# Ravi Prakash Mishra v. State of U.P. & Ors

- **Citation:** (2024) 8 ILRA 296
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-02
- **Case number:** Writ-A No. 5951 of 2024
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ravi-prakash-mishra-v-state-of-u-p-ors-52316
- **Pages:** 4

## Headnote

A. Service Law-Constitution of India,
1950-Article
226-petitioner
challenged
that transfer order issued during the
election notification period, claiming it
violated the Model Code of Conduct-The
transfer
was
executed
without
prior
approval
from
the
State
Election
Commission, which is mandatory during
such periods-Held, that any transfer order
issued
without
approval
during
the
election notification period is null and
void-The court quashed the impugned
transfer order, reinstated the petitioner to
his original post, and directed the State
Election
Commission
to
seek
an
explanation from the District Panchayat
Raj Officer for the violation of the Model
Code of Conduct.(Para 1 to 13)

The petition is allowed. (E-6)

List of Cases cited:

R.K. Mittal Vs St.of U.P. & anr..(2004) SCC
Online All 1772.

## Text

296 INDIAN LAW REPORTS ALLAHABAD SERIES
expeditiously and the post falling vacant
due to the solitary transfer shall be included
in the notified posts and this vacancy will
also be covered by the same selection
process. After commencement of the
selection process, no solitary transfer will
be made under any circumstance.

28. As the Rules in force at the time
when the case of Hari Pal Singh (Supra)
was decided do not exist any more, the
ratio laid down in the aforesaid case would
not apply to the present case, where the
Rules in force are different from the Rules
those were in force at the time of decision
of Hari Pal Singh's case.

29. In view of the foregoing
discussion, I am of the considered view
that under the U. P. Education Services
Selection
Commission
Rules,
2023,
there is no absolute prohibition against
filling up a vacant post of Principal by
transfer after a requisition for filling up
the vacancy has been sent, provided the
selection process has not commenced.
Therefore, there is no illegality in
transfer of Sri. Nityanand Mishra from
the post of Principal, Raj Kumar Higher
Secondary
School,
Kubernath,
Kushinagar, to the post of Principal,
Bharat Sewak Samaj Inter College,
Hathiyar, Varanasi.

30. Both the Writ Petitions lack merit
and the same are dismissed. It is needless to
say that as a result of dismissal of the Writ
Petitions, the interim orders passed in the
Writ Petitions stand discharged.
----------
(2024) 8 ILRA 296
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.08.2024

BEFORE
THE HON'BLE RAJESH SINGH CHAUHAN, J.

Writ-A No. 5951 of 2024

Ravi Prakash Mishra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
S.M. Singh Royekwar

Counsel for the Respondents:
C.S.C., Anindya Shastri

A. Service Law-Constitution of India,
1950-Article
226-petitioner
challenged
that transfer order issued during the
election notification period, claiming it
violated the Model Code of Conduct-The
transfer
was
executed
without
prior
approval
from
the
State
Election
Commission, which is mandatory during
such periods-Held, that any transfer order
issued
without
approval
during
the
election notification period is null and
void-The court quashed the impugned
transfer order, reinstated the petitioner to
his original post, and directed the State
Election
Commission
to
seek
an
explanation from the District Panchayat
Raj Officer for the violation of the Model
Code of Conduct.(Para 1 to 13)

The petition is allowed. (E-6)

List of Cases cited:

R.K. Mittal Vs St.of U.P. & anr..(2004) SCC
Online All 1772.

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

1. Heard.

2. This Court has passed order dated
31.07.2024, which reads as under:-

"1.
Heard
Sri
S.M.
Singh
Royekwar,
learned
counsel
for
the
8 All. Ravi Prakash Mishra Vs. State of U.P. & Ors.
297
petitioner, Sri Sandeep Sharma, learned
Standing Counsel for the State and Sri
Anindra Shastri, learned counsel for the
opposite party No.8.

2. Sri Yoyekwar, learned counsel
for
the
petitioner
has
assailed
the
impugned transfer order dated 20.07.2024
(Annexure No.1), passed by the District
Panchayat Raj Officer, Gonda, whereby the
petitioner who is serving on the post of
Assistant
Development
Officer
(Panchayat), has been transferred from
Vikas Khand Wazirganj to Vikas Khand
Mujehna, District-Gonda on the ground
that the State Election Commission has
notified
election
of
Panchayat
on
15.07.2024 (Annexure No.2) and election
for Block Wazirganj is to be conducted
pursuant to the election notification.

3. As per Sri Royekwar, after the
notification having been issued by the State
Election Commission, the administrative
authority cannot transfer an employee from
one place to another place even in the same
district without taking prior permission
from the State Election Commission.

4. On being confronted learned
counsel for the State Election Commission
as to whether any permission/ approval has
been given transferring the petitioner and
the same query has been put from Sri
Sandeep Sharma learned counsel for the
State as to whether the authority concerned
has taken consent from the Election
Commission, both the counsels appearing
for the opposite parties have requested that
some short time may be given them to seek
specific instructions on that point.

5. List/ put up this case on
02.08.2024 as fresh. On that date, this
matter may be taken up immediately after
fresh cases.

6. Till the next date of listing, the
status-quo as on today i.e. 31.07.2024,
shall be maintained."

3. Sri S.M. Singh Royekwar, learned
counsel for the petitioner, has filed
supplementary affidavit enclosing true
copy of the Model Code of Conduct issued
by the Election Commission, the same is
taken on record.

4. Learned counsel for the State
Election Commission and learned Standing
Counsel, both, have stated that before
issuing the impugned transfer order dated
20.07.2024 no approval/ permission has
been taken from the State Election
Commission.

5. Sri S.M. Singh Royekwar has
drawn attention of this Court towards para6 (Ka) of the Model Code of Conduct,
which categorically provides that during
the currency period of election notification,
no employee of the area would be
transferred/ appointed/promoted and if such
transfer etc. is necessary on account of
compelling
circumstances,
prior
permission/
approval
from
the
State
Election Commission would be required.

6. Sri Royekwar has drawn attention
of this Court towards the decision of the
Division Bench of this Court in re; R.K.
Mittal Vs. State of U.P. and another,
2004 SCC OnLine All 1772, wherein the
Division Bench has observed that transfer
of an employee whose services are required
in the election process for conducting the
election smoothly, such exercise shall be
regulated by the Election Commission in
order to conduct the election free and fair;
relevant para-23 thereof reads as under:-

"23. Transfer of the employees
whose services are required in the
electioneering
process,
may
be
restrained/regulated
by
the
Election
Commission in order to conduct the
298 INDIAN LAW REPORTS ALLAHABAD SERIES
election free and fair, for the reason that a
political party in power, may post the
officers of its liking at a particular place
for a definite purpose of some unlawful
gain in the election and in order to curb
such a situation/possibility, it may be
necessary for the Election Commission to
issue such kind of direction, and once such
a direction is issued, it requires strict
adherence. It is not that every direction
issued
by
the
Commission
requires
observance religiously but where the
direction is being issued to ensure free and
fair election, all other authorities are under
obligation to give strict adherence to the
same."

7. Therefore, Sri Royekwar has
submitted that since no prior permission/
approval has been taken transferring the
petitioner from one place to another place
during the currency period of election
notification, the impugned transfer order
would be illegal, arbitrary and uncalled for,
therefore, the same is liable to be quashed.
He has further submitted that if the
aforesaid transfer order has been executed
and any person has submitted joining at the
transferred place, even then such joining
would be quashed for the reason that such
transfer order would be non-est and void
ab-initio.

8. Learned Standing Counsel has
submitted that opposite party no.7 has
submitted joining pursuant to the impugned
transfer order dated 20.07.2024.

9. Having heard learned counsel for
the parties and having perused the material
available on record and also the decision of
the Division Bench of this Court in re;
R.K. Mittal (supra), I am of the
considered opinion that if during the
currency period of election notification,
any transfer order has been passed without
seeking prior approval or permission from
the Election Commission, that order would
be non est in the eyes of law and therefore,
it would be treated as if no transfer order
has been passed, thus, the execution
thereof, if any, would be meaningless. If on
account of the fact that one person has
submitted his joining at the transferred
place
pursuant
to
the
illegal
and
unwarranted transfer order during the
currency period of election notification,
then the very purpose of issuing election
notification and the Model Code of
Conduct would be frustrated.

10. Therefore, the impugned transfer
order dated 20.07.2024 is hereby set aside/
quashed.

11. The District Panchayat Raj
Officer, Gonda is directed to permit the
petitioner to serve at Vikas Khand
Wazirganj where he was serving before
passing the impugned transfer order dated
20.07.2024 and opposite party no.7 shall be
permitted to discharge his duties at Vikas
Khand Mujehna where he was serving
before the impugned order of transfer.

12. Not only the above, since this is
an admitted fact that the District Panchayat
Raj Officer, Gonda has passed the transfer
order during the currency period of election
notification
without
seeking
prior
permission or approval from the State
Election Commission, therefore, the State
Election Commission may seek explanation
from the District Panchayat Raj Officer,
Gonda to the effect that as to how he has
issued the transfer order in violation of the
Model Code of Conduct.

13. Accordingly, the writ petition is
allowed.
8 All. Manoj Kumar Vs. State of U.P. & Ors.
299

14. No order as to costs.
----------
(2024) 8 ILRA 299
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.08.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ-A No. 6590 of 2024

Manoj Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri A.K. Srivastava

Counsel for the Respondents:
C.S.C., Sri Shesh Kumar Srivastava, Sri
Vinod Kumar Singh

A. Service Law-Constitution of India,1950Article 226-The petitioner challenged the
appointment of RespondentNo.5 as the
Prinicipal of Dayanand Brhama Sanskrit
Mahavidyalaya on the grounds of noneligibility-The petitioner claimed that the
respondent did not meet the necessary
qualifications for the position and that his
own rights were infringed upon by not
being considered for the post-The court
considered the fact that Respondent no. 5
had
already
retired
upon
reaching
superannuation on june 30, 2024-As a
result, the core issue concering the
respondent's appointment had become
moot-Citing relevant legal precedents, the
court determined that the petitioner's
request for removal of Respondent No.5
from
the
position
was
no
longer
actionable since the respondent was no
longer in office-Consequently, the writ
petition was dismissed as infructuous,
since the relief sought by the petitioner
could no longer be granted.(Para 1 to 22)

The petition is dismissed. (E-6)

List of Cases cited:

1. Pradeep Kumar Verma & ors.Vs U.O.I. (2018)
11 ADJ 203

2. Board of Mgmt.Dayanand College of Law,
Kan. Nagar Vs St. of U.P.(2001) 1 AWC 190
All=(2001) 1 UPLBEC 440

3. Bharat Reddy Vs St. of Kar & ors.(2018) SCC
162

4. Dr. Premchandran Kijoy Vs V.C. Kan. Univ.
(2023) SCC Online SC 1592

5. Cent. Electy. Supply Utility of Ori. Vs Dhobei
Sahu & ors.(2014) SCC 161

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. याचिकाकताग्‌ के्‌ विदिान्‌ अचधिक्ता्‌
श्री्‌ अशोक्‌ कुमार्‌ श्रीिास्ति, विपक्षी्‌ संख्या-
1, 2्‌ एिं्‌ 3्‌ की्‌ तरफ्‌ से्‌ विदिान्‌ स्र्थायी्‌
अचधिक्ता्‌ श्री्‌ सौरभ, विपक्षी्‌ संख्या-4्‌
के्‌
विदिान्‌
अचधिक्ता्‌
श्री्‌
शेष्‌
कुमार्‌
श्रीिास्ति्‌ तर्था्‌ विपक्षी्‌ संख्या-5्‌ के्‌ विदिान्‌
अचधिक्ता्‌ श्री्‌ विनोद्‌ कुमार्‌ भसंह्‌ को्‌ सुना्‌
तर्था्‌ पिािली्‌ का्‌ अिलोकन्‌ ककया।

2. भारतीय्‌ संविधान्‌ के्‌ अनुछछेद्‌ 226्‌
के्‌ अंतर्गत्‌ प्रस्तुत्‌ इस्‌ ररट्‌ याचिका्‌ दिारा्‌
याचिकाकताग्‌ ने्‌ विपक्षी्‌ संख्या-5्‌ दिारा्‌ श्री्‌
दादू्‌
बलराम्‌
संस्कृत्‌
महाविदयालय्‌
के्‌
प्रधानािायग्‌ के्‌ पद्‌ धाररत्‌ करने्‌ के्‌ विरुदध्‌
एक्‌ अचधकार्‌ पृछछा्‌ ररट्‌ ननर्गत्‌ ककये्‌ जाने्‌
की्‌ प्रार्थगना्‌ की्‌ है्‌ तर्था्‌ सार्थ्‌ ही्‌ याचिकाकताग्‌
ने्‌ यह्‌ भी्‌ अनुतोष्‌ मााँर्ा्‌ है्‌ कक्‌ विपक्षी्‌
संख्या्‌ 1, 2्‌ तर्था्‌ 6्‌ विपक्षी्‌ संख्या-5्‌ को्‌
उपरोक्त्‌ पद्‌ का्‌ िेतन्‌ न्‌ दें।