# Rajeev Kumar Saxena v. State of U.P. & Ors

- **Citation:** (2021) 9 ILRA 582
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-06-19
- **Case number:** Service Single No. 21142 of 2021
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajeev-kumar-saxena-v-state-of-u-p-ors-47450
- **Pages:** 6

## Headnote

A. Service Law - Transfer - Nature and
Scope of interference - Joining submitted
in pursuance of transfer - Cancellation of
transfer order - No opportunity of hearing
- Validity challenged - Transfer is an
incidence of service - Courts do not
normally interfere such orders unless such
order has been passed in a violation of
rules or is an outcome of malice in law -
Held, both these grounds are missing in
this case - Transfer policy is only a
guideline and such guideline may not be
executed through writ court unless there
is any statutory violation, therefore, the
plea of the petitioner that suspending the
transfer order dated 12.7.2021 would be
violative
of
transfer
policy
is
misconceived. (Para 6)
Writ Petition dismissed. (E-1)
Cases relied on :-

## Text

582 INDIAN LAW REPORTS ALLAHABAD SERIES
the writ petition, therefore, in view of the
decision of Division Bench of this Court in
re; Doli (Supra) the petitioner may not be
permitted to correct the wrong information.
To me, if the candidates are permitted to
correct their mistake done while filling up
the application form in question whether it
is bonafide or not, the authority concerned
would not be able to conclude the selection
process to its logical end, therefore, the
Clause-17 in the notification has been
incorporated. So far as the argument of
learned counsel for the petitioner regarding
the principle of estoppel having been
imposed
against
the
cancellation
of
appointment of the petitioner vide order
dated 19.06.2021 after permitting him to
serve on the post in question is concerned, I
am of the considered opinion that to meet
out such eventuality the Government Order
dated
5.3.2021
has
been
issued.
Admittedly, neither the Government Order
dated 5.3.2021 has been assailed nor
Clause-17 of the notification has been
assailed by the petitioner, therefore, the
competent authority may not be restrained
to
issue
order
of
cancellation
of
appointment of the petitioner on the basis
of principle of estoppel.

16. Having heard learned counsel for the
parties and having perused the material
available on record and the case laws so cited
by learned counsel for the parties, I do not find
any infirmity or illegality in the orders
impugned dated 19.06.2021 passed by the
authorities, therefore, the writ petition is
dismissed.

17. No order as to cost.

18. However, it is provided that since the
petitioner has admittedly discharged his duties
on the post of Assistant Teacher, therefore, no
recovery shall be made from him for the
period he has discharged his duties.
----------
(2021)09ILR A582
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.09.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 21142 of 2021

Rajeev Kumar Saxena ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Jayshanker Shukla

Counsel for the Respondents:
C.S.C.

A. Service Law - Transfer - Nature and
Scope of interference - Joining submitted
in pursuance of transfer - Cancellation of
transfer order - No opportunity of hearing
- Validity challenged - Transfer is an
incidence of service - Courts do not
normally interfere such orders unless such
order has been passed in a violation of
rules or is an outcome of malice in law -
Held, both these grounds are missing in
this case - Transfer policy is only a
guideline and such guideline may not be
executed through writ court unless there
is any statutory violation, therefore, the
plea of the petitioner that suspending the
transfer order dated 12.7.2021 would be
violative
of
transfer
policy
is
misconceived. (Para 6)
Writ Petition dismissed. (E-1)
Cases relied on :-
1. Service Single No. 21036 of 2021; Avnesh
Kumar Vs St. of U.P. & ors. decided on
20.9.2021
9 All Rajeev Kumar Saxena Vs. State of U.P. & Ors.
583
2. Civil Misc. Writ Petition No. 52249 of 2000;
Krishna Chandra Dubey Vs U.O.I.& ors.
3. Special Leave to Appeal (C) No(s).
36717/2017; Namrata Verma Vs The St. of U.P.
& ors.

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Jay Shanker Shukla,
learned counsel for the petitioner and Ms.
Jyoti Sikka, learned Addl. Advocate
General, assisted by Sri Shailendra Kumar
Singh, learned Chief Standing Counsel-III
for the State-respondents.

2. At the very outset, Sri Shailendra
Kumar Singh, learned Chief Standing
Counsel-III has drawn attention of this
Court towards the order dated 20.9.2021
passed by this Court in Service Single
No.21036 of 2021, Avnesh Kumar Vs.
State of U.P. & Ors, by submitting that the
case of the present petitioner is identical
with the case of Avnesh Kumar (supra)
inasmuch as the place of posting of the
present petitioner is unchanged in the same
manner as the place of posting of Avnesh
Kumar (supra) was unchanged, therefore,
the present writ petition may be decided in
terms of order dated 20.9.2021. For the
convenience, the order dated 20.9.2021
passed in re; Avnesh Kumar (supra) is
being reproduced herein below:-

"1. Heard Sri Jay Shanker
Shukla, learned counsel for the petitioner
and Ms. Jyoti Sikka, learned Additional
Advocate General of U.P. for the Staterespondents.

2. By means of this petition, the
petitioner has assailed the order dated
27.7.2021 passed by the Special Secretary,
Finance
(Services)
Anubhag-1,
Government of U.P. addressing to the
Director, Internal Accounts and Audit
Examination, Lucknow suspending the
operation of all transfer orders of the
employees made for the session 2021-22
until further orders. The petitioner has also
assailed the office order dated 28.7.2021
passed by the Director, Internal Accounts
and Audit Examination, U.P., Lucknow in
compliance of the order dated 27.7.2021
staying the transfer orders issued from
22.6.2021 to 15.7.2021.

3. Contention of learned counsel
for the petitioner is that the petitioner, who
is serving on the post of Accountant in the
office of Superintendent, Central Jail,
Fatehgarh,
Farrukhabad,
has
been
transferred vide order dated 15.7.2021
(Annexure No.8) in the public interest to
the office of Finance Controller (Vittiya
Paramarshdata),
Zila
Panchayat,
Farrukhabad. Learned counsel for the
petitioner has contended that as soon as the
transfer order dated 15.7.2021 was passed,
the petitioner submitted his joining at the
transferred
place,
therefore,
after
submitting his joining at the transferred
place, his transfer order may not be
suspended by means of impugned order
dated
27.7.2021.
Further,
the
consequential
order
dated
28.7.2021
passed by the Director concerned staying
all transfer orders is illegal.

4. Learned counsel for the
petitioner has further submitted that some
identical writ petitions are pending and in
some of identical writ petitions, interim
orders have been granted. Learned counsel
for the petitioner has drawn attention of
this Court towards an order dated
17.9.2021 passed by the Division Bench of
this Court in Special Appeal No.339 of
2021 whereby the Division Bench of this
Court
has
stayed
the
order
dated
27/28.7.2021 on the basis of principles of
parity observing that since the interim
584 INDIAN LAW REPORTS ALLAHABAD SERIES
order has been passed in favour of some
employees, therefore, the appellant before
the Division Bench is also entitled for the
same benefit in view of the dictum of the
Hon'ble Apex Court in re; Vishnu Traders
vs. State of Haryana and others, reported
in 1995 Supp. (1) SCC 461. For the
convenience, the order dated 17.9.2021
passed by the Division Bench in Special
Appeal No.339 of 2021 is being reproduced
herein below:-

"This intra-court appeal has been
filed against the judgment and order dated
07.09.2021 passed by learned Single Judge
in Writ Petition No.19887 (SS) of 2021 in
re: Satya Narayan Gautam vs. State of U.P.
and others, whereby the writ petition
preferred by the petitioner/appellant has
been dismissed.

Heard.

Admit.

Issue notice.

Since
the
respondents
are
represented by learned Standing Counsel
no steps are required to be taken for
issuance of notice.

Learned counsel for the appellant
submits that vide order dated 15.07.2021
several persons were transferred on their
own request. The petitioner/appellant was
also transferred on his request on the post
of Accountant. The said transfer order was
subsequently suspended by the State
Government vide order dated 27.07.2021
after joining of the transferred persons
including the appellant on the transferred
place. The competent authority through his
order dated 28.07.2021 directed to join
back at the earlier place of posting. The
aforesaid orders were challenged by
several persons by filing separate writ
petitions namely Writ Petition No.17278
(SS) of 2021 in re: Akansha Tripathi vs.
State of U.P. and others, Writ Petition
No.9907 (SS) of 2021 in re: Munish Kumar
Srivastava vs. State of U.P. and others,
Writ Petition No.18115 (SS) of 2021 in re:
Gyanendra Kumar vs. State of U.P. and
others, and Writ Petition No.19103 (SS) of
2021 in re: Shankar Lal Agrawal vs. State
of U.P. and others, wherein the Court had
granted
indulgence
and
stayed
the
impugned order dated 27/28.07.2021. The
submission of learned counsel for the
appellant is that the appellant/petitioner is
also entitled to get parity of the aforesaid
orders as he is similarly situated like the
others. However, learned Single Judge
dismissed the writ petition on the first day
itself. In support of his submission, learned
counsel for the appellant/petitioner has
relief on the case of Vishnu Traders vs.
State of Haryana and others reported in
1995 Supp. (1) SCC 461, to emphasize that
there should be parity in grant of the
interim orders.

We
have
considered
the
submissions of learned counsel for the
parties and gone through the records.

Once the interim order has been
passed in the cases of similarly situated
persons,
the
appellant/petitioner
was
entitled to get parity. As such, we stay the
operation of the impugned judgment and
order dated 07.09.2021 as well as the order
dated 27/28.07.2021 till further orders of
this Court.

However, it would be open for the
respondents to pass fresh orders."

5. I have also granted interim
order in favour of the employee, who had
sought transfer at particular district
apprising his grievance and said transfer
order was passed on his request and
thereafter, such employee submitted his
joining at the transferred place, therefore, I
was of the opinion that when any transfer
order is passed considering the request of
an employee and such employee has
submitted his joining at the transferred
9 All Rajeev Kumar Saxena Vs. State of U.P. & Ors.
585
place, such transfer order should not be
suspended by way of general order staying
all transfer orders.

6. However, I had also an
occasion to decide an identical writ
petition bearing Writ Petition No.19965
(S/S) of 2021, whereby the transfer of such
employee was made in public interest and
he submitted his joining pursuant to the
earlier transfer order. When his transfer
order was suspended by a general orders
dated 27.7.2021 and 28.7.2021, he assailed
such order placing same analogy that once
an employee has submitted his joining at
the transferred place, his/ her transfer
order may not be suspended or withdrawn.
Dismissing that writ petition considering
the fact that place of said petitioner was
unchanged, therefore, no legal prejudice is
being caused to him and even his place of
posting is unchanged, no interference was
made in that transfer order in terms of
order dated 6.9.2021 passed by the Hon'ble
Apex Court in re; Namrata Verma v. The
State of Uttar Pradesh & Ors., Special
Leave to Appeal (C) No(s).36717/2017. For
the convenience, the order dated 6.9.2021
reads herein below:-

"Heard Mr. Parvez Bashista,
learned
counsel
appearing
for
the
petitioner and Mr. Sanjay Kumar Tyagi,
learned
counsel
appearing
for
the
respondent-State of U.P.

It is not for the employee to insist
to transfer him/her and/or not to transfer
him/her at a particular place. It is for the
employer
to
transfer
an
employee
considering the requirement.

The Special Leave Petition is
dismissed.

Pending
applications
stand
disposed of."

7. Ms. Jyoti Sikka, learned
Additional Advocate General has submitted
that the decision of the Hon'ble Apex Court
in re; Namrata Verma (supra) might have
not been placed for consideration before
the Division Bench of this Court and
difference of the facts being considered by
this Court might have not been apprised
properly,
therefore,
the
order
dated
17.9.2021
would
have
been
passed.
However, she has submitted that the State
is willing to file counter affidavit in the said
special appeal apprising each facts and
circumstances in detail including the order
of the Hon'ble Apex Court in re; Namrata
Verma (supra).

8. By means of impugned order
dated 27.7.2021 (Annexure No.1), all the
transfer orders issued for the transfer
session 2021-22 have been suspended until
further orders and as per Ms. Sikka, the
fact finding enquiry is going on and as
soon as the report of fact finding enquiry is
received
to
the
competent
authority,
appropriate orders would be passed. In
case the competent authority finds that the
earlier transfer orders issued in favour of
the petitioner and other employees are
appropriate orders, such employees would
be permitted to discharge their respective
duties at the transferred place and if it is
found that such transfer orders were not
passed strictly as per policy or law, those
transfer orders would be cancelled and the
employees would have to submit their
joining at the earlier places. In any case,
since no final decision has yet been taken,
therefore, grievance of the petitioner that
by means of impugned order dated
27.7.2021 and 28.7.2021 (Annexure Nos.1
& 2), the earlier transfer orders of the
petitioner
have
been
cancelled
is
misconceived. The said transfer order has
been suspended for the time being till any
appropriate order is passed by the
competent authority.

9. Besides, if the transfer order of
the petitioner is permitted to be existed, in
586 INDIAN LAW REPORTS ALLAHABAD SERIES
that case he shall remain be posted at
Farrukhabad and in case his transfer order
is cancelled, even in that case he shall
remain be posted at Farrukhabad. The
present petitioner shall remain be posted at
Farrukhabad in any eventuality. Therefore,
I wonder as to why the present transfer
order has been challenged by the petitioner
when his place of posting is unchanged in
any circumstance. The Hon'ble Apex Court
has time and again and also in re; Namrata
Verma (supra) has categorically observed
that the employee may not insist for
particular place of posting.

10. In view of the above, I do not
find any infirmity or illegality in the
impugned orders dated 27.7.2021 passed
by opposite party no.2 and 28.7.2021
passed by opposite party no.3 (Annexure
Nos.1 & 2).

11. Therefore, the writ petition is
dismissed being misconceived."

3. Sri Shukla, learned counsel for the
petitioner has submitted that even if the
place of posting of the petitioner is
unchanged, even then the transfer order
earlier passed in favour of the petitioner
pursuant to which the petitioner has
submitted his joining may not be suspended
by means of impugned orders dated
27.7.2021 and 28.7.2021 (Annexure Nos.1
& 2) passed by the Special Secretary and
Director respectively. Since the earlier
transfer order dated 12.7.2021 was passed
strictly in terms of transfer policy of the
State Government, which provides that
after three years of service, the place of
posting of an employee should be changed
and following such guideline, the place of
posting o the petitioner was changed from
the office of Block Development Officer,
Kadarchauk, Badaun to the office of
Finance Advisor (Vittiya Paramarshdata),
Zila Panchayat, Badaun in public interest
on the vacant post. Therefore, if the transfer
order dated 12.7.2021 pursuant to which
the petitioner has submitted his joining in
the office of Vittiya Paramarshdata, Zila
Panchayat, Badaun is suspended, at least an
opportunity of hearing to the petitioner
should be afforded. Sri Shukla has
submitted that the law is trite to the effect
that if any person submits his joining
pursuant to the transfer order, the same
may not be suspended, withdrawn or
cancelled.

4. Sri Sri Shailendra Kumar Singh,
learned Chief Standing Counsel-III, has
informed on the basis of instructions that
the Director, who had made transfer of the
employees for the session 2021-22, has
been placed under suspension pursuant to
the fact finding enquiry for the reason that
while transferring the employees for the
session 2021-22, the relevant guidelines
and mandate of policy have not been
considered
properly,
however,
final
decision is pending consideration before
the Government regarding those transfer
orders, which have been suspended until
further orders.

5. On being confronted the learned
counsel for the petitioner as to what legal
right of the petitioner has been flouted or
violated by means of impugned orders
dated 27.7.2021 and 28.7.2021 when the
place of posting shall remain unchanged in
case the earlier transfer order is cancelled
or survived, learned counsel for the
petitioner has submitted that when any
order has been passed without following
the due procedure of law, that may not be
permitted to sustain any longer.

6. Be that as it may, the transfer is an
incidence of service, therefore, the courts
do not normally interfere such orders
9 All Mohd. Nijamuddin & Ors. Vs. State of U.P. & Anr.
587
unless such order has been passed in a
violation of rules or is an outcome of
malice in law. Both the aforesaid grounds
are missing in this case. The law is trite in
re; Krishna Chandra Dubey Vs. Union of
India (UOI) and Ors. (Civil Misc. Writ
Petition No.52249 of 2000), that it is very
well within the domain of the competent
authority to modify the transfer order or to
cancel the transfer order even if the same
has been executed. Recently, the Hon'ble
Apex Court in re; Namrata Verma v. The
State of Uttar Pradesh & Ors., Special
Leave to Appeal (C) No(s).36717/2017,
has held that the employee may not request
his/ her posting at any particular place. In
the present case, if the transfer order dated
12.7.2021 (Annexure No.6) is cancelled,
the petitioner shall remain be posted at
Badaun and if such transfer order survives,
in that case the petitioner shall remain be
posted at Badaun. Further, the transfer
policy is only a guideline and such
guideline may not be executed through writ
court unless there is any statutory violation,
therefore, the plea of the petitioner that
suspending
the
transfer
order
dated
12.7.2021 would be violative of transfer
policy is misconceived. It is made clear that
the facts of the case wherein the interim
order has been granted are different
inasmuch as such employee had placed his
grievance before the competent authority
seeking
transfer
and
considering
his
bonafide grievance, he was transferred at
particular place. Further, such transfer is
permissible but his transfer order was also
suspended by means of impugned orders
dated 27.7.2021 and 28.7.2021 even after
submitting his joining, therefore, the
interim order was granted in favour of such
employee seeking counter affidavit from
the State Government. In other cases where
the place of posting is unchanged, no
interim order has been granted by this
Court as informed by the learned Chief
Standing Counsel.

7. In view of the above, I do not find
any infirmity or illegality in the impugned
orders dated 27.7.2021 passed by opposite
party no.2 and 28.7.2021 passed by
opposite party no.3 (Annexure Nos.1 & 2).

8. Therefore, the writ petition is
dismissed being misconceived.
----------
(2021)09ILR A587
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.09.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 29369 of 2016
connected with
Service Single No. 2397 of 2020

Mohd. Nijamuddin & Ors. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
A.P. Singh, Amarendra Pratap Singh

Counsel for the Respondents:
C.S.C., Amit Bose

A. UP Police Radio Subordinate Service
Rules, 1982 - Promotion on the post of
Workshop Hand - Qualification of having
ITI certificate - Requirement - Rules of
2015 make the qualification of having ITI
Certificate mandatory, but Rules of 2016
make it optional - Eight vacancies of
promotion was notified on 16.05.2016 -
Rules, 2015 will be applied or Rules, 2016
- Held, in view of the qualification being
prescribed under the Amended Rules,
2016 the candidates, who were qualified
as per unamended Rules i.e. Rules, 2015,
have not been ousted from zone of