to be contemptuous on
part of the authority concerned.

19. In view of aforesaid, the petition
being devoid of merits is dismissed. The
parties to bear their own costs.
----------
(2023) 12 ILRA 596
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.10.2023

BEFORE

THE HON'BLE SYED QAMAR HASAN RIZVI, J.

Writ-B No. 3357 of 2023

Awadhesh Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Punit Updhyay, Sri Arun Kumar Gupta
(Sr. Adv.)

Counsel for the Respondents:
C.S.C., Sri Pankaj Kumar Gupta, Sri
Satendra Bahadur Yati

Civil Law--The
Constitution of
India,
1950-Article 226 - The Uttar Pradesh
Revenue Code- 2006-Section 208(2) - The