# Vijay Kumar Yadav v. State of U.P. & Ors

- **Citation:** (2024) 12 ILRA 218
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-16
- **Case number:** Writ A No. 16814 of 2024
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-kumar-yadav-v-state-of-u-p-ors-51199
- **Pages:** 6

## Headnote

Abhishek
Srivastava,
Adarsh
Bhushan,
C.S.C., Manoj Kumar Srivastava

Service Law - Transfer - Malice in Law -
Petitioner, an Assistant Engineer in U.P.
Power Corporation Ltd., was transferred
to Prayagraj on his own request on the
ground that his wife was posted there as a
government
lecturer,
but
was
again
transferred within four months to another
district
(Pratapgarh).
Although
the
transfer
order
cited
"administrative
grounds," the counter affidavit filed by the
Chief Engineer, who passed the order,
disclosed reasons, including complaints
and
inquiry
against
the
petitioner.
Transfer order was passed on the same
day as submission of the preliminary
inquiry report - Held, such transfer was
not in administrative exigency but in lieu
of punishment - Exercise of power of
transfer as a substitute for disciplinary
action is impermissible - Principle of
malice in law attracted - Transfer order
quashed - Reliance placed on Somesh
Tiwari v. Union of India, (2009) 2 SCC

## Text

218 INDIAN LAW REPORTS ALLAHABAD SERIES
respective parties does not suffice the need
required, for proper adjudication of a lis.

6. The manner and method in which
the revision has been dealt with cannot be
approved of by this Court. Paragraph No.
11 of the judgment is reproduced as under:-

11. "पत्रावली के अवलोकन और ववपक्षी के
तकों को सुनने के उपराांत इस न्यायालय का यह
अभिमत है कक अवर न्यायालय के आलोच्य आदेश में
कोई ववधिक असांगतता या कुटि प्रतीत नहीां होती है।
अतः पुनरीक्षण स्वीकार ककये जाने योग्य नहीां है।
तद्नुसार ननस्ताररत ककया जाता है।"

7. No prudent man would be arriving at
such above conclusion just after referring the
arguments of the respective parties and certain
authority that were cited with by the respective
parties.

8. Every judge who has to adjudicate
the points on the issue raised in the matter,
is not only required to refer to the
arguments
advanced
on
behalf
of
respective parties but also to deal with the
same to arrive at a conclusion as to
whether the judgment assailed is suffering
from any error of law or facts or there is
some gross error in assessment and
analysis of the evidence by the court
whose order has been challenged.

9. It is well settled principle that revision
has facets of an appeal and therefore, when the
revision petition is preferred for there is no
appeal available under the relevant statue, it is
a duty cast upon the judge to look into all
aspects of the matter from both the points of
view of the revision applicant as well as
respondents in whose favour the decree has
been passed. From a judge in the rank of Addl.
District and Sessions Judge it is expected that
he would not only apply his judicial mind to
issues raised but also be dealing with the
arguments advanced on behalf of the
respective parties very meticulously to arrive
at findings which would be reflecting a sound
judicial approach of a varied and wide
experience of such a judicial officer.

10. In view of the above, the judgment
and order dated 07.11.2024 is hereby set aside.
The matter is remitted to the court of revision
to be decided afresh within a maximum period
of two months from the date of production of
certified copy of this order.

11. District Judge, Kanpur Nagar, is
directed to assign this revision petition again to
the same Additional District and Sessions
Judge, Court No.16, Kanpur Nagar, if still
posted in his judgeship. In the meanwhile and
until decision afresh is taken in revision
petition, the judgment and decree dated
07.11.2024 passed by the court concerned in
SCC Revision No.130 of 2024 shall remain
stayed.

12. The writ petition succeeds and is
allowed as above.

13. Registrar General is directed to
circulate this order to all judgeships of the
State.
----------
(2024) 12 ILRA 218
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.07.2024

BEFORE

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

Writ A No. 16814 of 2024

Vijay Kumar Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
12 All. Vijay Kumar Yadav Vs. State of U.P. & Ors.
219
Counsel for the Petitioner:
Ajeet Kumar, Mahendra Kumar Yadav

Counsel for the Respondents:
Abhishek
Srivastava,
Adarsh
Bhushan,
C.S.C., Manoj Kumar Srivastava

Service Law - Transfer - Malice in Law -
Petitioner, an Assistant Engineer in U.P.
Power Corporation Ltd., was transferred
to Prayagraj on his own request on the
ground that his wife was posted there as a
government
lecturer,
but
was
again
transferred within four months to another
district
(Pratapgarh).
Although
the
transfer
order
cited
"administrative
grounds," the counter affidavit filed by the
Chief Engineer, who passed the order,
disclosed reasons, including complaints
and
inquiry
against
the
petitioner.
Transfer order was passed on the same
day as submission of the preliminary
inquiry report - Held, such transfer was
not in administrative exigency but in lieu
of punishment - Exercise of power of
transfer as a substitute for disciplinary
action is impermissible - Principle of
malice in law attracted - Transfer order
quashed - Reliance placed on Somesh
Tiwari v. Union of India, (2009) 2 SCC
592. (Para 10, 11)

Allowed. (E-5)

List of Cases cited:

Somesh Tiwari Vs U.O.I. & ors., (2009) 2 SCC
592.

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed
against the transfer order dated 09.10.2024
passed by the Chief Engineer, Distribution
Division-II, Prayagraj, transferring the
petitioner, an Assistant Engineer, from the
Electricity
Distribution
Sub-Division
Katehara, Electricity Distribution Division,
Handia,
Prayagraj
to
the
Electricity
Distribution Sub-Division-City, Pratapgarh,
falling under the Electricity Distribution
Division-I, Pratapgarh.

2. The facts of this case would
show that the petitioner has been in the
employ of the Uttar Pradesh Power
Corporation Limited, Lucknow (for short,
'the Corporation') since the year 2008. He
was posted at Prayagraj (then called
Allahabad) from the year 2008 to April,
2013 in different establishments. In April,
2013, he was transferred to Ghazipur, but
in November, 2015, he was back at
Prayagraj, where again he served in
different
positions
in
varying
establishments, up to the month July, 2019.
In July, 2019, he was transferred to the
Gorakhpur Zone and then posted at
Bhatpaarrani, Deoria. He remained posted
in the Gorakhpur Zone up to 28.06.2024,
when on his request that his wife was
serving as a Lecturer with a Government
Institution, to wit, the Gauri Pathshala Inter
College, Malviya Nagar, Prayagraj. he was
transferred to Prayagraj once again.

3. A perusal of the transfer order
dated 28.06.2024 passed by the Managing
Director, Purvanchal Vidyut Vitaran Nigam
Limited, Varanasi, would show that the
petitioner
was
transferred
from
the
Electricity Test Division-I, Gorakhpur to
Prayagraj under the control of the Chief
Engineer (Distribution), Prayagraj RegionII. In Column No.5 of the said order, there
is a remark, which reads: "swayam ke
anurodh par pati-patni sarkari sewa me
karyarat".

4.
The
Chief
Engineer
(Distribution)-II
vide
order
dated
30.06.2024 posted the petitioner to the
Electricity
Distribution
Sub-Division,
Katehara, Prayagraj, falling under the
Electricity Distribution Division, Handia,
220 INDIAN LAW REPORTS ALLAHABAD SERIES
Prayagraj. This posting was given to the
petitioner
on
administrative
grounds,
bearing in mind the interest of the
Corporation. This is what is said in the
remarks column carried in the order dated
30.06.2024. Now, by the impugned order
dated 09.10.2024, the Chief Engineer
(Distribution)-II, Prayagraj has transferred
the
petitioner
from
the
Electricity
Distribution
Sub-Division,
Katahara,
Prayagraj,
falling
under
Electricity
Distribution Division, Handia, Prayagraj to
the Electricity Distribution Sub-DivisionCity,
Pratapgarh,
falling
under
the
Electricity
Distribution
Division-I,
Pratapgarh.

5. This Court issued a notice of
motion vide order dated 08.11.2024 in the
following terms:

"The petitioner says that he was
transferred from Gorakhpur to Prayagraj
on his own request vide order dated
28.06.2024
because
his
wife
is
in
government service posted at Prayagraj.
Now, by the impugned order dated
19.10.2024, he has been transferred from
Prayagraj to Pratapgarh.

Prima facie once an employee is
transferred on his request to a particular
station on ground that his wife is posted
there, a swift transfer to another station
within four months may give rise to an
inference of mala fide exercise of power.

Issue notice.

Let
the
Chief
Engineer,
Distribution-II, Prayagraj file a counter
affidavit, which shall be his own affidavit,
showing cause why on an inference of mala
fide exercise of power, the impugned order
be not quashed.

Looking
to
the
short
point
involved, lay this matter as fresh on
21.11.2024, by which time, the required
counter affidavit shall be positively filed by
the Chief Engineer.
 Let this order be communicated
to the Chief Engineer, Distribution-II,
Prayagraj through the Chief Judicial
Magistrate, Allahabad by the Registrar
(Compliance) within 24 hours."

6. A counter affidavit has been
filed on behalf of respondent No.9.

7. Heard Mr. Shivdutt Yadav,
Advocate holding brief of Mr. Mahendra
Kumar Yadav, learned Counsel for the
petitioner, Mr. Manoj Kumar Srivastava,
learned Counsel appearing on behalf of
respondent Nos. 6, 7 and 9, Mr. Ajay
Kumar Patel, Advocate holding brief of
Mr.
Adarsh
Bhushan,
appearing
for
respondent Nos. 4 and 5, Ms. Kritika Sinha,
Advocate holding brief of Mr. Abhishek
Srivastava, learned Counsel appearing on
behalf of respondent nos. 2,3 and 8 and Ms.
Amrita Singh, learned Additional Chief
Standing Counsel appearing on behalf of
respondent No.7.

8. In paragraph No.8 of the counter
affidavit filed on behalf of respondent
No.9, the Chief Engineer (Distribution) has
put forward a rather benign stance and said
that the petitioner has been transferred from
Electricity
Distribution
Sub-Division
Katahara,
Prayagraj
to
Electricity
Distribution Division-I, Pratapgarh. He has
averred that both places are almost
equidistant from the petitioner's house in
Prayagraj with the result that the transfer
would not cause any difficulty to the
petitioner in taking care of his family. If
this were the consideration, on the foot of
which the impugned order of transfer from
Katahara, Handia, Prayagraj to Pratapgarh
has been passed, possibly there would be
no case for interference. The order
12 All. Vijay Kumar Yadav Vs. State of U.P. & Ors.
221
indicates that it has been passed in view of
administrative need bearing in mind the
interest of the Corporation. If the order and
the stand in paragraph No.8 of the counter
affidavit were all that was there to it, the
very narrow scope for judicial interference
with a transfer order would not entitle the
petitioner to relief. But, the counter
affidavit, which is a personal affidavit of
the Chief Engineer, who passed the transfer
order, betrays the real nature of the
impugned order. In the paragraphs that
follow, to be precise, in paragraph No.13 of
the counter affidavit, it is said on a rather
low sounding note that there were several
complaints against the petitioner and an
inquiry was also conducted into the
allegations against him. There is then a
reference in the same paragraph to a true
copy of the inquiry report No.6071 dated
09.10.2024. This inquiry report, which is
apparently some kind of a preliminary
inquiry, is required to be quoted for every
word of it. It reads:

"एतद्वारा मुख्य अभियंता (भि0), प्रयागराज क्षेत्र,
भद्वतीय, प्रयागराज के कायाालय ज्ञाप संख्या-4755/मु0अ0
(भि0) प्र0क्षे0भद्व0प्र0/ जांच / भिनांक: 28.09.2024 एिं
कायाालय ज्ञाप संख्या-4787/मु0अ0 (भि0) प्र0क्षे0भद्व0प्र0/
जांच/ भिनांकः 30.09.2024 के माध्यम से भिकायतकताा श्री
रामलभलत भतिारी, भिनेि चन्द्र पाण्डेय, भिरायती िेिी, मालती िेिी
आभि एिं श्री िीरेन्द्र मौया (िीरू), मण्डल मिामंत्री धनूपुर, िभण्डया
जनपि प्रयागराज के पत्रांक-002/ एसइपी/ 3 भिनांक:
30.09.2024 (छायाप्रभत संलग्न) के द्वारा श्री भिजय कुमार
यािि उपखण्ड अभधकारी, भिद्युत भितरण उपखण्ड कटिरा के भिरुद्ध
प्राप्त भिकायती पत्रों की जांच करने िेतु भनिेभित भकया गया िै।

उक्त सम्बन्द्ध में भिकायतकताा श्री रामलभलत भतिारी,
श्री भिनेि चन्द्र पाण्डेय, भिरािती िेिी, मालती िेिी, श्री रामचन्द्र
आभि भिकायतकतााओं से िूरिाष पर बात की गयी तो उनके द्वारा
अिगत कराया गया िै भक उनके द्वारा श्री भिजय कुमार यािि के
भिरुद्ध कोई िी भिकायत निीं की गयी िै। (फोन की स्क्रीनिॉट
संलग्न)

अधोिस्क्ताक्षरी द्वारा श्री भिजय कुमार यािि उपखण्ड
अभधकारी भिद्युत भितरण उपखण्ड कटिरा को अपना बयान िजा
कराने िेतु भिनांक - 05.10.2024 को िूरिाष के माध्यम से
भनिेभित भकया गया, भजस पर उपखण्ड अभधकारी द्वारा अपना बयान
िजा करने िेतु आश्वस्क्त भकया गया था, परन्द्तु श्री भिजय कुमार यािि
उपखण्ड अभधकारी द्वारा बयान िजा निीं कराया गया। भजसके भलए
श्री भिजय कुमार यािि उपखण्ड अभधकारी से िूरिाष पर पुनः
सम्पका करने का प्रयास भकया गया परन्द्तु लगातार कई बार फोन
करने के बािजूि श्री भिजय कुमार यािि द्वारा फोन निीं उठाया गया
और न िी अधोिस्क्ताक्षरी को िापस फोन कर सम्पका करने का
प्रयास भकया गया। (फोन की स्क्रीनिॉट संलग्न)

भजसके उपरान्द्त अभधिासी अभियंता, भिद्युत भितरण
खण्ड िभण्डया प्रयागराज को िूरिाष के माध्यम से श्री भिजय कुमार
यािि उपखण्ड अभधकारी भिद्युत भितरण उपखण्ड कटिरा को जांच
सभमभत के समक्ष अपना बयान िजा कराने के भलए भनिेभित करने िेतु
अनुरोध भकया गया। भजस पर उनके द्वारा श्री भिजय कुमार यािि
यािि उपखण्ड अभधकारी को भनिेभित भकया गया। परन्द्तु श्री भिजय
कुमार उपखण्ड अभधकारी ने अधोिस्क्ताक्षरी एिं उच्चाभधकाररयों
द्वारा भनिेभित करने के बािजूि अपना बयान िजा निीं कराया तथा
उनको सी0यू0जी0 नम्बर पर कई कॉल भकये जाने के बािजूि कॉल
को ररसीि निीं भकया गया। भजससे स्क्पष्ट िोता िै भक श्री भिजय
कुमार उपखण्ड अभधकारी द्वारा अपने उच्चाभधकाररयों के भििागीय
कायों से सम्बभन्द्धत कॉल ररसीि निीं की जाती िै। इनका यि कृत्य
अनुिासनिीनता को प्रिभिात करता िै तथा इनकी कायािैली उत्तर
प्रिेि राज्य कमाचारी आचरण भनयमािली 1956 के संगत भनयमों
के भिरुद्ध िै। उपरोक्त तथ्यों से स्क्पष्ट िो रिा िै भक श्री भिजय कुमार
यािि उपखण्ड अभधकारी, भिद्युत भितरण उपखण्ड कटिरा
प्रयागराज का उपिोक्ताओं के प्रभत आचरण एिं व्यििार ठीक निीं
िोगा। भजसके भलए श्री भिजय कुमार यािि उपखण्ड अभधकारी
भिद्युत भितरण उपखण्ड कटिरा को अपने आचरण एिं व्यििार में
सुधार लाने की आिश्यकता िै।""

9. This report was submitted by an
Inquiry
Committee,
comprising
a
Superintending Engineer and an Executive
Engineer. Putting aside the wisdom of the
conclusions
drawn
by
the
Inquiry
Committee, doing the preliminary inquiry,
what is noteworthy here is the fact that this
inquiry report was submitted by the Inquiry
Committee on 09.10.2024 and on the same
day, the impugned order of transfer was
passed. It is difficult, therefore, not to think
222 INDIAN LAW REPORTS ALLAHABAD SERIES
that the petitioner was transferred from
Electricity
Distribution
Sub-Division,
Katahara, Handia, Prayagraj to Electricity
Distribution Sub-Division-City, Pratapgarh,
as a measure of penalty, utilizing the
employer's power to transfer. If the
employer thought that the petitioner was an
inconvenient man at Katahara, he could
very well be transferred to whichever place
the
Chief
Engineer
though
fit,
on
administrative grounds, in the exercise of
the employer's purely administrative power
of transfer, and which for the employee is
an exigency of service.

10. The matter, however, assumes a
different complexion altogether, if it is
evident that the employer has utilized the
power of transfer to punish the employee.
This is precisely what the Chief Engineer
has done here. He has betrayed through his
counter affidavit, what went behind scenes,
in passing the order of transfer. There were
some complaints against the petitioner by
certain named persons mentioned in the
inquiry report dated 09.10.2024. These
appear to be written complaints. When
these complainants were contacted over
telephone by the Inquiry Committee, they
denied having complained against the
petitioner. It is queer that after the
complainants disowned the complaints, the
Inquiry
Committee
were
after
the
petitioner, calling him up to record his
statements. There was no occasion to do
that. Nevertheless, that was the Inquiry
Committee's wisdom and the petitioner did
behave oddly in not responding to the
Inquiry Committee's communications and
appearing before them. The non-response
of the petitioner to the various messages
from higher officials seems to have been
regarded as disrespectful behaviour and
insubordination, about which there is a
remark in the Inquiry Committee's report
that the petitioner should improve his
conduct and behaviour. It is also remarked
that
the
petitioner's
behaviour
with
consumers is not appreciable.

11. Now, the fact that on the day
that this inquiry report was submitted, as
already remarked, the impugned order of
transfer was passed, would show that it is
just
not
an
administrative
exigency,
considering the petitioner's conduct in
general that animates the exercise of power
of transfer by the Chief Engineer. Rather,
the impugned transfer order has been
passed unmistakably as a substitute for the
exercise of his disciplinary jurisdiction by
the Chief Engineer, or so to speak, the
respondents, where they could penalize the
petitioner, if they so thought for whatever
misconduct,
the
Inquiry
Committee
reported. This would, however, not in any
way justify the Chief Engineer, or for that
matter, the respondents, exercising their
power of transfer to punish or penalize the
petitioner. The exercise of the power of
transfer as a substitute for the infliction of
lawful punishment in exercise of the
employer's disciplinary jurisdiction, is
verily an instance of malice in law. This is
precisely the case here.

12. In this connection, reference
may be made to principal laid down in
Somesh Tiwari v. Union of India and
others, (2009) 2 SCC 592. In Somesh
Tiwari (supra) too, the facts before their
Lordships of the Supreme Court would
show that anonymous complaints had been
laid against the petitioner, an officer of the
Indian Revenue Service, alleging a caste
bias
against
him,
because
he
had
undertaken re-assessment of certain files
with him. The preliminary or the discrete
inquiry into complaints by an Assistant
Commissioner, Directorate of Vigilance,
12 All. Rakesh Chandra Jauhari Vs. State of U.P. & Anr.
223
did not find the allegations true.
Still, the petitioner, Somesh Tiwari, was
transferred from Bhopal to Shillong. There
are then very detailed facts, which may not
be of much relevance, but the principle, on
which the event turned before their
Lordships in Somesh Tiwari, is expressed
in the following words:

 "16. Indisputably an order of
transfer is an administrative order. There
cannot be any doubt whatsoever that
transfer, which is ordinarily an incident of
service should not be interfered with, save
in cases where inter alia mala fide on the
part of the authority is proved. 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.

17. An enquiry was initiated
against the appellant in terms of the
allegations contained in an anonymous
letter. Having regard to the directives of the
Central Vigilance Commission, no enquiry
could have been initiated against him but it
is beyond any doubt or dispute that in the
said enquiry, the allegations were found to
be untrue. Despite the same not only an
order of transfer was passed but to a
station, which, according to the respondents
themselves, was "harsh".

13. In view of what we have held
hereinabove, the impugned transfer order
cannot be sustained.

14. In the result, this writ petition
succeeds and is allowed. The impugned
transfer order dated 09.10.2024 passed by
the Chief Engineer, District Division-II,
Purvanchal Vidyut Vitaran Nigam Limited,
Varanasi is hereby quashed. The petitioner
shall be permitted to join at the station
where he was serving immediately before
the order impugned dated 09.10.2024
forthwith and paid salary regularly.

15. There shall be no order as to
costs.

16. Let this order be communicated
to the Chief Engineer, District Division-II,
Purvanchal Vidyut Vitaran Nigam Limited,
Varanasi through the learned Civil Judge
(Sr. Div.), Varanasi by the Registrar
(Compliance).
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(2024) 12 ILRA 223
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.12.2024

BEFORE

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

Writ A No. 17213 of 2024

Rakesh Chandra Jauhari ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Amit Kumar, Ashutosh Tripathi

Counsel for the Respondents:
Ganesh Datt Mishra, C.S.C.