# Shambhoo Nath Kushwaha v. State of U.P. & Ors

- **Citation:** (2025) 7 ILRA 71
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-07-31
- **Case number:** Writ A No. 9142 of 2025
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shambhoo-nath-kushwaha-v-state-of-u-p-ors-53629
- **Pages:** 4

## Headnote

Whether a transfer order by way of
disciplinary action for violation or noncompliance of the directives issued by the
higher authorities, amounts to a punitive
and stigmatic transfer, vitiated by malice
in law.

HEADNOTE
A. Service Law - Transfer - Punitive and
Stigmatic Transfer - Clause 12 of Transfer
Policy dated 06.05.2025 - Office bearers
of Employees' Union - Scope - Whether
transfer based on complaint alleging
indiscipline amounts to punitive action -
Held, yes.
Petitioner,
an
office
bearer
of
the
Employees' Union, challenged his transfer
contending that it was based on a
complaint alleging negligence and lack of
interest in administrative duties.
Held: As laid down by the Supreme Court
in Somesh Tiwari v. Union of India, AIR
2009 SC 1399, a transfer made by way of
or in lieu of punishment attracts malice in
law and is unsustainable. In the present
case, the action to transfer was taken by
way of punishment, as the authorities
assigned
reasons
of
indiscipline
and
violation of directives of the higher
authorities by the petitioner. Transfer
order dated 13.06.2025 quashed. Liberty
reserved to the authorities to pass a fresh
transfer order in administrative exigency
for the session 2026-2027. (E-5)

CASE LAW CITED
Somesh Tiwari v. Union of India and Ors.,
AIR 2009 SC 1399.
List of Acts
- U.P. Transfer Policy dated 06.05.2025;
Clause 12- Constitution of India, Article

## Text

7 All. Shambhoo Nath Kushwaha Vs. State of U.P. & Ors.
71
this
Court
to
interfere
with
disciplinary proceedings, no case is made
out to cause interference in the impugned
order of punishment.

17.
Accordingly, present
Writ
Petition is dismissed.
----------
(2025) 7 ILRA 71
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.07.2025

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ A No. 9142 of 2025

Shambhoo Nath Kushwaha ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Siddhath Khare

Counsel for the Respondents:
C.S.C.

ISSUE FOR CONSIDERATION
Whether a transfer order by way of
disciplinary action for violation or noncompliance of the directives issued by the
higher authorities, amounts to a punitive
and stigmatic transfer, vitiated by malice
in law.

HEADNOTE
A. Service Law - Transfer - Punitive and
Stigmatic Transfer - Clause 12 of Transfer
Policy dated 06.05.2025 - Office bearers
of Employees' Union - Scope - Whether
transfer based on complaint alleging
indiscipline amounts to punitive action -
Held, yes.
Petitioner,
an
office
bearer
of
the
Employees' Union, challenged his transfer
contending that it was based on a
complaint alleging negligence and lack of
interest in administrative duties.
Held: As laid down by the Supreme Court
in Somesh Tiwari v. Union of India, AIR
2009 SC 1399, a transfer made by way of
or in lieu of punishment attracts malice in
law and is unsustainable. In the present
case, the action to transfer was taken by
way of punishment, as the authorities
assigned
reasons
of
indiscipline
and
violation of directives of the higher
authorities by the petitioner. Transfer
order dated 13.06.2025 quashed. Liberty
reserved to the authorities to pass a fresh
transfer order in administrative exigency
for the session 2026-2027. (E-5)

CASE LAW CITED
Somesh Tiwari v. Union of India and Ors.,
AIR 2009 SC 1399.
List of Acts
- U.P. Transfer Policy dated 06.05.2025;
Clause 12- Constitution of India, Article
226.
List of Keywords
Transfer - Punitive Transfer - Stigmatic
Order - Malice in Law - Employees' Union
- Office Bearer - Administrative Exigency
-
Clause
12
of
Transfer
Policy
-
Disciplinary Allegations - Service Law.
CASE ARISING FROM
Order dated 13 June 2025 challenged.
APPEARANCES
For the Petitioner : Sri Siddharth Khare,
Advocate
For the Respondents : Standing Counsel.
JUDGMENT

(Delivered by Hon'ble Ajit Kumar, J.)
72 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Learned Standing Counsel has
obtained instruction in the matter which is
taken on record, copy whereof has been
supplied to learned counsel for the
petitioner.

2. Heard Sri Ashok Khare, learned
Senior Advocate assisted by Sri Himanshu
Singh, Advocate holding brief of Sri
Siddharth Khare, learned counsel for the
petitioner and learned Standing Counsel.

3. By means of this petition filed
under Article 226 of the Constitution of
India, petitioner has assailed the order
dated 13.06.2025, whereby, he has been
transferred
from
Siddharth
Nagar
to
Ayodhya to be stigmatic in nature and
hence punitive.

4. It Is submitted that very recitals
contained in the order show that petitioner
has been subjected to transfer by way of
disciplinary action for alleged violation or
non-compliance of the directives issued by
the higher authorities, which was claimed
to have amounted to an alleged misconduct.
Learned counsel for the petitioner submits
that transfer is bad for two obvious reasons:
firstly, petitioner being office bearer of the
Employees' Union ought not to have been
transferred in the first instance in view of
the relevant Clause 12 of the Transfer
Policy dated 06.05.2025 that carves out
union leaders to be exceptional cases; and
secondly, transfer cannot be done by way
of a punitive action.

5. In support of his above second
submission,
learned
counsel
for
the
petitioner has placed reliance upon the
judgment of the Supreme Court in the case
of Somesh Tiwari vs. Union of India and
Ors. AIR 2009 Supreme Court 1399.

6. Learned Standing Counsel has
obtained instructions in the matter and as
per the instructions, petitioner has been
subjected to transfer in full compliance of
the provisions contained in the Clause 12 of
the Transfer Policy dated 06.05.2025,
according to which, if there are complaints
against the office bearers and if they are
found to be involved in an activity resulting
in indiscipline and which affects the
performance of duty and is also indication
of misconduct, in such cases the office
bearers can also be transferred. He has
placed Clause 12 of the Transfer Policy
dated 06.05.2025 before the court, which
runs as under:

"12. सरकारी कमगचाररयों के
मान्यता
प्राप्त
सेिा
सिंघों
के
पिाधिकाररयों के स्थानान्तरणः-

सरकारी सेिकों के मान्यता
प्राप्त सेिा सिंघो के प्रिेश / मण्डल /
जिला स्तर के अध्यक्ष एििं सधचि के
स्थानान्तरण उनके द्िारा सिंगठन में
पििाररत करने की ततधथ से 2 िर्षग तक
न
ककये
िायें।
ककन्तु
उक्त
पिाधिकाररयों को यह सुवििा िेने का
अथग यह नहीिं है कक िनदहत के विरुद्ि
कायग
करने,
किाचार
अथिा
भ्रष्र्
आचरण
करने
पर
िी
उनका
स्थानान्तरण नहीिं ककया िा सकता।

लापरिाही,
िष्र्ाचार
ि
आपराधिक कृत्य, अनुशासनहीनता ि
िुराचरण में भलप्त होने के पुजष्र्कारक
7 All. Shambhoo Nath Kushwaha Vs. State of U.P. & Ors.
73
तथ्य लाये िाने पर या ऐसे मामलों में
अनुशासतनक कायगिाही प्रारम्ि होने पर
तनम्न प्रकिया का पालन करते हुये
उक्त पिाधिकाररयों को पूरे सत्र में किी
िी स्थानान्तरण ककया िा सकेगाः-

1. िनपि में तैनात सेिा सिंघों
के
पिाधिकाररयों
का
स्थानान्तरण
सिंबिंधित जिलाधिकारी एििं मण्डल में
कायगरत पिाधिकारी का स्थानान्तरण
मण्डलायुक्त की सिंस्तुतत पर सक्षम
स्तर
से
ककये
िा
सकेंगे।

ii. मुख्यालय स्तर पर सेिा
सिंघों के पिाधिकाररयों का स्थानान्तरण
वििागाध्यक्ष की सिंस्तुतत के उपरािंत
शासन स्तर से ककया िा सकेगा।

उपरोक्त के अततररक्त सेिा
सिंिाग
के
उक्त
पिाधिकाररयों
का
शासनािेश दिनािंक 13 मई, 2022 के
अनुसार पर्ल / क्षेत्र पररितगन अिश्य
ककया
िायेगा
तथा
इसकी
सिंपूणग
जिम्मेिारी
तनयिंत्रक
प्राधिकारी
की
होगी।"
(emphasis added)

7. From the instructions it further
transpires that some work was allotted to
the petitioner under the order of a higher
authority dated 19.03.2025 for the purposes
to construct a dam but instead of complying
with the directives issued by the higher
authority, petitioner wrote back to authority
that such double duties and attachment
orders have already been held to be not
permissible and hence he cannot be forced
to discharge duties as per the directives
issued. Upon this letter being written the
Executive Engineer took seriously and as
an exception and required the petitioner to
submit his explanation to which the
petitioner states that he had offered his
explanation by letter dated 29.05.2025 but
that remained unanswered and, instead of
holding meeting and cooperating with the
employees, the authorities proceeded to
recommend transfer of the petitioner.

8. It is thus contended that if the
petitioner was to be transferred by way of
punitive action then show cause notice was
a must, inasmuch as the transfer can not be
made by way of action as a result of some
departmental proceedings. Paragraph 19
and 20 of the judgment that has been relied
upon in the case of Someshwar Tiwari
(Supra) is reproduced hereinunder:

"....19. Indisputably an order of
transfer is an administrative order. There
cannot be any doubt whatsoever that
transfer, which is ordinarily an incident of
service should not be interfered with, save
in cases where inter alia mala fide on the
part of the authority is proved. Mala fide is
of two kinds - one malice in fact and the
second malice in law.

20. The order in question would
attract the principle of malice in law as it
was not based on any factor germane for
passing an order of transfer and based on
an irrelevant ground i.e. on the allegations
made
against
the
appellant
in
the
anonymous complaint. It is one thing to say
that the employer is entitled to pass an
order
of
transfer
in
administrative
exigencies but it is another thing to say that
the order of transfer is passed by way of or
in lieu of punishment. When an order of
74 INDIAN LAW REPORTS ALLAHABAD SERIES
transfer is passed in lieu of punishment, the
same is liable to be set aside being wholly
illegal."
(emphasis added)

9. Having heard learned counsel for
the respective parties and having perused
the record, pleadings raised in the writ
petition and the instructions placed before
the court, I find that it is because of certain
correspondence that had taken place
between the petitioner and respondent
authorities in the District that spelled off
the
controversy
leading
to
alleged
indiscipline or misconduct on the part of
the petitioner, moreso in the circumstances
when he was office bearer of the
Employees' Union. Ultimately instead of
holding talks and peacefully resolving the
issues, the authority proceeded to get rid of
the office bearer and hence passed an order
of transfer giving a reason therein that
petitioner was guilty of gross indiscipline.

10. From the observations made by
the Supreme Court as quoted above, there
can be no doubt about this legal position
that an action adverse to an employee as a
result of authority forming a view qua such
an
employee
to
have
committed
misconduct, to transfer him, would render
such an exercise of administrative power to
be vitiated for malice in law. In the present
case action to transfer taken appears to be
clearly by way of punishment as the
authorities
being
assigned
reason
of
indiscipline and for violating directives of
the higher authorities by the petitioner.

11. In the circumstances, therefore, the
order of transfer would definitely fall within the
mischief of principle of law laid down by the
Supreme Court in the case of Somesh Tiwari
and hence liable to be held unsustainable.
12. However, it is always open for
the respondent authorities to transfer an
employee in administrative exigency if they
find such an employee has become a
nuisance value but for this, only simple
transfer order should be passed transferring
an employee in administrative exigency. In
such cases, therefore, even the office
bearers of the Employees' Union would not
fall in exception clause of the transfer
policy and so they can also subjected to
transfer taking the recourse to the Clause
12 of the Transfer Policy dated 06.05.2025.

13. In the circumstances, writ
petition succeeds and is allowed.

14. Order dated 13.06.2025 is
hereby quashed.

15. However, it will remain open
for the authorities to pass transfer order in
administrative exigency if it so desire in the
next session 2026-2027.
----------
(2025) 7 ILRA 74
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.07.2025
BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ A No. 15765 of 2014
Connected with
Writ A No. 51031 of 2015
And
Writ A No. 20351 of 2022

Jai Prakash ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Pradeep Kumar Upadhyay, Vikaas Budhwar

Counsel for the Respondents: