# Mohar Singh Kushwaha v. State of U.P. & Anr

- **Citation:** (2025) 12 ILRA 499
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-12-19
- **Case number:** Writ A No. 15202 of 2025
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohar-singh-kushwaha-v-state-of-u-p-anr-52944
- **Pages:** 4

## Text

12 All. Mohar Singh Kushwaha Vs. State of U.P. & Anr.
499
one place to another, in an unpleasant
situation, perhaps his/her skill being
specialist; would have of no avail; for the
Bank or any of the Institution. In fact, the
authorities undoubtedly have to look into
the interest of the Bank/Institution but at
the same time, it has also to be considered
that if the employees of the Bank or any
Institution are given conducive atmosphere
of working, the same may enhance the
productivity of such Institution, as the
employees are ultimately the human
beings. This principle cannot be a straitjacket formula but the same shall be
applicable in the peculiar facts and
circumstances of each and every case.

17. This Court has also noticed that
reiterating the same ground, the decision
has been taken by the Bank while rejecting
the request of the petitioner for cancellation
of his transfer and, therefore, this Court has
twice intervened in the matter. This time
also, the order dated 10.11.2025 is
reiteration of earlier ground of rejection
and the Bank authorities have also failed to
consider the request of the petitioner
cancelling of his transfer in terms and
conditions as provided in the transfer
policy of the Bank.

18. In view of the above submissions
and discussions, the order impugned dated
10.11.2025 and the subsequent orders
thereof, are hereby quashed.

19. The petitioner is given liberty to
move a fresh claim, agitating all the
grounds, before the competent authority,
within a period fifteen days and on
receiving
such
representation,
the
competent
authority
is
directed
to
consider and decide the same within
further period of six weeks, strictly in
accordance with law.

20. The order passed on representation
shall be communicated by the competent
authority to the petitioner.

21. For the aforesaid period, the effect
and operation of the impugned transfer
order dated 18.7.2025 shall remain stayed
and the petitioner shall not be forced to join
on the transferred place of posting.

22. The writ petition is allowed
accordingly.
----------
(2025) 12 ILRA 499
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.12.2025

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ A No. 15202 of 2025

Mohar Singh Kushwaha ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Issue for consideration
 Whether a fresh attachment order could have
been passed in the garb of reinstating petitioner
in service, when the petitioner prior to
suspension was posted in District Mathura and
operation of suspension order was stayed?

Headnotes
A. Service Law - Code of Civil Procedure,
1908: Section 144 - The party aggrieved is
required to be placed in the same position
in which he/she was prior to passing of
the order which was impugned and has
either been stayed or quashed. The said
principle is an existing rule of justice,
equity and fair play. (Para 11)

Although specific provisions of the Code Civil
Procedure are not applicable in writ jurisdiction,
but the general principles, particularly that of
restitution, would be applicable in the present
case as well. (Para 12)
500 INDIAN LAW REPORTS ALLAHABAD SERIES
Earlier, petitioner while being posted as
Food
Safety
Officer
at
Mathura
was
suspended vide order dated 16.10.2025
which was challenged in Writ A No.13092 of
2025 and vide order dated 19.11.2025, the
operation of suspension order was stayed.
It is submitted that in pursuance thereof,
impugned order dated 17.12.2025 has been
passed but instead of posting petitioner at
the original place of posting, he has been
attached to the Head Office at Lucknow.
(Para 3)

It is submitted that once the petitioner prior
to
suspension
was
posted
in
District
Mathura and with the stay order of this
Court in operation, the fresh attachment
order could not have been passed in the
garb of reinstating petitioner in service.
(Para 4)

In present case, it being evident that
impugned order dated 17.12.2025 is not in
consonance with the directions issued by
this Court on 19.11.2025, the same is
quashed by issuance of a writ in the nature
of certiorari, directing opposite party no.2
i.e. Commissioner Food Safety and Drug
Administration, Sector-C, Aliganj, Lucknow
to post petitioner in the place where he was
posted prior to issuance of suspension
order. (Para 13)

Writ petition allowed. (E-4)

Case Law Cited
Citibank N.A. Vs. Hitten P. Dalal, (2016) 1 SCC
411 (Para 11)

List of Acts
 Code of Civil Procedure, 1908.

List of Keywords
 suspension, stay order, restitution, service,
justice, equity, fair play.

Appearances for Parties
For
Petitioner(s):
Ajay
Kishor
Pandey,
Tanveer Ahmad Lari
For Respondent(s): C.S.C.

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

1. Heard learned counsel for petitioner
and learned State counsel for opposite
parties.

2. Petition has been filed challenging
order dated 17.12.2025 whereby petitioner
has been attached to the Headquarter at
Lucknow.

3. It is submitted that earlier, petitioner
while being posted as Food Safety Officer
at Mathura was suspended vide order dated
16.10.2025 which was challenged in Writ
A No.13092 of 2025 and vide order dated
19.11.2025, the operation of suspension
order was stayed. It is submitted that in
pursuance thereof, impugned order has
been passed but instead of posting
petitioner at the original place of posting,
he has been attached to the Head Office at
Lucknow.

4. It is submitted that once the
petitioner prior to suspension was posted in
District Mathura and with the stay order of
this
Court
in
operation,
the
fresh
attachment order could not have been
passed in the garb of reinstating petitioner
in service.

5. It is further submitted that since
inquiry proceedings are already continuing
against petitioner in District Agra Division,
it is necessary for petitioner to continue in
his earlier place of posting, particularly
since no proceedings against petitioner are
ongoing at Lucknow.

6. Learned State counsel has been
provided
written
instructions
dated
19.12.2025, a copy of which is taken on
record and as per which even by passing of
impugned order, no adverse effect would
occasion to petitioner since he is continuing
in service. It is also indicated that serious
12 All. Mohar Singh Kushwaha Vs. State of U.P. & Anr.
501
charges
have
been
levelled
against
petitioner and therefore it will not be
conducive for petitioner's posting in his
erstwhile place.

7. Upon consideration of submissions
advanced by learned counsel for parties and
perusal of material on record, the fact
pertaining to petitioner's suspension and
stay thereof as indicated here-in-above are
admitted.

8. In the considered opinion of this
Court, once the suspension order of
petitioner dated 16.10.2025 was stayed in
its entirety, it was incumbent upon opposite
parties to have continued petitioner in his
place of posting prior to passing of the
suspension order.

9. However instead of adopting the
aforesaid method, opposite parties in the
garb of reinstating petitioner in service,
have attached him at Lucknow.

10. The aforesaid procedure is totally
alien to service jurisprudence and even
otherwise the concept of prejudice being
caused is irrelevant since opposite parties
were bound to comply with direction issued
by this Court.

11.
The
aspect
can
also
be
considered in terms of principles of
restitution as specified in Section 144 of
the Code of Civil Procedure whereby the
party aggrieved is required to be placed
in the same position in which he/she was
prior to passing of the order which was
impugned and has either been stayed or
quashed. The said principle is an
existing rule of justice, equity and fair
play. The said proposition has been
considered by Supreme Court in the case
of Citibank N.A. v. Hitten P. Dalal
[(2016) 1 SCC 411] in the following
manner:-

"17. In Kerala SEB v. M.R.F.
Ltd. (1996) 1 SCC 597 also the view
taken by this Court was similar. But it
was further clarified that the Court has
a duty that in the matter of restitution
justice be done as per facts of the case.
In granting relief of restitution the Court
"should
not
be
oblivious
of
any
unmerited hardship to be suffered by the
party against whom action by way of
restitution
is
taken."
This
Court
favoured a pragmatic view and grant of
relief in a manner as may be reasonable,
fair and practicable without causing
unmerited hardships to either of the
parties. In South Eastern Coalfields
Limited v. State of M.P., (2003) 8 SCC
648,this
Court
re-emphasized
that
restitution is for meeting the ends of
justice and depends upon the peculiar
facts and circumstances of the case. This
Court further clarified in para 27 that as
held by Privy Council in the case of Jai
Berham vs. Kedar Nath Marwari, AIR
1922 PC 269, Section 144 CPC is rather
a statutory recognition of an already
existing rule of justice, equity and fair
play and therefore even apart from
Section 144 the Court has inherent
jurisdiction to order restitution so as to
do complete justice between the parties.
This Court approved the view of the
Privy Council that the Court has to act
rightly and fairly according to the
circumstances,
towards
all
parties
involved.

19. In the ultimate analysis we
find that the law on restitution under
Section 144 of the CPC is quite well settled.
It vests expansive power in the Court but
such power has to be exercised to ensure
equity, fairness and justice for both the
502 INDIAN LAW REPORTS ALLAHABAD SERIES
parties. It also flows from more or less
common stand of parties on the principle of
law that for ascertaining the value of the
property which is no longer available for
restitution on account of sale etc., the
Court should adopt a realistic and
verifiable approach instead of resorting to
hypothetical and presumptive value. It is
also one of the established propositions
that in the context of restitution the Court
should keep under consideration not only
the loss suffered by the party entitled to
restitution but also the gain, if any, made
by other party who is obliged to make
restitution. No unmerited injustice should
be caused to any of the parties."

12. Although specific provisions of the
Code Civil Procedure are not applicable in
writ jurisdiction, but the general principles,
particularly that of restitution, would be
applicable in the present case as well.

13. In view of aforesaid facts and
circumstances,
it
being
evident
that
impugned order dated 17.12.2025 is not in
consonance with the directions issued by
this Court on 19.11.2025, the same is
quashed by issuance of a writ in the nature
of certiorari, directing opposite party no.2
i.e. Commissioner Food Safety and Drug
Administration,
Sector-C,
Aliganj,
Lucknow to post petitioner in the place
where he was posted prior to issuance of
suspension order.

14. Resultantly, petition succeeds and
is allowed at the admission stage itself.
Parties to bear their own costs.
----------
(2025) 12 ILRA 502
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.12.2025

BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ A No. 16556 of 2024

Manoj Kumar Mishra ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Issue(s) for consideration
 Whether the delayed issue of the regularization
order would divest the petitioner of the right to
receive pension under the old pension scheme
that was in vogue at the time when his right to
regularization crystallized?

Headnotes
A. Service Law - Uttar Pradesh Palika
(Centralised) Services Rules, 1966: Rules
21-A, 31 - The delayed issue of the
regularization order on 11.10.2006 would
not divest the petitioner of the right to
receive pension under the old pension
scheme that was in vogue at the time
when
his
right
to
regularization
crystallized. Apparently, the petitioner had
been appointed on an ad hoc basis way back on
07.03.1995, and that ad hoc appointment had
to be against a vacant post, substantive or
temporary, as the said Rule contemplates.
There was, therefore, no justification for the
respondents
to
have
delayed
issuing
regularization orders after the amendment was
notified on 10.04.2003. Therefore, the State's
inaction or prolixity in issuing the necessary
regularization order would not divest the
petitioner of his right to regularization that
accrued u/Rule 21-A(1) of the Rules of 1966 at
the relevant point of time, when the old pension
scheme was still in force. (Para 14 to 16)

If a different view of the matter is taken
and one were to go simply by the date of
regularization and the prevalent pension
scheme, it would introduce an element of
arbitrariness, in that, that the State could
delay issuing the regularization order, to
which the petitioner was entitled under
the Rules on the date the Rule came into
force until such time that the new pension
scheme was introduced. There is no valid
justification offered by the respondents for all
the delay between 10.04.2003, when Rule 21- A