# No. 52 of 2003 State v. Baij Nath

- **Citation:** (2003) 3 ILRA 772
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-05-23
- **Case number:** Civil Misc. Writ Petition No. 45445 of 2000
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/no-52-of-2003-state-v-baij-nath-40198
- **Pages:** 4

## Headnote

Constitution
of
India-Article
226
Transfer whether an employee holding
cadre post be transferred to the ex-cadre
post
without
his
consent?
http:\\allahabadhighcourt.nic.in
3 All] Ranbir Singh Malik, A.S.I.O. Hathras V. Inspector General of Police and another
773
Held: Para 10

The law settled that an employee can not
be transferred from his original post
without his consent and further he can
not be transferred to ex cadre post on
permanent basis from one branch of
police force to another. The policy
decision is not statutory but it is obvious
from its perusal that five years period
has been specified therein for transfer to
ex cadre post.
Cases referred to:
1984 (1) All India Service Law Journal 61
(Bombay)
1979 (3) S.L.R. Page 805
1983 (2) S.L.R. 221 (Patna)

## Text

http:\\allahabadhighcourt.nic.in
772 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
weeks from the date of filing of the
application by the applicant.
Case Law:
2003 (46) ACC 223

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard the counsel for the
applicant and the A.G.A.

2. The applicant has filed the present
petition under section 482 Cr.P.C. against
the orders dated 10.12.2002 and 4.2.2003
passed by the court-below in Misc. Case
No. 52 of 2003 State Vs. Baij Nath
Prajapati under Section 207 of the Motor
Vehicle Act, P.S. Line Bazar, District
Jaunpur, by which it has refused to release
the vehicle- Maxi Cab Jeep No. WS 20B:0332 in favour of the applicant.

3. The applicant is a registered
owner of the vehicle. The alleged Maxi
Cab Jeep of the applicant was seized by
the Assistant Regional Transport Officer
(Enforcement) Jaunpur on 19.11.2002.

Under Section 207 (2) of the Motor
Vehicle Act, 1988 it is provided that:

"(2) Where a motor vehicle has been
seized and detained under sub section (1),
the owner or person in charge of the
motor vehicle may apply to the transport
authority or any officer authorized in this
behalf by the State Government together
with the relevant documents for the
release of the vehicle and such authority
or officer may, after verification of such
documents, by order release the vehicle
subject to such conditions as the authority
or officer may deem fit to impose."

4. In Sunderbhai Ambalal Desai
Vs. State of Gujrat, 2003 (46) ACC 223,
the Apex Court has held that it is no use
to keep the seized vehicles for a long
period.
They
may
be
released
immediately
after
taking
appropriate
security, if not required at that point of
time.

5. In view of the aforesaid decision,
facts and law, it would be expedient in the
interest of justice that the A.R.T.O.,
Jaunpur is directed to consider and pass
appropriate order on the application of the
applicant for releasing the vehicle-Maxi
Cab Jeep No. WE:20-B:0332 after deposit
of adequate security except cash or bank
guarantee to the satisfaction of the
A.R.T.O. within a period of two weeks
from the date of filing of the application
by the applicant.

6. With the aforesaid directions, the
petition is disposed of finally.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.05.2003

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 45445 of 2000

Ranbir Singh Malik, A.S.I.O. Hathras

...Petitioner
Versus
Inspector General of Police and another

 ...Respondents

Counsel for the Petitioner:
Sri Divakar Rai Sharma

Counsel for the Respondents:
S.C.

Constitution
of
India-Article
226
Transfer whether an employee holding
cadre post be transferred to the ex-cadre
post
without
his
consent?
http:\\allahabadhighcourt.nic.in
3 All] Ranbir Singh Malik, A.S.I.O. Hathras V. Inspector General of Police and another
773
Held: Para 10

The law settled that an employee can not
be transferred from his original post
without his consent and further he can
not be transferred to ex cadre post on
permanent basis from one branch of
police force to another. The policy
decision is not statutory but it is obvious
from its perusal that five years period
has been specified therein for transfer to
ex cadre post.
Cases referred to:
1984 (1) All India Service Law Journal 61
(Bombay)
1979 (3) S.L.R. Page 805
1983 (2) S.L.R. 221 (Patna)

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. This petition arises out of order
dated 26.08.2000 by which representation
of the petitioner seeking repatriation to
Civil Police in pursuance of Government
policy has been rejected.

2. The petitioner was initially
appointed
as
Sub-Inspector
in
the
department of police (Civil Branch) in
1982. He was transferred to Local
Intelligence Unit at Muzaffarnagar and he
has been working in Local Intelligence
Unit for more than 16 years. He made an
application for being repatriated back to
Civil Police on the ground that he was
transferred to local intelligence Unit
without his consent for transfer.

3. When no order was passed on his
application the petitioner moved this
Court by means of Civil Misc. Writ
Petition No. 13430 of 2000 which was
disposed of vide judgment and order
dated 16.03.2000 with a direction to the
respondents to decide representation of
the petitioner. Pursuant to the order of the
Court
dated
16.03.2000,
the
representation of the petitioner was
considered and was rejected vide order
dated 26.08.2000 on the ground that the
petitioner is suitable for services in Local
Intelligence Unit.

4. The contention of the petitioner is
that the respondents have acted arbitrarily
in denying benefit of policy decision and
rejecting his representation on the ground
that the benefit of transfer policy is to be
given only to new comers. It is submitted
that the transfer policy (Annexure no. 1 to
the writ petition) does not contain any
recital to the effect that the transfer policy
is applicable to new comers only and that
there is hostile discrimination with the
petitioner and as such impugned order is
liable to be set aside. He further submits
that the case of the petitioner is squarely
covered by Writ Petition No. 36250 of
1997 inre; Ashok Kumar Singh Vs. State
of U.P. and others and Writ Petition No.
3042 of 2001 Ashok Kumar Singh Vs.
Additional Director General of Police
(Intelligence Department) Lucknow and
others.

5. Aggrieved by the order dated
26.08.2000 by which the representation of
the petitioner was rejected, he filed Writ
Petition No. 45445 of 2000 for a writ of
mandamus commanding the respondents
to transfer him to Civil Police forthwith.

6. It is contended on the basis of
aforesaid two judgments that pursuant to
the direction issued in Writ Petition No.
36250 of 1997 the Government framed
policy dated 24.1.1999 in which it was
held that a Sub Inspector who is
transferred from Civil Police to Local
Intelligence Unit, can not be retained in
Local Intelligence Unit for more than 5
years and he has to be transferred back to
http:\\allahabadhighcourt.nic.in
774 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
Civil Police. It was further provided in the
policy that the Sub Inspector can only be
retained in Local Intelligence Unit if he
gives his consent to continue there.

7. In Writ Petition No. 3042 of 2001
it has been held by the Court that the
petitioner in that petition who was
appointed as Sub Inspector in the
department of Police (Civil Branch) and
was transferred to Local Intelligence Unit
is entitled for being transferred to Civil
Police and the transfer policy should be
implemented giving him benefit. It is
submitted on behalf of the petitioner that
Sri Ashok Kumar Singh of writ petition
No. 3042 of 2001 is of the same batch and
was selected along with the petitioner.

8. The various posts in the
Intelligence Department are ex cadre
posts and the petitioner could not be sent
to Intelligence department on an ex cadre
post without his consent as has been held
in 1984(1) All India Service Law
Journal-61
(Bombay)
Prakash
R.
Broker Vs. Union of India in which
reliance was place on a judgment of
apex court reported in 1979(3) S.L.R.
page 805 Bhagwati Prasad Vs. State of
Gujrat in which it was held that a person
who is holder of civil post in service of
the State is entitled to certain conditions
of service prescribed for that post till the
date of superannuation. It was observed
that this was a guarantee which flows
from Article 16 and Part XIV of the
Constitution. The transfer of an employee
from out side the cadre is not a valid
transfer as has been held in 1983(2)
S.L.R. 221(Patna) Krishna Kumar
Srivastava Vs. Bihar State Agricultural
Marketing Board.

9. The learned Standing Counsel
submits that the government policy are
mere guide lines and has no statutory
force and the petitioner can not claim
repatriation to civil police as a matter of
right.

10. The law settled that an employee
can not be transferred from his original
post without his consent and further he
can not be transferred to ex cadre post on
permanent basis from one branch of
police force to another. The policy
decision is not statutory but it is obvious
from its perusal that five years period has
been specified therein for transfer to ex
cadre post. The case of the petitioner is
also covered by the Government Order
dated 24.10.1999 as he completed more
than 10 years service and is entitled to be
considered for transfer in Civil Police.

11. Considering the arguments of
the counsel for the parties, the law and the
policy decision of the government, the
retention of employee without his consent
in local Intelligence Unit on ex cadre post
is arbitrary as he looses the privileges and
avenues of promotion in civil police
which are far better than in Local
Intelligence Unit department. Since policy
decision
has
been
taken
by
the
Government for not retaining a person on
deputation beyond 5 years in Local
Intelligence Unit, it would not be proper
for this court to interfere in the policy
decision. The petitioner has already put in
16 years of his service in Local
Intelligence Unit. He has lost avenues of
promotion and the benefits and this is a
good ground for passing an order for
transferring him back to Civil Police as
transfer to Local Intelligence Unit which
was without his consent.
http:\\allahabadhighcourt.nic.in
3 All] M/s Willard India Ltd. V. Union of India and others
775
12. The impugned order dated
26.08.2000 rejecting representation of the
petitioner on the ground that the policy
decision framed in pursuance of judgment
of this Court does not cover the case of
the petitioner after five years of service in
Intelligence department is arbitrary. The
petitioner under the policy decision of the
government dated 24.10.1999 can opt for
transfer to Civil Police. The criteria laid
down in the policy has not been
considered in the order dated 26.08.2000
and it is totally silent about transfer of
Inspectors who give their option for
repatriation to Civil Police after specified
period
of
five
years
from
Local
Intelligence Unit.

13. For the reasons given above, the
writ petition is allowed and the impugned
order dated 26.08.2000 (Annexure no. 4
to the writ petition) passed by the
respondent no. 2 is quashed. The
respondents are directed to transfer the
petitioner to Civil police forthwith from
local Intelligence Unit preferably within a
period of six weeks from the date of
production of a certified copy of the order
of this Court No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.5.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE R.S. TRIPATHI, J.

Civil Misc. Writ Petition No. 21661 of 2003

M/s Willard India Limited
...Petitioner
Versus
Union of India and others ...Respondents

Counsel for the Petitioner:
Sri Yashwant Varma
Sri R.N. Singh

Counsel for the Respondents:
Sri A.K. Singh
Sri Tarun Varma
Sri B.N. Singh
S.S.C.

Debts
due
to
Banks
and
Financial
Institution Act, 1993- Section 19- Award
of the Tribunal given at Kolkata validity
thereof
cannot
be
challenged
at
Allahabad before High Court- No.

Held- Para 5

The prayer that Rule 6 be declared ultra
vires Section 19 of the Act is nothing but
a prayer for declaration. Hence without a
prayer for a consequential relief, such
declaration can not be granted. As
regards, the consequential relief, which
is contained in relief (ii) of the petition it
is really a relief for a prohibition though
as a declaration, as already observed by
us above, such relief can be claimed
before the Calcutta High Court and not
before this Court.
Case referred to:
AIR 1951 SC 41
AIR 1968 SC 381
AIR 1953 All. 477
AIR 1962 Allahabad 187
AIR 1978 Alld. 386
2002 UPLBEC 1789

(Delivered by Hon'ble M. Katju, J.)

1. Heard Sri R.N. Singh, learned
counsel for the petitioner, Sri A.K. Singh
for the Union of India, and Sri Tarun
Varma, Counsel for the Allahabad Bank.

2. The petitioner has prayed for an
appropriate writ, order direction declaring
the provisions of Rule 6 (1) of the Debts
Recovery
Tribunal
(Procedure)
Amendment Rules 6 (1) of Debts
Recovery
Tribunal
(Procedure)