Allahabad High Court
Dhananjay Kumar Soni vs State Of U P And 5 Others on 14 November, 2022
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 34
Case :- WRIT - A No. - 15796 of 2022
Petitioner :- Dhananjay Kumar Soni
Respondent :- State Of U P And 5 Others
Counsel for Petitioner :- Pradeep Kumar Upadhyay
Counsel for Respondent :- C.S.C.
Hon'ble Pankaj Bhatia,J.
Heard the counsel for the petitioner and the learned Standing Counsel.
The present petition has been filed challenging the transfer order dated 30.06.2022 as well as the order dated 27.09.2022 whereby the petitioner has been transferred to the vacant post in the office of District Basic Education Officer, Prayagraj.
The contention of the counsel for the petitioner is that the first order dated 30.06.2022 was passed reinstating the petitioner who was earlier suspended. Along with the said reinstatement order, the petitioner was transferred to the office of the District Basic Education Officer, Prayagraj. As the petitioner was not permitted to join on the said post, the petitioner made a representation requesting that the petitioner may be permitted to join in the office of the DIOS, Prayagraj. In terms of the said representation, fresh order came to be passed on 27.09.2022 stating that the petitioner shall work in the office of the Rajkiya Balika Inter College, Shankergarh, Prayagraj.
The contention of the counsel for the petitioner is that the order impugned are punitive in nature. He places reliance on paragraph 16 and 17 of the judgment of the Supreme Court in the case of Somesh Tiwari vs. Union of India and others (2009) 2 SCC 592, which are quoted herein below :
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 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.
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'."
In the light of the said, he argues that the order is punitive. He further argues that neither the petitioner has been permitted to join at the original post nor he has been paid the salary.
On perusal of the impugned order dated 30.06.2022 it is revealed that the suspension order of the petitioner was recalled, however, the contention of the counsel for the petitioner that the transfer is punitive is not reflected from the order dated 30.06.2022. On request of the petitioner that he may be reabsorbed in the office of the DIOS, fresh order has been passed on 27.09.2022 permitting the petitioner to work in the office of the Rajkiya Balika Inter College, Shankergarh, Prayagraj, the same also cannot be termed as punitive transfer as such, requires no interference by this Court. However, it is directed that as the petitioner is not being permitted to work, the petitioner would be entitled to the entire salary which shall be paid to the petitioner in accordance with law within a period of two months from today. The petitioner will be permitted to join at the new place of transfer. However, in case the petitioner is aggrieved, he may move a fresh application, which shall be considered in accordance with law.
The writ petition stands disposed off with the said observations.
Order Date :- 14.11.2022
VNP/-
