Dismissed

Kamlesh Kumar v. U.P. Khadi and Gramodyog Board Thru. Chief Executive Officer and Another

Allahabad HC26 Jul 2024WRIA/5604/2024

Case brief

AI extract

What is this about?

Petitioner challenged a transfer order from Lucknow to Shravasti, relying on exemptions for senior employees and union office bearers. The High Court found the petitioner had completed over seven years in the Division, making him eligible for transfer, and held office bearer protections inapplicable to the transfer date. The petition was dismissed.

What did the court decide?

Disallowed the petition challenging the transfer order and directed parties to bear their own costs.

Kamlesh Kumar vs U.P. Khadi and Gramodyog Board… — Service and Employment | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:52703

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Court No. - 18

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Case :- WRIT - A No. - 5604 of 2024

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Petitioner :- Kamlesh Kumar Respondent :- U.P. Khadi And Gramodyog Board Thru. Chief Executive Officer And Another Counsel for Petitioner :- Shireesh Kumar,Utkarsh Kumar Counsel for Respondent :- Pankaj Patel

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Hon'ble Manish Mathur,J.

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Heard learned counsel for petitioner and Mr. Pankaj Patel, learned counsel for the opposite parties.

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Short counter affidavit filed on behalf of opposite parties today is taken on record.

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The petition has been filed challenging order dated 30.06.2024 to the extent it transfers petitioner from Lucknow to Shravasti. Relieving order dated 12.07.2024 and order dated 15.07.2024 rejecting petitioner's representation are also under challenge.

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Learned counsel for petitioner has placed reliance on paragraph 2(i) & (ii) of Government Order dated 11.06.2024 pertaining to transfer policy of 2024-25 as also paragraph-12 thereof to claim exemption from aforesaid transfer.

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It has been submitted that in terms of paragraph 2(i) of aforesaid Government Order, it is provided that persons serving in one Division could be transferred out only if they have completed 7 seven years of service in such Division. It is also submitted that for the purposes of calculation of seven years, tenure spent as Head of Department or in the Divisional Office is required to be excluded.

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With regard to paragraph 2(ii) of aforesaid Government

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Order, it is submitted that in cases where an employee is posted in Head Office and there are posts in parity available outside the Head Office, then transfer of such a person would be considered upon completion of three years service in that particular place but even for calculation of that three years, tenure spent in Districts and Divisions would be excluded.

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Learned counsel has also relied upon paragraph 12 of the Government Order to submit that office bearers of the Union are not required to be disturbed from their current posting for a period of two years from the date they assume office. It is submitted that only in certain extenuating circumstance as indicated in the said paragraph, can such a transfer to be effected.

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Learned counsel for opposite parties has refuted the submissions advanced by learned counsel for petitioner with the submission that in terms of paragraph 2(1) of Government Order, petitioner has already completed seven years of service in a Division. He submits that paragraph 2(ii) and paragraph 12 of Government Order are inapplicable in the present case. He has also adverted to a chart of petitioner's postings as brought on record as SCA-2 of the short counter affidavit.

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Upon consideration of submissions advanced by learned counsel for the parties and perusal of material on record, particularly the chart as indicated in SCA-2 of short counter affidavit, which is admitted by learned counsel for petitioner, it appears that petitioner was posted in Sitapur from 01.08.2007 till 31.07.2014 and from 01.06.2015 till 30.06.2017 in District Hardoi. The aforesaid two tenures spanning about 8 years 11 months and 59 days have been counted for the purposes of treating petitioner to be posted within Division of Lucknow. It appears that petitioner's postings in Lucknow from 01.08.2014

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till 31.05.2015 and from 01.07.2017, thereafter have been excluded by opposite parties themselves since they were in the Divisional Offices.

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It is also admitted between the parties that petitioner is continuously being posted in the Lucknow Division ever since 01.08.2007.

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In view thereof, it is quite evident that petitioner has completed more than seven years in the Lucknow Division on continuous postings.

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So far as paragraph 2(ii) of the Government Order is concerned, it is evident that the same pertains to transfer of persons posted in Head Offices and for which purpose, only their postings in the Districts and Divisions is required to be excluded. It is evident that the aforesaid clause would be inapplicable in the case petitioner who has been transferred on account of having been posted in the same Division for tenure exceeding seven years.

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So far as paragraph 12 of the Government Order is concerned it excluded from transfer office bearers of the Union for a period of two years from the date of their assuming office of the Union.

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From the material on record, it is evident that petitioner was earlier elected office bearer of the Union on 15.05.2022 and demitted office on 15.05.2024 whereafter he was again elected as President of the Union on 15.07.2024. The impugned order having been passed on 30.06.2024, thus is between the tenures of petitioner as an office bearer of the Union. It is quite evident that as on the date of passing of impugned order, petitioner was not an office bearer of the Union. Upon

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applicability of paragraph-12 of the Government Order, such an exemption would be available to petitioner only with effect from 15.07.2024, as the earlier tenure having expired on 15.05.2024.

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Learned counsel for petitioner has adverted to supplementary affidavit dated 25.07.2024 to submit that the policy of senior being transferred first has been ignored by the opposite parties since persons who have completed more years in service in the present Division have been excluded.

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It is settled law that there cannot be any negative equality. Although persons who have completed more tenure of service in a particular posting should be the first to be transferred, there cannot be any hard and fast rule for implementation thereof.

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Learned counsel for petitioner has also placed reliance on paragraph 4(6) of the Government Order to submit that for the purposes of transfer, the cut off date has been indicated as 31.03.2024 at which time, petitioner was an office bearer of the Union. However, a reading of the aforesaid provision makes it evident that the cut off date has been indicated for purposes of calculation of tenure spent by an employee in a Division or in a District in terms of paragraph 2(i) & (ii) of the Government Order and not with regard to tenure as an office bearer in terms of paragraph 12 which is completely a separate provision.

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In view of aforesaid facts and discussions made herein above, this Court does not find any occasion to interfere with the order impugned.

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19.The petition therefore being devoid of merit is dismissed. Parties to bear their own costs.

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Order Date :- 1.8.2024 kvg/-

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Digitally signed by :- GIREESAN KV High Court of Judicature at Allahabad, Lucknow Bench

Kamlesh Kumar v. U.P. Khadi and Gramodyog Board Thru. Chief Executive Officer and Another

Case brief

What is this about?

What did the court decide?

Kamlesh Kumar v. U.P. Khadi and Gramodyog Board Thru. Chief Executive Officer and Another

Case brief

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What did the court decide?

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