Petitioner challenged a transfer order within the same tehsil alleging malice and violation of a COVID-19 ban. The Court found no evidence of malice and noted that transfers within the same tehsil are feasible despite the ban, dismissing the writ petition.
The writ petition challenging the transfer order is dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 36
Case :- WRIT - A No. - 844 of 2021
Petitioner :- Ram Kumar Verma Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Kailash Singh Kushwaha Counsel for Respondent :- C.S.C.
Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondent.
By means of the present petition, the petitioner herein seeks to challenge the order dated 08.01.2021 which has been passed by the respondent no.2, i.e., Sub Divisional Officer, Phoolpur, Prayagraj, transferring the petitioner from one lekhpal area to another within the same tehsil- Phoolpur district- Prayagraj.
The first submission of learned counsel for the petitioner is that the order impugned has been passed in view of the observations made by this Court in the judgment and order dated 28.08.2018 in Writ Petition No.17636 of 2018, after a period of two and a half years which shows mala fide (malice in law) on the part of the competent authority.
The aforesaid writ petition had been filed by the petitioner against the transfer order dated 31.07.2018. A perusal of the order dated 28.08.2018 passed in the said writ petition indicates that the transfer order was challenged on the ground that the appointing authority of the petitioner being Sub Divisional Officer, Tehsildar had no jurisdiction to pass the order. Learned Standing Counsel was granted time to seek instructions therein. On the counter affidavit filed by the learned Standing Counsel, this Court had stayed the transfer but granted liberty to the competent authority to pass a fresh order in accordance with law.
The aforesaid writ petition challenging the transfer order dated 31.07.2018 on the ground of lack of jurisdiction, is pending consideration.
Fresh transfer order has been passed on 18.01.2021 by the competent authority, considering the fact that this Court had granted liberty to proceed in accordance with law.
The submission of learned counsel for the petitioner is that the lapse of two years in passing of the order for transferring the
petitioner, shows mala fide on the part of the respondent no.2, who is otherwise competent to pass the order of transfer. The malice in law, as pleaded by learned counsel for the petitioner, could not be shown as it cannot be said that the order of transfer has been passed in contravention of the law or it is a result of a wrongful act done intentionally without just cause or excuse.
No malice in fact has been pleaded in the writ petition. There is no allegations of mala fide against the Sub Divisional Officer, Phoolpur, Prayagraj who is the competent authority to transfer the petitioner. It is settled that mere general statements will not be sufficient for the purpose of indication of ill will. There must be cogent evidence available on record.
The order impugned dated 08.01.2021 indicates that the competent authority had given due consideration to the posting of the petitioner in the concerned lekhpal area and transferred him to another lekhpal area, within the same tehsil.
It is admitted that the petitioner has been working in the concerned lekhpal area for a period of more than three years. It may be noted that the previous transfer order stood modified with the transfer order dated 08.01.2021 which has now been passed by the competent authority, inasmuch as, the challenge to the transfer order dated 31.07.2018 was made only on the ground of lack of jurisidiction.
It is not the case of the petitioner that the petitioner is not holding a transferable post or he cannot be transferred from one lekhpal area to another. The malice, as pleaded by the learned counsel for the petitioner, therefore, is not found substantiated from the record.
The second ground of challenge to the transfer order is based on the Government Order dated 12.05.2020 which was issued by the Chief Secretary, U.P., in view of the extraordinary adverse situation prevailing due to COVID-19.
The submission of learned counsel for the petitioner is that the said situation still persists and the notification dated 12.05.2020 putting complete ban on the transfer and posting is operative. The transfer order dated 08.01.2021 is, therefore, liable to be set aside.
Noticing the fact that the petitioner has been transferred from one lekhpal area to another within the same tehsil (district) in the administrative arrangement made by the competent authority, the plea taken that the transfer is barred by notification dated 12.05.2020 cannot be sustained.
The reason being that the notification dated 12.05.2020 appears to have been issued in view of the prohibitions in the travelling due to the directions given by the Central Government from time to time to curb the spread of COVID-19 virus. The situation has now improved and all the travelling means are in place.
Even otherwise, for the transfer being within the same tehsil, it could not be demonstrated by the counsel for the petitioner that it would not be possible for the petitioner to join the transferred place.
For the above, the writ petition is found devoid of merits and hence dismissed .
Order Date :- 29.1.2021 P Kesari
3 issues framed by the court
Whether the challenge of the transfer order on the ground of malice in law is substantiated given the lack of specific allegations and evidence.
Whether the transfer order is barred by the Government Order dated 12.05.2020 prohibiting transfers during the COVID-19 situation.
Whether the transfer within the same tehsil is feasible in light of improved travel conditions post-COVID restrictions.
Ram Kumar Verma
State Of U.P.
Sub Divisional Officer, Phoolpur, Prayagraj
Sunita Agarwal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
