Heard Sri Jay Shanker Shukla, learned counsel for the petitioner and Ms. Jyoti Sikka, learned Addl. Advocate General, assisted by Sri Shailendra Kumar Singh, learned Chief Standing Counsel-III for the State-respondents.
At the very outset, Sri Shailendra Kumar Singh, learned Chief Standing Counsel-III has drawn attention of this Court towards the order dated 20.9.2021 passed by this Court in Service Single No.21036 of 2021, Avnesh Kumar Vs. State of U.P. & Ors, by submitting that the case of the present petitioner is identical with the case of Avnesh Kumar (supra) inasmuch as the place of posting of the present petitioner is unchanged in the same manner as the place of posting of Avnesh Kumar (supra) was unchanged, therefore, the present writ petition may be decided in terms of order dated 20.9.2021. For the convenience, the order dated 20.9.2021 passed in re; Avnesh Kumar (supra) is being reproduced herein below:-
"1. Heard Sri Jay Shanker Shukla, learned counsel for the petitioner and Ms. Jyoti Sikka, learned Additional Advocate General of U.P. for the State-respondents.
2. By means of this petition, the petitioner has assailed the order dated 27.7.2021 passed by the Special Secretary, Finance (Services) Anubhag-1, Government of U.P. addressing to the Director, Internal Accounts and Audit Examination, Lucknow suspending the operation of all transfer orders of the employees made for the session 2021-22 until further orders. The petitioner has also assailed the office order dated 28.7.2021 passed by the Director, Internal Accounts and Audit Examination, U.P., Lucknow in compliance of the order dated 27.7.2021 staying the transfer orders issued from 22.6.2021 to 15.7.2021.
3. Contention of learned counsel for the petitioner is that the petitioner, who is serving on the post of Accountant in the office of Superintendent, Central Jail, Fatehgarh, Farrukhabad, has been transferred vide order dated 15.7.2021 (Annexure No.8) in the public interest to the office of Finance Controller (Vittiya Paramarshdata), Zila Panchayat, Farrukhabad. Learned counsel for the petitioner has contended that as soon as the transfer order dated 15.7.2021 was passed, the petitioner submitted his joining at the transferred place, therefore, after submitting his joining at the transferred place, his transfer order may not be suspended by means of impugned order dated 27.7.2021. Further, the consequential order dated 28.7.2021 passed by the Director concerned staying all transfer orders is illegal.
4. Learned counsel for the petitioner has further submitted that some identical writ petitions are pending and in some of identical writ petitions, interim orders have been granted. Learned counsel for the petitioner has drawn attention of this Court towards an order dated 17.9.2021 passed by the Division Bench of this Court in Special Appeal No.339 of 2021 whereby the Division Bench of this Court has stayed the order dated 27/28.7.2021 on the basis of principles of parity observing that since the interim order has been passed in favour of some employees, therefore, the appellant before the Division Bench is also entitled for the same benefit in view of the dictum of the Hon'ble Apex Court in re; Vishnu Traders vs. State of Haryana and others, reported in 1995 Supp. (1) SCC 461. For the convenience, the order dated 17.9.2021 passed by the Division Bench in Special Appeal No.339 of 2021 is being reproduced herein below:-
"This intra-court appeal has been filed against the judgment and order dated 07.09.2021 passed by learned Single Judge in Writ Petition No.19887 (SS) of 2021 in re: Satya Narayan Gautam vs. State of U.P. and others, whereby the writ petition preferred by the petitioner/appellant has been dismissed.
Heard.
Admit.
Issue notice.
Since the respondents are represented by learned Standing Counsel no steps are required to be taken for issuance of notice.
Learned counsel for the appellant submits that vide order dated 15.07.2021 several persons were transferred on their own request. The petitioner/appellant was also transferred on his request on the post of Accountant. The said transfer order was subsequently suspended by the State Government vide order dated 27.07.2021 after joining of the transferred persons including the appellant on the transferred place. The competent authority through his order dated 28.07.2021 directed to join back at the earlier place of posting. The aforesaid orders were challenged by several persons by filing separate writ petitions namely Writ Petition No.17278 (SS) of 2021 in re: Akansha Tripathi vs. State of U.P. and others, Writ Petition No.9907 (SS) of 2021 in re: Munish Kumar Srivastava vs. State of U.P. and others, Writ Petition No.18115 (SS) of 2021 in re: Gyanendra Kumar vs. State of U.P. and others, and Writ Petition No.19103 (SS) of 2021 in re: Shankar Lal Agrawal vs. State of U.P. and others, wherein the Court had granted indulgence and stayed the impugned order dated 27/28.07.2021. The submission of learned counsel for the appellant is that the appellant/petitioner is also entitled to get parity of the aforesaid orders as he is similarly situated like the others. However, learned Single Judge dismissed the writ petition on the first day itself. In support of his submission, learned counsel for the appellant/petitioner has relief on the case of Vishnu Traders vs. State of Haryana and others reported in 1995 Supp. (1) SCC 461, to emphasize that there should be parity in grant of the interim orders.
We have considered the submissions of learned counsel for the parties and gone through the records.
Once the interim order has been passed in the cases of similarly situated persons, the appellant/petitioner was entitled to get parity. As such, we stay the operation of the impugned judgment and order dated 07.09.2021 as well as the order dated 27/28.07.2021 till further orders of this Court.
However, it would be open for the respondents to pass fresh orders."
5. I have also granted interim order in favour of the employee, who had sought transfer at particular district apprising his grievance and said transfer order was passed on his request and thereafter, such employee submitted his joining at the transferred place, therefore, I was of the opinion that when any transfer order is passed considering the request of an employee and such employee has submitted his joining at the transferred place, such transfer order should not be suspended by way of general order staying all transfer orders.
6. However, I had also an occasion to decide an identical writ petition bearing Writ Petition No.19965 (S/S) of 2021, whereby the transfer of such employee was made in public interest and he submitted his joining pursuant to the earlier transfer order. When his transfer order was suspended by a general orders dated 27.7.2021 and 28.7.2021, he assailed such order placing same analogy that once an employee has submitted his joining at the transferred place, his/ her transfer order may not be suspended or withdrawn. Dismissing that writ petition considering the fact that place of said petitioner was unchanged, therefore, no legal prejudice is being caused to him and even his place of posting is unchanged, no interference was made in that transfer order in terms of order dated 6.9.2021 passed by the Hon'ble Apex Court in re; Namrata Verma v. The State of Uttar Pradesh & Ors., Special Leave to Appeal (C) No(s).36717/2017. For the convenience, the order dated 6.9.2021 reads herein below:-
"Heard Mr. Parvez Bashista, learned counsel appearing for the petitioner and Mr. Sanjay Kumar Tyagi, learned counsel appearing for the respondent-State of U.P.
It is not for the employee to insist to transfer him/her and/or not to transfer him/her at a particular place. It is for the employer to transfer an employee considering the requirement.
The Special Leave Petition is dismissed.
Pending applications stand disposed of."
7. Ms. Jyoti Sikka, learned Additional Advocate General has submitted that the decision of the Hon'ble Apex Court in re; Namrata Verma (supra) might have not been placed for consideration before the Division Bench of this Court and difference of the facts being considered by this Court might have not been apprised properly, therefore, the order dated 17.9.2021 would have been passed. However, she has submitted that the State is willing to file counter affidavit in the said special appeal apprising each facts and circumstances in detail including the order of the Hon'ble Apex Court in re; Namrata Verma (supra).
8. By means of impugned order dated 27.7.2021 (Annexure No.1), all the transfer orders issued for the transfer session 2021-22 have been suspended until further orders and as per Ms. Sikka, the fact finding enquiry is going on and as soon as the report of fact finding enquiry is received to the competent authority, appropriate orders would be passed. In case the competent authority finds that the earlier transfer orders issued in favour of the petitioner and other employees are appropriate orders, such employees would be permitted to discharge their respective duties at the transferred place and if it is found that such transfer orders were not passed strictly as per policy or law, those transfer orders would be cancelled and the employees would have to submit their joining at the earlier places. In any case, since no final decision has yet been taken, therefore, grievance of the petitioner that by means of impugned order dated 27.7.2021 and 28.7.2021 (Annexure Nos.1 & 2), the earlier transfer orders of the petitioner have been cancelled is misconceived. The said transfer order has been suspended for the time being till any appropriate order is passed by the competent authority.
9. Besides, if the transfer order of the petitioner is permitted to be existed, in that case he shall remain be posted at Farrukhabad and in case his transfer order is cancelled, even in that case he shall remain be posted at Farrukhabad. The present petitioner shall remain be posted at Farrukhabad in any eventuality. Therefore, I wonder as to why the present transfer order has been challenged by the petitioner when his place of posting is unchanged in any circumstance. The Hon'ble Apex Court has time and again and also in re; Namrata Verma (supra) has categorically observed that the employee may not insist for particular place of posting.
10. In view of the above, I do not find any infirmity or illegality in the impugned orders dated 27.7.2021 passed by opposite party no.2 and 28.7.2021 passed by opposite party no.3 (Annexure Nos.1 & 2).
11. Therefore, the writ petition is dismissed being misconceived."
Sri Shukla, learned counsel for the petitioner has submitted that even if the place of posting of the petitioner is unchanged, even then the transfer order earlier passed in favour of the petitioner pursuant to which the petitioner has submitted his joining may not be suspended by means of impugned orders dated 27.7.2021 and 28.7.2021 (Annexure Nos.1 & 2) passed by the Special Secretary and Director respectively. Since the earlier transfer order dated 12.7.2021 was passed strictly in terms of transfer policy of the State Government, which provides that after three years of service, the place of posting of an employee should be changed and following such guideline, the place of posting o the petitioner was changed from the office of Block Development Officer, Kadarchauk, Badaun to the office of Finance Advisor (Vittiya Paramarshdata), Zila Panchayat, Badaun in public interest on the vacant post. Therefore, if the transfer order dated 12.7.2021 pursuant to which the petitioner has submitted his joining in the office of Vittiya Paramarshdata, Zila Panchayat, Badaun is suspended, at least an opportunity of hearing to the petitioner should be afforded. Sri Shukla has submitted that the law is trite to the effect that if any person submits his joining pursuant to the transfer order, the same may not be suspended, withdrawn or cancelled.
Sri Sri Shailendra Kumar Singh, learned Chief Standing Counsel-III, has informed on the basis of instructions that the Director, who had made transfer of the employees for the session 2021-22, has been placed under suspension pursuant to the fact finding enquiry for the reason that while transferring the employees for the session 2021-22, the relevant guidelines and mandate of policy have not been considered properly, however, final decision is pending consideration before the Government regarding those transfer orders, which have been suspended until further orders.
On being confronted the learned counsel for the petitioner as to what legal right of the petitioner has been flouted or violated by means of impugned orders dated 27.7.2021 and 28.7.2021 when the place of posting shall remain unchanged in case the earlier transfer order is cancelled or survived, learned counsel for the petitioner has submitted that when any order has been passed without following the due procedure of law, that may not be permitted to sustain any longer.
Be that as it may, the transfer is an incidence of service, therefore, the courts do not normally interfere such orders unless such order has been passed in a violation of rules or is an outcome of malice in law. Both the aforesaid grounds are missing in this case. The law is trite in re; Krishna Chandra Dubey Vs. Union of India (UOI) and Ors. (Civil Misc. Writ Petition No.52249 of 2000), that it is very well within the domain of the competent authority to modify the transfer order or to cancel the transfer order even if the same has been executed. Recently, the Hon'ble Apex Court in re; Namrata Verma v. The State of Uttar Pradesh & Ors., Special Leave to Appeal (C) No(s).36717/2017, has held that the employee may not request his/ her posting at any particular place. In the present case, if the transfer order dated 12.7.2021 (Annexure No.6) is cancelled, the petitioner shall remain be posted at Badaun and if such transfer order survives, in that case the petitioner shall remain be posted at Badaun. Further, the transfer policy is only a guideline and such guideline may not be executed through writ court unless there is any statutory violation, therefore, the plea of the petitioner that suspending the transfer order dated 12.7.2021 would be violative of transfer policy is misconceived. It is made clear that the facts of the case wherein the interim order has been granted are different inasmuch as such employee had placed his grievance before the competent authority seeking transfer and considering his bonafide grievance, he was transferred at particular place. Further, such transfer is permissible but his transfer order was also suspended by means of impugned orders dated 27.7.2021 and 28.7.2021 even after submitting his joining, therefore, the interim order was granted in favour of such employee seeking counter affidavit from the State Government. In other cases where the place of posting is unchanged, no interim order has been granted by this Court as informed by the learned Chief Standing Counsel.
In view of the above, I do not find any infirmity or illegality in the impugned orders dated 27.7.2021 passed by opposite party no.2 and 28.7.2021 passed by opposite party no.3 (Annexure Nos.1 & 2).
Therefore, the writ petition is dismissed being misconceived.
[Rajesh Singh Chauhan,J.] Order Date :- 21.9.2021 RBS/-