# Smt. Rashmi Singh v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 1704
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-19
- **Case number:** Service Single No. 57 of 2019
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-rashmi-singh-v-state-of-u-p-ors-45048
- **Pages:** 6

## Headnote

C.S.C.

A. Petitioners-Health Education Officer (ClassIII-Non-Gazetted)-Challenging transfer orderwithin
district-passed
by
CMO-not
incompetent-administrative
controltransfering within district-of sub-ordinates lies
with CMO-transfer being exigency-if not
stigmatic order-not to be interfered withhence-order not arbitrary or illegal.

B. Held, the impugned order dated
18.12.2018 is neither stigmatic nor has
been passed to accommodate the private
respondent, rather, it has been passed by
the Competent Authority i.e. the Chief
Medical Officer.
Writ Petition disposed of. (E-8)

List of cases cited: -

## Text

1 All. Smt. Mamta Rani Vs. State of U.P. & Anr.
1705
would not embark upon an enquiry
whether the allegations in the complaint
are likely to be established by evidence or
not".Meaning thereby, exercise of inherent
jurisdiction under Section 482 Cr.P.C. is
within the limits, propounded as above.

10. In view of what has been
discussed above, this Application, under
Section 482 of Cr.P.C., merits dismissal
and it stands dismissed accordingly.
----------
(2020)1ILR 1704

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.12.2019

BEFORE
THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 57 of 2019
connected with Service Single No. 654 of 2019

Smt. Rashmi Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

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

Counsel for the Respondents:
C.S.C.

A. Petitioners-Health Education Officer (ClassIII-Non-Gazetted)-Challenging transfer orderwithin
district-passed
by
CMO-not
incompetent-administrative
controltransfering within district-of sub-ordinates lies
with CMO-transfer being exigency-if not
stigmatic order-not to be interfered withhence-order not arbitrary or illegal.

B. Held, the impugned order dated
18.12.2018 is neither stigmatic nor has
been passed to accommodate the private
respondent, rather, it has been passed by
the Competent Authority i.e. the Chief
Medical Officer.
Writ Petition disposed of. (E-8)

List of cases cited: -

1. Anil Kumar Srivastava vs. State of U.P. &
others [2015 (33) LCD 694]

2. Somesh Tiwari vs. Union of India [2009 (2)
SCC 592]

3. Shiv Shanker Ram vs. State of U.P. & others
[2007 (25) LCD 1241]

4. S.C. Saxena vs. Union of India and others
(2006) 9 SCC 583

5. State of Haryana and others vs. Kashmir
Singh and another (2010) 13 SCC 306

6. Ajay Kumar Mishra vs. Inspector General of
Police (Establishment) & others (Service Single
No.20789 of 2018)

7. Rajendra Singh vs. State of U. P. (2009) 15
SCC 178

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

1. Heard Sri A.P. Singh, learned
Senior
Advocate
assisted
by
Sri
Amarendra Pratap Singh, learned counsel
for the petitioner and Sri Ran Vijay Singh,
learned Additional Chief Standing Counsel
for the State-respondents.

2. Since by means of the aforesaid
writ petitions the transfer order dated
18.12.2018 passed by the Chief Medical
Officer, Lucknow has been assailed
whereby both the petitioners of the
aforesaid
writ
petitions
have
been
transferred and the grounds to assail the
aforesaid impugned order are more or less
same and both the writ petitions are being
listed by connecting each other, therefore,
with the consent of learned counsel for the
parties, both the writ petitions are being
decided
by
a
common
judgment.
1706 INDIAN LAW REPORTS ALLAHABAD SERIES

3. The brief facts of the aforesaid
cases are that the petitioners are serving on
the post of Heath Education Officer
(Class-III Non-Gazetted). The Appointing
Authority for the aforesaid post is the
Director General, Family Welfare, U.P.
and presently both the petitioners are
discharging their duties at Lucknow under
the local administrative control of the
Chief Medical Officer, Lucknow. The
Chief Medical Officer, Lucknow has full
administrative control and, as such, he is
vested with the authority regarding the
transfer and posting of his subordinate
officials and officers within the district.
However, if the transfer of the Health
Education Officer is made out of the
district, such authority vests with the
Director General, Family Welfare, U.P..

4. In both the writ petitions, mainly
two grounds have been taken in assailing
the
impugned
transfer
order
dated
18.12.2018 i.e. (i) the impugned transfer
order has been passed by the Incompetent
Authority as the Chief Medical Officer has
passed the transfer order whereas it should
have been passed by the Director General,
Family Welfare, U.P.
(ii)
the
impugned transfer order has been passed
to accommodate the private respondent,
namely, Smt. Keerti Neha.

5. In the counter affidavit filed by the
Chief Medical Officer, Lucknow on behalf
of the opposite parties, both the aforesaid
grounds have been categorically denied.
So
far
as
the
ground
regarding
incompetence
of
the
authority
is
concerned, the Chief Medical Officer has
categorically indicated in para-5 of the
counter affidavit that the Chief Medical
Officer
being
highest
administrative
authority of the district having full
administrative
control
over
the
subordinates to make transfer and posting
within the same district.

6. So far as the ground regarding
adjustment of private respondent (Smt.
Keerti Neha) is concerned, the Chief
Medical Officer has categorically denied
this allegation saying that by means of
transfer order private respondent has not
been adjusted. As a matter of fact, Smt.
Sunita
Srivastava
while
posting
at
Community Health Centre, Chander Nagar
committed negligence by not filling up
online applications of the beneficiaries
under the Pradhan Mantri Swachchha
Rastriya Yojna Ayushman Bharat despite
the specific directions given by the
Superintendent and under the Mission
Indra Dhanush Survey and Tikakaran the
work was not done by her, therefore, after
calling an explanation her salary for the
month of August was withheld and again
vide
letters
dated
07.12.2018
and
15.12.2018 she was asked to submit her
explanation but she did not submit her
explanation, therefore, vide order dated
18.12.2018 she was transferred from
Community Health Centre, Chander Nagar
to Community Health Centre, Bakshi-kaTalab. Smt. Rashmi Singh, the petitioner,
was transferred from Community Health
Centre, Bakshi-ka-Talab to Community
Health Centre, Intauja. Accordingly, on
the vacant post at Community Health
Centre,
Chander
Nagar
the
private
respondent has been posted.

7. As per the counter affidavit, on
27.06.2016 Smt. Rashmi Singh was
transferred from Lucknow to Lakhimpur
Kheri by order being passed by the
Director General and against that transfer
order Smt. Rashmi Singh has filed writ
petition bearing Writ Petition No.29624
(S/S) of 2016 (Smt. Rashmi Singh vs.
1 All. Smt. Rashmi Singh Vs. State of U.P. & Ors.
1707
State of U.P. & others), which was
disposed of finally vide order dated
15.12.2016 with the direction not to
relieve the said petitioner till 07.04.2017.
However, Smt. Rashmi Singh has assailed
the order dated 04.07.2017 by filing
special appeal bearing Special Appeal
No.33 of 2017 and the said special appeal
was decided finally directing the authority
concerned to take appropriate decision on
the representation of the petitioner without
interfering the order dated 07.04.2017
passed by the Single Judge. Pursuant to the
aforesaid order being passed the petitioner
retained at Bakshi-ka-Talab, however,
some complaint against Smt. Rashmi
Singh was received in the office of the
Chief
Medical
Officer,
Lucknow,
therefore, she was transferred to Bal
Mahila Chikitsalaya and Prasooti Grih,
Tudiaganj, Lucknow on 02.11.2018. Smt.
Rashmi Singh appeared before the Chief
Medical Officer and has given her
undertaking that she shall not commit any
mistake in future so she may be permitted
to retain at Bakshi-ka-Talab. Her request
was acceded to and vide order dated
13.11.2018 she was permitted to retain at
Bakshi-ka-Talab. Thereafter, 49 Asha
Bahu
and Asha
Sangini posted
at
Community Health Centre, Bakshi-kaTalat jointly made complaint in writing in
Tehsil
Diwas
before
the
District
Magistrate on 20.11.2018 levelling serious
charges against Smt. Rashmi Singh that
she has received illegal gratification while
making payment of their honorarium and
on the said complaint received through the
District Magistrate, the petitioner, Smt.
Rashmi Singh, has been transferred from
Bakshi-ka-Talab to Intauja. As per the
counter affidavit Smt. Rashmi Singh was
relieved on 26.12.2018 pursuant to the
direction being issued by the District
Magistrate, Lucknow.

8. The submission of learned
Additional Chief Standing Counsel is that
the aforesaid transfers have been made due
to administrative exigencies and strictly in
accordance with law, therefore, these
transfer orders may not be interfered with.

9. Replying to the aforesaid contention
of
learned
Additional
Chief
Standing
Counsel, Sri A.P. Singh, learned Senior
Advocate for the petitioners has submitted
that the law is settled on the point that the
transfer order may not be issued as a
substitute of punishment as no transfer order
should be passed on the complaint.

10. In support of his submission, Sri
A.P. Singh, learned Senior Advocate for
the petitioners has referred the judgment of
Single Judge of this Court rendered in re:-
Anil Kumar Srivastava vs. State of U.P.
& others reported in [2015 (33) LCD 694]
wherein this Court considering various
dictum
of
Hon'ble
Supreme
Court
including the case of Somesh Tiwari vs.
Union of India reported in [2009 (2) SCC
592] has held that the transfer order should
not be punitive nor stigmatic and if the
transfer order is issued on the basis of
complaint atleast an opportunity of hearing
should be afforded to the employee.

11. Sri A.P. Singh, learned Senior
Advocate for the petitioners has also placed
reliance upon the judgment of the Division
Bench of this Court rendered in re: S.K.
Majumdar vs. State of U.P. & others reported in
[1996 (14) LCD 887] by submitting that the
transfer order can only be passed by the
Disciplinary/ Appointing Authority and if any
transfer order is passed other than such authority,
the same shall be nullity in the eyes of law.

12. Sri A. P. Singh, learned Senior
Advocate has also placed reliance upon the
1708 INDIAN LAW REPORTS ALLAHABAD SERIES
Division Bench judgment of this Court
rendered in re: Shiv Shanker Ram vs.
State of U.P. & others reported in [2007
(25) LCD 1241] by submitting that if the
transfer is made on malafide intention
accommodating any person, that can be
interfered with by this Court.

13. Per contra, learned Additional
Chief
Standing
Counsel
has
placed
reliance upon the judgment of Hon'ble
Supreme Court rendered in re: S.C.
Saxena vs. Union of India and others
reported in (2006) 9 SCC 583 by
submitting that the Hon'ble Supreme Court
has held that it is the duty of the
government servant to comply with the
transfer order atonce and after complying
with the transfer order he / she may submit
his / her representation if there is any
grievance. If the employee does not submit
his/ her joining on the basis of transfer
order, that may be treated as misconduct.
In the given cases, both the petitioners
have not submitted their respective joining
at their transferred places, therefore,
necessary
departmental
actions
are
required against those employees.

14.

Learned
Additional
Chief
Standing Counsel has also placed reliance
upon the judgment of Hon'ble Supreme
Court rendered in re: State of Haryana
and others vs. Kashmir Singh and
another reported in (2010) 13 SCC 306 by
submitting that the Hon'ble Supreme Court
has held that the transfer ordinarily is an
incidence of service, and the courts should
be very reluctant to interfere in transfer
orders as long as they are not clearly
illegal. The Hon'ble Supreme Court has
further held that the 'Courts should not, in
our
opinion,
interfere
with
purely
administrative
matters
except
where
absolutely
necessary
on
account
of
violation of any fundamental or other legal
right of the citizen. After all, the State
administration cannot function with its
hands tied by judiciary behind its back...'

15.

Learned
Additional
Chief
Standing Counsel has also placed reliance
upon the Single Judge judgment of this
Court rendered in re: Ajay Kumar Mishra
vs.
Inspector
General
of
Police
(Establishment) & others (Service Single
No.20789 of 2018); whereby considering
the various judgments of Hon'ble Supreme
Court, this Court vide order dated
31.07.2018 dismissed the writ petition,
wherein the transfer order has been
assailed on the ground that such transfer
order was passed on the complaint and the
same should not be permissible. In the
judgment in re: Ajay Kumar Mishra
(supra), this Court has considered and
followed the various decisions of Hon'ble
Supreme Court including Somesh Tiwari
(supra) and held that after decision of
Somesh Tiwari (supra) two judgments of
Hon'ble Supreme Court in re: Registrar
General High Court vs. R. Perachi
reported in (2011) 12 SCC 137 and
Rajendra Singh vs. State of U.P. reported
in (2009) 15 SCC 178 have come,
therefore, the subsequent decisions of
Hon'ble Supreme Court in re: R. Perachi
(supra) and Rajendra Singh (supra) have
been followed.

16. In the case of R. Perachi (supra),
the Hon'ble Apex Court even after
considering that the transfer order of the
employee concerned was on the basis of
report of Registrar (Vigilance) and it had
also been informed by the District Judge
concerned that the retention of the
employee in his district was undesirable
from
the
point
of
view
of
the
administration, held that the transfer is an
1 All. Smt. Rashmi Singh Vs. State of U.P. & Ors.
1709
exigency of service and one cannot make
grievance if the transfer is made on
administrative ground without any stigma.

17. On the basis of the aforesaid
cases,
the
learned
Additional
Chief
Standing Counsel has submitted that the
impugned transfer order dated 18.12.2018
has been passed due to administrative
exigency and no stigma has been casted
upon the petitioners, therefore, it should
have not been interfered with.

18. Heard learned counsel for the
parties and perused the material available
on record.

19. The first ground to assail that the
impugned transfer order dated 18.12.2018
has been passed by the incompetent
authority is not correct inasmuch as the
Chief Medical Officer of the district being
highest Administrative Authority of the
district is vested with the authority
regarding transfer and posting of the
subordinate officers/ officials within the
district for local arrangement. This is not a
transfer of the petitioners out of the
district, therefore, shifting the petitioners
from one Community Health Centre to
another Community Health Centre within
the district on account of administrative
exigency by the Chief Medical Officer is
within the competence of the authority and
there is no illegality of any kind
whatsoever and, therefore, the case cited
by Sri A.P. Singh, learned Senior
Advocate for the petitioners in re: S.K.
Majumdar (supra) would not be applied
in these cases.

20. Likewise, the relevant records do
not disclose that the impugned transfer
order has been passed on account of any
malafide intention or to adjust the private
respondent, therefore, the case so cited by
Sri A.P. Singh, learned Senior Advocate
for the petitioners in re: Shiv Shanker
Ram (supra) would not be applied in the
present cases.

21. So far as the ground that the
impugned transfer order is punitive in
nature,
therefore,
an
opportunity
of
hearing
should be
afforded
to
the
petitioners is concerned, the Hon'ble
Supreme Court in re: R. Perachi (supra),
Kashmir Singh (supra) and Rajendra
Singh (supra) has held that the transfer
being exigency of service and if no stigma
is casted upon the employee concerned, it
should not be interfered with. In the
present case, the transfer order is not
stigmatic order.

22. In both the aforesaid cases, this
Court granted interim protection to both
the petitioners inasmuch as Smt. Rashmi
Singh was granted an order of status-quo
on 04.01.2019 and Smt. Sunita Srivastava
was granted an order that no coercive steps
shall be taken against her vide order dated
16.01.2019. However, as per learned
Additional Chief Standing Counsel before
the aforesaid interim protection being
granted by this Court, both the petitioners
have been relieved ex-parte. Therefore,
both the aforesaid petitioners could have
not been permitted to discharge their
respective duties at the place from where
they were transferred. He has also apprised
that
both
the
petitioners
have
not
submitted their respective joining at the
transferred place, therefore, they may be
subjected to departmental inquiry. On
being
asked
as
to
whether
any
departmental action has been taken against
the petitioners, learned Additional Chief
Standing Counsel has submitted that on
account of pendency of these writ petition,
1710 INDIAN LAW REPORTS ALLAHABAD SERIES
no departmental action has been initiated
against them.

23. However, the impugned transfer
order does not suffer from any illegality or
arbitrariness, but the fact remains that this
Court has granted interim protection in
favour
of
the
petitioners
and
no
departmental action against the petitioners
have been taken for not submitting their
respective joining at the transferred place,
therefore, it appears that any appropriate
order is required to be passed in the case
of the petitioners.

24. The impugned order dated
18.12.2018 is neither stigmatic nor has
been passed to accommodate the private
respondent, rather, it has been passed by
the Competent Authority i.e. the Chief
Medical Officer.

25. Further, since no departmental
action has yet been taken against the
petitioners due to pendency of the writ
petition,
therefore,
in
the
given
circumstances
they
should
not
be
compelled to face the departmental inquiry
for not submitting their respective joining
at the transferred place, however for the
period they have not submitted their
joining at the transferred place despite the
fact that before interim protection being
granted in their favour they were relieved,
the Chief Medical Officer, Lucknow may
pass appropriate orders in respect of
making payment of salary for that period
by affording an opportunity of hearing to
the petitioners and seeking explanation if
any order involves the civil consequences.

26. The liberty is given to the
petitioners to prefer a representation taking
all pleas and grounds which are available
with them enclosing therewith the certified
copy of this order within a period of seven
days and the Competent Authority shall pass
appropriate orders, strictly in accordance with
law, with expedition, preferably within a
period of three weeks thereafter.

27. In view of the aforesaid terms, both
the writ petitions are disposed of finally.

28. No order as to costs.
----------
(2020)1ILR 1709

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.01.2020

BEFORE
THE HON'BLE PANKAJ KUMAR JAISWAL, J.
THE HON'BLE ALOK MATHUR, J.

Special Appeal Defective No. 520 of 2019

Kundan Singh ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Dr. V.K. Singh

Counsel for the Respondents:
C.S.C., Abhinav N. Trivedi, Gyanendra Kumar Srivastav

A. Allahabad High Court Rules, 1952 -
Chapter VIII Rule 5 & Constitution of
India - Article 226 - challenge to- Public
office-
appellant
challenged
the
appointment of one Doctor as a professor
who later became vice-chancellor- Since,
post of professor is not mentioned as
officer in Chapter III of the King George
Medical University Act, 2002 - only post
of Vice -chancellor shown in the officers
of the university- writ of quo warranto
would not lie. (Para 23, 24, 27, 32, 33)

"Public Office" which would, fall under the
scrutiny of the Court's while exercising the
discretionary power of issue a writ of quo
warranto would be the offices created by the