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IN THE HIGH COURT OF ALLAHABAD
R.B. Misra, J.
RAM AWADH RAM - Appellant
Vs.
STATE OF U.P. AND ANOTHER - Respondent
C.M.W.P. No. 24803 of 2004
Decided on : 20-11-2004
Transfer - Government Policy and Rules - U.P. District Offices (Collectorates) Ministerial Service Rules, 1980 - Rule 27 - General Transfer policy dated 3.6.2004 - Transfer of office bearer of a recognized trade union - Violation of transfer policy and rules - Judicial review of transfer order
Fact of the Case:
The petitioner, an office bearer of a recognized trade union, challenged a transfer order from Azamgarh to Meh Nagar, citing violation of the Government transfer policy and rules. The subsequent transfer order was also challenged, and the State Government rectified the initial order by transferring the petitioner back to Tehsil Sadar of District Azamgarh.
Finding of the Court:
The court found that the transfer of the petitioner was illegal and in violation of the Government transfer policy and rules. The subsequent transfer order did not rectify the initial illegality and was also set aside.
Issues: Violation of Government transfer policy and rules, legality of subsequent transfer order, judicial review of transfer order
Ratio Decidendi: The court held that the transfer of the petitioner was in violation of the Government transfer policy and rules, specifically Rule 27 of the U.P. District Offices (Collectorates) Ministerial Service Rules, 1980, and the General Transfer policy dated 3.6.2004. The subsequent transfer order did not rectify the initial illegality and was also set aside.
Final Decision: The writ petition was allowed, and the impugned transfer orders dated 29/30.6.2003 and 9.7.2004 were set aside.
R.B. Misra, J.
Heard Sri H.R. Misra along with Sri K.M. Misra, learned Counsel for the petitioner, and learned Standing Counsel for the State respondents.
2. Counter and rejoinder affidavits have been exchanged, therefore, with the consent of learned Counsels for the parties this writ petition is decided finally at this stage in view of the Second Proviso to Rule 2 of Chapter XXII of the Allahabad High Court Rules, 1952.
3. In this petition prayer has been made for issuance of writ of certiorari quashing the order dated 22/30.6.2004 (Annexure-4 to the writ petition) so far as it relates to the petitioner passed by the District Magistrate. Azamgarh transferring the petitioner from Azamgarh to Meh Nagar by a general transfer order. On the oral prayer of learned Counsel for the petitioner the subsequent transfer order dated 9.7.2004 was allowed to be challenged in the present petition.
4. The brief facts necessary for adjudication of the writ petition are that the petitioner was initially selected and appointed as a Clerk in the Collectorate, Azamgarh in February, 1982 and at the relevant time was posted as Reader in the Court of Additional Magistrate (Second), Azamgarh. The service of the petitioner is governed by U.P. District Offices (Collectorates) Ministerial Service Rules, 1980 (hereinafter in short called as the 'Rules, 1980'). Rule 3 (a) of 'Rules, 1980' defines the appointing authority that in the case of Superintendent the appointing authority means the Commissioner of the Division and in the case of all other posts means the District Officer of the District, i.e. the District Magistrate, who is authorised to transfer the staff of the clerical cadre. Rule 27 of 'Rules, 1980' provides as under:
"27. Transfers.--Transfer from one post to another in the same office shall be made by the District Officer. Transfer from one district to another in the same Division may be made by the Commissioner. Transfer from one Division to another may be made by the Board of Revenue or by mutual arrangement between the Commissioners of the concerned divisions with the approval of the Board of Revenue.
In making these transfers the general policy laid down by the Government from time to time shall be followed."
5. It appears that to regulate the transfer of subordinate ministerial cadre general transfer policy was promulgated and in reference thereto on 3rd March, 1983 an 6rder (Annexure-2 to the writ petition) was issued, which reads as below:
^^'kklukns'k
la[;k 393@dk@4@7 bZ- ,e-@83
izs"kd Jh ujs'k pUnz lDlsuk
lfpo] m- iz- 'kklu A
lsok esa]
leLr foHkkxk/;{k ,oa izeq[k dk;kZy;k/;{k]
mÙkj izns'k A
dkfeZd vuqHkkx&4 y[kuÅ fnukad 3 ekpZ] 1983
egksn;]
eq>s ;g dgus dk funs'k gqvk gS fd 'kklu }kjk fu.kZ; fy;k x;k gS fd ljdkjh deZpkfj;ksa ds ekU;rk izkIr lsok la?kksa ds v/;{k ,oa lfpo dk LFkkukUrj.k muds vius laxBu esa in /kkfjr djus dh frfFk ls nks o"kZ rd u fd;k tk; A ;g lqfo/kk mä inkf/kdkf;ksa dks laxBu esa cus jgus dh vof/k rd gh vuqeU; gksxh] vFkkZr~ ;fn nks o"kZ dh vof/k ds iqoZ gh laxBu esa inkf/kdkfj;kssa ds pquko fuokZpu ;k fdlh vU; dkj.kksa ls og vius in ls gV tkrs gSaa rc ;g lqfo/kk ml le; rd gh lhfer jgsxh tc rd os laxBu esa in/kkfjr djrs gSa A bl vof/k esa ;fn vifjgk;Z dkj.k o'k fdUgha iz'kklfud dkj.kksa ls mä inkf/kdkjh@inkf/kdkfj;ksaa dk LFkkukUrj.k djuk vko';d gks rks ml n'kk esa LFkkukUrj.k djus okys vf/kdkjh ls ,d Lrj Åij vf/kdkjh dh vuqqefr LFkkukUrj.k ds dkj.kkaas dks n'kkZrs gq;s izkIr dh tk;s A
vkils vuqjks/k gS fd ekU;krk izkIr lsok la?kksa ds iz'uxr inkf/kdkfj;ksa ds LFkkukUrj.k fo"k;d mijksä O;oLFkk dk vuqikyu lqfuf'pr fd;k tk;s A
ujs'k pUnz lDlsuk
lfpo**
6. Subsequently, in reference thereto on 3rd June, 2004 the Chief Secretary of State of Uttar Pradesh had issued a Government Order/circular to all the Principal Secretaries/ Secretaries/Head of Departments of the State Government, para-10 of which provides as below:
^^10- ljdkjh deZpkfj;ksa ds ekU;rk izkIr lsok la?kksa ds inkf/kdkfj;ksa ds LFkkukUrj.k&&ljdkjh lsodksa ds ekU;rk i
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