Disposed¶16

Sudhir Kumar v. State of U.P. and 2 Others

Allahabad HC4 Apr 2025WRIA/842/2025

Case brief

AI extract

What is this about?

Keywords: transfer as punishment; transfer in lieu of punishment; malice in law; censure entry followed by transfer in same order; Vijay Kumar Yadav Writ-A No. 16814 of 2024 (Allahabad HC, 09.12.2024) paras 11-12; Somesh Tiwari (2009) 2 SCC 592 paras 16-17; representation to respondent no. 2 to be decided per law; Assistant Development Officer (Panchayat) Baghpat; U.P. government servant; writ under Article 226 disposed with direction; petitioner had joined under impugned transfer order.

What did the court decide?

Petition disposed of with liberty/direction to the petitioner to file a representation raising all grievances before respondent no. 2 within four weeks with certified copy of the order and the relied judgment; respondent no. 2 to consider the cited authority and dispose of the representation in accordance with law within one month.

Sudhir Kumar vs State of U.P. and 2 Others — Writ and Judicial Review | Allahabad HC (2025)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether, after the petitioner had already been awarded punishment of censure entry in his service record, he could be further penalized by a direction of transfer under the same punishment order dated 06.01.2025.

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Court's answer

The writ petition stands disposed of with a direction that the petitioner may make a representation raising all his grievances before respondent no. 2 within four weeks, along with certified copy of the order and a copy of the judgment relied upon; respondent no. 2 shall dispose of such representation in accordance with law within a further period of one month.

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Ratio / Principle

While deciding the representation, respondent no. 2 shall look into and consider the authority cited before the Court (paragraphs 11 and 12 of the judgment in Vijay Kumar Yadav, Writ-A No. 16814 of 2024, which reproduce Somesh Tiwari, (2009) 2 SCC 592, on transfer passed in lieu of punishment), leaving the merits of the transfer-as-punishment objection open for decision by that authority.

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Detailed headnote1 paragraphs

Allahabad High Court (Hon'ble Ajit Kumar, J.), by order dated 04.04.2025 in WRIT - A No. 842 of 2025, disposed of a petition under Article 226 of the Constitution by Sudhir Kumar challenging the punishment order dated 06.01.2025 only to the extent that it directed his transfer and posting on the vacant post of Assistant Development Officer (Panchayat), Baghpat, although censure entry had already been awarded in his service record. Relying on Vijay Kumar Yadav v. State of U.P. (Writ-A No. 16814 of 2024, decided 09.12.2024), paras 11-12 (which quote Somesh Tiwari v. Union of India, (2009) 2 SCC 592, holding that a transfer passed in lieu of punishment attracts malice in law and is liable to be set aside), counsel contended transfer could not follow censure in the same order. Noting the petitioner had already joined under the transfer order, the Court declined to decide the merits and instead permitted the petitioner to move a comprehensive representation before respondent no. 2 within four weeks with certified copy of the order and the relied judgment, directing respondent no. 2 to consider the cited authority and dispose of the representation in accordance with law within one month.

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Neutral Citation No. - 2025:AHC:47953

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Court No. - 4

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Case :- WRIT - A No. - 842 of 2025

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Petitioner :- Sudhir Kumar Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Kamal Kumar Kesherwani Counsel for Respondent :- G.A.

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Hon'ble Ajit Kumar,J.

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Heard Mr. Kamal Kumar Kesherwani, learned counsel for the petitioner and learned Standing Counsel for the State.

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By means of this petition filed under Article 226 of the Constitution, petitioner has questioned the order of punishment dated 6th January, 2025 to the extent only that it directs the petitioner to be transferred and posted on the vacant post of Assistant Development Officer (Panchayat), Baghpat.

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It is argued on behalf of the petitioner that once the petitioner has already been awarded with punishment of censure entry in the service record, he could not have been further penalized with transfer under the same order. In this connection, he has relied upon the judgment of this Court dated 09.12.2024 passed in Writ-A No. 16814 of 2024; Vijay Kumar Yadav vs. State of U.P. and other. He has placed paragraphs-11 and 12 of the said judgment, which are reproduced hereunder:-

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"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

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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.

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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, 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:

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"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

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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.

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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"."

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Learned Standing Counsel on the contrary submits that since petitioner has already submitted his joining under the impugned transfer order, it would be more appropriate now for the petitioner to make a representation before the Competent Authority, namely, respondent no. 2, who may be directed to dispose of the same in accordance with law.

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In view of the above, this petition stands disposed of with a direction to the petitioner to make a representation raising all his grievance before respondent no. 2 along with certified copy of this order and also copy of the judgment relied upon by him within a period of four weeks from today and in the event, petitioner makes any such representation before the respondent no. 2, he shall look into the matter and dispose of the same in accordance with law within a further period of one month. Needless to add that respondent no. 2 while

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taking decision upon the representation of the petitioner shall look into and consider the authority cited before this Court by the petitioner, paragraphs-11 and 12 of which have been reproduced hereinabove.

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Order Date :- 4.4.2025 Shiraz

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Digitally signed by :- SHIRAZ ALI High Court of Judicature at Allahabad

Sudhir Kumar v. State of U.P. and 2 Others

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Sudhir Kumar v. State of U.P. and 2 Others

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