High Court

1. Heard Shri Sandeep Dixit, learned Senior Advocate assisted by Shri Om Prakash Pandey, learned counsel for petitioner, learned Standing Counsel for the State and perused the material available on record.

2. Learned Standing Counsel presses application for vacation of interim order dated 07.11.2024. The said application has been filed along with counter affidavit.

3. By means of the present writ petition the petitioner has approached this Court challenging the impugned order dated

26.09.2024 whereby petitioner, who was working on the post of Joint Director Homeopathic, in Homeopathy Directorate at Lucknow was attached to State Homeopathic District Hospital Siddharth Nagar. The said attachment order was assailed before this Court and it was submitted that the State Government had issued a detailed guidelines known as the transfer policy for transfer sessions 2024-25 wherein it is provided that the prior approval of the Hon'ble Chief Minister should be taken in case the transfer is made after transfer sessions.

4. In the present case the transfer having been made after the transfer sessions 2024-25, approval of the Chief Minister was necessary and accordingly, time was granted to the learned Standing Counsel to obtain instructions in this regard. It is only after confirming the fact that no approval was available or had been granted, the Court had proceeded to consider the application for interim relief filed by the petitioners and by means of interim order dated 07.11.2024 this Court had taken into account the fact that once there was an embargo for transfer of a government servants after the end of transfer sessions unless and until the approval of the Chief Minister is taken and only to circumvent to said guidelines, a colourable exercise of power has been exercised by the respondents by passing the orders of attachment. Another order has also been brought to the knowledge of this Court dated 30.06.2024 passed by the Principal Secretary of the Ayush Department Government of U.P. stating that no transfer would be made for the transfer sessions 2024-25 and further in case, there is any administrative exigency then approval of the Chief Minister would be obtained before giving effect to such transfers.

5. In the reply submitted by the respondents in paragraph no. 9 of the counter affidavit, the averments of the said government orders having been denied but it has been stated that the petitioners have been attached as stated above in view of functional requirements.

6. In the aforesaid circumstances, it is noticed that various guidelines, enactments and rules are made only to enable the governments to function in accordance with law and to prevail the concept of rule of law. It is fur this purpose for limiting the discretion of various authorities and to ensure that they work within the ambit of the rules, various guidelines and governments orders are passed repeatedly.

7. It is in this regard that a transfer policy is issued by the State Government, which is applicable. The said rules only ensure that the government servants are not discriminated and treated in arbitrary manner and also to ensure not just equality of law but equal protection of laws as mandatory under Article 14 of the Constitution of India.

8. It is clear from perusal of the counter affidavit that the petitioners have been sent to the new place of posting as a measure of transfer which clearly they themselves had barred by issuing various government orders including the order dated

03.04.2024. The State Government cannot be seemed to act arbitrary or contrary to rules and guidelines framed by them and even if there was a funtional necessity, which this Court does not doubt or dispute even in the said contingency it is incumbent upon the State to have taken prior approval of the Chief Minister.

9. There is no reason as to why they have not either taken the approval of the Chief Minister or have sought the approval but it was rejected. In either of the circumstances, they are bound by their own decision not to give effect any effect of the transfer order subsequent to the transfer sessions. In the entire counter affidavit there is no other averment, which may lead or to believe that the transfer order has been passed in accordance with law.

10. In light of the above, no ground for interfering in the interim order dated 07.11.2024 is made out. Accordingly, application for vacation of stay is rejected. (CMA No. 3 of 2024-Application for Vacation of Stay Order dated 22.11.2024)

11. This Court finds that with the same averments counter affidavit was filed in Writ-A No. 11052 of 2024 where this Court by means of interim order dated 22.11.2024 has stayed the suspension of the petitioner on account of the fact that they had not complied with the order of attachment. Considering the fact that this Court has already stayed the order of attachment, accordingly, the consequential transfer order had also been stayed and after perusal of the counter affidavit as discussed here-in-above, this Court does not find any reason to modify or vacate the interim order dated 22.11.2024.

12. Accordingly, application for vacation of interim order dated

22.11.2024 is rejected.

13. Learned counsel for petitioner prays for and is granted a week's time to file rejoinder affidavit.

14. List this case on 11.02.2025.

15. The parties shall come prepared for final disposal of the case.. (Alok Mathur, J.) Order Date :- 8.1.2025 Virendra

1. Heard Shri Sandeep Dixit, learned Senior Advocate assisted by Shri Om Prakash Pandey, learned counsel for petitioner, learned Standing Counsel for the State and perused the material available on record.

2. Learned Standing Counsel presses application for vacation of interim order dated 07.11.2024. The said application has been filed along with counter affidavit.

3. By means of the present writ petition the petitioner has approached this Court challenging the impugned order dated

26.09.2024 whereby petitioner, who was working on the post of Joint Director Homeopathic, in Homeopathy Directorate at Lucknow was attached to State Homeopathic District Hospital Siddharth Nagar. The said attachment order was assailed before this Court and it was submitted that the State Government had issued a detailed guidelines known as the transfer policy for transfer sessions 2024-25 wherein it is provided that the prior approval of the Hon'ble Chief Minister should be taken in case the transfer is made after transfer sessions.

4. In the present case the transfer having been made after the transfer sessions 2024-25, approval of the Chief Minister was necessary and accordingly, time was granted to the learned Standing Counsel to obtain instructions in this regard. It is only after confirming the fact that no approval was available or had been granted, the Court had proceeded to consider the application for interim relief filed by the petitioners and by means of interim order dated 07.11.2024 this Court had taken into account the fact that once there was an embargo for transfer of a government servants after the end of transfer sessions unless and until the approval of the Chief Minister is taken and only to circumvent to said guidelines, a colourable exercise of power has been exercised by the respondents by passing the orders of attachment. Another order has also been brought to the knowledge of this Court dated 30.06.2024 passed by the Principal Secretary of the Ayush Department Government of U.P. stating that no transfer would be made for the transfer sessions 2024-25 and further in case, there is any administrative exigency then approval of the Chief Minister would be obtained before giving effect to such transfers.

5. In the reply submitted by the respondents in paragraph no. 9 of the counter affidavit, the averments of the said government orders having been denied but it has been stated that the petitioners have been attached as stated above in view of functional requirements.

6. In the aforesaid circumstances, it is noticed that various guidelines, enactments and rules are made only to enable the governments to function in accordance with law and to prevail the concept of rule of law. It is fur this purpose for limiting the discretion of various authorities and to ensure that they work within the ambit of the rules, various guidelines and governments orders are passed repeatedly.

7. It is in this regard that a transfer policy is issued by the State Government, which is applicable. The said rules only ensure that the government servants are not discriminated and treated in arbitrary manner and also to ensure not just equality of law but equal protection of laws as mandatory under Article 14 of the Constitution of India.

8. It is clear from perusal of the counter affidavit that the petitioners have been sent to the new place of posting as a measure of transfer which clearly they themselves had barred by issuing various government orders including the order dated

03.04.2024. The State Government cannot be seemed to act arbitrary or contrary to rules and guidelines framed by them and even if there was a funtional necessity, which this Court does not doubt or dispute even in the said contingency it is incumbent upon the State to have taken prior approval of the Chief Minister.

9. There is no reason as to why they have not either taken the approval of the Chief Minister or have sought the approval but it was rejected. In either of the circumstances, they are bound by their own decision not to give effect any effect of the transfer order subsequent to the transfer sessions. In the entire counter affidavit there is no other averment, which may lead or to believe that the transfer order has been passed in accordance with law.

10. In light of the above, no ground for interfering in the interim order dated 07.11.2024 is made out. Accordingly, application for vacation of stay is rejected. (CMA No. 3 of 2024-Application for Vacation of Stay Order dated 22.11.2024)

11. This Court finds that with the same averments counter affidavit was filed in Writ-A No. 11052 of 2024 where this Court by means of interim order dated 22.11.2024 has stayed the suspension of the petitioner on account of the fact that they had not complied with the order of attachment. Considering the fact that this Court has already stayed the order of attachment, accordingly, the consequential transfer order had also been stayed and after perusal of the counter affidavit as discussed here-in-above, this Court does not find any reason to modify or vacate the interim order dated 22.11.2024.

12. Accordingly, application for vacation of interim order dated

22.11.2024 is rejected.

13. Learned counsel for petitioner prays for and is granted a week's time to file rejoinder affidavit.

14. List this case on 11.02.2025.

15. The parties shall come prepared for final disposal of the case.. (Alok Mathur, J.) Order Date :- 8.1.2025 Virendra