Allowed

Priyanka Srivastava v. State of U.P. Thru. Its Addl. Chief Secy./Prin. Secy. Deptt. of Technical Education and 4 Others

Allahabad HC27 Feb 2025WRIA/2128/2025

Case brief

AI extract

What is this about?

A promoted employee posted from Lucknow to Bareilly challenged the posting on grounds that her son has 90% permanent disability treatable only in Lucknow, relying on the Rights of Persons with Disabilities Act and a mutual transfer request from another employee. The court quashed the posting and relieving orders and directed her accommodation at Lucknow via mutual transfer.

What did the court decide?

Posting order dated 07.02.2025 and relieving order dated 15.02.2025 quashed; petitioner to be accommodated at Lucknow as HoD (Computer) via mutual transfer with Sri Sandeep Kumar.

Priyanka Srivastava vs State of U.P. Thru. Its… — Service and Employment | Allahabad HC (2025)

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Neutral Citation No. - 2025:AHC-LKO:39648

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Court No. - 5

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Case :- WRIT - A No. - 2128 of 2025

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Petitioner :- Priyanka Srivastava

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Respondent :- State Of U.P. Thru. Its Addl. Chief Secy./Prin. Secy. Deptt. Of Technical Education And 4 Others Counsel for Petitioner :- Chinmay Mishra,Gaurav Mehrotra,Harsh Vardhan Mehrotra

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Counsel for Respondent :- C.S.C.

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Hon'ble Abdul Moin,J.

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Heard learned counsel for the petitioner and Sri Sanjeev Singh, learned Additional Chief Standing Counsel appearing for the respondents.

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Under challenge is the order dated 07.02.2025, a copy of which is Annexure-1 to the petition, passed by respondent no.3 so far as it pertains to the petitioner whereby the petitioner has been posted as Head of Department in Government Girls Polytechnic, Bareilly. A further prayer is for quashing of the relieving order dated 15.02.2025, a copy of which is Annexure-2 to the petition, issued by respondent no.5 relieving the petitioner from the post of Head of Department (Computer) at Government Polytechnic, Lucknow. A direction has also been sought in the nature of mandamus commanding the respondents not to give effect to the aforesaid orders and to consider the case of the petitioner for her transfer/adjustment on the post of Head of Department (Computer) in Government Polytechnic, Lucknow.

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This Court had passed a detailed order on 20.02.2025 which, for the sake of convenience, is reproduced below:-

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"1. Heard Sri Chinmay Mishra, learned counsel for the petitioner and Sri Nitin Mathur, learned Additional Chief Standing Counsel for the State-respondents.

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2. On the request of learned counsel for the parties, list/ put up this case on 28.05.2025 as fresh. On that date, this matter may be taken up immediately after fresh cases.

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3. In the meantime, the specific instructions may be sought by Sri Nitin Mathur, learned Additional Chief Standing Counsel to the effect as to whether after interim order dated 20.02.2025 the petitioner is being permitted to discharge her duties at Government Polytechnic, Ayodhya Road, Polytechnic Chauraha, Lucknow, if so, as to whether she is being paid salary.

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4. Sri Mathur, learned Additional Chief Standing Counsel may also seek specific instructions as to whether the petitioner may be adjusted at Lucknow on the basis of mutual transfer request of one more employee, namely, Mr. Sandeep Kumar, who is willing to be posted at Government Girls Polytechnic, Bareilly, as recital to this effect has been given in para-24 of the writ petition."

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It is contended that in pursuance to the order of this Court dated 20.02.2025 the petitioner has not joined at Bareilly rather she is continuing at Lucknow although no salary since the passing the aforesaid relieving order has been paid to her.

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The contention of learned counsel for the petitioner is that as the petitioner's son is suffering from severe mental retardation having 90% permanent disability which is a life long disability as per the certificate of the Chief Medical Officer, Lucknow, dated 31.05.2017, a copy of which is Annexure-3 to the petition, as such, considering the Government Order dated 15.12.2023, a copy of which is Annexure-11 to the petition, such persons whose dependents are suffering from permanent physical disability should invariably not be transferred.

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The other argument is that one Sri Sandeep Kumar, who is currently holding the post of Head of Department (Computer) at Government Polytechnic, Lucknow through his letter dated 03.02.2025, a copy of which is Annexure-10 to the petition, has expressed his desire to be posted as the Head of Department (Computer) at Bareilly vis-a-vis the petitioner and as such mutual transfer/adjustment of the petitioner with Sri Sandeep Kumar can be considered by the respondents. Sri

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Sandeep Kumar has indicated about his illness and his difficulties so as to entail in he being accommodated at Bareilly.

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Placing reliance on the averments contained in paragraph 8 of the supplementary affidavit dated 19.03.2025 the further contention of learned counsel for the petitioner is that the petitioner on account being desirous of continuing at Lucknow owing to permanent disability of her son has also applied for being appointed as Joint Secretary in the Department of Technical Education, Government of U.P., Lucknow. Copy of her application has been filed as Annexure SA-1 to the supplementary affidavit.

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Learned counsel for the petitioner has also placed reliance on the averments contained in paragraph 9 of the said affidavit to contend that the disability of the son of the petitioner requires treatment from a doctor who has specialization in Pediatric Neurology and the only doctor available for his treatment is available at the super speciality hospital at Lucknow and no such specialist of Pediatric Neurology is available at Bareilly and thus the transfer/posting of the petitioner at Bareilly would entail disruption in the treatment of her son.

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A copy of the transfer policy dated 06.05.2025 has been passed on to the Court and is kept on record.

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On the other hand, Sri Sanjeev Singh, learned Additional Chief Standing Counsel appearing for the respondents, has argued that the petitioner has not been transferred to Bareilly by means of order impugned rather she has been posted on a promotion and thus the transfer policy over which reliance has been placed by the learned counsel for the petitioner would not be applicable.

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So far as the mutual transfer/adjustment with one Sri Sandeep Kumar is concerned, learned Additional Chief Standing Counsel argues that as Sri Sandeep Kumar had earlier been posted for around 19 years in Government Girls Polytechnic, Bareilly, as such, it has not been found feasible to again post back Sri Sandeep Kumar at Bareilly although he has been working at Lucknow since last two years

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considering Clause 2(i) of the transfer policy dated 06.05.2025 and consequently there cannot be any occasion of the petitioner being accommodated at Lucknow.

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The further argument of learned Additional Chief Standing Counsel is that after the promotion of the petitioner, in the counselling which was held for her posting, she had specifically opted for Bareilly and consequently there cannot be any occasion for the petitioner to resile from the option that she had given earlier.

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As regard non-payment of salary it is contended that there is no vacant post of the Head of Department (Computer) on which the petitioner can discharge her functions and consequently the salary has not been paid to her.

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No other ground has been urged.

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Responding to the petitioner having opted during counselling for Bareilly, learned counsel for the petitioner has placed reliance on the averments contained in paragraph 30 of the rejoinder affidavit to contend that the petitioner had participated in the counselling session and locked the Government Girls Polytechnic, Bareilly as it was the only vacant post available for the petitioner which was closer to Lucknow owing to the ailment of the son of the petitioner.

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Heard learned counsels for the contesting parties and perused the records.

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From the arguments as raised by the learned counsels for the contesting parties and perusal of records, it emerges that by means of order dated 07.02.2025 the petitioner along with several others has been promoted and, so far as the petitioner is concerned, she has been posted from Government Polytechnic Lucknow to Government Girls Polytechnic, Bareilly as Head of Department (Computer).

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The son of the petitioner is suffering from severe mental retardation having 90% permanent disability as per the certificate issued by the Chief Medical Officer, Lucknow dated 31.05.2017. The petitioner in the capacity of being the mother/parent would fall within the ambit of Section 2(d) of the Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as the 'Act, 2016'), which reads as under:-

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"(d) "care-giver" means any person including parents and other family Members who with or without payment provides care, support or assistance to a person with disability."

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As per the specific averment made in paragraph 9 of the supplementary affidavit dated 19.03.2025 it emerges that there is only one doctor who has specialization in Pediatric Neurology and is only available in Lucknow only and no such specialist of Pediatric Neurology is available at Bareilly.

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One Sri Sandeep Kumar who is working as Head of Department (Computer) at Lucknow has also made an application for mutual transfer vis-a-vis the petitioner for Bareilly but the same has also not been acted upon by the respondents. The reason as emerges for nonacting upon the application of Sri Sandeep Kumar is that he has already been posted for around 19 years at Bareilly and as per the transfer policy he cannot be posted back although admittedly he has already spent two years at Lucknow. However, there is no denial by the respondents of Sri Sandeep Kumar having filed an application for mutual transfer/ transfer to Bareilly.

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During pendency of the petition, a new transfer policy dated 06.05.2025 has been issued which is admitted by the learned counsels appearing for the contesting parties. The said transfer policy is carrying invariably the same features as were there in the earlier transfer policy. Para 5 (ii) of the transfer policy dated 06.05.2025 categorically provides that upon promotion, the resultant vacancy can

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be filled by transfer and a person can be accommodated on the vacant post by the appointing authority.

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Clause 5(iii) of the said transfer policy also provides that upon an employee making a request for being accommodated at a particular place either on account of there being a vacancy or some other employee being willing to go in for a mutual transfer with him on the ground of personal reasons or on account of looking after of the minor children then the said mutual transfer can be carried out provided there is no administrative objection to it.

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Clause 5(iv) of the said transfer policy also provides that with respect to mentally disabled children of the employee concerned the employee should be accommodated at a place where sufficient medical facility is available and that employees whose children are suffering from more than 40% physical disability should ordinarily be exempted from transfer.

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Despite the existence of the aforesaid conditions, as indicated in the transfer policy dated 06.05.2025, the respondents are not keen to consider the claim of the petitioner vis-a-vis one Sri Sandeep Kumar on the grounds, as already indicated above, namely that (a) Sri Sandeep Kumar has spent 19 years at Bareilly and consequently cannot now be posted back at Bareilly, (b) the petitioner having opted for being accommodated at Bareilly in the counselling which was held after her promotion, and (c) transfer policy will not be applicable.

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All the aforesaid grounds as are being indicated by the respondents, are found to be patently fallacious and misconceived.

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The reasons are not far to seek.

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A perusal of the transfer policy dated 06.05.2025 particularly Clause 2(i) would indicate that a person who has spent a number of years at a particular district should invariably be posted out. However,

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nowhere does the said transfer policy indicate that after he has been posted out and he has spent sufficient years in some other district, he cannot be posted back i.e. there is no bar in posting back of an employee. Thus, the reason as is being assigned by the respondents for not considering the application of Sri Sandeep Kumar for mutual transfer vis-a-vis the petitioner cannot be said to be legally or logically sustainable and is found to be misconceived and consequently rejected.

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So far as the ground taken by the respondents that the petitioner has herself opted in counselling for Bareilly, the same may also not detain the Court considering the specific averment as made in paragraph 10 of the writ petition itself in which it was indicated that the Bareilly was the only place which was carrying a vacant position for the purpose of the Head of the Department (Computer) and that it is situated next to Lucknow.

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Another aspect of the matter which has a direct bearing on the case is that the petitioner in the capacity of being the mother of a mentally disabled child, who is 90% mentally disabled, would fall within the ambit of being a 'care giver' as per the provisions of the Act, 2016.

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The Act, 2016 specifically provides in Section 9 that "no child with disability shall be separated from him or her parents on the ground of disability..."

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Once the Act, 2016 itself gives protection to a child with disability and as per Section 2(d) the petitioner falls within the ambit of 'care giver' consequently posting of the petitioner to Bareilly can be said to be violative of Section 9 of the Act, 2016 more particularly when the transfer policy dated 06.05.2025 itself provides for accommodation of the employee and consideration of mutual transfers.

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In this regard, it would be apt to refer the judgment of Hon'ble

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Supreme Court in the case of State of Kerala and others vs. Leesamma Joseph-(2021) 9 SCC 208 wherein Hon'ble Supreme Court, though dealing with the issue of reservation in promotion for physically handicapped has held that the rights of physically handicapped which flow from legislation would prevail in the absence of rules.

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Again the Hon'ble Supreme Court in the case of Vikash Kumar vs. Union Public Service Commission and others - (2021) 5 SCC 370 has observed that to deny the rights and entitlements recognized for the persons with disability would be plainly ultravires the provisions of the Act, 2016.

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With the issuance of the new transfer policy dated 06.05.2025 and the petitioner having been posted at Bareilly vide the order impugned dated 07.02.2025 and the new transfer policy having been issued thereafter although carrying most of the features of the old transfer policy, there cannot be said to be any impediment in the mutual transfer of the petitioner vis-a-vis Sri Sandeep Kumar which mutual transfer has repeatedly been expressed by Sri Sandeep Kumar as would be apparent from a perusal of one of his applications dated 03.02.2025 which has duly been forwarded by the Principal of the said polytechnic and which has also not been denied by the respondents.

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Another aspect of the matter is that the qualified doctor to carry out the medical treatment of the petitioner's son, as specifically averred in paragraph 9 of the supplementary affidavit to which there is no denial by the respondents, is situated at Lucknow and no such specialist is available at Bareilly and thus transferring/posting of the petitioner at Bareilly would disrupt the medical treatment of the son of the petitioner.

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As regards the argument of learned Additional Chief Standing Counsel that transfer policy dated 06.05.2025 would not be applicable,

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the said ground is also patently misconceived keeping in view Clause 5(iii) which provides for transfer on mutual grounds. With the coming into effect of the aforesaid transfer policy and Sri Sandeep Kumar making a request for mutual transfer vis-a-vis the petitioner as such it would be in the fitness of things that considering the provisions of the Act, 2016, the petitioner falling in the ambit of 'care giver' and the provisions of the Act, 2016, the respondents should themselves have acted upon the mutual transfer request of Sri Sandeep Kumar vis-a-vis the petitioner instead of not considering it on technical ground as indicated above. The State being a model employer is expected to be conscious of the difficulties of its' employees.

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In this regard, it would be apt to also refer the recent judgment of this Court passed in Writ-A No. 3793 of 2022 in re: Neeraj Chaturvedi vs. Central Bank of India and others , which though pertains to a transfer but may have direct bearing on the facts of the instant case wherein with respect to transfer of an employee who was 100% permanently disabled this Court had quashed the transfer order.

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For the sake of convenience, the relevant paragraphs of the judgment of this Court in the case of Neeraj Chaturvedi (supra) are reproduced below:-

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"17. Having heard learned counsel for the parties and having perused the material available on record, I am of the considered opinion that if there is any beneficial or compassionate policy to accommodate any employee for the specific and certain reason, the same must be abide by in its letter and spirit.

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18. Since wife of the petitioner is a permanent disable person having 100% disability and to look-after and take care of her is a sole responsibility of the petitioner, then his status shall come within the meaning of term 'care-giver' as defines under Section 2 (d) of the Act, 2016. On account of disability of wife of the petitioner, she is a person with the 'benchmark disability' and a 'person with disability' as per the meaning of Section 2 (r) & (s) of the Act, 2016. If the Competent Authority of the Bank has transferred the petitioner in compliance of the Transfer Policy/ Guidelines which provides that whosoever has completed 10 years of service at one place shall be transferred from one zone to another zone, then the same policy also clearly indicates

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vide para 1.2 that a transfer/ posting of a spouse etc. of a person with 'benchmark disability' or long term disability, shall be exempted from routine/ rotational transfer in terms of DOPT Guidelines dated 08.10.2018. The DOPT Guidelines (supra) clearly provides that such government employee may be exempted from routine transfer/ rotational transfer subject to the administrative constraints. A routine/ rotational transfer, which has been made in compliance of the guidelines, may not be considered as administrative constraint. Besides, if the same policy is providing two separate guidelines, the guideline which is of beneficial nature shall prevail over the general guidelines inasmuch as the beneficial guideline is issued to serve a particular purpose and if such guideline is flouted it may cause an irreparable loss to a person which, generally, cannot be compensated in terms of money.

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19. Therefore, I do not find any good reason to implement the policy vide para-3 i.e. 'Rotational Transfer' ignoring the para 1.2 of the same policy (supra). The rotational transfers are meant for a person who has not been protected by any compassionate or beneficial policy but if any employee has been protected from any beneficial or compassionate policy, the same may not be ignored unless there is any administrative reason to transfer such person from one zone to another zone.

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20. In the present case, the wife of the petitioner is serving on the post of Telephone Attendant in Secretariat Telephone Exchange at Lucknow despite having 100% disability and while discharging her duties on such post she has confidence in the back of her mind that her husband is residing at Lucknow to look-after her in a critical situation, if need be, but if the petitioner is compelled to submit his joining at Cooch Behar which is about 1500 KM from Lucknow, the wife of the petitioner may likely to suffer irreparable loss.

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21. Now, the question that there is no post available in Lucknow Region and the petitioner may not be permitted to serve anywhere at Lucknow Region, I am unable to comprehend that when the petitioner has earlier been retained at Lucknow considering his aforesaid grievance then as to why his grievance has not been considered now inasmuch as the grievance of the petitioner is of permanent nature.

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22. Normally, the transfer is an exigency/ incidence of service and no courts are ordinarily interfered with the transfer orders but if such transfer may be avoided for any specific compelling reason and that reason is unavoidable, the Competent Authority being model employer should consider such condition sympathetically. At the same time the transfer may not be punitive in nature and in the present case if the petitioner is directed to submit his joining at Cooch Behar, Kolkata, it would cause irreparable mental pain to him that he would not be able to look-after and take care of his wife which would cause irreparable

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mental injury to her also.

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23. Therefore, considering the peculiar facts and circumstances of the issue in question, I hereby allow the present petition at the admission stage. The impugned order dated 16.04.2022 (Annexure No.6), so far as it relates to the petitioner, to be more precise the transfer of the petitioner is concerned, is hereby quashed. "

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Keeping in view the aforesaid discussion, the Court exercising power under Article 226 of the Constitution of India allows the writ petition. The orders impugned dated 07.02.2025, a copy of which is Annexure-1 to the petition, so far as it pertains to the petitioner, as well as the relieving order dated 15.02.2025, a copy of which is Annexure-2 to the petition, are quashed.

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Consequences to follow.

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The respondents are directed to accommodate the petitioner at Lucknow on the post of Head of Department (Computer) vis-a-vis Sri Sandeep Kumar whose application for mutual transfer/adjustment visa-vis the petitioner would be acted upon.

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This Court records the assistance extended by Mr. Azam Siddiqui, Research Associate, of this Court.

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Order Date :- 11.7.2025 A. Katiyar

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Digitally signed by :- AMIT KATIYAR High Court of Judicature at Allahabad, Lucknow Bench

Priyanka Srivastava v. State of U.P. Thru. Its Addl. Chief Secy./Prin. Secy. Deptt. of Technical Education and 4 Others

Case brief

What is this about?

What did the court decide?

Priyanka Srivastava v. State of U.P. Thru. Its Addl. Chief Secy./Prin. Secy. Deptt. of Technical Education and 4 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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