# Sanjay Kumar Singh v. State of U.P. & Ors

- **Citation:** (2022) 9 ILRA 210
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-03
- **Case number:** Writ A No. 10089 of 2020
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjay-kumar-singh-v-state-of-u-p-ors-48993
- **Pages:** 10

## Headnote

A. Service Law - Transfer - Administrative
exigencies - Punitive in nature, how far
ground to quash it - Somesh Tiwari's case
relied upon - Employer is entitled to pass
an order of transfer in administrative
exigencies but an order of transfer cannot
be passed by way of, or in lieu of
punishment and that when an order of
transfer is passed in lieu of punishment,
the same is liable to be set aside being
wholly illegal - High Court found the
transfer order passed not in lieu of or by
way of any punishment. (Para 22 and 23)
Writ petition dismissed. (E-1)
List of Cases cited:-

## Text

210 INDIAN LAW REPORTS ALLAHABAD SERIES
2012 (Shiv Kumar Dubey vs. State of U.P.
and others). The words 'is not already
employed' occurring in Rule 5 (1) implies
an existing employment and does not cover
a scenario where the spouse has retired on
the date of death. If such retired spouse is
getting pension then this aspect can be
considered separately while assessing the
financial condition of the family, but then,
in such a situation the exception carved out
in Rule 5(1) would not be applicable.

8. Apparently the opposite parties
have misconstrued Rule 5 (1), the same
will have no application where the spouse
who was in service had already retired prior
to the death of the wife. The opposite
parties
are
under
an
obligation
to
reconsider the claim of the petitioner in the
light of the law on the subject, meaning
thereby, they shall ascertain financial
condition of the family as to whether the
petitioner has adequate means to sustain
herself and then take a considered decision
in the light of the aforesaid Full Bench
decision.

9. The impugned order dated
22.01.2021 is quashed. Let a fresh decision
be taken within two months from the date
of receipt of certified copy of this order.

10. It is open for the opposite parties
to verify as to whether the father of the
petitioner was receiving any pension or had
received any other post retiral dues, if so,
what was the amount in this regard.

11. The writ petition is disposed of.
----------

(2022) 9 ILRA 210
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.08.2022
BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Writ A No. 10089 of 2020

Sanjay Kumar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Abhishek Rai

Counsel for the Respondents:
C.S.C.

A. Service Law - Transfer - Administrative
exigencies - Punitive in nature, how far
ground to quash it - Somesh Tiwari's case
relied upon - Employer is entitled to pass
an order of transfer in administrative
exigencies but an order of transfer cannot
be passed by way of, or in lieu of
punishment and that when an order of
transfer is passed in lieu of punishment,
the same is liable to be set aside being
wholly illegal - High Court found the
transfer order passed not in lieu of or by
way of any punishment. (Para 22 and 23)
Writ petition dismissed. (E-1)
List of Cases cited:-

1. Somesh Tiwari Vs U.O.I. & ors.; AIR 2009 SC
1399

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1. The petitioner has challenged the
order dated 13.07.2020 passed by State
Radio Officer (Administration), U.P. Police
Radio Headquarter, Mahanagar, Lucknow,
as well as the relieving orders dated
14.07.2020 and 15.07.2020 passed by
Radio Inspector, Gyanvapi, Varanasi. The
petitioner has also challenged the order
dated 07.10.2020 passed by Additional
9 All. Sanjay Kumar Singh Vs. State of U.P. & Ors.
211
Director General of Police (Telecom), Uttar
Pradesh, Lucknow.

2. It has been argued by the learned
counsel for the petitioner that the petitioner
was working on the post of Head Operator
(Mechanic)
in
U.P.
Police
Radio
Department and was posted in District Mau
from July, 2001 to July, 2019. The
petitioner made a request for his transfer to
Varanasi because his mother was being
treated at Varanasi. The petitioner was
transferred from District Mau to District
Varanasi on 8.7.2019 by the Competent
Authority i.e. Deputy Inspector General of
Police
(Telecom),
U.P.
Police
Radio
Headquarter, Mahanagar, Lucknow.

 It has been argued that while the
petitioner was working in Mau, he had
made a complaint against his higher
officials alleging personal animosity with
the petitioner. When the petitioner had
made application for transfer from District
Mau to District Varanasi, an adverse report
was made on such application by the
Additional State Radio Officer, Varanasi
Zone, Varanasi on 30.05.2019, a perusal of
which would go to show that the Additional
State
Radio
Officer,
Varanasi
Zone,
Varanasi was inimical to the petitioner and
did not want his transfer to Varanasi. Now
the Senior Superintendent of Police,
Varanasi
Zone,
Varanasi
on
the
recommendation of Additional State Radio
Officer, Varanasi Zone, Varanasi had
recommended the transfer of the petitioner
to a different district. His recommendation
dated 24.05.2020 was relied upon and
without any opportunity of hearing being
given to the petitioner and without seeking
approval of the Competent Authority i.e.
Deputy
Inspector
General
of
Police
(Telecom), the petitioner was transferred
from Varanasi to Fatehpur on 13.07.2020.
The petitioner went on leave. Suddenly
relieving order was issued on 14.07.2020
by
the
State
Radio
Officer
(Administration),
U.P.
Police
Radio
Headquarter, Mahanagar, Lucknow and he
was relieved in absentia and the order was
pasted at his residence on 15.07.2020.

3. The petitioner being aggrieved,
filed writ petition before this Court namely
Writ-A No. 6619 of 2020 (Sanjay Kumar
Singh Vs. State of U.P. and others).

4. This Court noted the submission
made by the learned counsel for the
petitioner that the order was passed with
malicious intent and that it was passed by
an incompetent authority and also noted the
submissions made by the learned Standing
Counsel that under the Uttar Pradesh Police
Radio Sub-ordinate Officers' Service Rules,
2015, the Appointing Authority of the
petitioner is the State Radio Officer and the
Appointing Authority can also transfer the
petitioner. Moreover, such transfer order
had been issued after recommendation
dated 13.07.2020 of the U.P. Police Radio
Establishment Board of which Deputy
Inspector General of Police (Telecom) and
Inspector General of Police (Telecom) are
members and an employee of the Police
Radio Department can be transferred from
one Zone to another Zone only by the U.P.
Police Radio Establishment Board. This
Court was not satisfied with the submission
of the learned counsel for the parties but
observed that the petitioner had already
approached the authority concerned by
moving a representation and the matter be
looked into and decided by the Competent
Authority i.e. Deputy Inspector General of
Police within a period of two weeks from
the date of passing of the order dated
28.09.2020 and that for a period of two
weeks, since the petitioner was already on
212 INDIAN LAW REPORTS ALLAHABAD SERIES
medical leave, no action be taken against
him for not joining at his transferred place
of posting and the final decision of the
Authority be awaited.

5. It has been argued that in pursuance
of the order passed by this Court, the
petitioner again made a representation
along with a copy of the order of this Court
to the Deputy Inspector General of Police
(Telecom) and now the impugned order has
been passed by the respondent reiterating
their earlier stand and affirming the transfer
order
dated
13.07.2020,
without
considering any of the grounds mentioned
by the petitioner in his representation.

6. It has been argued by the learned
counsel for the petitioner that the transfer
order is punitive in nature and has referred
to the judgment rendered by the Hon'ble
Supreme Court in the case of Somesh
Tiwari v. Union of India and others
reported in AIR 2009 SC 1399. An ex
parte enquiry had been conducted by the
Superintendent of Police Varanasi and the
Assistant State Radio Officer against the
petitioner and it was made the basis of the
order of transfer dated 13.07.2020. It
amounted to punishing the petitioner
without giving opportunity of hearing to
him.

7. It has also been argued that the three
grounds raised by the petitioner in his
representation against the transfer order dated
13.07.2020 have been mentioned in the
impugned order but none of the grounds
taken by him have been considered or
discussed and no finding has been recorded
by the respondents.

8. It has been argued by the learned
counsel for the petitioner that power of
transfer of the government employees of the
Police Department/Police Radio Department
is vested with the Inspector General of Police
(Telecom) / Deputy Inspector General of
Police (Telecom) and even recommendation
for transfer had to be made by such officers
as per the Standing Order No. 32/1-2001
dated 27.10.2001. In paragraph 5 of the said
Standing Order, the control / administration
of working staff in the concerned district of
the Radio Wing would be vested with the
concerned State Radio Officer. It has been
argued that the disciplinary proceedings
initiated on a complaint made by the
Additional State Radio Officer, Varanasi
Zone, Varanasi against the petitioner are still
continuing and during the continuance of
such proceeding, the transfer order could not
have been passed.

9. The learned Standing Counsel, Shri
Sharad Upadhyay on the basis of the counter
affidavit filed by the State-respondents has
argued that the petitioner was posted at Shri
Kashi
Vishwanath
Temple/Gyanvapi
Mosque, Varanasi. The Senior Superintendent
of Police, Varanasi Zone, Varanasi conducted
an enquiry against the petitioner where it was
found that the petitioner is habitual of making
representations against his higher officers of
the
department
on
misconceived
and
incorrect grounds. As the conduct of the
petitioner was unbecoming of a member of
disciplined force, and had the tendency to
have a deleterious effect on other employees
posted at a very sensitive place i.e. Shri Kashi
Vishwanath
Temple/Gyanvapi
Mosque,
Varanasi, recommendation had been made for
his transfer outside District Varanasi by the
Senior Superintendent of Police, Varanasi
Zone, Varanasi on 24.05.2020.

10. It has been argued by the learned
Standing Counsel that by a Government
Order dated 25.05.2015, an Establishment
Board has been constituted for transfer of
9 All. Sanjay Kumar Singh Vs. State of U.P. & Ors.
213
non-gazetted employees of the Police
Radio Department wherein the Director
General
of
Police/Additional
Director
General of Police (Telecom.) is the
Chairman and the Inspector General of
Police/Director (Telecom) is a Member and
the State Radio Officer (Admn.) is a
Member. A copy of the Government Order
has also been filed as Annexure C.A.1 to
the
counter
affidavit.
On
the
recommendation
of
the
Senior
Superintendent of Police, Varanasi Zone,
Varanasi, the Police Radio Establishment
Board held a meeting on 13.07.2020 which
was attended by the Additional Director
General of Police (Telecom.) and the State
Radio Officer (Admin.). The matter of
transfer of the petitioner along with 14
other
Police
Radio
Employees
was
considered
and
consequently
recommendations were made. A copy of the
minutes of meeting dated 13.07.2020 have
been filed as Annexure-C.A.3 to the
counter affidavit. In pursuance to the said
meeting, a direction was issued by the
Radio Establishment Board to the State
Radio Officer (Admin.) U.P. Police Radio
Headquarters, Mahanagar, Lucknow to
issue the transfer order. Consequently, the
State Radio Officer (Admin.) had issued
transfer
order
of
the
petitioner
on
13.07.2020 and the decision of the Police
Radio
Establishment
Board
was
communicated to the petitioner. It has been
argued by the learned Standing Counsel
that as per the Service Rules of 2015, the
Appointing Authority of the petitioner is
the State Radio Officer.

11. The petitioner however went on
leave without any prior approval of the
Competent Authority and consequently the
relieving order was passed in absentia on
14.07.2020. Information was given to the
petitioner
and
others
concerned
on
15.07.2020 by the Radio Inspector, Shri
Kashi
Vishwanath
Temple/Gyanvapi
Mosque, Varanasi.

12. On the disposal of the petitioner?s
Writ Petition Number 6619 of 2020, the
representation of the petitioner dated
30.09.2020
was
received
which
representation was considered and disposed
of by the Additional Director General of
Police (Telecom), Uttar Pradesh, Lucknow
by his order dated 7.10.2020, after fresh
consideration of the same was made in a
meeting of the Police Radio Establishment
Board attended by the Additional Director
General of Police (Telecom.) and the State
Radio
Officer
(Admin.)
at
the
Headquarters, Lucknow. In pursuance of
the transfer order dated 7.10.2020, the
petitioner has joined his transferred place
of
posting
at
district
Fatehpur
on
10.10.2020. In paragraph 7, 8 and 9 of the
counter
affidavit,
the
report
of
the
Additional Radio Officer, Varanasi dated
30.05.2019 and also the recommendation of
the Senior Superintendent of Police,
Varanasi Zone, Varanasi for the petitioner
to be transferred outside Varanasi.

It has been submitted that the
petitioner was found habitual of making
representations/complaints
against
the
higher officers of the department on
misconceived and incorrect grounds. As the
conduct of the petitioner was unbecoming
of a member of a disciplined force and had
the tendency to have a bad effect on other
employees posted at a very sensitive place
at Shri Kashi Vishwanath Temple/Gyanvapi
Mosque, Varanasi. Such recommendation
was duly considered by the Police Radio
Establishment Board which has taken a
decision for transfer of the petitioner on its
own, although it has also considered the
recommendation
made
by
Senior
214 INDIAN LAW REPORTS ALLAHABAD SERIES
Superintendent of Police, Varanasi. A copy
of recommendation made by the Senior
Superintendent of Police, Varanasi Zone,
Varanasi dated 24.05.2020 has been filed as
Annexure-C.A.1 to the counter affidavit.

13. The counsel for the petitioner in
rejoinder has submitted that it has been
admitted by the respondents that the
petitioner
was
transferred
on
the
recommendation
of
the
Senior
Superintendent of Police, Varanasi. Only the
Deputy
Inspector
General
of
Police
(Telecom) is competent to make any
recommendation and only the Deputy
Inspector General of Police (Telecom) can
transfer the petitioner. It has also been
submitted on the basis of the Government
Order
dated
1.7.2020
issued
by
the
Additional Chief Secretary, Department of
Home, Government of U.P. that Zero
Transfer Session has been declared in
pursuance of Covid-19 pandemic by the State
Government
for
State
Government
Employees but such Government Order dated
12.05.2020 was not applicable to police
employees and the recommendation of the
various
Police
Establishment
Boards
constituted under the Government Order No.
408/6-POO-10-2018-27(45)/2008
dated
09.05.2018
were
exempted
from
the
operation of the Government Order dated
12.05.2020 issued by the Karmik Anubhag-4.
It has been submitted that U.P. Police Radio
Establishment Board had not been mentioned
in the Government Order dated 1.7.2020
issued by the Grah (Police) Anubhag-1,
therefore it shall be deemed that the Police
Radio Establishment Board could not have
transferred
the
petitioner
during
the
subsistence of the Government Order dated
12.05.2020 issued by the Karmik Anubhag-4.

Learned counsel for the petitioner
in rejoinder has also pointed out Annexure5 to the writ petition and submitted that the
petitioner is being harassed repeatedly by
his superior officers and that if the
petitioner is indeed guilty or has committed
any mistake, the respondents should have
started disciplinary proceedings against
him but no disciplinary proceeding have
been initiated against him and he has been
transferred on the basis of an ex parte
report.

14. This Court has perused the
Annexure-5 of the writ petition which is a
report dated 30.05.2019 sent by the State
Radio Officer, Varanasi Zone, Varanasi to
the Deputy Inspector General of Police
(Telecom), U.P. Police Radio Headquarter,
Mahanagar, Lucknow. It refers to the
petitioner?s complaint dated 26.04.2019
which was forwarded to the Radio
Inspector, Mau on 15.05.2019 and detailed
comments were asked for from the
Assistant Radio Officer, Azamgarh. The
Assistant Radio Officer, Azamgarh sent his
comments on 27.05.2019 where reference
was made to several complaints made by
the petitioner against various officers who
were superior to him. It was stated in the
said comments that the petitioner was in the
habit of making frivolous complaints and
making unnecessary correspondence just to
hamper smooth functioning of the Police
Radio Office at Azamgarh. Not only was
the smooth functioning of the Radio Office
at Azamgarh being affected but it had the
tendency to generated indiscipline amongst
fellow officers, therefore, a request was
made for his transfer outside Mau. The
Additional State Radio Officer, Varanasi
Zone, Varanasi thereafter had carefully
perused the record of the petitioner and had
found that when the petitioner was posted
on election duty in Shrawasti he had made
a representation that he was not fit to
perform strenuous duty and he be assigned
9 All. Sanjay Kumar Singh Vs. State of U.P. & Ors.
215
duty somewhere else. Not only was such
representation made to the Radio Inspector
but also to the Additional State Radio
Officer, Azamgarh Zone, Azamgarh. A
report was called for from the concerned
officer and it come out that the petitioner
was habitual of making unnecessary
correspondence against his higher officer
and when directed to perform duty he
tendered unwillingness on the ground of his
health and on the ground that he had filed a
case in Court which required him to be
present for its proper persecution and that
he was afraid for safety of his life from
various political persons. It was also found
on enquiry into another complaint made by
the petitioner that when the petitioner was
not assigned VVIP duty but had been
nominated to do maintenance work for
Radio Sets established in rural areas, to
avoid doing duty in rural areas he had made
such complaints. It was reported that the
petitioner
was
making
unnecessary
correspondence only to avoid performing
duties that were assigned to him. In all such
representations
of
the
petitioner,
the
petitioner had given excuses that he was
afraid of his life from political persons and
therefore, he did not wish to leave
Headquarters. The petitioner did not
perform any election duty as was assigned
to him and went on unauthorized leave.
Later on a compromise was arrived at
between the Assistant Radio Officer, Mau
and the petitioner. Thereafter, the petitioner
by his letter dated 23.3.2019 addressed to
Deputy
Inspector
General
of
Police
(Telecom), U.P. Police Radio Headquarter,
Mahanagar,
Lucknow
stated
that
all
misunderstanding had been resolved and
the same had been due to communication
gap and that he had made several
complaints earlier and he did not wish to
pursue the matter further and that no action
be taken on his complaints.

Again comments were called for
by the Police Radio Headquarter and the 43
pages of complaints/representation that
were made by the petitioner were sent to
the U.P. Police Radio Headquarter by letter
dated 6.4.2019. Reference was also made in
the report dated 30.05.2019 of an earlier
occasion when the petitioner was deputed
to work at Flood Control Room at Turtipur
Shrinagar Bandh Chandpur, the petitioner
had avoided duty and started making
unnecessary allegations and complaints
against the then Assistant Radio Officer,
Azamgarh, regular disciplinary proceedings
were initiated against him and on the basis
of Inquiry Report dated 04.02.2017, the
petitioner was awarded Censure Entry on
8.8.2017 by the State Radio Officer
(Admin.) as he was on unauthorized leave
and his absence was regularized as 30 days
leave without pay.

15. It has been argued by the learned
counsel for the petitioner that it is evident
from the perusal of Annexure-5 to the writ
petition, as also Annexure-5 to the counter
affidavit filed by the Respondents that the
petitioner is being harassed repeatedly by
the Superior Officers and the order of
transfer has been passed with malicious
intention.

16. This Court had carefully perused
the earlier order passed by this Court on
28.9.2020 wherein although the petitioner
had raised similar arguments, this Court
had not found it appropriate to address the
same or to quash the transfer order dated
13.7.2020. The writ petition was disposed
of without entering into the merits of the
controversy by referring the matter to the
Competent
Authority
to
decide
the
representation of the petitioner by a
reasoned and speaking order. Now a
reasoned and speaking order has been
216 INDIAN LAW REPORTS ALLAHABAD SERIES
passed by the respondents which has been
challenged in this writ petition.

17. This Court has perused the
impugned order dated 07.10.2020 and finds
that it refers to the recommendations made
by the Senior Superintendent of Police,
Varanasi dated 24.05.2020 regarding an
enquiry conducted by him on a complaint
made by the petitioner regarding entry
given to him. The Senior Superintendent of
Police, Varanasi had found no substance in
the complaint made by the petitioner dated
27.03.2020 on conducting a fact finding
enquiry on the same and he had also
referred to several such complaints being
made earlier by the petitioner, and that he
was apprehensive of the fact that such
conduct of the petitioner would have a
deleterious effect on other employees as he
was posted at a very sensitive place at Shri
Kashi
Vishwanath
Temple/Gyanvapi
Mosque, Varanasi. A request was therefore
made that the petitioner be transferred to
some other place outside Varanasi.

18. The Police Radio Establishment
Board which is the Competent Authority to
consider all recommendations for transfer
made by Superintendent of Police/Senior
Superintendent of Police and other District
Level
Officers
considered
the
recommendation
of
the
Senior
Superintendent of Police, Varanasi and
eventually passed transfer order dated
13.07.2020. The petitioner went on leave
without prior sanction and such order was
served upon him at his current place of
residence of Varanasi and he was relieved
in absentia. After this Court passed an order
on
28.09.2020,
the
Police
Radio
Establishment Board again held a meting
on 07.10.2020 chaired by Additional
Director General of Police (Telecom), Uttar
Pradesh, Lucknow which was attended by
the State Radio Officer (Administration).
The allegation of the petitioner to the effect
that the order was passed maliciously was
considered and it was found to have no
substance although reference was made
duly to the recommendation made by the
Senior Superintendent of Police, Varanasi
dated 24.05.2020. Reference was also made
to the petitioner?s allegation that the
impugned transfer order has been passed by
an incompetent authority i.e. State Radio
Officer (Administration). It was found that
as per the relevant Government Order, the
recommendation of transfer was made by
the Police Radio Establishment Board
which had considered the recommendation
of
transfer
for
the
petitioner
and
recommendations with regard to four other
employees
of
the
Police
Radio
Establishment.
The
order
was
only
communicated by the State Radio Officer.
After this Court?s order dated 28.09.2020,
the petitioner?s representation was again
considered by the same Police Radio
Establishment Board and they did not find
any merit in the grounds taken by the
petitioner regarding recommendation of the
Senior Superintendent of Police Varanasi in
violation of relevant Government Order.

19. This Court having carefully
perused the order dated 07.10.2020 which
has been communicated by the Deputy
Inspector General of Police (Telecom) does
not find any good ground to show
interference as it is well considered detailed
order, referring to the power of the Police
Radio Establishment Board to consider
recommendations of transfers made by
District Level Officers and to pass orders in
turn for transfer of subordinate officers of
the Police Radio Establishment.

20. The counsel for the petitioner has
referred to judgment rendered by the
9 All. Sanjay Kumar Singh Vs. State of U.P. & Ors.
217
Hon?ble Supreme Court in the case of
Somesh Tiwari (surpa). This Court has
carefully perused the order passed by the
Supreme Court. The question that was
being considered by the Supreme Court has
been mentioned in paragraph 1 of the said
judgment
which
is
being
quoted
hereinbelow :

?A short but an interesting
question that arises for consideration in
this appeal is as to whether the High Court
while quashing an order of transfer passed
against the appellant was correct in
directing that he would not be entitled to
salary for the period commencing 15 days
after the modified order of transfer to
Ahmedabad was passed till the date he
again joined his duties at the original
place.?

21.

The
Supreme
Court
was
considering the case of an officer of the
Indian Revenue Services who was posted
as a Deputy Commissioner of Central
Excise at Bhopal. The employees posted at
the Bhopal office of the respondents
apprehending disciplinary as also criminal
proceedings at the hands of the appellant,
on the basis of reassessment of the files
undertaken by him, had sent an anonymous
complaint alleging caste-bias on his part;
pursuant whereto an order of transfer was
passed against him on 22.08.2005. The
appellant
had
contended
before
the
Supreme Court that since he had taken
action against some erring officers, they
were instrumental in sending the said
anonymous complaint and no action should
have been taken on such a complaint in the
light of the circulars/letters issued by the
Central Vigilance Commission. However,
an enquiry was got conducted by an
Assistant Commissioner, Directorate of
Vigilance, and the allegation made against
the appellant were not found to be true.
Still recommendations were made that he
be
transferred
outside
Bhopal,
consequently,
he
was
transferred
to
Shillong. The appellant had made a
representation
for
his
retention
on
humanitarian grounds which was not
considered. He therefore filed Original
Application
before
the
Central
Administrative Tribunal, Jabalpur where
the Tribunal directed the respondents to
consider and decide the representation of
the appellant by a reasoned and speaking
order and till such decision is taken, the
appellant
be
not
disturbed.
The
representation
of
the
appellant
was
rejected. He filed another representation
which was again rejected. The appellant
then filed another Original Application
before the Tribunal at Jabalpur and during
the
pendency
of
the
said
Original
Application, the respondents promoted him
and posted him to Ahmedabad. The
appellant amended his Original Application
suitably which was disposed of by the
Tribunal by observing that the transfer
order was on administrative exigencies and
the appellant was an All India Service
Officer liable to be transferred throughout
India and that Tribunal cannot substitute its
own decision in the matter of transfer and
that his transfer order being passed by the
Competent
Authority
was
after
consideration of administrative needs and
requirements of the station concerned.

The appellant had approached the
High Court against such order of the CAT
while also challenging his transfer. The
High Court of Madhya Pradesh at Jabalpur
noted that during the pendency of the writ
petition, disciplinary proceeding had been
initiated against the appellant on the ground
that he had not joined at the place of
posting at Ahmedabad. The Court therefore
218 INDIAN LAW REPORTS ALLAHABAD SERIES
directed that during the pendency of the
writ
petition,
disciplinary
proceeding
should not be conducted and then finally
disposed of the writ petition of the
appellant quashing the transfer order and he
was directed to join at Bhopal but he was
not held entitled to be paid his salary for
the period he had not worked. The Supreme
Court observed after recording in detail the
observations in the judgment rendered by
the High Court, that while quashing the
transfer order, no such observation could
have been made as was done by the High
Court.

It also referred to the transfer
order being an administrative order but
nevertheless having been passed on the
ground of complaint against the appellant
alleging caste bias which anonymous
complaint was not found to be true on
enquiry being conducted in the matter.
Having regard to the directives of the
Central Vigilance Commission, it held that
no enquiry could have been initiated
against him but it is beyond any doubt or
dispute that in the said enquiry, the
allegations were found to be untrue. The
Court also observed that respondents knew
that the matter was pending before the
Tribunal but they did not approach the
Tribunal to obtain leave before passing the
second order of transfer of the appellant
from Shillong to Ahmedabad. They passed
the order of transfer while considering the
cases for promotion and transfer of a large
number of officers and the order of transfer
suffered from a total non application of
mind in so far as it proceeded on the
premise that the appellant had already
joined his post at Shillong.

22. Certain observations were no
doubt made by the Supreme Court on the
principles of malice in law and malice in
fact and it had observed that transfer order
was based on an irrelevant ground i.e. on
the allegations made against the appellant
in the anonymous complaint. The Supreme
Court had also observed that employer is
entitled to pass an order of transfer in
administrative exigencies but an order of
transfer cannot be passed by way of, or in
lieu of punishment and that when an order
of transfer is passed in lieu of punishment,
the same is liable to be set aside being
wholly illegal.

23. Having considered the judgment
rendered by the Supreme Court in Somesh
Tiwari (surpa), this Court finds that the
order of transfer dated 13.07.2020 was not
passed in lieu of or by way of any
punishment. In Pratap Singh Vs. Union of
India; 2006 (8) SCC 1, measure to insulate
police machinery from political/executive
interference and to make it more effective
and efficient to strengthen the rule of law in
the country were considered. The Supreme
Court had observed that there should be a
Police Establishment in each State which
shall
decide
all
transfers,
postings,
promotions and other service related
matters of officers below the rank of
Deputy Superintendent of Police. This
Court in its Full Bench decision in
Constable Vinod Kumar v. State of U.P. and
others; (2010) 7 ADJ 315 had approved the
validity of different Police Establishment
Board set up by the Government for
different branches of the Police Force and
for different cadres and it being headed by
Inspector Generals of Police instead of by
the Director General of Police for nongazetted
officers.
The
Police
Radio
Establishment Board is the Competent
Authority to consider recommendations of
the District Officers and then to pass
appropriate orders. Several complaints had
been made by the petitioner which ran into
43 pages and such 43 pages had been duly
9 All. Abhishek Mishra Vs. Hon'ble High Court of Judicature at Allahabad & Ors.
219
forwarded by the Senior Superintendent of
Police, Varanasi to the Police Radio
Establishment Board for its consideration,
the Police Radio Establishment Board had
of its own come to the conclusion that
indeed it was not conducive to the
discipline of unit incharge of safety and
security of a highly sensitive place i.e. Shri
Kashi
Vishwanath
Temple/Gyanvapi
Mosque, Varanasi for such a person as the
petitioner to continue to be posted there.
Such an order cannot be faulted with.

15. The writ petition is dismissed as
being devoid of merit. No order as to costs.
----------
(2022) 9 ILRA 219
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.09.2022

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Writ A No. 14029 of 2022

Abhishek Mishra ...Petitioner
Versus
Hon'ble High Court of Judicature at
Allahabad & Ors. ...Respondents

Counsel for the Petitioner:
Sri Nikhil Kumar, Sri Prashant Kanha

Counsel for the Respondents:
Sri Ashish Mishra, Sri Rahul Agarwal

A.
Service
Law
-
Compassionate
Appointment - Dying in Harness Rules -
"suitable appointment" so indicated in Rule
5 should be understood with the reference
to the post held by the deceased employee
and in the present case since the deceased
employee
was
holding
Class-III
post,
therefore, any suitable appointment to his
dependent should be given in the same
category if the petitioner is having all
required qualifications. (Para 13)
Liberty be given to the petitioner to furnish all
required documents before the opposite parties
including any document/certificate relating to his
knowledge of Urdu as well as of Hindi & English
typing with required speed within a period of two
weeks from the date of this order supporting with
an
exhaustive
representation
and
if
such
representation along with the required documents
is produced before the concerned opposite party,
the appropriate decision shall be taken in favour of
the petitioner in view of what has been considered
and directed and any suitable appointment shall be
provided to the petitioner strictly in accordance
with law with expedition preferably within a period
of four weeks thereafter. (Para 15, 16)

Writ Petition allowed. (E-4)

Precedent followed:

1. Suneel Kumar Vs St. of U.P. & ors., 2022 Live
Law (SC) 675 (Para 8)

Present writ petition assails report dated
22.02.2022,
passed
by
Chairman,
Consultative
Committee/1st
Additional
District Judge, Agra and letters/orders
dated 03.03.2022 and 16.08.2022, issued by
District Judge, Agra.

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

1. Heard Sri Nikhil Kumar, learned
counsel for the petitioner and Sri Rahul
Agarwal, learned counsel for the High
Court/respondents.

2. The prayer of this petition is as
under:

(a) issue a writ order or direction
in the nature of certiorari calling for the
record of the case and quashing the
impugned order dated 16.08.2022 passed
by the Respondent no. 2 and letter no.
1378/I Agra dated 03.03.2022 written by
the respondent no. 2 to respondent no. 1
and report dated 22.02.2022 submitted by