# Sunil Kumar v. Union of India & Ors

- **Citation:** (2023) 8 ILRA 924
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-10
- **Case number:** Writ-A No. 9268 of 2022
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunil-kumar-v-union-of-india-ors-50640
- **Pages:** 11

## Headnote

Law
-
Central
Industrial
Security Force - Transfer - Circular No.
134 dated 25.09.2017 - Clause 12 and 13
- Transfer policy and guidelines - Country
has been divided into eight sector to
deploy
CISF
-
Guidelines
allow the
personnel to be posted in home sector for
a fixed period - Breach - Effect - Principle
of non-interference in transfer and its
exceptions laid down - Held, though
transfer being in exigency of service, an
employee cannot have a choice of posting
and
administrative
circulars
and
guidelines as a mode of transfer policy
cannot confer any vested right upon an
employee to make it enforceable by writ
court, but there are well laid exceptions to
the above rule, like malafide exercise of
discretion, transfer affecting monitory
benefits
to
employee's
prejudice,
discriminatory
exercise
of
discretion
upsetting the seniority or meeting out
unequals equally to their prejudice. Even
in
the
case
of
infraction
of
policy
guidelines or executive instructions made
of
course,
may
warrant
judicial
intervention - Durgesh Kuwar's case
relied upon. (Para 24)
B. Service Law - Constitution of India -
Article 226 - Writ - Judicial review -
Administrative
decision
-
Scope
of
interference - Cryptic order passed -
Permissibility - Non application of mind -
Effect - Reasoned and speaking order,
how
far
fundamental
for
good
administration - Held, the manner in
which by means of a very cryptic order the
representation of the petitioner has been
rejected, non application of mind is writ
large
on
the
face
of record
-
An
administrative authority while taking a
decision must ensure that its decision is
well informed dealing with the aspect
with which a representation has been
made by an employee questioning his
transfer - In exercise of administrative
discharge of duty, an executive must give
reasons for decision to be taken as its
8 All. Sunil Kumar Vs. Union of India & Ors.
925
fundamental to good administration -
High Court held the order rejecting the
representation
dated
14.06.2022
unsustainable in law being non-speaking -
S. N. Mukherjee's case relied upon. ( 28
and 29)

Writ petition allowed. (E-1)

List of Cases cited:

## Text

924 INDIAN LAW REPORTS ALLAHABAD SERIES
attract
to
the
present
facts
and
circumstances of the case.

28. Given the aforesaid reasons, the
writ petition deserves to be allowed and is
hereby allowed.

29. The impugned disciplinary order
dated 31.03.2004, the appellate order dated
05.08.2004 as well as the order dated
04.09.2004 appointing the petitioner on the
post of Senior Assistant are hereby
quashed.

30. A writ in the nature of mandamus
is issued directing the respondent(s) - Bank
to treat the petitioner to be appointed as
Senior Assistant w.e.f. 01.04.2002 with all
consequential benefits including further
promotions to all the next higher posts.

31. The said exercise shall be
completed in any event not later than eight
weeks from the date a certified copy of this
judgment and order is produced before the
respondents.

32. No order as to costs.
----------
(2023) 8 ILRA 924
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.07.2023

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 9268 of 2022

Sunil Kumar ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Mohd. Atif, Sri Ravi Prakash Srivastava

Counsel for the Respondents:

A.
Service
Law
-
Central
Industrial
Security Force - Transfer - Circular No.
134 dated 25.09.2017 - Clause 12 and 13
- Transfer policy and guidelines - Country
has been divided into eight sector to
deploy
CISF
-
Guidelines
allow the
personnel to be posted in home sector for
a fixed period - Breach - Effect - Principle
of non-interference in transfer and its
exceptions laid down - Held, though
transfer being in exigency of service, an
employee cannot have a choice of posting
and
administrative
circulars
and
guidelines as a mode of transfer policy
cannot confer any vested right upon an
employee to make it enforceable by writ
court, but there are well laid exceptions to
the above rule, like malafide exercise of
discretion, transfer affecting monitory
benefits
to
employee's
prejudice,
discriminatory
exercise
of
discretion
upsetting the seniority or meeting out
unequals equally to their prejudice. Even
in
the
case
of
infraction
of
policy
guidelines or executive instructions made
of
course,
may
warrant
judicial
intervention - Durgesh Kuwar's case
relied upon. (Para 24)
B. Service Law - Constitution of India -
Article 226 - Writ - Judicial review -
Administrative
decision
-
Scope
of
interference - Cryptic order passed -
Permissibility - Non application of mind -
Effect - Reasoned and speaking order,
how
far
fundamental
for
good
administration - Held, the manner in
which by means of a very cryptic order the
representation of the petitioner has been
rejected, non application of mind is writ
large
on
the
face
of record
-
An
administrative authority while taking a
decision must ensure that its decision is
well informed dealing with the aspect
with which a representation has been
made by an employee questioning his
transfer - In exercise of administrative
discharge of duty, an executive must give
reasons for decision to be taken as its
8 All. Sunil Kumar Vs. Union of India & Ors.
925
fundamental to good administration -
High Court held the order rejecting the
representation
dated
14.06.2022
unsustainable in law being non-speaking -
S. N. Mukherjee's case relied upon. ( 28
and 29)

Writ petition allowed. (E-1)

List of Cases cited:
1. Punjab and Sind Bank & ors.Vs Durgesh
Kuwar; AIR 2020 SC 3040
2. Ramana Dayaram Shetty Vs International
Airport Authority of India & ors.; (1979) 3 SCC
489
3. U.O.I. Vs K.P. Joseph & ors.; (1973) 1 SCC
194
4. Dharmendra Kumar Saxena Vs St. of U.P. &
ors.; 2013 (7) ADJ 153
5. Param Singh & ors. Vs St. of U.P. & ors.;
2018 SCC OnLine All 5677
6. Dr. Amarjit Singh AhluwaliaVs The St. of
Punjab; (1975) 3 SCC 503
7. S.N. Mukherjee Vs U.O.I.; 1990 (4) SCC 594
(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Mohd. Atif, learned counsel
for the petitioner and Sri Ravi Prakash
Srivastava, learned counsel for all the
respondents.

2. The petitioner by means of this
petition
has
invoked
extra
ordinary
jurisdiction of this Court under Article 226
of the Constitution of India assailing the
order dated 09.06.2022 whereby he has
been
transferred
to
Airport
of
Bhuvaneshwar from Airport of Varanasi
while working as Sub-Inspector in Central
Industrial Security Force (CISF).

3. Petitioner is aggrieved by the order
for the reason that he has served for more
that 11 years and 6 months out of home
sector and as per their own policy of
transfer and adjustment promulgated by the
respondents, petitioner was entitled to be
given posting in home sector. Learned
counsel has also assailed the order on the
ground that once he has been given posting
in his home sector at Varanasi in the year
2018 after having served out at places of
posting out of home sector, he could not
have been declared as surplus staff to be
adjusted at a different place out of his home
sector. It is submitted that the persons
junior to him were adjusted within the
home sector by placing them from Varanasi
to Patna. He in this regard has taken names
of juniors to the petitioner namely,
Anuprekha Kumari, Akshita Sinha and
Bharat Chaubey who according to him in
the first instance should have been placed
out of his home sector. Thus he pleads
discrimination meeted out to him in matter
of transfer and posting.

4. In support of his above arguments
learned counsel for the petitioner has relied
upon the transfer policy/rules framed by the
department itself that provides for a tenural
period to be spent by Constables, Head
Constables, Assistant Sub-Inspectors and
Inspectors at different sectors during
service career and which would not include
the period of basic training.

5. Vide paragraph 12 it is contended
that the first, second, third and fourth
tenure period of service are treated to be
with a division of seven years as out of
home sector, 12 years in home sector then
again six years out of home sectors and the
last four years in home sector. He submits
that the petitioner having already spent
more than 11 years and 6 months since the
date of initial appointment in the year 2006,
deserved to be posted in home sector and
this is the reason perhaps why he was given
926 INDIAN LAW REPORTS ALLAHABAD SERIES
posting at Varanasi on 03.04.2018. He
submits that Varanasi is a place falling
within his home sector because the
petitioner's permanent residence is located
at district Kaimur in the State of Bihar and
Varanasi district falls within the eastern
sector which includes the districts of Bihar
vide Clause 13 of the transfer policy/rules.

6. Per contra, it is argued by learned
counsel for the respondents that the transfer
and posting rules contain also discretionary
powers of authority in matters of transfer
and postings vide Clause 10(c) and Clause
39 (xx). According to him this transfer
policy/rules would be laying down broad
parameters for transfer and postings of the
personnels and the final decision would rest
with the competent authority of the
C.I.S.F., inasmuch as vide Clause 39 (xx)
these transfer rules would not come in the
way of discretion of the competent
authority in posting any personnel at a
particular place even without assigning any
reason.
It
is
argued
that
transfer
policy/rules or notifications or circulars by
whatever name it is known are purely
administrative instructions and are aimed at
providing guidelines to meet administrative
exegencies and are not enforceable as such.

7. It is further submitted that the
petitioner's application to give him posting
at Patna which would fall within the home
sector has already been rejected by the
competent authority by passing order dated
14.06.2022, which is not under challenge.

8. In rejoinder to the above affidavit,
learned counsel for the petitioner has
submitted that even if the policy lays down
broad principles with discretionary powers
vested with authorities but this power is to
be exercised in exceptional circumstances
only. The authority should abide by its own
policies and guidelines otherwise it will be
an absolutely uncanalised power in the
name of discretion to shift an employee
from one place to another for various
extraneous considerations and at times for
whims.
He
argues,
therefore,
that
policy/rules/instructions/notification
or
circular by whatever name it is called, it
would be rendered to be a waste paper. He
argues that no administrative power vested
in an authority can be unchecked in a rule
of law society.

9. It is also argued by learned counsel
for the petitioner that he need not challenge
the order dated 14.06.2022 because it has
not been passed by any competent
authority. According to him the competent
authority in the matter is Director General
(C.I.S.F.) as per Sub clause (i) of Clause 10
of the guidelines. It is further argued that if
it is taken to be a delegated power, the
delegation will have to be to a competent
authority having territorial authority over
and above the sector concerned to which
the petitioner/employee belongs and not the
officer of the rank who has passed the order
being D.I.G., Northern Sector. He submits
that the petitioner admittedly belongs to
eastern sector.

10. Having heard learned counsel for
the respective parties and their arguments
raised across the bar, in my view two main
issues arise for consideration by this Court
which are as follows:

a) Whether the authorities are bound
by their own transfer rules and guidelines
under transfer policy that they have
themselves framed at their own discretion
and any violation thereof would not
warrant judicial intervention by this Court
under Article 226 of the Constitution of
India;
8 All. Sunil Kumar Vs. Union of India & Ors.
927

b) Whether the authorities were
justified in ignoring claim of the petitioner
in the matter of seniority while giving him
posting at the place within the sector to
which the petitioner would be entitled as
his home sector.

11. In my considered view, if the first
question stands un-answered in favour of
the petitioner the second would only
require to be looked into the extent as to
whether the order that has been relied upon
by the respondents to have rejected the
claim of the petitioner is justified enough
and has been passed by the competent
authority or not.

12. As far as the transfer policy is
concerned, I have carefully gone through
the entire transfer policy and guidelines
given therein that has been issued vide
Circular No.134 dated 25.09.2017.

13. The Central Industrial Security
Force is the security force that has been
brought into existence with the specific
purpose to safeguard security at the airport
and other public industrial Sectors and
Government establishments as may be
required by the Central Government. The
duty that is to be discharged by the Security
Officers who are drawn from different
places of the country and are required to
render their rigorous service to have a
constant vigil so as to ensure security of the
airport,
other
industrial
places
and
Government establishments throughout day
and night i.e. 24x7. Keeping this in mind
and in order to ensure better deployment of
force guidelines lay down different sectors
vide clauses 13. Clause 13 is reproduced
hereunder:

"13. For the purpose of this policy
there shall be following Sectors.

i) North Sector- Comprising of J&K,
Punjab,
Himachal
Pradesh, Haryana,
Rajasthan, Chandigarh, Uttarakhand & UP
excluding the districts under Eastern UP as
mentioned under Eastern Sector.

ii) NCR Sector - comprising of units
under NCR Zone,SSG,GBS, DMRC & other
Units as notified under NCR Sector from
time to time.

iii) Eastern Sector - Comprising of
Bihar, Jharkhand and Eastern UP(districts
of Varanasi, Jaunpur, Ghazipur, Chandauli,
Mirzapur, Sant Ravidas Nagar, Sonbhadra,
Deoria, Gorakhpur, Kushi Nagar, Maharaj
Ganj,
Ambedkar
Nagar,
Faizabad,
sultanpur, Amethi,Barabanki,
Bahraich,
Balrampur, Gonda, Shravasti, Basti, Sant
Kabir Nagar, Siddharth Nagar, Azamgarh,
Balia,
Mau,
Allahabad,
Fatehpur,
Kaushambi, Pratapgarh).

iv) South Eastern Sector- Comprising
of West Bengal, Orissa, Andaman &
Nicobar lslands and Sikkim.

v) North Eastern Sector Assam,
Arunachal Pradesh, Nagaland, Manipur,
Mizoram, Meghalaya and Tripura.

vi) Central Sector - Madhya Pradesh
and Chhattisgarh.

vii) Western Sector - Maharashtra,
Goa, Gujarat, Daman & Diu and

Dadra Nagar Haveli.

viii)
Southern
Sector
-
Andhra
Pradesh, Karnataka, Kerala, Telangana,
Tamil Nadu, Puducherry and Lakshadweep.

However, the area under Sectors can
be changed by the DG/CISF at any time
depending upon administrative requirement
and operational exigencies."

14. Upon bare reading of the
aforesaid clause it is clear that the country
has been divided into as many as eight
sectors so as to deploy Central Industrial
Security
Force.
Now
eastern
sector
comprises of the entire State of Bihar,
928 INDIAN LAW REPORTS ALLAHABAD SERIES
Jharkhand and eastern Uttar Pradesh that
includes
district
Varanasi
where
the
petitioner was posted at the time when the
impugned order of transfer and adjustment
came to be passed.

15. The question therefore arises as to
whether it would not be pragmatic for a
welfare state to consider posting of such
personnel or officers in the Central
Industrial Security Force in or around their
home districts/sectors for certain period in
their entire service career and in my view it
would be and that is why the Central
notification in question provides for the
tenure of postings also and vide Clause 12
the policy lays down tenure postings, which
is reproduced hereunder:

"12. TENURE OF POSTING

The Out of Home Sector(OHS) and
Home Sector(HS) tenure for posting in
respect of NGOs are subject to availability
of
vacancies,
operational
and
administrative needs and new inductions.
The details are as follows:

OUT OF HOME SECTOR/HOME
SECTOR TENURE FOR CONSTABLEs
HCs, ASIs SIs & INSPECTORs OF ALL
SECTORS EXCEPT FOR EXCEPTIONS
MENTIONED lN THIS CIRCULAR

BASIC
TRAINING
PERIOD
:
NEITHER TO BE COUNTED lN HOME
SECTOR NOR OUT OF HOME SECTOR -

a) 1st Tenure- 07 Years in Units in
Out of Home Sector ( excluding basic
training)

b) 2nd Tenure-
12 Years in Units
in Home Sector

c) 3rd Tenure-
06 years in Out of
Home Sector

d) 4th Tenure (Remaining Service)-
Home Sector

Note:

1. During the lnter Sector Transfer for
3rd tenure the individuals shall be asked
their choice of Out of Home Sector(OHS)
from among the existing OHSs by giving
their preference for the OHSs in the order
of priority and efforts shall be made to
accommodate
their
Out
of
Home
Sector(OHS) choices on merit subject to
availability of vacancies.

Explanation

i) Merit shall be based on the duration
of OHS (in months) already served.

ii) ln case of tie, preference would be
given to those having higher age. lf there is
still tie between two or more personnel, the
preference will be given to those who have
joined CISF earlier (Date of joining).

2. Home Sector posting will be
considered
subject
to
availability
of
vacancies in Home Sector (Vacancies
would be calculated with stipulation that
the Sector should not have more than 60%
of HS personnel). This shall be applicable
for both HS tenures (2nd and 4th tenures)

3. During lnter Sector Transfer if an
individual has become eligible for HS
posting from OHS, he/she can also give his
preference for maximum of two OHS (other
than where he/she is presently posted)
where he can be posted in the event he is
not posted to his HS on account of his low
merit. However, once posted to OHS as per
his preference, he will have to complete the
full tenure of 02/03 years as applicable,
depending upon the location of unit, before
he is again considered for HS posting. But
such OHS posting shall not be counted
against HS posting even though he had
given preference for the same, as he could
8 All. Sunil Kumar Vs. Union of India & Ors.
929
not be accommodated in his HS despite
being due for HS posting This shall be
applicable to postings for both the HS
tenures.(2nd and 4th tenure)"

16. The above clause therefore,
clearly demonstrates that in the entire
period of service while a personnel or an
officer would be rendering total about 2930 years of service in the force, maximum
period he/she would be serving out of the
home sector. It is the maximum period of
12 years that he/she would be allowed
posting in home sector. Home sector as I
have already perused above, is not
necessarily to be a place of permanent
address of the personnel but it comprises of
a very large area, like for instance, if a
person belongs to State of Bihar, he can be
posted in Jharkhand or Eastern Uttar
Pradesh and that would all amount to a
posting within the home sector. No one
needs to explain as to what is the distance
between Bihar and Jharkhand or Jharkhand
and district Ballia or between District
Kaimur of Bihar and Pratapgarh and
Kaushambi districts that fall within eastern
sector.

17. In the circumstances therefore, it
appeals to reason that the policy was
framed with a view to give posting to the
personnels in the home sector. The postings
are broadly made definitely in tune with the
guidelines and the principles that have been
laid down in the notification. However, in
so far as the argument that the guidelines
are only to be considered in the broader
perspective inasmuch as they do not create
a bar for the discretion to be exercised by
the authority in giving posting at any place,
in my considered view would normally be
taken
into
account
where
special
circumstances are assigned for posting an
officer repeatedly at a particular place. The
authorities should adhere to the rules
framed by them normally and overriding
power to exercise discretion should be only
special circumstances where situation so
demands. So normally when no special
reasons are assigned, it is expected that the
Government would certainly be relying
upon its own guidelines that have been laid
down. Normally, the rule framing authority
should adhere to the guidelines have to be
complied with by the authority framing it
giving
a
pragmatic
view.
Only
in
exceptional circumstances, the authority
can bypass the guidelines. It is not the case
where any exceptional circumstance has
been placed before this Court by learned
counsel for the respondents. Nothing has
been stated in the entire counter affidavit
which may justify the adjustment of the
petitioner from the airport of Varanasi to
airport of Bhuvaneshwar which falls
outside the home sector.

18. Petitioner was given posting in the
home sector only in the year 2018 and,
therefore, he could have been continued for
further more period but he has been shifted
to Bhuvaneshwar under the order impugned
assigning reasons that he is a surplus staff.

19. Learned counsel for the petitioner
has drawn the attention of the Court
towards the chart which has been appended
alongwith the writ petition as Annexure-9
that shows Anuprekha Kumari, Bharat
Chaubey and Akshita Sinha were junior to
the petitioners and had been given posting
at Varanasi which is also their home sector.

20. It is claimed that they were juniors
to the petitioner so naturally they must have
rendered lesser service than the petitioner.

21. Now Rakesh Kumar who was
posted alongwith the petitioner and Bharat
930 INDIAN LAW REPORTS ALLAHABAD SERIES
Chaubey, have been shifted from Varanasi
to Patna. Patna also falls within the homesector as the Varanasi falls in the same
sector as per the transfer rules.

22. In the circumstances, therefore the
persons who were junior to the petitioner
should have been first taken to be surplus
staff to be shifted to a different place of
posting outside the sector.

23. Thus in the given facts and
circumstances of the case it cannot be said
to be a decision taken by the authority in
the public interest or in the administrative
exigency which are the powers that can be
enforced in the light of what has been
pleaded by learned counsel for the
respondent
invoking
powers
given
provisions contained under Clause 10 (c)
and 13 (xx) of the transfer rules. If this kind
of action is sustained in law and is said to
be outside the purview of judicial review
by this Court, then it would certainly be
defeating the very object and purpose with
which the policy is framed.

24. This Court is conscious of the
well laid position of law that transfer being
in exigency of service, an employee cannot
have a choice of posting and administrative
circulars and guidelines as a mode of
transfer policy cannot confer any vested
right upon an employee to make it
enforceable by writ court (AIR 2020 SC
3040: Punjab and Sind Bank and Ors. vs.
Durgesh Kuwar,) but there are well laid
exceptions to the above rule, like malafide
exercise of discretion, transfer affecting
monitory benefits to employee's prejudice,
discriminatory
exercise
of
discretion
upsetting the seniority or meeting out
unequals equally to their prejudice. Even in
the case of infraction of policy guidelines
or executive instructions made of course,
may warrant judicial intervention. In
Ramana Dayaram Shetty v. International
Airport Authority of India and others:
(1979) 3 SCC 489, Supreme Court very
categorically held thus:

It
is
a
well
settled
rule
of
administrative law that an executive
authority must be rigorously held to the
standards by which it professes its actions
to be judged and it must scrupulously
observe those standards on pain of
invalidation of an act in violation of them.
This rule was enunciated by Mr Justice
Frankfurter in Viteralli v. Saton [359 U.S.
535: Law Ed (Second series) 1012] where
the learned Judge said:

An
executive
agency
must
be
rigorously held to the standards by which it
professes its action to be judged ....
Accordingly, if dismissal from employment
is based on a defined procedure, even
though generous beyond the requirements
that bind such agency, that procedure must
be scrupulously observed .... This judicially
evolved rule of administrative law is now
firmly established and, if I may add, rightly
so. He that takes the procedural sword
shall perish with the sword."

25. Even earlier in the case of Union
of India vs. K.P. Joseph and others: (1973)
1 SCC 194, the Supreme Court held that:

"9.
Generally
speaking,
an
administrative Order confers no justiciable
right, but this rule, like all other general
rules, is subject to exceptions. This Court
has held in Sant Ram Sharma v. State of
Rajasthan and Another (AIR 1967 SC
1910) that although Government cannot
supersede statutory rules by administrative
instructions, yet, if the rules framed under
Article 309 of the Constitution are silent on
any particular point, the Government can
fill up gaps and supplement the rules and
8 All. Sunil Kumar Vs. Union of India & Ors.
931
issue instructions not inconsistent with the
rules already framed and these instructions
will govern the conditions of service."

26. A Coordinate Bench of this Court
in the case of Dharmendra Kumar Saxena
vs. State of U.P. And others: 2013 (7) ADJ
153 has held that:

"23.......the Government is bound by
executive orders/policies. The guidelines
are made to follow it and not to breach it
without any justifiable reasons. Whenever
the
Government
deviates
from
its
policies/guidelines/ executive instructions,
there must be cogent and strong reasons to
justify the order; when transfer order is
challenged by way of representation, there
must be material on record to establish that
the decision was in public interest and it
does not violate any statutory provision,
otherwise the order may be struck down as
being arbitrary and violative of Article 14
of the Constitution. The authorities cannot
justify their orders that breach of executive
orders do not give legally enforceable right
to aggrieved person. As observed by Justice
Frankfurter "An executive agency must be
rigorously held to the standards by which it
professes its action to be judged".

24. It is true that the Supreme Court
has consistently taken the view that in
transfer
matters
breach
of
guidelines/policy/ executive orders do not
confer upon government servants any
legally enforceable right. But on a careful
reading of the judgements of the Supreme
Court on this issue, it is also evident that in
all those cases the Supreme Court has
ruled that in case of breach of executive
instructions/orders,
the
Government
Servant can make representation to the
appropriate authority and if any such
representation is made, the appropriate
authority must consider it in proper
perspective and in accordance with law."

27. The aforesaid judgment of coordinate Bench was cited with approval by
Division Bench in the case of Param Singh
and others vs. State of U.P. and others:
2018 SCC OnLine All 5677 and on the
issue of compliance of administrative
instructions by the executive, the Division
Bench relying upon the judgment of the
Supreme Court in the case of Dr. Amarjit
Singh Ahluwalia v. The State of Punjab:
(1975) 3 SCC 503 vide paragraph 21, 22,
23 and 24 has held thus:

"21. We are in agreement with the said
view. The object of framing the transfer
policy/ guidelines is to ensure that the
power of transfer should be exercised in
public interest and for the efficiency in the
service. It cannot be done for unauthorized
purpose. We find that law laid down in
Dharmendra Kumar Saxena (supra) is
based on the principle laid down by the
Supreme Court in a Constitution Bench
judgment in the case of Ramana Daya Ram
Shetty v. International Airport Authority of
India and others, (1979) 3 SCC 489 and the
other cases referred in the judgment.

22. In the case of Dr. Amarjit Singh
Ahluwalia v. The State of Punjab and
others, (1975) 3 SCC 503 the Supreme
Court applied the principle enunciated by
Mr. Justice Frankfurter in William Vincent
Vitarelli v. Fred A. Seaton, Secretary of
Interior, et al., 359 U.S. 535 (1959):
Manu/USSC/0176/1959 where the learned
Judge said:

"An
executive
agency
must
be
rigorously held to the standards by which it
professes its action to be judged. See
Securities & Exchange Commission v.
Chenery Corp., 318 U.S. 80, 318 U.S. 8788.
Accordingly,
if
dismissal
from
932 INDIAN LAW REPORTS ALLAHABAD SERIES
employment
is
based
on
a
defined
procedure, even though generous beyond
the requirements that bind such agency,
that procedure must be scrupulously
observed. See Service v. Dulles, 354 U. S.
363. This judicially evolved rule of
administrative
law
is
now
firmly
established, and, if I may add, rightly so.
He that takes the procedural sword shall
perish with that sword. "

23. In Dr. Amarjit Singh Ahluwalia
(supra) the Supreme Court preferred the
view taken by U.S. Supreme Court while
interpretating
the
administrative
instructions. The British Courts take rather
conservative view on the administrative
orders. The following discussion and
conclusion are apt and relevant for our
purposes:

"8. ...Now, it is true that clause (2) (ii)
of the memorandum dated 25th October,
1965 was in the nature of administrative
instruction, not having the force of law, but
the State Government could not at its own
sweet will depart from it without rational
justification and fix an artificial date for
commencing the length of continuous
service in the case of some individual
officers only for the purpose of giving them
seniority in contravention of that clause.
That would be clearly violative of Articles
14 and 16 of the Constitution. The sweep of
Articles 14 and 16 is wide and pervasive.
These two articles embody the principle of
rationality and they are intended to strike
against arbitrary and discriminatory action
taken by the, 'State' Where the State
Government departs from a principle of
seniority laid down by it, albeit by
administrative
instructions,
and
the
departure is without reason and arbitrary,
it would directly infringe the guarantee of
equality under articles 14 and 16. It is
interesting to notice that in the United
States it is now well settled that an
executive agency must be rigorously held to
the standards by which it professes its
actions
to
be
judged
and
it
must
scrupulously observe those standards on
pain of invalidation of an act in violation of
them. vide the judgment of Mr. Justice
Frankfurter in Vitaralli v. Seaton, 359 US
535, 546-547 : 3 L Ed. 2nd 1012. This view
is of course not based on the equality
clause of the United State Constitution and
it is evolved as a rule of administrative law.
But the principle is the same, namely, that
arbitrariness should be eliminated in State
action."

24. It is trite that non-statutory
direction is not enforceable in Court. The
transfer policy framed by the Government
is non-statutory guideline, therefore, it
cannot be enforced. The legal position in
this regard is too well settled to require
any reiteration. But the Supreme Court in
Dr. Amarjit Singh Ahluwalia (supra) has
taken a middle path that administrative
orders are binding on State and it cannot
completely ignore the instructions issued
by it."

(Emphasis added)

28. I may further add here that if
genuine reasons are not given so as to
exercise discretion overriding the general
rules of transfer, it would amount to an
exercise vitiated for malice and not
necessary for any fact but it can be in law
as well. The manner in which by means of
a very cryptic order the representation of
the petitioner has been rejected as has been
brought on record by means of counter
affidavit, non application of mind is writ
large on the face of record. Any discretion
if exercised by passing the normal rule, if
represented against must be defended by
reasoned or well informed decision. A mere
order that representation is turned down
would only lead to an inevitable inference
8 All. Sunil Kumar Vs. Union of India & Ors.
933
that authority had no reason to defend its
order on parameters of rules and policies
and so it simply turned down the
respondents. This is malice in law. The
Supreme Court in the case of Somesh
Tiwari vs. Union of India: (2009) 2 SCC
592 has held that "Mala fide is of two kinds
- one malice in fact and the second malice
in law. 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 transfer is passed in lieu
of punishment, the same is liable to be set
aside being wholly illegal."

29. An administrative authority while
taking a decision must ensure that its
decision is well informed dealing with the
aspect with which a representation has been
made by an employee questioning his
transfer. While it is a well laid principle of
law that in exercise of administrative
discharge of duty an executive must give
reasons for decision to be taken as its
fundamental to good administration. A
Constitution Bench of the Supreme Court
in
S.N.
Mukherjee
vs.
Union
of
India:1990 (4) SCC 594 has reiterated the
necessity
of
recording
reasons
by
administrative body/authority. Thus the
order rejecting the representation dated
14.06.2022 being non-speaking is held to
be unsustainable in law.

30. In the circumstances therefore, the
impugned decision taken by the authority is
such an administrative action that deserves
judicial intervention by this Court.

31. Coming to the second issue, I find
that the petitioner had been given posting at
Varanasi in the year 2018 like other two
persons,
Rakesh
Kumar
and
Bharat
Chaubey .

32. It has not been disclosed in the
order that has been enclosed with the
counter affidavit, as to why these persons
were continued at their home sector and the
petitioner has been picked to be shifted out
of his home sector as surplus staff.

33. Still further I find merit in the
argument advanced by learned counsel for
the
petitioner
holds
merit
that
the
competent authority in the matter would be
the Director General (Central Industrial
Security Force) vide Clause 10 (a) of the
guidelines/policies which is reproduced
hereunder:

"A) The Director General shall be the
final authority for deciding all such
transfers/postings."

34. Admittedly, the order has been
passed by the D.I.G. (Central Industrial
Security Force), North Zone, Airport Sector
who is not the competent authority.

35. In any view of the matter, since I
am not able to sustain the order passed by
the authority to treat the petitioner as
surplus staff at Varanasi leaving juniors to
him to continue at that place of posting, the
order passed by the authority dated
09.06.2022 in respect of the petitioner is
hereby
quashed
and
so
also
the
consequential
order
dated
17.06.2022
passed in the matter.
934 INDIAN LAW REPORTS ALLAHABAD SERIES

36. The respondents are directed to
consider the claim of the petitioner and
pass appropriate orders within three weeks
of presentation of certified copy of this
order, giving him posting at any place
within his home sector. The decision shall
be taken by the competent authority within
a period of four weeks and under any
circumstances on or before 25.08.2023.

37. It is, however, made clear that
until
such
decision
petitioner
would
continue at the present place of posting and
shall be paid salary.

38. The writ petition thus succeeds
and is allowed in above terms.
----------
(2023) 8 ILRA 934
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.08.2023

BEFORE

THE HON'BLE MANJIVE SHUKLA, J.

Writ-A No. 9429 of 2023

Sunil Kumar Srivastava ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sunil Kumar Srivastava

Counsel for the Respondents:
C.S.C., Sri Madan Lal Srivastava

A. Service Law - Constitution of India -
Article 226 - Writ - Maintainability -
Suppression of material fact - Petitioner
was fully aware about the order dated
11.4.2023 passed in earlier writ petition,
but he deliberately has not disclosed this
fact, which have direct bearing on the
result of present writ petition - Effect -
Held, a person who conceals material facts
while filing writ petition is not entitled for
any relief from the High Court in exercise
of its extraordinary jurisdiction under
Article 226 - Petitioner approaching the
Writ Court must come with clean hands
and must put forward all the facts before
the
Court
without
concealing
or
suppressing anything. (Para 13, 15 and
18)
Writ petition dismissed. (E-1)
List of Cases cited:
1. Prestige Lights Ltd. Vs St. Bank of India;
(2007) 8 SCC 449
2. K. D. Sharma Vs Steel Authority of India Ltd.
& ors.; (2008) 12 SCC 481
3. K. Jayaram & ors. Vs Bangalore Development
Authority & ors.; (2022) 12 SCC 815
(Delivered by Hon'ble Manjive Shukla, J.)

1. Heard Mr. Sunil Kumar Srivastava,
petitioner in person and learned Standing
Counsel appearing for Respondents No.1 to
4 as well as Mr. Madan Lal Srivastava,
learned counsel appearing for Respondent
No.5.

2. Petitioner in his writ petition has
stated that he has filed a complaint to
District Basic Education Officer, Prayagraj
wherein he has mentioned that one Mr.
Arun
Kumar
Mishra
has
obtained
appointment on the post of Assistant
Teacher in Bal Kalyan Purv Madhyamik
Vidyalaya,
Buxi
Khurd,
Daraganj,
Prayagraj on the basis of forged documents,
therefore, inquiry may be conducted in the
matter and the appointment of aforesaid
Mr. Arun Kumar Mishra be cancelled.

3. Petitioner appearing in person has
submitted that though cognizance of the
aforesaid
complaint
lodged
by
the
petitioner has been taken by the District
Basic Education Officer, Prayagraj but till