Rajiv Kumar Choudhary Vs State of U.P. Thru. Prin. Secy. Deptt. of Urban Development Lko. and 2 Others

Neutral Citation No. - 2025:AHC-LKO:38045

AFR

Court No. - 5

Case :- WRIT - A No. - 9485 of 2024 Petitioner :- Rajiv Kumar Choudhary Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Urban Development Lko. And 2 Others Counsel for Petitioner :- Sridhar Awasthi Counsel for Respondent :- C.S.C.

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Hon'ble Abdul Moin,J.

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Heard Sri Sudeep Seth, learned Senior Advocate assisted by Sri Sridhar Awasthi, learned counsel for the petitioner and Sri Piyush Kumar, learned counsel for the respondent no. 1.

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Under challenge are the orders dated 01.10.2024 & 04.10.2024, copies of which are annexures 1 & 2 to the writ petition. Vide order dated 01.10.2024, the petitioner upon revocation of the suspension order had been posted at Nagar Nigam, Gorakhpur.

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Vide order dated 04.10.2024, the earlier order dated 01.10.2024 has been modified and he has been posted at Nagar Nigam, Varanasi as Account Officer.

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The facts of the case have already been noted in detail vide order dated 18.10.2024 which for the sake of convenience is reproduced below:-

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"1. Heard Shri Sudeep Seth, Senior Advocate assisted by Shri Sridhar Awasthi, learned counsel for the petitioner and Dr. Udaiveer Singh, learned Additional Chief Standing Counsel for the respondents.

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2. Under challenge is the order dated 01.10.2024, a copy of which is annexure-1 to the petition, passed by the Under Secretary whereby the petitioner upon being reinstated after revocation of the suspension order has been posted to Nagar Nigam, Saharanpur as Accounts Officer.

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3. The argument of the learned Senior Advocate is that in terms of the U.P. Palika Centralized Service Rules, 1966 with which rules the service conditions of the petitioner are governed, the appointing authority of the petitioner is State Government and as per the Rule 25 it is the State Government who can transfer any officer of the Centralized services from

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one place to the other.

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4. Placing reliance on the aforesaid rules, the argument is that it is only the State Government which could have passed am order of transfer of the petitioner and in this case it would be Principal Secretary of the concerned department who could have passed the transfer order of the petitioner but in the instant case as the order has been passed by Under Secretary as such it is apparent that the order impugned has been passed by an incompetent authority consequently the impugned order merits to be set aside on this ground alone.

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5. Further contention is that all the transfer orders have been passed by the Principal Secretary, copy of which have been filed collectively as Annexure4 to 6 of the petition.

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6. It is also contended that earlier the petitioner had been suspended by the Principal Secretary and has also been reinstated by the same authority consequently there cannot be any occasion for a subordinate authority to pass an order of transfer more particularly as when as per the rules it is only the State Government which could have passed the order of transfer.

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7. Learned Additional Chief Standing Counsel prays for and is granted three days' time to seek instructions in the matter.

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8. List this case in the next week as fresh."

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Thereafter, when the matter was listed on 24.10.2024, the Court had specifically required the learned Standing counsel to file a short counter affidavit categorically indicating as to whether the transfer order, which has been passed by the Under Secretary had been passed after approval of the competent authority.

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Counter affidavit has been filed to which rejoinder affidavit has also been filed by the learned counsel for the petitioner.

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From a perusal of the order dated 18.10.2024, it emerges that the sheet anchor of the challenge raised by the petitioner to the orders impugned is that the competent authority to transfer the petitioner is the Principal Secretary of the concerned department while the impugned orders have been passed by the Under Secretary and consequently, the same having been passed by an incompetent authority, the orders impugned are vitiated. No other ground has been urged.

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On the other hand, Sri Piyush Kumar, Advocate on the basis of averments made in the short counter affidavit more particularly paragraph 12 of the counter affidavit argues that in terms of the Uttar Pradesh Adhipramanikaran (Aadesh Aur Anya Likhit) Niyamawali, 1975 (hereinafter referred to as "Rules, 1975") an order on behalf of the State Government can be signed either by the Principal Secretary, Secretary, Special Secretary, Joint Secretary, Deputy Secretary or any other Secretary. It is further contended that the impugned orders were signed by the respondent no. 2 i.e the Under Secretary after the orders were duly approved by the State Government and the signature of the respondent no. 2 would not imply that the respondent no. 2 has himself taken a decision to post the petitioner from Gorakhpur to Varanasi.

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It is further argued that in terms of Rules, 1975, the Under Secretary would fall within the ambit of being "Other Secretary" as provided therein and thus, once the order of transfer has been issued by the State Government consequently, no error has been committed in the Under Secretary signing the said order after its approval as has categorically been stated in paragraph 12 of the counter affidavit. It is thus contended that the ground raised by the petitioner for raising a challenge to the orders impugned is thus patently misconceived and the writ petition deserves to be dismissed.

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Responding, Sri Seth, learned Senior Advocate on the basis of averments made in paragraphs 4 & 13 of the rejoinder affidavit argues that it was in the fitness of things that once the specific argument had been raised pertaining to there being no approval of the competent authority of the transfer order as such, the respondents should have placed on record the note sheets or other documents to indicate that the transfer orders of the petitioner had duly been approved by the competent authority i.e the Principal Secretary and non placing the said documents on record would indicate that there is no approval to

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the same.

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Heard learned counsel appearing on behalf of the contesting parties and perused the records.

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From the arguments as raised on behalf of the learned counsel appearing on behalf of the contesting parties and perusal of records it emerges that the petitioner is aggrieved by the orders dated 01.10.2024 and 04.10.2024 whereby upon revocation of his suspension order, the petitioner has been posted at Nagar Nigam, Varanasi as Accounts officer.

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The orders impugned have been passed under the signature of the Under Secretary which have been challenged on the ground that as per Rules, 1966 with which rules the service conditions of the petitioner are governed, the appointing authority of the petitioner is the State Government and as per Rule 25 of the Rules, 1966 it is the State Government who can transfer any officer of the centralized services from one place to the other and consequently, once the impugned orders have been passed the same could only have been passed by the Principal Secretary of the concerned department on behalf of the State Government but the orders impugned have been passed by the Under Secretary as such, the said orders have been passed by an incompetent authority and thus the orders impugned merit to be set aside.

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The respondents in the short counter affidavit have specifically referred to the provisions of the Rules, 1975 to contend that on behalf of the State Government, every order can be signed either by the Principal Secretary, Secretary, Special Secretary, Joint Secretary, Deputy Secretary or any other Secretary. The Under Secretary who has signed the impugned orders would thus fall within the ambit of being “ Other Secretary”. A specific averment has also been made in paragraph 12 of the counter affidavit filed on behalf of the respondents that the orders impugned were signed by the Under Secretary i.e the

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respondent no. 2 after the same were duly approved by the State Government.

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Incidentally, while filing the rejoinder affidavit , the specific averment as made in paragraph 12 of the counter affidavit has not been denied by the petitioner while replying to the said averments in paragraph 13 of the rejoinder affidavit rather the averments made in paragraph 12 of the short counter affidavit has been indicated to be irrelevant. There is a large difference between the averments being objected to as being “irrelevant” and “denied”.

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The word irrelevant is defined in the Cambridge Advanced Learner Dictionary, 3^rd Edition as “non related to what is being discussed or considered and therefore, of no importance.

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At the same time, denial is defined as “ a statement that something is not true but does not exist”.

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Accordingly, once the averments made in the short counter affidavit have not been denied rather have been indicated to be “ not being important” as such, in the absence of any specific denial the said averments are to be treated as true and correct.

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In this regard, it would be apt to refer to the judgment of the Apex Court in the case of Thangam and Anr Vs. Navamani Ammal(2024) 4 SCC 247 wherein the Apex Court has held as under:-

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22. Before we part with the judgment we are constrained to observe the manner in which the pleadings have been filed in the trial courts or may be in some cases in the High Courts.

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23. A perusal of the plaint filed by the respondent shows that it contains ten paragraphs besides the prayer. In the written statement filed by the appellants, no specific para-wise reply was given. It was the own story of the respondent containing fifteen paragraphs besides the prayer in Para 16.

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24. In the absence of para-wise reply to the plaint, it becomes a roving inquiry for the Court to find out as to which line in some paragraph in the plaint is either admitted or denied in the written statement filed, as there is no specific admission or denial with reference to the allegation in different paragraphs.

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25. Order 8 Rules 3 and 5CPC clearly provides for specific admission and denial of the pleadings in the plaint. A general or evasive denial is not treated as sufficient. Proviso to Order 8 Rule 5CPC provides that even the admitted facts may not be treated to be admitted, still in its discretion the

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Court may require those facts to be proved. This is an exception to the general rule. General rule is that the facts admitted, are not required to be proved.

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26. The requirements of Order 8 Rules 3 and 5CPC are specific admission and denial of the pleadings in the plaint. The same would necessarily mean dealing with the allegations in the plaint para-wise. In the absence thereof, the respondent can always try to read one line from one paragraph and another from different paragraph in the written statement to make out his case of denial of the allegations in the plaint resulting in utter confusion.

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27. In case the respondent-defendant wishes to take any preliminary objections, the same can be taken in a separate set of paragraphs specifically so as to enable the plaintiff/petitioner to respond to the same in the replication/rejoinder, if need be. The additional pleadings can also be raised in the written statement, if required. These facts specifically stated in a set of paragraphs will always give an opportunity to the plaintiff/petitioner to respond to the same. This in turn will enable the Court to properly comprehend the pleadings of the parties instead of digging the facts from the various paragraphs of the plaint and the written statement.

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28. The issue regarding specific admission and denial of the pleadings was considered by this Court in Badat & Co. v. East India Trading Co. [Badat & Co. v. East India Trading Co., 1963 SCC OnLine SC 9 : AIR 1964 SC 538] While referring to Order 8 Rules 3 to 5 CPC it was opined that the aforesaid Rules formed an integrated Code dealing with the manner in which the pleadings are to be dealt with. Relevant parts of para 11 thereof are extracted below : (Badat case [Badat & Co. v. East India Trading Co., 1963 SCC OnLine SC 9 : AIR 1964 SC 538] , AIR pp. 544-45)

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“ 11. Order 7 of the Code of Civil Procedure prescribes, among others, that the plaintiff shall give in the plaint the facts constituting the cause of action and when it arose, and the facts showing that the court has jurisdiction. The object is to enable the defendant to ascertain from the plaint the necessary facts so that he may admit or deny them. Order 8 provides for the filing of a written statement, the particulars to be contained therein and the manner of doing so; … These three rules form an integrated code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its non-compliance. The written statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively, but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary.”

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29. The matter was further considered by this Court in Lohia Properties (P) Ltd. v. Atmaram Kumar [Lohia Properties (P) Ltd. v. Atmaram Kumar, (1993) 4 SCC 6] after the 1976 Amendment Act in CPC whereby the existing Rule 5 of Order 8CPC was numbered as sub-rule (1) and three more sub-rules were added dealing with different situations where no written statement is filed. In paras 14 and 15 of the aforesaid judgment, the

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position of law as stated earlier was reiterated. The same are extracted below : (SCC pp. 8-9, paras 14-15)

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“ 14. What is stated in the above is, what amounts to admitting a fact on a pleading while Rule 3 Order 8 requires that the defendant must deal specifically with each allegation of fact of which he does not admit the truth.

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15. Rule 5 provides that every allegation of fact in the plaint, if not denied in the written statement shall be taken to be admitted by the defendant. What this rule says is, that any allegation of fact must either be denied specifically or by a necessary implication or there should be at least a statement that the fact is not admitted. If the plea is not taken in that manner, then the allegation shall be taken to be admitted.”

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Consequently, the law laid down by the Apex Court in the case of Thangam (supra) and there being no specific denial to the averments made in paragraph 12 of the short counter affidavit the Court has no option but to treat the said averments as true and thus it is apparent that even the Under Secretary, after approval of the order could have signed the order on behalf of the State Government.

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Even otherwise, as per the rules, 1975, an order on behalf of the State Government could be issued by “ Other Secretary” and as such, Under Secretary would fall within the ambit of being Other Secretary as provided under Rules, 1975 who could have signed the order on behalf of the State Government.

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Keeping in view the aforesaid discussion, no case for interference is made out. Accordingly, the writ petition is dismissed.

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Order Date :- 3.7.2025 Pachhere/-

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Digitally signed by :- SATYENDRA SINGH PACHHERE High Court of Judicature at Allahabad, Lucknow Bench

Rajiv Kumar Choudhary v. State of U.P. Thru. Prin. Secy. Deptt. of Urban Development Lko. and 2 Others

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Rajiv Kumar Choudhary v. State of U.P. Thru. Prin. Secy. Deptt. of Urban Development Lko. and 2 Others

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