Disposed

Anil Kumar v. State of U.P. Thru. Prin. Secy. / Addl. Chief Secy. Deptt. of Finance Lko and 2 Others

Allahabad HC24 Sept 2024WRIA/8412/2024

Case brief

AI extract

What is this about?

High Court granted interim relief in a writ petition challenging departmental transfer orders. It directed that the petitioner need not join the new posting pending the hearing of a related writ petition, while allowing accommodation at Lucknow and regular salary.

What did the court decide?

Petitioner shall not be compelled to submit joining at Sonebhadra; may be accommodated at Lucknow with regular salary pending next hearing.

Anil Kumar vs State of U.P. Thru. Prin. Secy. /… — Service and Employment | Allahabad HC (2024)

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Court No. - 4 Case :- WRIT - A No. - 8412 of 2024 Petitioner :- Anil Kumar Respondent :- State Of U.P. Thru. Prin. Secy. / Addl. Chief Secy. Deptt. Of Finance Lko And 2 Others Counsel for Petitioner :- Amrendra Nath Tripathi,Chandra Kant Rai,Ranjeet Kumar Pal Counsel for Respondent :- C.S.C.,Jogendra Nath Verma

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Hon'ble Rajesh Singh Chauhan,J.

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Heard Sri Amrendra Nath Tripathi, learned counsel for the petitioner and Sri S.K. Singh, learned Standing Counsel for the State.

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Attention has been drawn towards order dated 24.9.2024 passed in Writ-A No. 8438 of 2024, which reads as under :

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"1. Heard Sri Gaurav Mehrotra assisted by Ms. Rani Singh, learned counsel for the petitioner, Sri Tushar Verma, learned Addl. C.S.C. for the State and Sri Jogendra Nath Verma, learned counsel for the opposite party no. 4.

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2. By means of this petition the petitioner has prayed following relief :

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"I. To issue a writ, order or direction in the nature of Certiorari quashing the Impugned Original Order dated 11.09.2024 issued by the Respondent no. 2, only in so far as the same relates to the Petitioner, copy whereof is contained as Annexure-1 to this Writ Petition.

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II. To issue a writ, order or direction in the nature of Certiorari quashing the Impugned Transfer Order dated 12.09.2024 issued by Respondent no. 3, only in so far as the same relates to the Petitioner, copy whereof is contained es Annexure-2 to this Writ Petition,

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III. To issue a writ, order or direction in the nature of Certiorari quashing the Impugned Relieving Order dated 17.09.2024 issued by the Respondent no. 4, copy whereof is contained as Annexure-3 to this Writ Petition.

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IV. To issue a writ, order or direction in the nature of Mandamus commanding the Respondents to permit the Petitioner to continue to perform his duties on the post of Senior Auditor, Greater Sharda Sahayak Samadesh Pariyojna, C-23, Gokhale Marg, Lucknow, Uttar Pradesh le. the post on which the Petitioner was working prior to the issuance of Impugned Transfer Order dated 12.09.2024.

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3. Attention has been drawn towards Annexure no. 1 which is an order dated 11.9.2024 wherein the reference of one order dated 31.5.2024 passed by this Court in Writ Petition No. 4589 of 2024 has been given alleging that in compliance of the aforesaid the impugned transfer order has been passed. Sri Mehrotra has stated that name of the petitioner finds place at serial no. 6. In para 3 of the aforesaid order the reference of one Contempt Petition No. 3045 of 2024 has been given indicating therein the order of the contempt court dated 30.8.2024. Annexure no. 2 is an order being passed by the Director, who is the head of the Department transferring the petitioner from Lucknow to Bahraich. Annexure no. 3 is the relieving order dated 17.9.2024. Sri Mehrotra has stated that pursuant to the relieving order dated 17.9.2024 the petitioner has not been relieved

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for Bahraich and none has submitted his joining at her place at Lucknow.

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4. Firstly, Sri Mehrotra has drawn attention of this Court towards the order dated 31.5.2024 which has been referred in Annexure no.1 passed in Writ A No. 4589 of 2024 whereby this Court without entering into the merits of the case disposed of the writ petition finally giving liberty to the petitioner to prefer a representation before the opposite party no. 2 and direction has been issued to decide the same within a period of six weeks. In the aforesaid writ petition the petitioner Ms. Reshma Devi has prayed for payment of her medical reimbursement and has levelled allegations against some employees who did not proceeded to valid claim of Ms. Reshma Devi. Therefore, Sri Mehrotra has stated that this Court vide order dated 31.5.2024 has not directed to transfer the employees from one place to another, rather the direction for disposal of representation has been issued. Further, attention has been drawn towards Annexure no. 14 which is an order dated 30.8.2024 passed by the Contempt Court in Contempt Application No. 3045 of 2024 wherein the specific instructions from the State has been noted to the effect that no transfer order can be passed in a mid session. Though the contempt court has observed that those employees who are working at a particular place for several years, such aspect may be examined. The Contempt Court fixed the next date for 13.9.2024 and before the aforesaid date the impugned order dated 11.9.2024 has been passed.

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5. Sri Mehrotra has stated that neither the writ court has directed to transfer the employees from one place to another nor the contempt court has directed to transfer the employees from one place to another in mid session. He has further submitted that for transferring the petitioner and others referring the High Court order dated 31.5.2024 is not proper.

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6. He has further submitted that as per transfer policy the mid session transfer is normally avoided unless there is any administrative ground to transfer any employee from one place to another and this is not a case where the transfer order of the petitioner has been passed on the administrative ground. If any transfer order is issued after 30.6.2024, the prior approval of the departmental minister would be required.

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7. Learned counsel for the petitioner has indicated some places at Lucknow where the petitioner may be accommodated, therefore, if the competent authority is willing to shift the petitioner from present place of posting or to any other place the petitioner may be shifted at any other place in Lucknow. Sri Mehrotra has further submitted that two daughters of the petitioner are studying in C.M.S., Lucknow and if the petitioner is transferred in a mid session the studies of her children would be affected adversely.

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8. Sri Mehrotra has referred para 2 of the dictum of Apex Court in re: Director of School Education, Madras and others vs. O. Karuppa and others reported in 1994 Supp. (2) Supreme Court Cases 666 which reads as under :

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"2. The tribunal has erred in law in holding that the respondent employee ought to have been heard before transfer. No law requires an employee to be heard before his transfer when the authorities make the transfer for the exigencies of administration. However, the learned counsel for the respondent. contended that in view of the fact that respondent's children

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are studying in school, the transfer should not have been effected during mid-academic term. Although there is no such rule, we are of the view that in effecting transfer, the fact that the children of an employee are studying should be given due weight, if the exigencies of the service are not urgent. The learned counsel appearing for the appellant was unable to point out that there was such urgency in the present case that the employee could not have been accommodated till the end of the current academic year. We, therefore, while setting aside the impugned order of the Tribunal, direct that the appellant should not effect the transfer till the end of the current academic year. The appeal is allowed accordingly with no order as to costs."

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9. The matter requires consideration.

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10. Let the counter affidavit be filed within three weeks, rejoinder affidavit may be filed in one week.

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11. List in the week commencing 4.11.2024 within top ten cases.

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12. Till the next date of listing the petitioner may not be compelled to submit her joining at Bahraich pursuant to the transfer order dated 11.9.2024 and 12.9.2024 (Annexure nos. 1 and 2). Though she may be accommodated at Lucknow at places which have been indicated in para 44 of the writ petition and may be paid regular salary as and when the same falls due."

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Sri Amrendra Nath Tripathi has submitted that the issue is identical and the grounds to challenge the transfer order are more or less similar.

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Sri Tripathi has also stated that though the petitioner has been relieved ex-parte on 17.9.2024 but he has not submitted his joining at Sonebhadra nor anyone has joined at the place of the petitioner. He has also submitted that the wife of the petitioner is serving at Lucknow and as per the transfer policy when a couple is both government employees, the policy generally aims to post them at the same station to allow them to maintain a normal family life.

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List and connect with Writ A No. 8438 of 2024.

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In the meantime the pleadings may be exchanged.

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Till the next date of listing the petitioner may not be compelled to submit his joining at Sonebhadra pursuant to the transfer order dated 12.9.2024 (Annexure no. 1) and 11.9.2024. Though he may be accommodated at Lucknow and may be paid regular salary as and when the same falls due.

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Order Date :- 24.9.2024/Om

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Digitally signed by :- OM PRAKASH MISHRA High Court of Judicature at Allahabad, Lucknow Bench

Anil Kumar v. State of U.P. Thru. Prin. Secy. / Addl. Chief Secy. Deptt. of Finance Lko and 2 Others

Case brief

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Anil Kumar v. State of U.P. Thru. Prin. Secy. / Addl. Chief Secy. Deptt. of Finance Lko and 2 Others

Case brief

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