Court No. - 39

Case :- WRIT - A No. - 12659 of 2019

Petitioner :- Gupteshwar Nath Yadav

Respondent :- State Of U.P. And 4 Others

Counsel for Petitioner :- Santosh Kumar Singh

Counsel for Respondent :- C.S.C.,Ramesh Chandra Upadhyay

Hon'ble Neeraj Tiwari,J.

When the case was taken up on 11.09.2019, Court has passed

the following the order:

"Heard learned counsel for the petitioner, learned standing counsel for

respondent Nos. 1 & 2, Sri Sanjay Chaturvedi, learned counsel for

respondent Nos. 3 & 4 and Sri R.C. Upadhyay, learned counsel for

respondent No. 5.

Learned counsel for the petitioner submitted that petitioner has been

transferred on a fake complaint dated 22.07.2019 made by Gram Pradhan

and without conducting proper inquiry, impugned transfer order dated

01.08.2018 has been passed which is stigmatic in nature. It is further

submitted that earlier petitioner had made a complaint against Gram

Pradhan, therefore, this fake complaint was filed upon which impugned

transfer order has been passed.

Sri Sanjay Chaturvedi, learned counsel for respondent Nos. 3 & 4 prays

for and is granted one week time to produce the recommendation of Block

Education Officer, Ballia and inquiry report, if any, as referred in the

impugned transfer order.

Put up this case on 19.09.2019 in the additional cause list showing the

name of Sri Sanjay Chaturvedi as counsel for respondent Nos. 3 & 4.

It is made clear that this Court has not granted any interim order in

favour of the petitioner."

Pursuant to that, Sri Sanjay Chaturvedi, learned counsel for the

respondent nos. 3 & 4 has produced the instruction dated

1.8.2019. By perusal of same, it is absolutely clear that no

opportunity of hearing was given to the petitioner prior to

transfer order dated 01.08.2018, which is stigmatic in nature

though the allegations are serious including moral turpitude, but

there is ex-parte enquiry report of Block Education Officer

dated 19.7.2019 against the petitioner.

Learned counsel for the petitioner submitted that in all

eventuality, without providing opportunity of hearing, stigmatic

transfer order in shape of punishment cannot be passed. In

support of his contention, he placed reliance upon the judgment

of Apex Court in the matter of Somesh Tiwari Vs. Union of

India reported in 2008 LawSuit (SC) 1822 and judgment of

Sabhapati Pathak S/O Late Indar Pal Pathak Vs. State of U.P.

& others reported in 2012 LawSuit (All) 696 given by this

Court relied upon judgment of Somesh Tiwari (Supra).

Sri Sanjay Chaturvedi, learned counsel for the respondent nos.

3 & 4 submitted that there are serious allegations against the

petitioner and warranted to dismissal of his service, but he

could not dispute this fact that Block Education Officer

submitted report without providing opportunity of hearing to

petitioner relying upon which impugned transfer order has been

passed, which is stigmatic in nature.

I have perused the impugned transfer order dated 1.8.2018 as

well as judgments of Somesh Tiwari & Sabhapati Pathak

(Supra).

In paragraph 20 of Somesh Tiwari (Supra), the Supreme Court

has held as follows:-

"20. 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."

Following the same, this Court in the matter of Sabhapati

Pathak (Supra) has held as follows:

"8 The impugned order, in this case, clearly show that after receiving

enquiry report and founded thereon the petitioner is being transferred.