# Shyam Nath Chaubey v. State of U.P. & Others

- **Citation:** Service Single No. 1458 of 2013
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013
- **Case number:** Service Single No. 1458 of 2013
- **Bench:** Anil Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyam-nath-chaubey-v-state-of-u-p-others-42938
- **Pages:** 6

## Headnote

U.P. Police Group 'D' of Employee.-Rules
2009, Rule 21(3), Rule 3 (M)- Transfer of
ordely peon from one unit to otherwithout prior permission of State Govt.-
order passed in contravention of Rule
21(3) unsustainable-quashed.

Held: Para-19
In the instant case, G.R.P. is a one unit
of the police force as per definition of
"unit" given in Sub-Rule (M) of Rule 3 of
Rules,
2009
and
persons
who
are
working in the said police force belong to
Group-D Post as mentioned in Rule 5 of
Rules 2009 are governed by the said
Rules, thus, the present petitioner falls
in the category of the persons as
mentioned in Rule 5 of Rules 2009
working in the G.R.P., so he can only be
transferred after following procedure as
provided under Sub-Rule (3) of Rule 21
of Rules, 2009 i.e. with the prior
approval of the Government, the said
exercise has not been done in the
present case which is clearly established
from the material and document on
record so the impugned order of transfer
is in contravention to the Sub-Rule (3) of
Rule 21 of Rules, 2009 because State is a
model employer and it is required to act
fairly giving due regard and respect to
the rules framed by it. But in the present
case, the State has atrophied the rules.

Words
and
phrases-
Establishmentmeaning
thereof
explained-as
an
institution as a place of business with its
fixtures and organized staff.

Held: Para-14
In the case of Ram Kumar Misra v. State
of Bihar (1984) 2 SCC 451 Hon'ble
Supreme Court held that the word
'establishment' is defined in Section 2
(6)
of
the
Bihar
Shops
and
Establishments Act, 1953, mean an
establishment which carries on any
business, trade or profession or any work
in connection with, or incidental or
ancillary to, any business, trade or
profession.
Now
it
can
hardly
be
disputed
that
the
Bhagalpur
and
Sultanganj ferries are establishments
which carry on business or trade of
plying ferries across the Ganges and they
are clearly within the meaning of the
word 'establishment' in Section 2 (6) of
the Bihar Shops and Establishment Act,
1953 and consequently they would also
be establishments within the meaning of
that expression as used in the amended
Entry 27.

Case Law discussed:
(1975) 4 Supreme Court Cases 348; (1971) 1
SCC 536; (1984)2 SCC 451; 1987 Supp SCC
228; (1992) 4 SCC 118

## Text

502 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
and Anju Misra Vs. General Manager,
Kanpur Jal Sansthan (2004) 1 UPLBEC
201, giving benefit of compassionate
appointment to the dependants of daily
wager and work charge employees, have
been correctly decided?

2. The questions were referred by
Hon'ble Mr. Justice A.N. Ray, the then
Chief Justice on 13.5.2005 to a Bench of
three judges. A large number of writ
petitions
and
special
appeals
filed
subsequently, on the same questions were
connected, with the reference. "

7. Thus, earlier judgment relied
upon by the petitioner has been overruled
by the Full Bench of this Court. But the
facts remains that the petitioner has acted
in pursuance of earlier judgment of this
Court. A decision taken in pursuance of
judgment of this Court shall not be
constituted
misconduct.
Though,
the
judgment relied upon by the petitioner,
has been overruled by the Full Bench but
since at the time when the compassionate
appointment was made, the petitioner had
applied the existing law, for which he
cannot be faulted.

8. It is always expected from the
Government servants that they shall abide
by the law laid down by the Courts or
higher judiciary. The decision taken in
compliance of judgment of High Courts
or Supreme Court, shall not be constituted
misconduct even if the case relied upon
by the officer is overruled at later stage.
Accordingly, the punishment awarded to
the petitioner, seems to be based on
unfounded facts and more so when the
petitioner
has
not
committed
any
misconduct.

9. It is unfortunate that the inquiry
officer has not recorded a finding with
regard to defence set up by the petitioner
regarding applicability of the judgment of
Gaurav Shukla and Suresh Chandra
Tiwari (supra), at the time when the
appointment was made. Such action on
the part of the inquiry officer, seems to be
not correct. In view of the above, the writ
petition deserves to be allowed.

10. Accordingly, the writ petition is
allowed. A writ in the nature of certiorari
is issued quashing the impugned order
dated 31.1.2007, passed by the opposite
party No.1 as contained inAnnexure No.1
with all consequential benefits. The
petitioner shall be entitled for arrears of
salary with other service benefits which
shall be provided to him expeditiously
say, within a period of three months from
the date of receipt of a certified copy of
the present judgment. The revision of pay
scale shall also be done for the purpose of
pensionary benefits as well as arrears of
salary.

11. No orders as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.04.2013

BEFORE
THE HON'BLE HON'BLE ANIL KUMAR,J.

Service Single No. 1458 of 2013

Shyam Nath Chaubey ...Petitioner
Versus
State of U.P. & Others ...Respondents

Counsel for the Petitioner:
Sri S.N. Bhardwaj

Counsel for the Respondents:
C.S.C.
1 All Ashok Kumar Asthana Vs. State of U.P. & Ors.
503

U.P. Police Group 'D' of Employee.-Rules
2009, Rule 21(3), Rule 3 (M)- Transfer of
ordely peon from one unit to otherwithout prior permission of State Govt.-
order passed in contravention of Rule
21(3) unsustainable-quashed.

Held: Para-19
In the instant case, G.R.P. is a one unit
of the police force as per definition of
"unit" given in Sub-Rule (M) of Rule 3 of
Rules,
2009
and
persons
who
are
working in the said police force belong to
Group-D Post as mentioned in Rule 5 of
Rules 2009 are governed by the said
Rules, thus, the present petitioner falls
in the category of the persons as
mentioned in Rule 5 of Rules 2009
working in the G.R.P., so he can only be
transferred after following procedure as
provided under Sub-Rule (3) of Rule 21
of Rules, 2009 i.e. with the prior
approval of the Government, the said
exercise has not been done in the
present case which is clearly established
from the material and document on
record so the impugned order of transfer
is in contravention to the Sub-Rule (3) of
Rule 21 of Rules, 2009 because State is a
model employer and it is required to act
fairly giving due regard and respect to
the rules framed by it. But in the present
case, the State has atrophied the rules.

Words
and
phrases-
Establishmentmeaning
thereof
explained-as
an
institution as a place of business with its
fixtures and organized staff.

Held: Para-14
In the case of Ram Kumar Misra v. State
of Bihar (1984) 2 SCC 451 Hon'ble
Supreme Court held that the word
'establishment' is defined in Section 2
(6)
of
the
Bihar
Shops
and
Establishments Act, 1953, mean an
establishment which carries on any
business, trade or profession or any work
in connection with, or incidental or
ancillary to, any business, trade or
profession.
Now
it
can
hardly
be
disputed
that
the
Bhagalpur
and
Sultanganj ferries are establishments
which carry on business or trade of
plying ferries across the Ganges and they
are clearly within the meaning of the
word 'establishment' in Section 2 (6) of
the Bihar Shops and Establishment Act,
1953 and consequently they would also
be establishments within the meaning of
that expression as used in the amended
Entry 27.

Case Law discussed:
(1975) 4 Supreme Court Cases 348; (1971) 1
SCC 536; (1984)2 SCC 451; 1987 Supp SCC
228; (1992) 4 SCC 118

(Delivered by Hon'ble Anil Kumar, J)

1. Heard Shri S. N. Bhardwaj,
learned counsel for the petitioner, Shri
Abhinav Narain Trivedi, learned Addl.
Chief Standing Counsel and perused the
record.

2. By means of the present writ
petition, the petitioner has challenged the
impugned orders of transfer as well as
relieving dated 5.3.2013 (Annexure Nos.1
and
2)
passed
by
opposite
party
no.2/Superintendent of Police Railway,
Lucknow and opposite party no.3/Reserve
Sub-Inspector, G.R.P. Lines, Lucknow
respectively.

3. Facts in brief of the present case
are that the petitioner on 8.9.1988
appointed
as
daily
wager
class-IV
employee in Government Railway Police
(hereinafter referred to G.R.P.). In the
said capacity, he worked and discharged
his duties uptil 30.5.1990 and on
31.5.1990, appointed on the post of
orderly peon. By means of the order dated
5.3.2013 transferred from Lucknow to
Sultanpur passed by opposite party no.2.
504 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
In pursuance of the same, relieved from
service
by
order
dated
5.3.2013
(Annexure No.2) passed by opposite party
no.3. Aggrieved by the said order, the
present writ petition has been filed by the
petitioner.

4. Learned counsel for the petitioner
submits that the services of the petitioner
is governed by the Rules known as U.P.
Police Group D Employees Service Rules
2009 (hereinafter referred to Rules 2009)
and as per the provision of Rule 21 (3) of
Rules 2009, he cannot be transferred from
Lucknow to Sultanpur without prior
approval of the State Government.

5. Learned counsel for the petitioner
also submits that the impugned orders are
in contravention to the transfer policy as
his children are studying at Lucknow and
their fees have been deposited in the
institution and the entire books and
copies/notebooks have been purchased by
the him so if in the mid session, the
petitioner is transferred then in that
circumstances, his children who are
getting study at Lucknow, they shall
suffer irreparable loss in the present era of
competition.

6. Accordingly, Learned counsel for
the petitioner requests that the impugned
order of transfer as well as relieving being
contrary to the provisions of Rule 21 (3)
of Rules 2009, liable to be set aside and
the writ petition may be allowed.

7. Shri Abhinav Narain Trivedi,
learned Addl. Chief Standing Counsel
submits that the petitioner cannot get the
shelter of Rule 21 (3) of Rules, 2009 as he
has been transferred from Lucknow to
Sultanpur in the same establishment i.e.
G.R.P. and for transfer an employee from
one place to another in the same
establishment prior approval of the State
Government is not necessary. So, the
petitioner who is class IV employee in
G.R.P., posted at G.R.P. Lines, Lucknow,
transferred to Sultanpur by order dated
5.3.2013 which is another section under
the supervision and control of the
Superintendent
of
Police,
Railway,
Lucknow,
passed
after
taking
into
consideration the administrative exigency
of service to provide food facility to Class
IV employees and officer posted at G.R.P.
Police Station, Sultanpur. So, there is no
illegality or infirmity in the impugned
order of transfer, under challenge, in the
present writ petition. Hence, the same is
liable to be dismissed.

8. I have heard learned counsel for
the parties and gone through the records.

9. In order to decide the controversy
involved in the present case, it is
appropriate to go through the provisions
as provided under Rule 21 (3) and Subrule M of Rule 3 of Rules 2009, on
reproduction they reads as under:-

"Rule 21 Appointment - (1) On the
occurrence of substantive vacancies the
appointing
authority
shall
make
appointments from the list of candidates
prepared under rule 19 or 20 as the case
may be in the order of their names as
appears in the common list.

(2)The appointing authority shall
also make appointment in officiating and
temporary vacancy from the said list, and
in the manner referred to in sub-rule (1)

(3)A person appointed to a post for a
particular district or PAC battalion or
1 All Shyam Nath Chaubey Vs. State of U.P. & Others
505
unit shall not be transferred to any other
establishment in normal case.

Under
specific
circumstances,
transfer may be affected with prior
approval of the Government."

Rule (3) of (M) "Unit" means various
brandies of police organization like
Criminal Investigation Department, Anti
Terrorist Squad, Special Task Force,
Special Investigation Team, Intelligence,
Security, Anti Corruption Organization,
etc.

10. The word 'Establishment' is not
defined under Rules 2009. However, the
word
'Establishment"
is
defined
in
"Words and Phrases Permanent Edition
15" at page 205 as under:-

"Physically separate work places can
constitute a single "establishment" under
the Equal Pay Act [29 U.S.C.A. 206 (d) if
there
is
significant
functional
interrelationship
between
work
of
employees in various locations."

11. In the same Edition, the same is
defined as under:-

"Webster gives, as one of the
meanings of the word "institution," "an
establishment , especially of a public
character, or affecting a community".

12.

Further,
the
Word
"Establishment" has been considered by
the Hon'ble Supreme Court in the case of
Central
Inland
Water
Transport
Corporation Ltd. vs. Their Workmen
(1975) 4 Supreme Court Cases 348 held
as under:-

"The
dictionary
meaning
of
'establishment' as given in Webster's
International Dictionary includes inter
alia "an institution or place of business,
with its fixtures and organized staff; as,
large establishment a manufacturing
establishment". 'Establishment' therefore
separate identifiable existence."

13. Hon'ble Supreme Court in the
case of Alloy Steel Project v. Workmen
(1971) 1 SCC 536 after taking into
consideration the provisions of Section 16
of the payment of Bonus Act, interpreted
the word "Establishment" and held that
the word "establishment" used in Section
16 of the Payment of Bonus Act does not
mean the Company itself. When the
Hindustan Steel Ltd. Has got alloy steel
project besides the Head Office, Rourkela
Steel Plant, Bhilai Steel Plant, Durgapur
Steel Plant, Coal Washeries Project and
Bokaro Steel Project, then all these are
separate
undertakings
or
branches
controlled by one single Company.

14. In the case of Ram Kumar
Misra v. State of Bihar (1984) 2 SCC
451 Hon'ble Supreme Court held that the
word 'establishment' is defined in Section
2
(6)
of
the
Bihar
Shops
and
Establishments Act, 1953, mean an
establishment which carries on any
business, trade or profession or any work
in connection with, or incidental or
ancillary to, any business, trade or
profession. Now it can hardly be disputed
that the Bhagalpur and Sultanganj ferries
are
establishments
which
carry
on
business or trade of plying ferries across
the Ganges and they are clearly within the
meaning of the word 'establishment' in
Section 2 (6) of the Bihar Shops and
Establishment
Act,
1953
and
consequently
they
would
also
be
506 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
establishments within the meaning of that
expression as used in the amended Entry
27.

15. Moreover, transfer is an
incidence of service and it does not
require the consent of the employee. A
public servant has no vested right to seek
transfer to a location of his choice. An
employee
can
be
transferred
on
administrative exigencies and in public
interest. It is not obligatory on the part of
the employer to comply with the
principles of natural justice before making
an order of transfer. The Government is
empowered to transfer a civil servant
from one post to another or to an
equivalent post in the same cadre or grade
or carrying the a lien. No employee can
claim to a particular posting as the matter
of posting is entirely in the domain of the
administration.

16. No Government employee has
any right to be posted at any particular
place forever, because transfer is not only
an incidence of service, but also a
condition of service, and as such it is
necessary in public interest and in the
interest
of
efficiency
in
public
administration.
There
is
no
hostile
discrimination in transfer from one post to
another when the posts are of equal status
and responsibility. The transfer in posts,
which are in the same grade or cadre or
considered equivalent can be affected on
administrative exigencies.

17. The general principles in respect
to the transfer an employees that can be
deducted
from
various
judicial
pronouncements
and
the
statutory
provisions are as follows: (i) that an
employee cannot be transferred out of his
cadre or establishment against his wish;
(ii) that no transfer can be justified merely
because the pay is not affected, when the
appointment is made to a specified post or
a specified group of posts; (iii) that the
Government employee cannot be asked to
perform
duties
which
were
never
expected
of
him
at
the
time
of
recruitment; and (iv) that the expectation
of future promotion cannot be wiped off
by moving a Government employee
around.

18. But, the judicial review of order
of transfer can be done, if the order of
transfer suffers from the vice of mala fide
exercise of power when the transfer is
made
not
in
public
interest
or
administrative exigency, but simply to
accommodate another employee without
any justifiable reason. Unless the order of
transfer is shown to be an outcome of
mala fide exercise of power or violative
of any statutory provision or passed by an
authority not competent to do so, an order
of transfer cannot lightly be interfered
with by the courts as a matter of routine
for every type of grievance sought to be
made.

19. In the instant case, G.R.P. is a
one unit of the police force as per
definition of "unit" given in Sub-Rule (M)
of Rule 3 of Rules, 2009 and persons who
are working in the said police force
belong to Group-D Post as mentioned in
Rule 5 of Rules 2009 are governed by the
said Rules, thus, the present petitioner
falls in the category of the persons as
mentioned in Rule 5 of Rules 2009
working in the G.R.P., so he can only be
transferred after following procedure as
provided under Sub-Rule (3) of Rule 21
of Rules, 2009 i.e. with the prior approval
of the Government, the said exercise has
not been done in the present case which is
clearly established from the material and
1 All Shyam Nath Chaubey Vs. State of U.P. & Others
507
document on record so the impugned
order of transfer is in contravention to the
Sub-Rule (3) of Rule 21 of Rules, 2009
because State is a model employer and it
is required to act fairly giving due regard
and respect to the rules framed by it. But
in the present case, the State has atrophied
the rules.

20. Hon'ble Supreme Court in the
case of Balram Gupta v. Union of India
1987 Supp SCC 228 has observed as
under:-

"........ As a model employer the
Government must conduct itself with high
proity and candour with its employees."

21. In State of Haryana v. Piara
Singh (1992) 4 SCC 118, Hon'ble the
Apex Court held that the main concern of
the Court in such matters is to ensure the
rule of law and to see that the Executive
acts fairly and gives a fair deal to its
employees
consistent
with
the
requirements of Articles 14 and 16.
44 22. For the foregoing reasons, the
impugned order of transfer as well as
relieving dated 5.3.2013 (Annexure Nos.1
and
2)
passed
by
opposite
party
no.2/Superintendent of Police Railway,
Lucknow and opposite party no.3/Reserve
Sub-Inspector, G.R.P. Lines, Lucknow
respectively are set aside and the opposite
party
no.2/Superintendent
of
Police
Railway, Lucknow is directed to allow the
petitioner to work and discharge his duties
on the post of orderly peon at G.R.P.,
Lucknow

23. In the result, the writ petition is
allowed.

24. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.04.2013

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE ARVIND KUMAR TRIPATHI
(II), J.

Service Bench No. 1510 of 2003

Radhey Shyam Gupta ...Petitioner
Versus
U.P. State Agro Industrial Corp

 ..Respondent

Counsel for the Petitioner:
Sri Rakesh Kumar

Counsel for the Respondent:
Sri Manoj K Singh, Sri S. Mirza

A-Constitution Of India, Art.-226-Continuity
of Service- Termination order-found illegalquashed-confined by Apex Court-whether
entitled for continuity of Service?-held-'Yes'

Held: Para-37
We further of the view that petitioner is
entitled for continuity of service because
of the fact that order of termination was
declared void by the tribunal which was
restored by the Hon'ble Supreme Court.
Once the order of termination was
quashed
by
the
courts
then
the
employee shall deemed to be in service
with all consequential benefits.

B- Constitution Of India, Art.-226- Back
wages-termination order found illegalperiod in litigation consumed about 22
years-salary
denied
in
absence
of
certificate no gainful working during
these
periods
given-held-full
salary
w.e.f. the date of judgment apart from
Rs. 1 Lacs towards back wages given.

Held: Para-36
In view of above, so far as payment of
wages are concerned, we are of the view
that the petitioner is entitled for full
salary immediately after pronouncement