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2024 Supreme(Online)(ALL) 2545
HIGH COURT OF ALLAHABAD
Hon'ble J.J. Munir,J.
Vijay Kumar Yadav – Appellant
Versus
State Of U.P. And 8 Others – Respondent
WRIT - A No. - 16814 of 2024 at Allahabad
Petitioner: Ajeet Kumar and Mahendra Kumar Yadav
Respondent: Abhishek Srivastava , Adarsh Bhushan , C.S.C. and Manoj Kumar Srivastava
A transfer order executed as punishment rather than for administrative necessity constitutes malice in law and is liable to be quashed.
Headnote:(A) Transfer of Service - Power of Transfer - The Chief Engineer's order transferring the petitioner from one division to another within four months of his transfer on request raises concerns of mala fide exercise of power - The transfer was found to serve as a substitute for disciplinary action, violating established principles regarding transfer orders. (Paras 5, 10, 12, 14)
(B) Administrative Exigency - An order of transfer must be based on genuine administrative exigency and not as a punitive measure. (Paras 11, 12)
(C) Legal Principle - The principle of malice in law applies when a transfer is executed as punishment rather than for administrative needs, as established in Somesh Tiwari v. Union of India. (Paras 12, 13)
Facts of the case:
The petitioner, an Assistant Engineer, was transferred within four months of a prior transfer to Prayagraj, which was requested due to his wife's government employment. The transfer raised suspicions of mala fides due to concurrent complaints against him.
Findings of Court:
The court found that the transfer was executed as a form of punishment, thereby quashing the order.
Issues: Whether the transfer order was executed in mala fide and whether it constituted a punishment rather than an administrative necessity.
Ratio Decidendi: The court held that using transfer as a punitive measure violates principles of administrative justice and constitutes malice in law.
Result: The impugned transfer order is quashed.
JUDGMENT :
J.J. Munir, J.
1. This writ petition is directed against the transfer order dated 09.10.2024 passed by the Chief Engineer, Distribution Division-II, Prayagraj, transferring the petitioner, an Assistant Engineer, from the Electricity Distribution Sub-Division Katehara, Electricity Distribution Division, Handia, Prayagraj to the Electricity Distribution Sub-Division-City, Pratapgarh, falling under the Electricity Distribution Division-I, Pratapgarh.
2. The facts of this case would show that the petitioner has been in the employ of the Uttar Pradesh Power Corporation Limited, Lucknow (for short, 'the Corporation') since the year 2008. He was posted at Prayagraj (then called Allahabad) from the year 2008 to April, 2013 in different establishments. In April, 2013, he was transferred to Ghazipur, but in November, 2015, he was back at Prayagraj, where again he served in different positions in varying establishments, up to the month July, 2019. In July, 2019, he was transferred to the Gorakhpur Zone and then posted at Bhatpaarrani, Deoria. He remained posted in the Gorakhpur Zone up to 28.06.2024, when on his request that his wife was serving as a Lecturer with a Government Institution, to wit, the Gauri Pathshala Inter College, Malviya Nagar, Prayagraj. he was transferred to Prayagraj once again.
3. A perusal of the transfer order dated 28.06.2024 passed by the Managing Director, Purvanchal Vidyut Vitaran Nigam Limited, Varanasi, would show that the petitioner was transferred from the Electricity Test Division-I, Gorakhpur to Prayagraj under the control of the Chief Engineer (Distribution), Prayagraj Region-II. In Column No.5 of the said order, there is a remark, which reads: “swayam ke anurodh par pati-patni sarkari sewa me karyarat”.
4. The Chief Engineer (Distribution)-II vide order dated 30.06.2024 posted the petitioner to the Electricity Distribution Sub-Division, Katehara, Prayagraj, falling under the Electricity Distribution Division, Handia, Prayagraj. This posting was given to the petitioner on administrative grounds, bearing in mind the interest of the Corporation. This is what is said in the remarks column carried in the order dated 30.06.2024. Now, by the impugned order dated 09.10.2024, the Chief Engineer (Distribution)-II, Prayagraj has transferred the petitioner from the Electricity Distribution Sub-Division, Katahara, Prayagraj, falling under Electricity Distribution Division, Handia, Prayagraj to the Electricity Distribution Sub-Division-City, Pratapgarh, falling under the Electricity Distribution Division-I, Pratapgarh.
5. This Court issued a notice of motion vide order dated 08.11.2024 in the following terms:
“The petitioner says that he was transferred from Gorakhpur to Prayagraj on his own request vide order dated 28.06.2024 because his wife is in government service posted at Prayagraj. Now, by the impugned order dated 19.10.2024, he has been transferred from Prayagraj to Pratapgarh.
Prima facie once an employee is transferred on his request to a particular station on ground that his wife is posted there, a swift transfer to another station within four months may give rise to an inference of mala fide exercise of power.
Issue notice.
Let the Chief Engineer, Distribution-II, Prayagraj file a counter affidavit, which shall be his own affidavit, showing cause why on an inference of mala fide exercise of power, the impugned order be not quashed.
Looking to the short point involved, lay this matter as fresh on 21.11.2024, by which time, the required counter affidavit shall be positively filed by the Chief Engineer.
Let this order be communicated to the Chief Engineer, Distribution-II, Prayagraj through the Chief Judicial Magistrate, Allahabad by the Registrar (Compliance) within 24 hours.
6. A counter affidavit has been filed on behalf of respondent No.9.
7. Heard Mr. Shivdutt Yadav, Advocate holding brief of Mr. Mahendra Kumar Yadav, learned Counsel for the petitioner, Mr. Manoj Kumar Srivastava, learned Counsel appeari
