# Supher Ram v. Additional Director and others

- **Citation:** (2003) 2 ILRA 281
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-03-28
- **Case number:** Civil Misc. Writ Petition No. 20497 of 1998
- **Bench:** R.B. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/supher-ram-v-additional-director-and-others-40085
- **Pages:** 7

## Headnote

Sri M.B. Singh

(a) U.P. Agricultural Produce Market
Committee
(Centralised)
Services
(Amendment) Regulations, 1991, Reg.
24 (1) Transfer- order of legality -
transfer
order
made
in
special
circumstances-
Not
necessary
to
elaborate
special
circumstances-
Authority indicating that transfer made
in interest of administration and in
public interest- impugned transfer order,
held- valid.

Held ( Para 13)

I find that by the impugned transfer
order in question dated 30.5.1988 the
petitioner has been transferred from
Jhansi region to another region of
Mirzapur by Addl. Director, therefore, the
Addl. Director was in power to pass such
order of transfer under Regulation 24(1)
of Regulation, 1991 and in the impugned
order itself it has been mentioned that in
special circumstances, the transfer in
question has been made. It is not
necessary
to
elaborate
the
special
circumstances if the authority himself
has indicated that the transfer has been
made in special circumstances in the
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
282
interest of administration and in the
interest of public. Transfer is exigency of
service provided it is made in the
interest of service administration, to
prove service condition and to maintain
the system of the service. The court
generally does interfere or make judicial
review in the transfer order made in the
public interest or in the interest of
administration.
The
transfer
is
the
exigency of service unless it is not made
on political vendetta and in colourable
exercise of power or malafidely or in
order of harass the petitioner or in
derogation to the provisions of Act or
rule.
(b) Constitution of India, Article 226-
Judicial Review- Scope.

Held ( Para 12)

The scope of judicial review of transfer
under Article 226 of the Constitution of
India has also been settled by the
Supreme Court in view of the decisions
of Rajendra Roy vs. Union of India and
another (1993) 1 Supreme Court cases
148,
National
Hydroelectric
Power
Corporation Ltd. vs. Shri Bhagawan and
another 2001 (8) Supreme Court cases
574, State Bank of India vs. Anjan Sanyal
and others 2001 )5 Supreme Court cases

## Text

http://www.allahabadhighcourt.nic.in
2 All] Supher Ram V. Additional Director and others
281
after twenty one years of lodging the first
information report and the case had been
dragged for more than two decades
without any fault on the part of the
accused. More so, the Apex Court also
came
to
the
conclusion
that
the
cognizance
had
been
taken
in
a
mechanical manner. It has further been
observed that neither the victim nor the
accused should suffer by the mischief of
the investigating agency or the staff of the
court and such a delay was found to be a
ground for quashing the charges.

25. Thus in view of the above if the
case of the petitioner is examined in the
light of the aforesaid settled legal
proposition, it is evident that the F.I.R.
clearly makes out a case against the
petitioner as it has been alleged by the
respondent no. 4 in the F.I.R. that the
petitioner alongwith others entered into
her house broke open the lock, searched
for the file of litigation and had taken
away large number of articles, including
the ornaments and cash and caused
serious injuries to her husband. The
defence taken by the petitioner cannot be
taken into consideration at this stage.

26. Thus petition is found to be
devoid of ay merit and accordingly
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.3.2003

BEFORE
THE HON'BLE R.B. MISRA, J.

Civil Misc. Writ Petition No. 20497 of 1998

Supher Ram

...Petitioner
Versus
Additional Director and others

 ...Respondents

Counsel for the Petitioner:
Sri Somesh Khare
Sri Grdhar Nath
Sri Pranay Krishna

Counsel for the Respondents:
Sri M.B. Singh

(a) U.P. Agricultural Produce Market
Committee
(Centralised)
Services
(Amendment) Regulations, 1991, Reg.
24 (1) Transfer- order of legality -
transfer
order
made
in
special
circumstances-
Not
necessary
to
elaborate
special
circumstances-
Authority indicating that transfer made
in interest of administration and in
public interest- impugned transfer order,
held- valid.

Held ( Para 13)

I find that by the impugned transfer
order in question dated 30.5.1988 the
petitioner has been transferred from
Jhansi region to another region of
Mirzapur by Addl. Director, therefore, the
Addl. Director was in power to pass such
order of transfer under Regulation 24(1)
of Regulation, 1991 and in the impugned
order itself it has been mentioned that in
special circumstances, the transfer in
question has been made. It is not
necessary
to
elaborate
the
special
circumstances if the authority himself
has indicated that the transfer has been
made in special circumstances in the
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
282
interest of administration and in the
interest of public. Transfer is exigency of
service provided it is made in the
interest of service administration, to
prove service condition and to maintain
the system of the service. The court
generally does interfere or make judicial
review in the transfer order made in the
public interest or in the interest of
administration.
The
transfer
is
the
exigency of service unless it is not made
on political vendetta and in colourable
exercise of power or malafidely or in
order of harass the petitioner or in
derogation to the provisions of Act or
rule.
(b) Constitution of India, Article 226-
Judicial Review- Scope.

Held ( Para 12)

The scope of judicial review of transfer
under Article 226 of the Constitution of
India has also been settled by the
Supreme Court in view of the decisions
of Rajendra Roy vs. Union of India and
another (1993) 1 Supreme Court cases
148,
National
Hydroelectric
Power
Corporation Ltd. vs. Shri Bhagawan and
another 2001 (8) Supreme Court cases
574, State Bank of India vs. Anjan Sanyal
and others 2001 )5 Supreme Court cases
508. This court following the aforesaid
principal laid by the Supreme Court in
Vijay Pal Singh vs. State of U.P. and
others.
1997
(3)
ESC
1668
and
Onkarnath Tiwari vs. The Chief engineer,
Minor
Irrigation
Department,
UP
Lucknow and others, 1997 (3) ESC 1866,
has held that the principle of law unfold
in the aforesaid decisions is that an order
of transfer is a part of service conditions
of an employee and is not required to be
interfered with lightly by a Court of law
in
exercise
of
its
discretionary
jurisdiction unless the Court finds that
either the order is mala fide or that the
service rules prohibit, such transfer or
that the authorities, who issued the
orders, were not competent to pass the
orders.
Case law referred:
AIR 1986 SC 1955, AIR 1991 SC 532, AIR
1993 SC 1605, AIR 1993 SC 2444, AIR 1993
SC 2486, (1994) 6 SCC 98, 1995 Supp. (4)
SCC 169, (2003) 1 UPLBEC 262, (1993) 1 SCC
148, (2001) 8 SCC 574, (2001) 5 SCC 508,
1997 (3) ESC 1668, 1997 (3) ESC 1866

(Delivered by Hon'ble R.B. Misra, J.)

1. Heard Sri Somesh Khare holding
brief of Sri Girdhar Nath learned counsel
for the petitioner.

2. This mater was listed yesterday in
the cause list and it was heard and the
matter was to be disposed of on
27.3.2003. No counsel has bothered to
appear on behalf of Rajya Krishi Utpadan
Mandi Parishad for representing the case
of Chairman/Secretary, Director or Addl.
Director and case was almost to be
finalized, however at the end of the day
Sri
Somesh
Khare
learned
counsel
mentioned the matter to point out some
relevant aspects, therefore, this matter has
been directed to be listed as unlisted
matter today. Today also Sri Somesh
Khare holding brief of Sri Girdhar Nath
has been heard for and on behalf of the
petitioner and no counsel on behalf of the
respondents has appeared to assist the
court.

3. In this writ petition the order
dated 30.5.1998 (Annexure 1 to the writ
petition) passed by the Addl. Director
(Administration) Rajya Krishi Utpadan
Mandi
Parishad
U.P.
Kisan
Mandi
Bhawan, Vibhuthi Khand, Gomti Nagar,
Lucknow has been challenged where by
11 persons working in different categories
had
been
transferred
in
special
circumstances
in
the
interest
of
administration as well as in the interest of
service. According to the petitioner. The
Uttar
Pradesh
Agricultural
Produce
http://www.allahabadhighcourt.nic.in
2 All] Supher Ram V. Additional Director and others
283
Market
Committees
(Centralised)
Services (Amendment) Regulations, 1991
provides in the amended provision of
Regulation 24 (1) provides that the
transfer of a member of centralized
service out of routine could be made by
Director or Addl. Director or the Regional
Deputy
Director
(Administration).
According to Regulation 24 (2) which
provides as below:

"(2) The Director or the Additional
Director or the Regional Deputy Director
(Administration)
may
in
special
circumstances
transfer
any
Mandi
Sahayak (Kamdar) from one Market
Committee to another market committee,
within the region or any member of the
service holding Group D post other than
Mandi Sahayak (Kamdar) from one
Market Committee to another Market
Committee within the district."

4. According to the learned counsel
for the petitioner no special circumstances
was existing for transferring the petitioner
from the place of posting i.e. from
Atarra/Jhansi to Mirzapur, however the
counter affidavit has been filed. Noting
has been averred in the counter affidavit
to get assistance for the disposal of the
case as it is poorly drafted.

In B. Varadha Rao vs. State of
Karnataka and others AIR 1986 Supreme
Court 1955, their Lordships of the Apex
Court laid down as follows (Paragraph 4
of the said AIR).

"4. .......We agree with the view
expressed by the learned Judges that
transfer
is
always
understood
and
construed as an incident of service. The
words or other conditions of service in
juxtaposition to the preceding words'
'denies or varies to his disadvantage his
pay, allowances, pension' in Rule 19 (1)
(a) must be construed ejusdem generic.
Any alteration in the conditions of service
must
result
in
prejudice
to
the
Government
Servant
and
some
disadvantage
touching
of
his
pay,
allowances,
pension,
seniority,
promotion, leave etc. It is well under
stood that transfer of a Government
servant who is appointed to a particular
cadre of transferable posts from one place
to another is an ordinary incident of
service and therefore, does not result in
any alteration of any of the conditions of
service to his disadvantage. That a
Government Servant is liable to be
transferred to a similar post in the same
cadre is a normal feature and incident of
Government service and no Government
servant can claim to remain in a
particular place of in a particular post
unless, of course, his appointment itself is
to a specified, non transferable post....."

5. In Mrs. Shilpi Bose and others vs.
State of Bihar and others, AIR 1991
Supreme Court 532, their Lordships of the
Supreme Court laid down as follows
(Paragraph 4 of the said AIR) :

"4. In our opinion, the Court should
not interfere with a transfer order which
are made in public interest and for
administrative reasons unless the transfer
orders are made in violation of any
mandatory statutory Rule or on the
ground of mala fide. A Government
servant holding a transferable post has
no vested right to remain posted at one
place or the other, he is liable to be
transferred from one place to the other.
Transfer orders issued by the competent
authority do not violate any of his legal
rights. Even if a transfer order is passed
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
284
in violation of executive instructions or
orders, the Courts ordinarily should not
interfere with the order instead affected
party
should
approach
the
higher
authorities in the Department. If the
Courts continue to interfere with day to
day transfer orders issued by the
Government
and
its
subordinate
authorities, there will be complete chaos
in the Administration which would not be
conducive to public interest. The High
Court over looked these aspects in
interfering with the transfer orders."

6. In Union of India and another vs.
N.P. Thomas, AIR 1993 Supreme Court
1605, their Lordships of the Supreme
Court laid down as follows (Paragraph 8
of the said AIR):

"8. In the present case, it cannot be
said that the transfer order of the
respondent transferring him out of Kerala
Circle is violative of any statutory Rule or
that the transfer order suffers on the
ground of mala fide. The submissions of
the respondent that some of his juniors
are retained by Kerala Circle and that his
transfer is against the policy of the
Government posting the husband and wife
in the same station as far as possible
cannot
be
countenanced
since
the
respondent holding a transferable post
has no vested right to remain in the
Kerala Circle itself and cannot claim, as
a matter of right, the posting in that
Circle even on promotion."

7. In Union of India and others vs.
S.L. Abbas, AIR 1993 Supreme Court
2444, their Lordships of the Supreme
Court laid down as follows (Paragraphs 7
and 8 of the said AIR):

"7. Who should be transferred
where, is a matter for the appropriate
authority to decide. Unless the order of
transfer is vitiated by mala fides or is
made in violation of any statutory
provisions, the Court cannot interfere
with it. While ordering the transfer, there
is no doubt, the authority must keep in
mind the guidelines issued by the
Government on the subject. Similarly, if a
person makes any representation with
respect to his transfer, the appropriate
authority must consider the same having
regard
to
the
exigencies
of
administration. The guidelines say that as
far as possible, husband and wife must be
posted at the same place. The said
guideline however does not confer upon
the Government employee a legally
enforceable right.

8. The jurisdiction of the Central
Administrative Tribunal is akin to the
jurisdiction of the High Court under
Article 226 of the Constitution of India in
service matters. This is evident from a
perusal
of
Article
323-A
of
the
Constitution. The constraints and norms
which the High Court observes while
exercising the said jurisdiction apply
equally to the Tribunal created under
Article 323-A. (We find it all the more
surprising
that
the
learned
Single
Member who passed the impugned order
is a former Judge of the High Court and
is thus aware of the norms and
constraints of the writ jurisdiction). The
administrative
Tribunal
is
not
an
Appellate Authority sitting in judgment
over the orders of transfer. It cannot
substitute its own judgement for that of
the authority competent to transfer. In this
case the Tribunal has clearly exceeded its
jurisdiction interfering with the order of
transfer. The order of the Tribunal reads
http://www.allahabadhighcourt.nic.in
2 All] Supher Ram V. Additional Director and others
285
as if it were sitting in appeal over the
order of transfer made by the Senior
Administrative
Officer
(Competent
Authority)."

8. In State of Punjab and others Vs.
Joginder Singh Dhatt, AIR 1993 Supreme
Court 2486, their Lordships of the
Supreme Court laid down as follows
(Paragraph 3 of the said AIR):

"3. We have heard learned counsel
for the parties. This Court has time and
again expressed its disapproval of the
Courts below interfering with the order of
transfer of public servant from one place
to another. It is entirely for the employer
to decide when, where and at what point
of time a public servant is transferred
from his present posting. Ordinarily the
Courts have no jurisdiction to interfere
with the order of transfer. The High Court
grossly erred in quashing the order of
transfer
of
the
respondent
from
Hoshiarpur to Sangrur. The High Court
was
not
justified
in
extending
its
jurisdiction under Article 226 of the
Constitution of India in a matter where,
on the face of it, no injustice was caused."

9. In N.K. Singh vs. Union of India
and others, (1994)6 Supreme Court cases
98, their Lordships of the Supreme Court
laid down as follows (Paragraph 23 of the
said SCC) :
"23.......Assessment of worth must
be left to the bona fide decision of the
superiors in service and their honest
assessments accepted as a part of service
discipline. Transfer of a Government
Servant in a transferable service is a
necessary incident of the service career.
Assessment of the quality of men is to be
made by the Superiors taking into account
several factors including suitability of the
person
for
a
particular
post
and
exigencies of administration. Several
imponderables requiring formation of a
subjective opinion in that sphere may be
involved, at times. The only realistic
approach is to leave it to the wisdom of
that hierachical superiors to make that
decision. Unless the decision is vitiated by
mala fides or infraction of any professed
norm or principle governing the transfer,
which alone can be scrutinized judicially,
there are no judicially manageable
standards for scrutinizing all transfers
and the Courts lack the necessary
expertise for personnel Management of
all Government departments. This must be
left, in public interest, to the departmental
heads subject to the limited judicial
scrutiny indicated."

10. In Abani Kanta Ray vs. State of
Orrisa and others, 1995 suppl. (4)
Supreme Court cases 169, their Lordships
of the Apex Court laid down as follows
(Paragraph 10 of the said SCC):

"10. It is settled law that a transfer
which is an incident of service is not be
interfered with by the Courts unless it is
shown to be clearly arbitrary or vitiated
by mala fides or infraction of any
professed norm or principle governing the
transfer. (See N.K. Singh v. Union of
India)."

11. As held in (2003) 1 UPLBEC
262 Riaz Ahmad vs. Additional Registrar
(Administration) Co operative Societies,
UP Lucknow and others, this Court is
declined to interfere the transfer order by
saying that transfer is an incident of
service and the court does not interfere
normally in the transfer orders unless
there is violation of any statutory Rules or
the transfer is malafide.
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
286
12. The scope of judicial review of
transfer
under
Article
226
of
the
Constitution of India has also been settled
by the Supreme Court in view of the
decisions of Rajendra Roy vs. Union of
India and another (1993) 1 Supreme Court
cases 148, National Hydroelectric Power
Corporation Ltd. vs. Shri Bhagawan and
another 2001 (8) Supreme Court cases
574, State Bank of India vs. Anjan Sanyal
and others 2001 )5 Supreme Court cases
508. This court following the aforesaid
principles laid by the Supreme Court in
Vijay Pal Singh vs. State of U.P. and
others 1997 (3) ESC 1668 and Onkarnath
Tiwari vs. The Chief Engineer, Minor
Irrigation Department, UP Lucknow and
others, 1997 (3) ESC 1866, has held that
the principle of law unfold in the
aforesaid decisions is that an order of
transfer is a part of service conditions of
an employee and is not required to be
interfered with lightly by a Court of law
in exercise of its discretionary jurisdiction
unless the Court finds that either the order
is mala fide or that the service rules
prohibit, such transfer or that the
authorities, who issued the orders, were
not competent to pass the orders.

13. I have heard learned counsel for
the petitioner and have perused the
document. I find that by the impugned
transfer order in question dated 30.5.1998
the petitioner has been transferred from
Jhansi region to another region of
Mirzapur by Addl. Director, therefore, the
Addl. Director was in power to pass such
order of transfer under Regulation 24 (1)
of Regulation, 1991 and in the impugned
order itself it has been mentioned that in
special circumstances, the transfer in
question has been made. It is not
necessary
to
elaborate
the
special
circumstances if the authority himself has
indicated that the transfer has been made
in special circumstances in the interest of
administration and in the interest of
public. Transfer is exigency of service
provided it is made in the interest of
service administration, to prove service
condition and to maintain the system of
the service. The court generally does
interfere or make judicial review in the
transfer order made in the public interest
or in the interest of administration. The
transfer is the exigency of service unless
it is not made on political vendetta and in
colourable
exercise
of
power
or
malafidely or in order of harass the
petitioner
or
in
derogation
to
the
provisions of Act or rule.

Learned counsel for the petitioner
has
referred
and
relied
upon
the
judgement dated 6.9.96 passed in writ
petition no. 27721 of 1996 Shashi Kant
and
another
vs.
Addl.
Director
(Administration) Rajya Krishi Utpadan
Mandi Parishad Uttar Pradesh, Lucknow
annexed as Annexure 3 to the writ
petition. The facts and circumstances of
that case, in my respectful consideration,
is different and distinguishable to the
present case, more so, the legality of the
matter of transfer of an individual has to
be
looked
into
in
the
facts
and
circumstances of that particular case only
where there is no infringement of Act or
provisions of any rule therefore, in these
circumstances, this court shall not invoke
its jurisdiction under Article 226 of the
Constitution of India.

15.

In
view
of
the
above
observations,
this
writ
petition
is
dismissed.
---------
http://www.allahabadhighcourt.nic.in
2 All] Sri Gorakh Giri V. Sri Ram Chandra Kuer and others
287
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.5.2003

BEFORE
THE HON'BLE B.K. RATHI, J.

Second Appeal No. 315 of 1982

Sri Gorakh Giri

...Appellant
Versus
Sri Ram Chandra Kuer (Since Deceased)
and others

 ...Opposite Parties

Counsel for the Appellant:
Sri Tribhuwan Upadhyaya
Sri R.A. Sharma
Sri G.K. Parekh
Sri Dhurva Narayana
Sri C.P. Ghildyal
Sri Kuldeep Kumar Singh

Counsel for the Respondents:
Sri R.N. Singh
Sri S.N. Singh
Sri Faujdar Rai
Sri V.N. Pandey
Sri R..K. Shahi
Sri G.K. Rai

(A) Code of Civil Procedure- Section 92-
Mahant of Public Trust died during
pendency of suit- Will deed also not
disclosing about the management of the
Math- Trustee appointed by the villager-
held illegal.

Held- Para 14

The appeal was decided by Sri P.K.
Chaterjee as Vth Additional District
Judge, Ballia. The suit under section 92
C.P.C. can be filed with prior permission
of the court or the Advocate General.
There was no such permission. The suit
can be filed in the Principal Civil Court of
original jurisdiction. The suit was filed in
the court of Munsif for declaration and
injunction. In such a suit an scheme for
the management can not be prepared by
the Court. There is no inherent powers
under section 151 C.P.C. to prepare the
scheme of management of a math. The
same can be prepared in the suit under
section 92 C.P.C. by the Principle Civil
Court or by the District Judge under the
provisions of the Indian Trusts Act.
Therefore, the right of management
given to the plaintiff by the first
appellate court is against law and totally
without jurisdiction and the same can
not be maintained.

(B) Code of Civil Procedure- Order 22
Rule 2- Abatement-Sole plaintiff died-the
heirs of Mahant already on record- suit
can not be abated.

Held- Para 10

According to the case of the plaintiffs,
they were appointed mahant by the will
dated 14.06.1967 by Basdeo Giri and
also by assembly of persons of the
village. However, it is not alleged that
there was any such direction that their
heirs will become the mahant of the
math or who shall replace them after the
death. It is also not alleged that in place
of the deceased plaintiffs somebody else
have been appointed as mahant of the
math. The claim of the plaintiffs as
mahant is for their life time and the
claim does not survive after the death of
any of the plaintiffs. Even if the claim
survives
the
claimants
will
be the
surviving plaintiff and not outsider or
legal heirs. The surviving plaintiff is
already
respondent
in
the
suit.
Therefore,
there is
no
question of
abatement. It may also be pointed that
the respondents themselves have not
clarified as to who should be substituted
as legal heirs of the deceased plaintiffs.
Therefore, for the purpose of the suit
regarding the property in dispute the
deceased plaintiffs have left no heirs.
Therefore, the question of substitution
does not arise and this appeal has not
abated.