# Mukesh and others v. State of U.P. and others

- **Citation:** (2005) 2 ILRA 509
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-06-07
- **Case number:** Special Appeal No. 718 of 2005
- **Bench:** Dr. B.S. Chauhan, Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mukesh-and-others-v-state-of-u-p-and-others-40627
- **Pages:** 6

## Headnote

A. Constitution of India, Article 225Service Law-Transfer order-given effect
to can be recalled-writ court should not
interfere with such order unless the
allegations of mala-fide or the violation
of Rule exist.

Held: Para 10

Thus, it becomes abundantly clear from
the aforesaid judgment that even if the
transfer order has been given effect to,
the employer has a power to recall the
same and unless the allegations of mala
fides are alleged or violation of the Rules
are shown, the Writ Court should not
generally interfere.

B. Constitution of India, Article 226Service Law-Transfer order-posting of
two officers at the same post-held not
proper
court
expressed
its
great
concern-direction
issued
of
action
against the authority be taken-who
passed such order-but both the officer
should not be posted at the existing
place.

Held: Para 13

The question that also draws attention is
as to whether salary to two persons can
be ordered for being paid as against one
post. A single post in our opinion cannot
have
a
double
occupancy
simultaneously.
One
post
can
be
occupied by only one person at a time. A
post carries with it a designation and a
financial burden on the State. There is no
rule, brought to our notice, which may
contemplate payment of salary to two
persons simultaneously against one post.
Case law discussed:
AIR 1991 SC 1605
AIR 1993 SC 2444
AIR 1992 SC 519
AIR 1995 SC-813
1995 (Supply) 3 SCC-214
1995 (Supply) 2 SCC-151
1994 SCC (6) 578
1995 (Supply) 4 SCC-169
AIR 2001 SC 1748
2001 (8) SCC-574
AIR 2002 SC 77
AIR 2003 SC-1115
2003 (7) SCC-403
AIR 2004 SC 4121
2004 (4) SCC-245
AIR 1989 SC-1433
1994 (2) UPLBEC-1030
1987 (5) LCD 253
W.P.No. 2028/85 decided on 10.5.85
W.P.No. 2205/05 decided on 20.5.2005
1995 (2) UPLBEC 1128
1958 ALJ 283
AIR 2004 SC-4272
AIR 1998 SC-925

## Text

2 All] Mukesh and others V. State of U.P. and others

 509
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.06.2006

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE DILIP GUPTA, J.

Special Appeal No. 718 of 2005

Murari Singh Sisodia

...Petitioner
Versus
The State of U.P. & others ...Respondents

Counsel for the petitioner:
Sri A.N. Tripathi

Counsel for the Respondents:
Sri Hemendra Kumar

A. Constitution of India, Article 225Service Law-Transfer order-given effect
to can be recalled-writ court should not
interfere with such order unless the
allegations of mala-fide or the violation
of Rule exist.

Held: Para 10

Thus, it becomes abundantly clear from
the aforesaid judgment that even if the
transfer order has been given effect to,
the employer has a power to recall the
same and unless the allegations of mala
fides are alleged or violation of the Rules
are shown, the Writ Court should not
generally interfere.

B. Constitution of India, Article 226Service Law-Transfer order-posting of
two officers at the same post-held not
proper
court
expressed
its
great
concern-direction
issued
of
action
against the authority be taken-who
passed such order-but both the officer
should not be posted at the existing
place.

Held: Para 13

The question that also draws attention is
as to whether salary to two persons can
be ordered for being paid as against one
post. A single post in our opinion cannot
have
a
double
occupancy
simultaneously.
One
post
can
be
occupied by only one person at a time. A
post carries with it a designation and a
financial burden on the State. There is no
rule, brought to our notice, which may
contemplate payment of salary to two
persons simultaneously against one post.
Case law discussed:
AIR 1991 SC 1605
AIR 1993 SC 2444
AIR 1992 SC 519
AIR 1995 SC-813
1995 (Supply) 3 SCC-214
1995 (Supply) 2 SCC-151
1994 SCC (6) 578
1995 (Supply) 4 SCC-169
AIR 2001 SC 1748
2001 (8) SCC-574
AIR 2002 SC 77
AIR 2003 SC-1115
2003 (7) SCC-403
AIR 2004 SC 4121
2004 (4) SCC-245
AIR 1989 SC-1433
1994 (2) UPLBEC-1030
1987 (5) LCD 253
W.P.No. 2028/85 decided on 10.5.85
W.P.No. 2205/05 decided on 20.5.2005
1995 (2) UPLBEC 1128
1958 ALJ 283
AIR 2004 SC-4272
AIR 1998 SC-925

(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1. This Special Appeal has been
filed against the judgment and order of
the
learned
Single
Judge
dated
12.05.2005, by which the writ petition of
the
present
appellant
against
the
impugned
transfer
order
has
been
dismissed, though the petition of the
respondent no.5 has been allowed.
510 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
2. The facts and circumstances
giving rise to this case are that vide order
dated 10.07.2004, Dharam Pal Singh, the
respondent no.5 was transferred from
Agra to Etah. By the same transfer order,
the present appellant was transferred from
Etah to Jhansi on the post of Farm
Superintendent. Appellant filed a writ
petition before the Lucknow Bench of this
Court challenging his transfer order from
Etah
to
Jhansi
dated
10.07.2004.
However, the same stood dismissed as
withdrawn. The appellant, then made a
representation
before
the
State
Government and succeeded in getting the
transfer order dated 10.07.2004 cancelled
vide order dated 27.10.2004. On the basis
of the siad order, it is submitted that the
appellant tried to join at Etah but by that
time, the respondent no.5 had already
joined. Being aggrieved, the respondent
no.5 filed Writ Petition No.47069 of 2004
challenging the order dated 27.10.2004 on
the
ground
that
the
order
dated
10.07.2004 had already been given effect
to as he had joined at Etah on 3rd August,
2004. This Court, vide interim order dated
05.11.2004 stayed the operation of the
order dated 27.10.2004. Subsequently, a
fresh order dated 09.11.2004 was passed
transferring the respondent no.5 from
Etah to Jhansi but it was also not given
effect to. It was clarified vide order dated
09.02.2005 that the appellant as well as
the respondent no.5 would remain at Etah
and both will get their salary but the
charge and work would be done only by
the
appellant.
The
orders
dated
09.11.2004 and 09.02.2005 were also
challenged by the respondent no.5 moving
an amendment application in the said writ
petition. The administration again vide
order dated 05.03.2005 clarified that the
appellant as well as the respondent no.5
would stay at Etah and shall draw their
salary but work would be done only by
respondent no.5. The appellant challenged
the said order by filing Writ Petition No.
23266 of 2005. Respondent no.5 also filed
Contempt Petition No. 5371 of 2005
raising the grievance of non-compliance
of the order passed by this Court on
05.11.2004 and the said contempt petition
was entertained by a detailed order dated
23.02.2005. Both the writ petitions were
heard and disposed of by the learned
Single Judge taking a view that once the
earlier transfer order dated 10.07.2004
had been given effect to, there was no
occasion for the State authorities to pass
order dated 27.10.2004 nullifying the
same
as
the
transfer
order
stood
exhausted. Hence this appeal.

3. The issue of transfer and posting
has been considered time and again by the
Apex Court and entire law has been
settled by catena of decisions. It is
entirely upon the competent authority to
decide when, where and at what point of
time a public servant is to be transferred
from his present posting. Whether a
transfer order is in the public interest or
on administrative ground requires factual
adjudication, which is not permissible to
be made in a writ jurisdiction. Transfer is
not merely an incident of service but a
condition of service and is to be passed in
public interest and for efficiency in public
administration. No employee can claim a
right to remain posted at a particular place
or for a further period unless his
appointment itself is made specifically on
a non-transferable post. The writ Court
cannot interfere against a transfer order
unless shown as an outcome of mala fide
exercise of power or in violation of
statutory provisions. In absence of these
two conditions, the transfer order cannot
be a subject matter of judicial scrutiny.
2 All] Murari Singh Sisodia V. The State of U.P. and others

 511
(Vide Union of India Vs. S.L. Abbas, AIR
1993 SC 2444; Shilpi Bose Vs. State of
Bihar, AIR 1991 SC 532; Union of India
Vs. N.P. Thomas, AIR 1991 SC 1605;
Bank of India Vs. Jagjit Singh Mehta,
AIR 1992 SC 519; Chief Manager (Tel.)
N.E. Telecom Circle Vs. Rajendra Ch.
Bhattacharjee, AIR 1995 SC 813; State of
U.P. Vs. Dr. V.N. Prasad, 1995 (Suppl) 2
SCC 151; Union of India & ors. Vs.
Ganesh Dan Singh, 1995 (Suppl) 3 SCC
214; N.K. Singh Vs. Union of India &
ors., (1994) 6 SCC 98; Abani Kante Ray
Vs. State of Orissa, 1995 (Suppl) 4 SCC
169; State Bank of India Vs. Anjan
Sanyal & Ors., AIR 2001 SC 1748;
National
Hydroelectric
Power
Corporation Ltd. Vs. Shri Bhagwan,
(2001) 8 SCC 574; V. Jagannatha Rao Vs.
State of A.P. & Ors., AIR 2002 SC 77;
Public Service Tribunal Bar Association
Vs. State of U.P. & Ors., AIR 2003 sc
1115; State of Rajasthan Vs. Anand
Prakash Solanki, (2003) 7 SCC 403; State
of U.P. Vs. Gobardhan Lal, AIR 2004 SC
4121; State of U.P. Vs. Siya Ram, AIR
2004 SC 4165; Union of India Vs.
Janardhan Debanath, (2004) 4 SCC 245).

4.

An
employee
holding
a
transferable post cannot claim any vested
right to work on a particular place as the
transfer order does not affect any of his
legal rights and Court cannot interfere
with a transfer/posting which is made in
public interest or on administrative
exigency. In Gujarat Electricity Board Vs.
Atma Ram Sungomal Poshani, AIR 1989
SC 1433, the Hon'ble Supreme Court has
observed as under:-

"Transfer of a Government servant
appointed to a particular cadre of
transferable posts from one place to the
another is an incident of service. No
Government servant or employee of
public undertaking has legal right for
being posted at any particular place.
Transfer from one place to other is
generally a condition of service and the
employee has no choice in the matter.
Transfer from one place to other is
necessary in public interest and efficiency
in the public administration."

In Union of India Vs. H.N. Kirtania,
AIR 1989 SC 1774, the Hon'ble Apex
Court observed as under:-

"Transfer of a public servant made
on administrative grounds or in public
interest should not be interfered with
unless there are strong and pressing
grounds rendering the transfer order
illegal on the ground of violation of
statutory rules or on ground of malafide."

5. In view of the above, it is not
possible for the writ Court to interfere
against an impugned transfer order unless
it is shown to have been passed in mala
fide/colourable exercise of power or in
violation of statutory provisions or it was
not required in administrative exigency
rather has been passed arbitrarily.

6.

Learned
counsel
for
the
respondent no.5 placed a very heavy
reliance upon the judgment of this Court
in Natthi Lal Vs. Director, Rajya Krishi
Utpadan Mandi Parishad & Ors., (1994) 2
UPLBEC 1030 wherein it has been held
that once the transfer order has been
executed, their remains nothing for the
State to consider and the transfer order
cannot be changed/modified or cancelled
nor a fresh transfer order can be passed.
The said judgment was delivered by the
learned Single Judge of this Court placing
reliance upon earlier Division Bench
512 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
judgments in Smt. Beena Tripathi Vs.
State of U.P. & Ors., 1987 (5) Luck. Civil
Decisions, 253; Writ Petition No.2028 of
1985, Indra Bahadur Singh Vs. Basic
Shiksha Parishad & Ors. decided on
10.05.1985; and Writ Petition No. 2205 of
1985, Hans Raj & Anr. Vs. Basic Shiksha
Parishad & Ors. decided on 20.05.2005,
wherein it had been held that after the
employee has joined the place to which he
was transferred, it was not open to the
government to cancel the transfer order.

7. It is a very sorry state of affairs
that the learned counsel for the respondent
no. 5 is not aware that the said judgment
and order has been orverruled by a Full
Bench in Director, Rajya Krishi Utpadan
Mandi Parishad Vs. Natthi Lal, 1995 (2)
UPLBEC 1128, wherein this Court has
held that in view of the provisions of
Section 21 of the U.P. General Clauses
Act, 1904, if an authority has a power to
transfer an employee, it has a power to retransfer or cancel the transfer order and in
such a situation, the writ Court has to
keep its hands off unless it is proved that
the transfer order is in violation of the
statutory provisions or has been passed on
mala fides. There is no bar for the
authority to transfer an employee even if
he has joined at the transferred place. The
Full Bench placed reliance upon the
earlier judgment of this Court in Suraj
Narain Vs. The District Magistrate,
Kanpur, 1958 ALJ 283, wherein while
dealing with the powers of the Statutory
Authority under the U.P. (Temporary)
Control of Rent and Eviction Act, 1947, it
was observed as under:-

"No exception can be taken to the
general proposition that the power in an
administrative officer to pass an order
includes the power to reconsider or cancel
it."

The Full Bench explained the law
observing as under:-

"We specifically hereby clarify that
an order, even if it has been implemented,
can be cancelled on other grounds too,
including administrative considerations
and exigencies of service. An order
cancelling the order of transfer, after it
has been implemented, would of course,
be open to challenge for reasons akin to
those on which an order of transfer may
be questioned."

8. It is shocking that the learned
counsel for the respondent no. 5 has not
made any attempt to find out as to
whether the judgment referred and relied
upon by him still holds the field. In State
of Orissa Vs. Nalinikanta Muduli, AIR
2004 SC 4272, the Apex Court expressed
its concern about the falling standard of
bar and deprecated the practice of citing
the overruled judgments observing as
under:-

"Members of the bar are officers of
the Court. They have a bounden duty to
assist the Court and not mislead it. Citing
judgment of a Court which has been
overruled by a larger Bench of the same
High Court or this Court without
disclosing the fact that it has been
overruled
is
a
matter
of
serious
concern....... All this shows that the matter
was dealt with very casually....... It was
certainly the duty of the Counsel ......to
bring to the notice of the Court that the
decision relied upon by the petitioner
before the High Court has been overruled
by this Court. It was the duty of the
learned
counsel
appearing
for
the
2 All] Murari Singh Sisodia V. The State of U.P. and others

 513
petitioner before the High Court not to
cite an overruled judgement. ..........We
can only express our anguish at the falling
standards of professional conduct."

9. In State of U.P. Vs. Ashok Kumar
Saxena, AIR 1998 SC 925, the Hon'ble
Apex Court examined the facts of a case
where the employee had been transferred
vide order dated 07.10.1995; the order
was challenged before the High Court and
the writ petition was dismissed on
16.10.1995; immediately thereafter, the
transfer order dated 07.10.1995 after
being
implemented/executed,
was
recalled. This Court had taken a very
serious view of the matter and initiated
contempt proceedings against the State
for disturbing the posting order duly
approved by the Court. The Hon'ble
Supreme Court after placing reliance
upon
large
number
of
its
earlier
judgments, held that "interference by
judicial review is justified only in cases of
mala fides or infraction of any prospective
claim or principle, or where career
prospects remain unaffected and no
detriment is caused to the concerned
employee challenging the transfer order,
challenge to the transfer order must be
eschewed. The transfer, being an incident
of service, is not to be interfered with by
the Courts unless it is shown to be clearly
arbitrary." The Court further observed as
under:-

"The High Court had not and could
not have taken-over the administration of
the State...... There was, therefore, no bar
against the Government or appellant
withdrawing, altering or modifying the
order of transfer passed on 7.10.95.....
The High Court was so much obsessed
with that idea, it became over-anxious to
see that its order, as understood by it, was
carried out and the appellant, who had
stayed the order of transfer dated 7.10.95,
was punished." (Emphasis added).

10. Thus, it becomes abundantly
clear from the aforesaid judgment that
even if the transfer order has been given
effect to, the employer has a power to
recall the same and unless the allegations
of mala fides are alleged or violation of
the Rules are shown, the Writ Court
should not generally interfere.

11. It is evident from the judgment
and order impugned that the appellant is
under suspension and the learned counsel
for the appellant is not in a position to
deny the said factual position.

12. Be that as it may, it is
astonishing
that the
so-called
State
Administration
has
been
issuing
directions time and again that on one post,
two person shall be posted and they shall
be paid their salary etc. We fail to
understand as under what authority of
law, such an order could have been passed
and it is a case which requires thorough
investigation. The Hon'ble Supreme Court
in Chinnasamy P.K. Vs. Govt. of Tamil
Nadu & Ors., AIR 1988 SC 78, has laid
down that it is most improper to allow a
person to be paid salary and other benefits
and take no work to him.

13. The question that also draws
attention is as to whether salary to two
persons can be ordered for being paid as
against one post. A single post in our
opinion cannot have a double occupancy
simultaneously. One post can be occupied
by only one person at a time. A post
carries with it a designation and a
financial burden on the State. There is no
rule, brought to our notice, which may
514 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
contemplate payment of salary to two
persons simultaneously against one post.
The word "Pay" has been defined in the
Uttar
Pradesh
Fundamental
Rules,
contained in Chapter II of Part III of
Financial Handbook Volume 2, Part II to
IV as follows:-

"21. Pay means amount drawn
monthly by a Government servant as -

(i) the pay, other than special pay or
pay granted in view of his personal
qualifications, which has been sanctioned
for a post held by him substantively or in
an officiating capacity, or to which he is
entitled by reason of his position in a
cadre."

14. A perusal of the first sentence
clearly connotes "a" Government Servant
granted pay for "a" post held by him
substantively/officiating or by reason of
his position in a cadre. Thus, the rules
clearly
define
payment
to
"a"
government servant against "a" post
which conversely amounts to prohibiting
payment to two persons against one post.
The stand taken by the respondents of
paying salary to two persons and taking
work only from one is a clear defiance of
logic and rules as well.

Thus, in view of the above, we
dispose of this appeal with the following
directions:-

(1) An officer not below the rank of
Special Secretary of the Department of
Agriculture,
Government
of
Uttar
Pradesh, Lucknow shall hold a fullfledged
enquiry
as
under
what
circumstances, any officer of the State
could pass an order that on one post two
persons shall be posted and paid their
salary and one of them shall not work,
and would take appropriate action against
the said officer who was responsible for
passing such an illegal order.
(2) The reasoning given by the learned
Single Judge is not supported by law.
Therefore, the appeal succeeds to the
extent indicated above. The judgment and
order impugned dated 12.05.2005 is
hereby set aside.
(3) As this seems to be a case where the
parties are fighting for ego satisfaction
and large number of writ petitions as well
as contempt petition have been filed by
the appellant as well as the respondent
no.5, making the Court a battle ground to
achieve their purpose, it is desirable that
both the officers be placed somewhere
else.

(4) We
request
the
so-called
administration to transfer the appellant as
well as the respondent no.5 from district
Etah to different districts forthwith.

15. A copy of this order be sent by
the Registrar of this Court directly to
Special Secretary of the Department of
Agriculture,
Government
of
Uttar
Pradesh, Lucknow for compliance.
Appeal Disposed of.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.05.2005

BEFORE
THE HON'BLE M.C. JAIN, J.
THE HON'BLE M. CHAUDHARY, J.

Government Appeal No.646 of 1982

State of U.P.

...Appellant
Versus
Bharthu and six others ...Respondents