Allahabad High Court
Suresh Kumar Tiwari vs State Of U.P. Thru. Prin. Secy. ... on 1 August, 2019
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 20
Case :- SERVICE SINGLE No. - 20989 of 2019
Petitioner :- Suresh Kumar Tiwari
Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Home & Ors.
Counsel for Petitioner :- Santosh Kr. Yadav "Warsi"
Counsel for Respondent :- C.S.C.
Hon'ble Abdul Moin,J.
Heard learned counsel for the petitioner and learned Standing Counsel appearing for respondents.
The petitioner being aggrieved with the transfer order dated 26.07.2019, a copy of which is Annexure-1 to the petition, by which he has been transferred from Kanpur Nagar to Barabanki, is before this Court.
Learned counsel for the petitioner contends that the petitioner has been transferred on administrative exigency though the petitioner is due to retire on attaining the age of superannuation on 30.09.2020. Placing reliance on Paragraph 11(x) of the transfer policy dated 29.03.2018, it is contended that the said transfer policy itself stipulates that the persons at the fag end of their service should either not be transferred or should be accommodated at the place of their choice. It is contended that the respondents while issuing the impugned transfer order, although contending that the same is in pursuance to the transfer policy, have themselves flagrantly violated the transfer policy. It is thus prayed that the transfer order dated 26.07.2019 be quashed.
On the other hand, learned Standing Counsel submits that transfer is an incidence of service. As the petitioner is holding a transferable post consequently he does not have a right to remain at a particular post. So far as the alleged infraction of the transfer policy dated 29.03.2018 is concerned, it is submitted that the said transfer policy is only an executive instructions and is not enforceable in a Court of law. The said policy is not statutory and every employer has got a right of posting of its employees at any place and it is the prerogative of the employer.
Upon this, learned counsel for the petitioner contends that as on date the petitioner has not been relieved and is continuing to work at the said place. It is contended that the petitioner has also submitted a representation dated 28.07.2019 to respondent no.3, a copy of which is Annexure-5 to the petition, and prays that the said representation be decided by the competent authority in accordance with law and transfer policy within a specified time.
To the said prayer, learned Standing Counsel has no objection.
Having heard learned counsel for the contesting parties and having perused the records, it clearly comes out that the petitioner is due to retire on attaining the age of superannuation on 30.09.2010 as per specific averment made in paragraph 8 of the writ petition. The transfer policy dated 29.03.2018 itself stipulates in paragraph 11(x) that the persons at the fag end of their service should either not be transferred or should be accommodated at the place of their choice. The transfer order has been passed in pursuance to the transfer policy although, as already indicated above, the transfer policy itself provides protection to the employees at the fag end of their service. This aspect of the matter has not been considered by the respondents while issuing the impugned transfer order dated 26.07.2019 so far as it pertains to the petitioner.
Accordingly, keeping in view the aforesaid discussions, the present petition is disposed off directing respondent no.3 to consider the pending representation of the petitioner dated 28.07.2019, a copy of which is Annexure-5 to the petition, and pass a speaking and reasoned order within a period of three weeks from the date of receipt of certified copy of this order.
Till such consideration is done on the pending representation of the petitioner, no coercive steps shall be taken against the petitioner in pursuance of the impugned transfer order dated 26.07.2019.
Order Date :- 1.8.2019
A. Katiyar
