# Union of India & Ors v. Central Admin. Tribunal, Lucknow & Anr

- **Citation:** (2023) 1 ILRA 1108
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-05
- **Case number:** Writ-A No. 8161 of 2022
- **Bench:** Devendra Kumar Upadhyaya, Saurabh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/union-of-india-ors-v-central-admin-tribunal-lucknow-anr-49302
- **Pages:** 7

## Headnote

A. Service Law - Transfer - Scope of
Interference u/Article 226 - It is well
settled principle of law that any State
action has to be free of arbitrariness and it
should conform to the principles of
fairness. The concept of fairness or nonarbitrariness in the administrative action
is well recognized. (Para 16, 17)

Transfer is an exigency of service and it is
the prerogative and the right of the
employer, in this case is the railways, to
transfer its employees or officers to any place
on various grounds including the ground of
public interest and administrative exigencies.
The scope of judicial scrutiny by this Court
u/Article 226 of the Constitution of India
in a matter relating to transfer of an
employee is very limited. Unless the court
finds the transfer order having been effected on
account of the malice or mala fide or if it is
found to be infested with arbitrariness, Court
would normally not interfere in the transfer
order. (Para 15)

B. Circular dated 12.12.2018: Addendum
to the Comprehensive Transfer Policy
1 All. Union of India & Ors. Vs. Central Admin. Tribunal, Lucknow & Anr.
1109
Guidelines issued by Railway Board on
31.08.2015 - The circular clearly provides that
officers due for retirement within a span
of two years should normally not be
disturbed from their present posting. (Para
12, 13)

Though the circular dated 12.12.2018 is
only a part of comprehensive transfer
policy guidelines and the same having not
been issued by the Railway Board under
any statutory authority vested in it by any
enactment, is not statutory, however, the
policy decisions taken by any authority,
including the Railway Board, is normally
to be followed.

Any action of the authorities of the Government
or any other State instrumentalities is to be
judged and tested on the basis of such
guidelines issued by the authority/government/
State instrumentality concerned. After all any
policy by the policy makers is formulated and
issued not to be violated but for being followed
and honoured and respected. It is clear that
such circular or any other such transfer policy
guidelines do not confer any right on the
government servant to remain posted at his
present posting even if he is due to retire within
a span of two years. However, the policy
decision contained in the circular dated
12.12.2018 has to be normally followed by
the authorities and in case of any
deviation from such normal, there has to
exist
justifiable
reasons
before
the
authority concerned as to why it intends
to deviate from normal as spelt out in the
policy decision concerned. (Para 14)

In the present case, it is not denied by the
petitioners that the respondent No. 2-applicant
has to retire on 31.12.2023. He was transferred
by means of an order dated 17.02.2022.
Admittedly, at the time he was transferred from
Raebareli to Hajipur, period of less than two
years was left prior to his retirement on his
attaining
the
age
of
superannuation
on
31.12.2023. No reason in this case comes
forth for the deviation from the said
normal as contained in the circular dated
12.12.2018. The purpose of such provision is
that after rendering long services to an
organization i.e. to his employer, if the
employee/officer is to retire within a span of
one or two years, he is in a state of mind where
he intends to settle for rest of his life and
accordingly he needs some time and energy to
plan a peaceful and smooth life after retirement.
(Para 18)

Writ petition dismissed. (E-4)

Precedent followed:

E.P. Royappa Vs St.of T. N. & anr., (1974) 4 SCC
3 (Para 16)

Present petition assails judgment and
order dated 04.11.2022, passed by the
Lucknow Bench of Central Administrative
Tribunal.

## Text

1108 INDIAN LAW REPORTS ALLAHABAD SERIES
recorded in the revenue records and files a
suit for permanent injunction.

15. The lower appellate court has also
considered the case reported in 2007
Allahabad Civil Journal page 1275
(Kamla
Prasad
and
Others
vs.
Krishnakant Pathak and Others) where
the Apex Court has held that suit in respect
of
abadi
and
agricultural
land
for
cancellation of sale deed will lie in revenue
court as plaintiff was not found to be
recorded in the revenue records.

16. The trial court as well as lower
appellate
courts
have
thoroughly
considered the evidence relied upon by the
parties by deciding the issues and point of
determination and have recorded finding of
fact that plaintiff was not recorded in the
revenue record, as such, the civil suit for
permanent injunction and possession is
barred by Section 331 of the U.P. Z.A. &
L.R, Act. The courts below have also
recorded finding of fact that plaintiff is not
in possession of the disputed plot and the
sale deed executed by defendant no.1
(recorded tenure holder) in favour of
defendant no.2, was the healthy mental act
of defendant no.1, as such, the suit and civil
appeal filed by plaintiff was dismissed
concurrently by the courts below.

17. After considering the findings
recorded by the trial court on each and
every issue as well as by the lower
appellate court on each and every point of
determination, no substantial questions of
law as framed in the memorandum of
appeal by the appellants as well as argued
by him, are arises in the second appeal.

16. The second appeal lacks merit and
the same is hereby dismissed under Order
41 Rule 11 C.P.C.
----------
(2023) 1 ILRA 1108
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.12.2022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE SAURABH SRIVASTAVA, J.

Writ-A No. 8161 of 2022

Union of India & Ors. ...Petitioners
Versus
Central Admin. Tribunal, Lucknow & Anr.
 ...Respondents

Counsel for the Petitioners:
Sudhanshu Chauhan

Counsel for the Respondents:
Praveen Kumar

A. Service Law - Transfer - Scope of
Interference u/Article 226 - It is well
settled principle of law that any State
action has to be free of arbitrariness and it
should conform to the principles of
fairness. The concept of fairness or nonarbitrariness in the administrative action
is well recognized. (Para 16, 17)

Transfer is an exigency of service and it is
the prerogative and the right of the
employer, in this case is the railways, to
transfer its employees or officers to any place
on various grounds including the ground of
public interest and administrative exigencies.
The scope of judicial scrutiny by this Court
u/Article 226 of the Constitution of India
in a matter relating to transfer of an
employee is very limited. Unless the court
finds the transfer order having been effected on
account of the malice or mala fide or if it is
found to be infested with arbitrariness, Court
would normally not interfere in the transfer
order. (Para 15)

B. Circular dated 12.12.2018: Addendum
to the Comprehensive Transfer Policy
1 All. Union of India & Ors. Vs. Central Admin. Tribunal, Lucknow & Anr.
1109
Guidelines issued by Railway Board on
31.08.2015 - The circular clearly provides that
officers due for retirement within a span
of two years should normally not be
disturbed from their present posting. (Para
12, 13)

Though the circular dated 12.12.2018 is
only a part of comprehensive transfer
policy guidelines and the same having not
been issued by the Railway Board under
any statutory authority vested in it by any
enactment, is not statutory, however, the
policy decisions taken by any authority,
including the Railway Board, is normally
to be followed.

Any action of the authorities of the Government
or any other State instrumentalities is to be
judged and tested on the basis of such
guidelines issued by the authority/government/
State instrumentality concerned. After all any
policy by the policy makers is formulated and
issued not to be violated but for being followed
and honoured and respected. It is clear that
such circular or any other such transfer policy
guidelines do not confer any right on the
government servant to remain posted at his
present posting even if he is due to retire within
a span of two years. However, the policy
decision contained in the circular dated
12.12.2018 has to be normally followed by
the authorities and in case of any
deviation from such normal, there has to
exist
justifiable
reasons
before
the
authority concerned as to why it intends
to deviate from normal as spelt out in the
policy decision concerned. (Para 14)

In the present case, it is not denied by the
petitioners that the respondent No. 2-applicant
has to retire on 31.12.2023. He was transferred
by means of an order dated 17.02.2022.
Admittedly, at the time he was transferred from
Raebareli to Hajipur, period of less than two
years was left prior to his retirement on his
attaining
the
age
of
superannuation
on
31.12.2023. No reason in this case comes
forth for the deviation from the said
normal as contained in the circular dated
12.12.2018. The purpose of such provision is
that after rendering long services to an
organization i.e. to his employer, if the
employee/officer is to retire within a span of
one or two years, he is in a state of mind where
he intends to settle for rest of his life and
accordingly he needs some time and energy to
plan a peaceful and smooth life after retirement.
(Para 18)

Writ petition dismissed. (E-4)

Precedent followed:

E.P. Royappa Vs St.of T. N. & anr., (1974) 4 SCC
3 (Para 16)

Present petition assails judgment and
order dated 04.11.2022, passed by the
Lucknow Bench of Central Administrative
Tribunal.

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J. & Hon'ble Saurabh
Srivastava, J.)

1. Heard Shri Shashi Prakash Singh,
learned Additional Solicitor General of
India assisted by Shri Sudhanshu Chauhan,
learned counsel for the petitioners and Shri
Praveen
Kumar,
learned
counsel
representing the respondent no.2. We have
also perused the records available before us
on this Writ Petition.

2. These proceedings under Article
226 of the Constitution of India lay a
challenge to the judgment and order dated
04.11.2022 passed by the Lucknow Bench
of Central Administrative Tribunal whereby
Original
Application
bearing
No.332/00084/2022 has been allowed and
the transfer order dated 17.02.2022 which
was under challenge therein has been
quashed.

3. Learned Tribunal by the order
under challenge before us has also directed
that the respondent no.1-applicant shall be
permitted to join at the same place of
posting as immediately before the transfer
1110 INDIAN LAW REPORTS ALLAHABAD SERIES
order even if he has been relieved or has
joined at any other place.

4. By the said order since all the
miscellaneous applications have also been
disposed
of,
resultantly
Execution
Application No.332/00467/2022 filed by
the respondent no.2-applicant seeking of
execution of an interim order dated
22.02.2022 has also been disposed of.

5. Shri Shashi Prakash Singh, learned
Additional Solicitor General of India
vehemently arguing on behalf of the
petitioners has submitted that the reasons
given by the learned Tribunal, Lucknow
while allowing the Original Application
filed by the respondent no.2-applicant are
not tenable. It has further been argued by
Shri Singh that the circulars which have
been relied upon by the Tribunal are not
statutory and hence the same cannot be said
to be binding. Shri Singh further urges that
so far as the circular dated 12.12.2018
issued by the Railway Board is concerned,
the same is also not binding for the reason
that it has not been issued under any
authority under some statute and the same,
being only advisory in nature, could not be
made the basis of the claim laid by the
respondent no.2-applicant to challenge the
transfer order. He has also stated that in
case the respondent no.2-applicant was
aggrieved by his transfer within a span of
two
years
prior
to
his
date
of
retirement/superannuation, he ought to
have approached the authorities concerned
bringing to their notice that he is to retire
within two years as such in view of the
provisions contained in the circular dated
12.12.2018 he ought not be transferred.
Submission further is that it is not in
dispute that the respondent no.2-applicant
owes pan-India transfer liability and hence
in the exigencies of administration and
public interest he could be transferred and
further that there is no illegality in the order
of transfer.

6. On the basis of all the aforesaid
submissions, it has been urged by the
learned Additional Solicitor General of
India that the judgment and order dated
04.11.2022
passed
by
the
Central
Administrative
Tribunal
is
thus
not
sustainable and hence the same is liable to
be set aside.

7. Per contra, Shri Praveen Kumar,
learned counsel representing the respondent
no.2-applicant has submitted that the
circular dated 18.12.2018 issued by the
Railway Board may not confer any right
upon him to remain posted at the same
place and not be transferred before two
years prior to date of his retirement,
however, the railway authorities have to act
in accordance with the provisions made in
the said circular. It has been argued that
admittedly the respondent no.2-applicant is
to attain the age of superannuation on
31.12.2023 hence subjecting him to transfer
within two years prior to his date of
superannuation cannot be said to be
justified on any count not only because
such transfer is violation of the provisions
contained in the circular dated 12.12.2018
but also for the reason that the same has
strong traces of arbitrariness on the part of
the authorities.

8. Considered the submissions made
by the learned counsel representing the
respective parties.

9. Before delving into the rival
submissions made by the learned counsel
for the parties, we may note certain facts,
which are necessary for proper adjudication
of the issues involved in this petition. The
1 All. Union of India & Ors. Vs. Central Admin. Tribunal, Lucknow & Anr.
1111
petitioner was transferred from Gorakhpur
to Modern Coach Factory (hereinafter
referred to as 'MCF') at Raebareli on
03.08.2018 and was posted at MCF
Raebareli on the post of Chief Material
Manager. He was promoted vide order
dated 25.09.2020 to the post of Principal
Executive
Director
(Stores)
and
simultaneously was required to join at
Research
Designs
and
Standards
Organization (herein after referred to as
'RDSO') at Lucknow. The occasion to
require the respondent no.2-applicant to be
posted at RDSO Lucknow had arisen on
account of the fact that at the relevant point
of time i.e. at the time he was promoted to
the post of Principal Executive Director
(Stores), the said post was being occupied
by an incumbent who worked on the said
post till 31.07.2021 when he retired. It is
also to be noticed that on the retirement of
the earlier incumbent from the post of
Principal Executive Director (Stores) at
MCF Raebareli the respondent no.2applicant was again posted at MCF
Raebareli on the said post itself.

10. It is also to be noted that pursuant
to the order dated 25.09.2020 whereby
respondent no.2 was promoted to the post
of Principal Executive Director (Stores)
and was asked to join at RDSO Raebareli,
he
submitted
his
joining
at
RDSO
Raebareli on 25.01.2021 and accordingly
charge report was also sent to the
authorities concerned on 28.01.2021. He
remained posted at RDSO Lucknow till he
was asked to join at MCF Raebareli on the
retirement of the earlier incumbent at
Raebareli from the post of Principal
Executive Director (Stores) on 31.07.2022.
The said transfer order requiring the
respondent no.2-applicant to join at MCF
Raebareli from RDSO was passed on
18.08.2021 pursuant to which he submitted
his joining at MCF Raebareli, however,
while working at MCF Raebareli, the
transfer order dated 17.02.2022 was passed
whereby the respondent no.2-applicant was
transferred
to
East
Central
Railway,
Hajipur, Bihar. It is this transfer order dated
17.02.2022 which was challenged by the
respondent no.2-applicant by instituting
Original Application No.332/00084/2022 in
which initially an interim order was passed
on
22.02.2022
whereby
the
learned
Tribunal had stayed the operation of the
transfer order and had further directed that
the respondent no.2-applicant shall not be
relieved from the place of his posting at
MCF Raebareli and shall continue to work
there
till
pendency
of
the
Original
Application. It was further directed by the
learned Tribunal that even if the respondent
no.2-applicant had been relieved he should
be restored to earlier place of posting. This
interim order dated 22.02.2022 in respect
of
which
Execution
Application
No.332/00467/2022 was filed, which, too,
has been disposed of by means of the order
under challenge in this writ petition.

11. Apart from relying on other
grounds, learned Tribunal has relied upon
the circular issued by the Railway Board
dated 12.12.2018. So far as the submissions
made by the learned counsel for the
respondent
no.2-applicant
which
was
advanced by him before the learned
Tribunal in relation to his multiple transfers
is concerned, we do not find any merit in
the same for the reason that the petitionerauthorities were justified in posting him at
RDSO on his promotion to the post of
Principal Executive Director (Stores) as on
the date he was promoted to the said post,
no equivalent post at MCF Raebareli was
vacant, rather it was being occupied by the
earlier incumbent and accordingly he was
rightly posted at RDSO, Lucknow. Since
1112 INDIAN LAW REPORTS ALLAHABAD SERIES
the earlier incumbent retired on 31.07.2021
from his post at MCF Raebareli, the
respondent no.2-applicant was again rightly
posted at MCF Raebareli vide order dated
18.08.2021.

12. As observed above, amongst other
reasons, one reason which we need to
consider in this case as given by the learned
Tribunal for quashing the transfer order is
the provisions contained in the circular
dated 12.12.2018. The said circular is an
Addendum to the Comprehensive Transfer
Policy Guidelines issued by the Railway
Board on 31.08.2015. The circular dated
12.12.2018 states that the same was issued
in
partial
modification
of
the
Comprehensive Transfer Policy Guidelines
issued by the Railway Board 31.08.2015.
The Addendum, thus, issued vide circular
dated 12.12.2018 inter alia provides as
under:

"(iii) Officers due for retirement
within the span of two years should
normally not be disturbed from the
present posting."

13.

The
aforequoted
provision
contained in the circular dated 12.12.2018
clearly provides that officers due for
retirement within a span of two years
should normally not be disturbed from their
present posting.

14.
 Though
the
circular
dated
12.12.2018 is only a part of comprehensive
transfer policy guidelines and the same
having not been issued by the Railway Board
under any statutory authority vested in it by
any enactment, is not statutory, however, the
policy decisions taken by any authority,
including the Railway Board, is normally to
be followed. We are also of the opinion that
any action of the authorities of the
Government
or
any
other
State
instrumentalities is to be judged and tested on
the basis of such guidelines issued by the
authority/ government/ State instrumentality
concerned. After all any policy by the policy
makers is formulated and issued not to be
violated but for being followed and honoured
and respected. Having said as above, we do
not mean to say that the circular dated
12.12.2018 is binding in all circumstances on
the authorities of the Railways. we are clear
in our minds that such circular or any other
such transfer policy guidelines do not confer
any right on the government servant to
remain posted at his present posting even if
he is due to retire within a span of two years.
However, the policy decision contained in the
circular dated 12.12.2018 has to be normally
followed by the authorities and in case of any
deviation from such normal, there has to exist
justifiable reasons before the authority
concerned as to why it intends to deviate
from normal as spelt out in the policy
decision concerned.

15. We are also conscious that transfer
is an exigency of service and it is the
prerogative and the right of the employer,
in this case is the railways, to transfer its
employees or officers to any place on
various grounds including the ground of
public
interest
and
administrative
exigencies. The scope of judicial scrutiny
by this Court under Article 226 of the
Constitution of India in a matter relating to
transfer of an employee is very very
limited. Unless the court finds the transfer
order having been effected on account of
the malice or mala fide or if it is found to
be infested with arbitrariness, Court would
normally not interfere in the transfer order.

16. It is well settled principle of law
that any State action has to be free of
arbitrariness and it should conform to the
1 All. Union of India & Ors. Vs. Central Admin. Tribunal, Lucknow & Anr.
1113
principles of fairness. The concept of
fairness
or
non-arbitrariness
in
the
administrative action is well recognized.
Reference, at this juncture, may be made by
us to one of the most celebrated judgments
of Hon'ble Supreme Court in the case of
E.P. Royappa vs. State of Tamil Nadu
and another, reported in (1974) 4 SCC 3,
where Hon'ble Supreme Court has clearly
laid down that along with unjustness and
unfairness, arbitrariness is also a facet of
Article 14 of the Constitution of India. The
said judgment contains one of the most
famous legal doctrines evolved in the
context of interpretation of Article 14 of the
Constitution of India which is "in fact
equality and arbitrariness are sworn
enemies; one belongs to the rule of law in
a republic while the other, to the whim
and caprice of an absolute monarch."
Where an act is arbitrary, it is implicit in it
that it is unequal both according to political
logic and constitutional law and is therefore
violative of Art. 14.

17. If we consider the scope of
judicial scrutiny in a matter of transfer of
an employee in a situation where transfer
policy guidelines provide that the officers
who are due to retire within a span of two
years normally not be displaced from their
present posting, in the light of the law laid
down by Hon'ble Supreme Court in the
case of E.P. Royappa (supra), what we
find is that in case of any deviation from
the normal, the authority concerned needs
to justify such administrative action. The
scope of judicial scrutiny in such matters
has to be confined only to see if there exists
any justifiable reason for the authority
concerned from deviating from the normal.

18. So far as this case is concerned, it is
not denied by the petitioners that the
respondent no.2-applicant has to retire on
31.12.2023. He was transferred by means of
an order dated 17.02.2022. Admittedly, at the
time he was transferred from Raebareli to
Hajipur, period of less than two years was left
prior to his retirement on his attaining the age
of
superannuation
on
31.12.2023. The
provisions contained in the circular dated
12.12.2018 clearly lay down the policy
decision that officers who are due to retire
within a span of two years should not normally
be transferred. No reason in this case comes
forth for the deviation from the said normal as
contained in the circular dated 12.12.2018. We
may also observe at this juncture that for
formulating and issuing the guidelines relating
to non-displacement of the officers from their
present place of posting if they are to retire
within a span of two years, has a purpose.
After
rendering
long
services
to
an
organization i.e. to his employer, if the
employer/officer is to retire within a span of
one or two years, he is in a state of mind where
he intends to settle for rest of his life and
accordingly he needs some time and energy to
plan a peaceful and smooth life after
retirement.

19. It is with such a laudable purpose
that such a provision is contained in the
circular dated 12.12.2018. Disturbing a person
at the fag end of his entire service career
would thus not be in public interest unless
there is something more impelling in public
interest which may warrant transfer even in
such a situation.

20. For the reason above, we are not
inclined to interfere in this writ petition which
is hereby dismissed and the order passed by
the Central Administrative Tribunal, Lucknow,
dated 04.11.2022 in Original Application
No.332/00084/2022 is hereby affirmed.

21. At this juncture, learned counsel
for the respondent no.2-applicant has
1114 INDIAN LAW REPORTS ALLAHABAD SERIES
very fairly submitted that he will have no
objection in case the railway authorities
pass order transferring him either to
RDSO or to Headquarters of Northern
Eastern Railways at Gorakhpur or to the
Headquarter of North Central Railways at
Allahabad.

22. We, thus, provide that keeping
in
view
the
overall
facts
and
circumstances of the case, specially the
fact that now it is only a year is left when
the respondent no.2-applicant shall retire
on his attaining the age of superannuation
on 31.12.2023, if the petitioners are not
inclined to post the respondent no.2applicant posted at MCF Raebareli, they
shall be free to post him at either on the
aforesaid three places, namely, RDSO
Lucknow or Headquarters of North
Eastern
Railways
at
Gorakhpur
or
Headquarters of North Central Railways
at Allahabad.

23. There will be no order as to cost.
----------
(2023) 1 ILRA 1114
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.12.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 8892 of 2022

Gyan Prakash Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Pranesh Kumar Mishra, Sri Amit Kumar
Tiwari

Counsel for the Respondents:
C.S.C., Sri Gagan Mehta

A. Education Law - Selection/Objection to
provisional answer key - Uttar Pradesh
Education Service Commission Act, 1980 -
Uttar Pradesh Higher Education Service
Commission (Procedure for Selection of
Teachers) Regulations, 2014 - So far as
revaluation of an answer sheet or script is
concerned, the examining body has no
right to revaluate, unless the statute
provides for it. However, if the statute is silent
about the power of revaluation or scrutiny of an
answer sheet or a script, the Court may
permit revaluation or scrutiny, if the key
answer is palpably and on the face of it,
wrong
or
absurd,
and
that
too, in
exceptional
cases.
So
far
as
the
correctness
of
the
key
answers
is
concerned, there is a presumption about
their correctness and the benefit of doubt
regarding the key answers, goes to the
examination authority, rather than the
candidate. (Para 10)

The Court should generally keep its hands
off, where it is a question of the correctness
of key answers based on expert opinion in
matters of public examination. Key answers
are to be presumed correct, particularly once
affirmed upon objection by a panel of
experts
accomplished
in
the
subject,
appointed by a selection authority, invested
with the power of selection by Statute. The
Court cannot be led into becoming a Court of
Appeal from the expert's opinion relating to
the answer key, on which evaluation is to be
done for a public examination. It is only in
cases of palpable absurdity or manifest error
demonstrable, without an elaborate process
of
technical
reasoning
in
the
relevant
subject, that the Court may, in very rare
cases, where convinced seek independent
expert opinion to rectify an erroneous key.
There could still be a few subjects or
matters where the key answer may be
so palpably
wrong that
the Court
cannot ignore it. Here, that is not the
case. The subject involved is an intricate
science, that is to say, Physical Chemistry
and lot of understanding of the subject
would go into deciphering the error that the
petitioner says exists, in the three impugned
key answers. (Para 13)