# Raj Kumar Singh Rathore v. State of U.P. and others And

- **Citation:** (2005) 3 ILRA 1029
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-08-25
- **Case number:** Civil Misc. Writ Petition No. 35092 of 2005
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kumar-singh-rathore-v-state-of-u-p-and-others-and-40571
- **Pages:** 9

## Headnote

Constitution of India, Art.226-Service
Law-Transfer challenged on the ground
of
malafide-petitioners
are
SubInspector in civil Police-within short
span of time of one year-Transfer made
against the Policy decision of the Govt.
itself-on the recommendation of M.L.A.
1030 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
as they belong to particular costs and
not looking the interest of the workers of
Samajwadi Party-Order passed brazen
manner un abashedly at the instance of
M.L.A.-held-malafide-court has no option
but to interfere.

Held: Para 24

In my opinion, the transfer order has
been
issued
in
a
brazen
manner
unabashedly at the instance of a Minister
and a M.L.A. Although the Courts are
reluctant to interfere in the transfer
orders, yet in view of the fact, that the
transfer
order
has
been
issued
malafidely at the behest of the Minister
and the M.L.A., this Court has no option
but to interfere with the transfer order,
coupled with the fact that the transfer
order was also against the guidelines
framed by the department itself.
Case law discussed:
J.T. 1999 (5) SC-621
1993 (4) SCC-24
1996 (c) UPLBEC-54
1999 (1) AWC-179
1998 AWC (1) 27 (L.B.)
1996 (Suppl.) AWC-441
2003 11 SCC-740

(Deliveed by Hon'ble Tarun Agarwala, J.)

## Text

3 All] Sarvendra Singh V. State of U.P. and others
1029
of such unfair selection at this belated
stage.

14. Admittedly the petitioners have
secured
53
marks
and
51
marks
respectively in their written examination,
which were reduced to 42 and 44 marks
respectively. Thus the subsequent reduced
marks of written test and in interview
would form the select list. However, in
given facts and circumstance of the case it
would be appropriate to direct the
authorities to redress the grievance of the
petitioners by taking into account heir
original
marks
secured
in
written
examination period to re-evaluation of
their answer books, and after adding the
marks of their interview, if it is found that
their performs on, edits comes to at par
with any last selected candidates lowest in
merit in the selection in question, in their
respective category, they shall also be
selected and sent for training of Lekhpal
forthwith without causing any further
delay in the matter but they shall not be
entitled for payment of any back wages or
other service benefits prior to their
selected and appointment .

15. Thus in view of aforesaid
discussion
and
observation
the
respondents are directed to declare the
result of the petitioners on the basis of
original marks allotted by the examiner in
their written examination and interview
ignoring reevaluation of their answer
books and marks allocated by another
examiner. The Commissioners, Meerut
Division Meerut, and District Magistrate /
Collector, Saharapur are directed to
undertake this exercise within a period of
2 months from the date of production of a
certified copy of this order before them.

16. With the aforesaid observations
and direction the writ petition succeeds
and is allowed to the extent indicated in
the body of judgment.

17. There shall be no order as to
costs.

 Petition allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.08.2005

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 35092 of 2005

Sarvendra Singh

...Petitioner
Versus
State of U.P. and others ...Respondents

Connected with
Civil Misc. Writ Petition No. 35082 of 2005
Raj Kumar Singh Rathore
...Petitioner
Versus
State of U.P. and others ...Respondents
And
Civil Misc. Writ Petition No. 35089 of 2005
Chheda Lal Sharma

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri P.N. Saxena
Sri S.C. Dwivedi

Counsel for the Respondents:
Sri Adesh Agarwal, Addl.A.G.
Sri V.K. Rai, S.C.
Sri Vijendra Singh
Sri C.B. Yadav

Constitution of India, Art.226-Service
Law-Transfer challenged on the ground
of
malafide-petitioners
are
SubInspector in civil Police-within short
span of time of one year-Transfer made
against the Policy decision of the Govt.
itself-on the recommendation of M.L.A.
1030 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
as they belong to particular costs and
not looking the interest of the workers of
Samajwadi Party-Order passed brazen
manner un abashedly at the instance of
M.L.A.-held-malafide-court has no option
but to interfere.

Held: Para 24

In my opinion, the transfer order has
been
issued
in
a
brazen
manner
unabashedly at the instance of a Minister
and a M.L.A. Although the Courts are
reluctant to interfere in the transfer
orders, yet in view of the fact, that the
transfer
order
has
been
issued
malafidely at the behest of the Minister
and the M.L.A., this Court has no option
but to interfere with the transfer order,
coupled with the fact that the transfer
order was also against the guidelines
framed by the department itself.
Case law discussed:
J.T. 1999 (5) SC-621
1993 (4) SCC-24
1996 (c) UPLBEC-54
1999 (1) AWC-179
1998 AWC (1) 27 (L.B.)
1996 (Suppl.) AWC-441
2003 11 SCC-740

(Deliveed by Hon'ble Tarun Agarwala, J.)

1. Three Sub Inspectors posted in
district Badaun have been transferred to
various places by separate orders. They
have
filed
separate
writ
petitions
challenging the transfer order on identical
grounds. Consequently, all the three writ
petitions are being decided together. For
facility, the writ petition of Sarvendra
Singh is being taken as the leading case
and the affidavits in this petition is being
referred to in the judgement.

2. The petitioner, Sarvendra Singh,
was working as a Sub Inspector in District
Badaun and has been transferred by an
order dated 11.4.2005 issued by the
Inspector
General
of
Police
(Establishment),
U.P.,
Lucknow
to
A.S.I.O. Rihand in district Sonebhadra.
By another order of the same date, the
petitioner was relieved. The petitioner,
Raj Kumar Singh Rathore, was working
as a Sub Inspector and has been
transferred by an order dated 12.4.2005
issued by the Inspector General of Police
(Establishment), U.P. from Police Station
Wazirgarh, district Badaun to Inter State
Border Force. By another order of the
same date, the petitioner was relieved by
the Senior Superintendent of Police
Badaun. The petitioner Cheda Lal Sharma
was working as a Sub Inspector and was
transferred from Kotwali Ujhani to
Economic Crime Branch, Lucknow by an
order dated 12.4.2005 issued by the
Inspector General of Police, U.P., and by
another order of the same date, he has
been
relieved
by
the
Senior
Superintendent of Police.

3. All the three petitioners contend
that they had recently been posted in 2004
and, that within a year, they have again
been transferred at the behest of a
Minister and an M.L.A. of the ruling party
and, therefore, the transfer order which
had been passed on political pressure, was
purely malafide and liable to be quashed.
The petitioner's further contended that the
transfer order was also in violation of the
transfer policy. The petitioner's were
entitled to remain in a particular district
for a period of five years, whereas, the
petitioner's were being transferred within
a year. The petitioner's further alleged that
the transfer was neither in public interest
nor was issued on administrative grounds
and, was issued on the political grounds.

4. The petitioner's alleged that one
Sri Banwari Singh Yadav, State Minister
3 All] Sarvendra Singh V. State of U.P. and others
1031
for Protocol Civil Aviation and State
Property and Sri Onkar Singh Yadav,
M.L.A., Samajwadi Party had written a
letter dated 4.4.2005 to the Chief
Minister,
stating
therein,
that
the
petitioner Sarvendra Singh is a Khattri by
caste and was not looking after the
interest of the workers of the Samajwadi
Party and that the interest of the
Samajwadi Party was at stake and,
therefore, he should be transferred to
some other place so that the interest of the
Samajwadi Party was not disturbed.
Similar letters were written by the
Minister and the M.L.A. complaining
about the other two petitioners. The
petitioner's submitted that based on these
letters, the Inspector General of Police,
Lucknow had issued the transfer orders
which
was
sent
to
the
Senior
Superintendent of Police by Fax and the
petitioners were relieved on the same date
by the Senior Superintendent of Police,
Badaun.

5. A counter affidavit has been filed
on behalf of respondent nos.1 to 5
denying the allegations made in the writ
petition. In paragraph 5 of the counter
affidavit, the respondents have contended
that the Government is functioning in a
computer age and that once the order of
transfer was passed, the same was sent
through Fax and, therefore, there was
nothing wrong in relieving the petitioners
on
the same
date by the Senior
Superintendent of Police. The transfer
order has been passed as per "the
command"
issued
by
the
Inspector
General of U.P., Lucknow and the same
has been carried out by the Senior
Superintendent of Police. The respondents
further alleged that the order of transfer
was passed in the exigency of the
administration of the service and that no
reasons were required to be given in the
order of transfer. The respondents further
submitted that no political pressure was
mounted in transferring the petitioners
and that the Sub Inspector of Police was
not such a big authority for whose transfer
a political pressure was required to be
mounted. The transfer of any particular
employee was the prerogative of an
officer who had power to transfer him. In
paragraph 8 of the counter affidavit the
respondents have stated that the transfer
order of the petitioner was made in a
routine manner because the petitioner
Sarvendra Singh was a competent and
efficient officer and was required to be
posted at Sonebhadra. In paragraph 9, the
respondent admits that Badaun was a
V.V.I.P. place because the Chief Minister,
had
once
represented
the
Sambhal
Parliamentary constituency and now his
cousin was representing this constituency.
In paragraph 10 the respondents alleged
that the guidelines has no statutory force
and that the transfer had been made in
public interest.

6. For facility, certain portions of
some of the paragraphs of the counter
affidavit are quoted herein:-

"That the contents of paragraphs 5, 6
and 7 of the writ petition are not admitted
in the manner as are stated hence denied.
In reply thereto it is submitted that the
petitioner is surprising just for nothing
because now a days the Government is
functioning in computer age. Once the
order of transfer is passed, the same are
sent through fax and because the order of
transfer dated 12.04.2005 was containing
that the petitioner shall be relieved
forthwith. The petitioner was relieved on
12.04.2005 by the Senior Superintendent
of Police in compliance to the order of
1032 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
transfer dated 12.4.2005 issued by the
Inspector
General
of
Police
(Establishment)
U.P.
at
Lucknow.
Compliance of the order issued by the
Higher Authorities does not come within
the purview of any kind of adverse
because once the order of transfer has
been passed as per command issued by
the Inspector General (Establishment)
U.P.
At
Lucknow,
the
Senior
Superintendent of Police has rightly
relieved the petitioner forthwith after
receiving the order of transfer dated
12.04.2005. As such the contrary
averments made by the petitioner in
paragraphs
under
reply
are
totally
misconceived hence denied. The order of
transfer is passed in exigencies of
administration of service. No reasons are
required to be assigned in the order of
transfer. It is further relevant to make a
mention here that no political pressure has
been
mounted
in
transferring
the
petitioner. Sub-Inspector of Police is not
such a big authority for whose transfer
political pressure has been mounted in
transferring the petitioner. Sub-Inspector
of Police is not such a big authority for
whose transfer political pressures are
mounted. The transfer of any particular
government servant is the prerogative of
the Officer who has been empowered to
transfer him. However, the contrary
averments made by the petitioner in
paragraphs
under
reply
are
totally
misconceived hence denied.

7. In routine manner the petitioner
has been transferred from Badaun to
Local Intelligence Unit, Rihand Bandh,
Sonbhadra. It is further relevant to
mention here that Local Intelligence Unit,
Rihand
Bandh,
Sonbhadra
is
very
important branch of Civil Police, where
the competent and efficient officers are
required to be posted. The petitioner has
been awarded and has been brought in the
category of most efficient Police Officer,
and therefore, he has been selected for
posting in Local Intelligence Unit, Rihand
Bandh, Sonbhadra.

8. That in reply to the contents of
paragraph 10 of the writ petition it is
submitted that no doubt earlier the Chief
Minister has represented the Sambhal
Parliamentary Constituency and now his
cousin is representing and no doubt the
district Badaun is said to be V.V.I.P.
place, but that is no basis for drawing any
inference as referred by the petitioner,
that the petitioner transfer has been made
on account of any political pressure. If the
Chief Minister is cause of transfer, then
he is the Chief of the State dignitary and
nothing is personal. The Chief Minister
has got very vital issue to be considered
and it is very surprising that a SubInspector is making such allegations by
taking name of Chief Minister, and
Members of his family only in order to
obtain interim order in his favour from
Court of Law."

9. A supplementary counter affidavit
dated 22.5.2005 sworn by Sri Kiran Pal
Singh, Deputy Superintendent of Police,
was filed. In paragraph 4 of the affidavit,
it was alleged that the transfer had been
issued at the behest of the Principal
Secretary, Home, Government of U.P. on
the basis of the need and the exigency of
the
service.
Another
supplementary
counter affidavit by respondent no.3 dated
16.5.2005 sworn by Shiv Shanker Singh,
Superintendent of Police, Allahabad was
filed, stating therein, that the transfer of
the petitioner was made in pursuance of
the transfer policy and that the petitioner,
Sarvendra Singh, was posted in Badaun
3 All] Sarvendra Singh V. State of U.P. and others
1033
from
10.10.1985
to
23.8.1991
and
thereafter
again
from
12.6.2004
to
12.4.2005 and, therefore, was posted in
Badaun for a total number of 6 years, 8
months 12 days and, therefore, was liable
to be transferred to another place.

10. Another supplementary counter
affidavit dated 23.5.2005, sworn by Sri
Shrikant
Singh,
Additional
Superintendent of Police, was filed, in
which two letters dated 16.5.2005 written
by Sri B.S. Yadav, State Minister and Sri
Onkar Singh Yadav, M.L.A. were written
to the Government Advocate, High Court,
Allahabad stating therein that they had
never issued the letters to the Chief
Minister and that it transpires that a
computer generated signature had been
manufactured on their letter pad.

11. Initially, when the writ petition
was entertained, notices to the Minister
and
M.L.A.
was
not
issued
but,
subsequently after the aforesaid letters
had been filed through respondent Nos.1
to 5, this Court issued notices to the
Minister as well as to the M.L.A. who
appeared and filed a common counter
affidavit. In their counter affidavit, the
Minister and the M.L.A. have reiterated
that they had never written the letter and
that the said letter was a forged document
on account of the fact that the said letter
does not contain any dispatch number or
reference number. The counter affidavit
further stated that they are close relatives
and that they interact with each other and,
therefore, the question of writing two
separate letters does not arise.

12. Heard Sri P.N. Saxena, the
learned Senior Advocate assisted by Sri
S.C. Dwivedi, the learned counsel for the
petitioner and Sri Adesh Agarwal, the
learned Additional Advocate General
assisted by Sri V.K. Rai, Standing
Counsel for respondent nos.1 to 5 and Sri
Vijendra Singh, the learned counsel
appearing for the Minister and the M.L.A.

13. An allegation of political
pressure has been levelled by the
petitioners. The petitioners categorically
stated that the Minister and the M.L.A.
had written letters to the Chief Minister
alleging that the petitioners were not
looking
after
the
interest
of
the
Samajwadi
Party
workers
as
they
belonged to a different caste and,
therefore, they should be transferred to
another place. Respondent nos.1 to 5 have
denied this fact and submitted that the
petitioner's had been transferred in public
interest as well as on administrative
grounds, on account of the exigency of
service, as they were required elsewhere
because they were good police officers.
Strangely, respondent nos.1 to 5, annexed
letters dated 16.5.2005 written by the
Minister and M.L.A. even when this
Court did not issue any notice to the
Minister or the M.L.A. Annexing the
letters of the Minister and the M.L.A.
signifies that the police authorities had
either approached the Minister and the
M.L.A. or the Minister and the M.L.A.
had approached the police authorities.
One thing is clear, that the Minister and
the M.L.A. were working in tandem with
the police authorities. There was a link
between them. This creates a suspicion
with regard to their modus operandi and
the functioning of the Ministers and the
M.L.As. with the other authorities.

14. The Minister and the M.L.A.
filed their counter affidavit denying the
issuance of the letters annexed in the writ
petition and contended that those letters
1034 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
are forged and that a computer generated
signature had been obtained on their letter
pads. The Minister and the M.L.A.
categorically stated that the letters are
forged as it does not contain any dispatch
number or reference number, whereas, all
theirs letters contains a dispatch and
reference number.

15. Ministers and M.L.A. are elected
by the people. When a Minister or an
M.L.A. comes forward and makes a
statement on an affidavit, there is no
reason for the Court to doubt the veracity
of their statements. But, on a closer
scrutiny, this Court finds that the reasons
given by them that their letters are forged
documents is not entirely correct for the
simple reason, that if all their letters
contains a dispatch number or a reference
number, in that situation, the letters
written
by
them
dated
16.5.2005
addressed to the Government Advocate
High Court, Allahabad should also have
contained the dispatch number and/or the
reference number. Those letters do not
contain any dispatch number or reference
number. Those letters have been annexed
by the respondents in their counter
affidavit. Consequently, I am unable to
agree with the statement made by the
Minister and the M.L.A. that the letters
annexed to the writ petition are forged. In
my opinion, the stand taken by the
Minister
and
the
M.L.A.
are
contradictory. The affidavit filed by them
are not reliable. Ministers and M.L.A. are
elected by the public. The public reposes
confidence in them. They have an onerous
task upon them in fulfilling the desires
and wishes of the people. To the public at
large, the Ministers and the M.L.A. are
called "honourable men". But are these
"honourable men" acting fairly? Are they
coming forward with clean hands? Marc
Anthony in Shakespeare's "Julius Caesar"
sarcastically referred to shrewd and
corrupt politicians and custodians of
public office as "honourable men". The
same situation exists in modern day times.

16. It should not be lost sight of the
fact that the sitting Member of the
Parliament of Sambhal Parliamentary
constituency is the brother of the present
Chief Minister. This constituency comes
in district Badaun. The M.L.A. has been
elected from the Gunnaur Vidhan Sabha
which
comes
under
the
Sambhal
constituency. The State Minister is also
from this area. This district Badaun is,
therefore, a V.V.I.P. area, as admitted by
the respondents themselves. Therefore,
from a perusal of the record and from the
affidavits filed, it is a clear case, where
the transfer order has been issued at the
behest of the political leaders.

17. There is another aspect. The
language and the tone of the contents of
the counter affidavit indicate the mindset
and the attitude of the respondents. The
usage of the words, "nowadays the
Government is working in computer age",
"order of transfer sent through fax",
"transfer as per the command issued by
the Inspector General", "Sub Inspector of
Police is not such a big authority" and "if
the Chief Minister is the cause of transfer,
then he is the Chief of the State dignitary
and nothing is personal", speaks volumes
of the attitude and high handedness of the
authorities in tackling this matter. The
tenor of the language in the counter
affidavit is indicative of the brazen
attitude adopted by the respondents in the
handling of the situation in the present
writ petition. The tone and the tenor in
counter affidavit has, to a large extent,
helped the cause of the petitioners. The
3 All] Sarvendra Singh V. State of U.P. and others
1035
petitioners has, therefore, been successful
in proving the malafides.

18. The respondents have stated that
the petitioners were transferred on the
exigency of service and at the behest of
the Principal Secretary, Home. The record
has been produced by the Additional
Advocate
General
who
invited
the
attention of the Court to a letter dated
6.4.2005,
written
by
the
Principal
Secretary to the Inspector General U.P.,
Lucknow, which indicated that a request
had been made to fill up the vacant posts.
This letter does not indicate anything with
regard to the transfer of the petitioner's on
account of the need and exigency of
service. The record does not indicate that
the transfer of the petitioners was made
on the basis of the letter of the Principal
Secretary,
Home.
Consequently,
the
submission of the respondents that the
petitioners were transferred at the behest
of the Principal Secretary is patently
erroneous.

19. The respondents have justified
their stand stating that the transfer of the
petitioners was in accordance with the
guidelines
dated
16.11.2004
and
2.12.2004. According to the respondents,
the petitioner, Sarvendra Singh, was
posted in Badaun for a total period of 6
years, 8 months and 12 days and,
therefore, in view of the transfer policy,
the petitioner having worked for more
than 6 years, was liable to be transferred.
Paragraph
2
of
the
policy
dated
16.11.2004, indicates that a Police Officer
can serve in one district for a maximum
period of 10 years. Therefore, according
to
the
respondents,
the
petitioner
Sarvendra Singh remained in Badaun for
a total length of 6 years, 8 months and 12
days and had not completed 10 years of
posting in that district. Therefore, the
respondents were not justified in stating
that the transfer of the petitioner was in
accordance with the transfer policy.

20. The respondents have also made
an attempt to state that the transfer policy
had no statutory force and, therefore, no
reliance can be taken on this policy by the
petitioner. In my view, the submission
raised by the respondents is totally
erroneous. Even though the transfer
policy has no statutory force, nonetheless,
it is binding upon the authorities. In
Virender S. Hooda and others vs. State
of Haryana and others, JT 1999 (5) SC
621, the Supreme Court held:-

"The view taken by the High Court
that the administrative instructions cannot
be enforced by the appellant and that
vacancies became available after the
initiation of the process of recruitment
would be looking at the matter from a
narrow and wrong angle. When a policy
has been declared by the State as to the
manner of filling up the post and that
policy is declared in terms of rules and
instructions issued to the Public Service
Commission from time to time and so
long as these instruction are not contrary
to the rules, the respondents ought to
follow the same."

21. In Home Secretary,U.T. Of
Chandigarh and another vs. Darshjit
Singh Grewal and others (1993) 4 SCC
25, the Supreme Court held that the policy
guidelines are relatable to the executive
powers of the administration and having
enunciated a policy of general application
and
having
communicated
to
all
concerned, the administration was bound
by it till such time as the policy was
changed.
1036 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
22. In Smt. Deepa Vashishtha vs.
State of Uttar Pradesh and another,
(1996) 1 UPLBEC 54, a Division Bench
of this Court held that the department is
bound by its transfer policy till such time
as the guidelines are changed.

In Phoola Devi vs. State of U.P.
and others, 1999(1) AWC 179, this
Hon'ble Court held:-

"In my opinion, if politicians keep
ordering transfers and postings the result
will be the total collapse of administration
and opening of the floodgates for
corruption and crime. The time has come
when this practice of politicians ordering
transfer and postings must be stopped and
we must follow the British system where
the bureaucracy is really independent and
non-political and can function without
political interference."

In Lokesh Kumar vs. State of U.P.
and others, 1998(1) A.W.C. 27 (L.B.),
this Hon'ble Court held:-

"Public interest is not abstract to be
found in the Dictionaries but must be
obvious and visible. Politicising services
would be unproductive and detrimental
against the interest of the country."

In Pradeep Kumar Agarwal vs.
Director,
Local
Bodies,
U.P.
IV,
Lucknow and others, (1994) 1UPLBEC
189, a Division Bench of this Court held-

"It would be appropriate to observe
here that in a democratic set up like ours,
bureaucrats are expected to act and
discharge
their
executive
functions
impartially and strictly in accordance with
the Rules and Regulations. No doubt, as
of right no Government servant can claim
to be posted either on a particular station
or post, therefore, the transfers are to be
done only in administrative exigencies
and in public interest, but in the instant
case the letter written by the aforesaid
M.P. addressed to Minister for Urban
Development bearing endorsement of the
officers
of
the
State
Government,
indicates that instant transfer has neither
been made in administrative exigency nor
in public interest. It is not only a matter of
surprise but highly objectionable that
bureaucrats are dancing at the tunes of
such letters ignoring the well settled
norms meant for transfer."

In Dr. Bal Krishna Bansal vs. State
of U.P. and others, 1996 (Suppl.)
A.W.C.441, State of U.P. And others, a
Division Bench of this Court held that the
transfer order passed at the behest of the
local M.L.A. is not a transfer order in
public interest but is an order in personal
interest.

23. In my view, the aforesaid
principles propounded squarely applies to
the present facts and circumstances of the
case.

In Sarvesh Kumar Awasthi vs.
U.P. Jal Nigam and others, (2003) 11
SCC 740, the Supreme Court held:-

"In our view, transfer of officers is
required to be effected on the basis of set
norms or guidelines. The power of
transferring an officer cannot be wielded
arbitrarily, mala fide on an exercise
against efficient and independent officer
or at the instance of politicians whose
work is not done by the officer concerned.
For better administration the officers
concerned must have freedom from fear
of being harassed by repeated transfers or
3 All] Smt. Shabana V. Addl. City Magistrate and another
1037
transfers ordered at the instance of
someone who has nothing to do with the
business of administration."

24. In view of the aforesaid, the
transfer order is malafide and has been
issued at the instance of the politicians
against efficient officers who were not
toeing the line of the political bosses. In
my opinion, the transfer order has been
issued in a brazen manner unabashedly at
the instance of a Minister and a M.L.A.
Although the Courts are reluctant to
interfere in the transfer orders, yet in view
of the fact, that the transfer order has been
issued malafidely at the behest of the
Minister and the M.L.A., this Court has
no option but to interfere with the transfer
order, coupled with the fact that the
transfer order was also against the
guidelines framed by the department
itself.

25. In view of the aforesaid, the
impugned transfer orders are quashed and
the writ petitions are allowed. In the
circumstances of the case, there shall be
no order as to cost.
 Petition allowed.
---------
APPELLATE JURISDICATION
CIVIL SIDE
DATED: ALLHABAD 4.8.2005

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No.15966 of 2005

Shabana Smt.

 ...Petitioners
Versus
Additional City Magistrate and another

 ...Respondents

Counsel for the Petitioners:
Sri C.B.S. Yadav
Sri Rakesh Kumar

Counsel for the Respondents:
Sri Iqbal Ahmad
S.C.

U.P. Urban Building (Regulation of rent
and
eviction)
Act
1972-Section-16
(1)(b)-release application-on the grand
of personal need-petitioner the grand
daughter of the original tenant-objected
on the ground that being grand daughter
she was residing with her grandfather-
(the
chief
tenant)-after
death
she
become the tenant-admittedly the father
of petitioner being permanent employee
in
railway
never
resided
with
his
father(the
chief
tenant)-held
under
Muslim law the grand daughter is not
within the definition of heir-when her
father never reviled with the chief tenant
for last 30 years-she cannot be allowed
to
continue
her
possession-deemed
vacancy rightly presumed.

Held-Para 6 and 9

Under Muslim Law grand-daughter of a
person is not his heir if at the tie of his
death, his son I.e. the father of the
grand-daughter is alive.

Any other relation who may be legally
entitled to reside with the tenant in the
tenanted house during the life time of
the tenant does not become tenant after
the death o the original tenant unless he
or she is tenant's legal heir also.
Supreme Court in Ganesh Trivedi Vs.
Sundar Devi A.I.R. 2002 S.C. 676 held
that real brother was not included in the
definition of family as provided under
Section-3 (g) of U.P. Act No. 13 of 1972
however, he could very well reside with
his brother tenant in the tenanted
accommodation. It has further been held
in the said authority that in case such
brother is heir of the tenant then after
the death of the tenant he becomes
tenant by virtue of the definition of the
tenant given under Section3 (a) of the
Act. In the instant case petitioner not
being the heir of original tenant she
could therefore reside along with tenant