Suneeta Dwivedi v. State of U.P. and

1. Heard learned counsel for the petitioner, Mr. Kaushlesh Pratap Singh, learned counsel for the respondent nos.2, 3 and 4 and learned Standing Counsel for the State-respondents.

2. The writ petition has been filed for quashing the impugned order dated 28.04.2025 passed by respondent no.2, order dated 02.05.2025 passed by respondent no.4 and order dated 23.05.2025 passed by respondent nos.2 and 3.

3. Learned counsel for the petitioner submits that petitioner was initially appointed as an Assistant Teacher vide appointment order dated 19.07.1990 and joined on 04.08.1990 at Primary School, Parhauli, District- Kanpur Dehat. He further submits that charge sheet has been submitted against the petitioner on 04.10.2024 to which he submitted his reply on 14.10.2024. After inquiry the order dated 07.12.2024 has been passed withholding two salary increments, which has been challenged by means of a Writ-A No.1509 of 2025 (Suneeta Dwivedi Vs. State of U.P. and 4 others), which is also pending.

4. Subsequently, mentioning about the order dated 07.12.2024, the petitioner has been transferred at Prathmik Vidyalaya, Taiyabpur Vikas Khand/ Nagar Khetra, Bhagyanagar. Thereafter, the petitioner moved an application on 30.04.2024 requesting for medical leave, which has been rejected vide order dated 23.05.2025 mentioning therein the same shall be considered in case the petitioner joins other transfer place. Pursuant to the transfer order, the petitioner has been relieved by order dated 02.05.2025.

5. By means of transfer order, the petitioner has been demoted, therefore, the order has been passed in arbitrary manner. Learned counsel for the petitioner further submits that for the same charge the earlier order dated 07.12.2024 has already been passed and the petitioner second punishment transfer order has been passed by way of order dated 28.04.2025, he cannot be given punishment again by way of same charge. Therefore, the orders impugned are liable to be set aside.

6. Learned counsel for respondent nos. 2, 3 and 4, states that it is simply transfer order and the learned counsel for the petitioner has tried to create confusion as order dated 28.04.2025 only speaks about the earlier order dated 07.12.2024. The order dated 28.04.2024 passed by respondent no.2 is only transfer order and relieving order has been passed on 02.05.2025. The petitioner is trying to create confusion as he is not interested to joined at the place of transfer.

7. The law on the transfer is too settled to reiterate that if the transfer is made contrary to transfer policy or executive order, it does not confer any vested right upon an employee to challenge it.

8. The reference may be made to the judgement of the Apex Court in the Case of B. Varadha Rao v. State of Karnataka and others, reported in (1986) 4 SCC 131, wherein it has been held that the occasion to consider a short point whether an order of transfer is appealable under Rule 19 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957, and the Supreme Court held in paragraphs- 4 and 6 as under:- "4. ........ It is well understood that transfer of a government servant who is appointed to a particular cadre of transferable posts from one place to another is an ordinary incident of service and therefore does not result in any alteration of any of the conditions of service to his disadvantage. That a government servant is liable to be transferred to a similar post in the same cadre is a normal feature and incident of government service and no government servant can claim to remain in a particular place or in a particular post unless, of course, his appointment itself is to a specified, non- transferable post. ....." "6. .......But, at the same time, it cannot be forgotten that so far as superior or more responsible posts are concerned, continued posting at one station or in one department of the government is not conducive to good administration. It creates vested interest and therefore we find that even from the British times the general policy has been to restrict the period of posting for a definite period. We wish to add that the position of class III and class IV employees stand on a different footing. We trust that the government will keep these considerations in view while making an order of transfer"

8. The Supreme Court in the case of Shilpi Bose (Mrs) and others v. State of Bihar and others, reported in 1991 Supp (2) SCC 659, was dealing with the case of transfer of some lady teachers in Primary Schools in the State of Bihar. They were transferred, on their own request, to places where their husbands were posted. The transfer orders were made by the District Education Establishment Committee. The teachers, who were displaced, challenged the transfer order before the Patna High Court on the ground that District Education Establishment Committee had no jurisdiction. Patna High Court allowed the petition, set aside the transfer order and directed for re-posting of the respondents. Ultimately, the matter was carried to the Supreme Court and the Supreme Court set aside the judgment of the Patna High Court and held as under: "4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day-to- day transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders."

9. The law laid down in Shilpi Bose (supra) was again reiterated by the Supreme Court in the case of Union of India and others v. S.L. Abbas, reported in (1993) 4 SCC 357, and observed as under: "6. An order of transfer is an incident of Government service. Fundamental Rule 11 says that "the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority". Fundamental Rule 15 says that "the President may transfer a Government servant from one post to another". That the respondent is liable to transfer anywhere in India is not in dispute. .."

10. This Court in the case of Dharmendra Kumar Saxena v. State of U.P. and others reported in 2013 (7) ADJ 53 has held that it is true that violation of transfer policy or executive order does not confer any vested right on an employee to challenge it, but the Government is bound by executive orders/ policies, and the guidelines are made to follow it and not to breach it without any justifiable reason. The Court also held that in case a transfer is made contrary to transfer policy or executive order, the officer concerned should record reasons for defying the transfer policy or executive order. Recording of reasons are necessary in view of the fact that in case any representation is made to the higher authority, he may be apprised of the reasons for violation of the transfer policy or the Government order. The Court also followed the view consistently taken by the Supreme Court. Relevant paragraph of the order read as under: - "24...the Government is bound by executive orders/policies. The guidelines are made to follow it and not to breach it without any justifiable reasons. Whenever the Government deviates from its policies/guidelines/ executive instructions, there must be cogent and strong reasons to justify the order; when transfer order is challenged by way of representation, there must be material on record to establish that the decision was in public interest and it does not violate any statutory provision, otherwise the order may be struck down as being arbitrary and violative of Article 14 of the Constitution. The authorities cannot justify their orders that breach of executive orders do not give legally enforceable right to aggrieved person. As observed by Justice Frankfurter "An executive agency must be rigorously held to the standards by which it professes its action to be judged".

11. After considering the submission made by the parties as well as careful consideration of the law laid down by the Supreme Court, I am of the view that this Court cannot interfere with the transfer matter as the Government servant has no vested right to continue at a place of his choice. The Government can transfer the officer/employee in the administrative exigency and in public interest. However, if a transfer is made against the executive instructions or transfer policy, the competent authority must record brief reason in the file for deviating from the transfer policy or executive instructions and the transfer must be necessary in the public interest or administrative exigency.

12. This writ petition is, accordingly, dismissed. There shall be no order as to costs.

13. On the aforesaid, learned counsel for the petitioner submits that he will be joined at the place after which in case he moves an application before respondent no.4 the same shall be decided in accordance with law as it is evident from the order dated 30.04.2025.

14. Needless to say in case, petitioner does not join at the aforesaid place the authorities shall not taken into consideration the representation if any, moved by the petitioner. Order Date :- 10.7.2025 Imtiyaz

1. Heard learned counsel for the petitioner, Mr. Kaushlesh Pratap Singh, learned counsel for the respondent nos.2, 3 and 4 and learned Standing Counsel for the State-respondents.

2. The writ petition has been filed for quashing the impugned order dated 28.04.2025 passed by respondent no.2, order dated 02.05.2025 passed by respondent no.4 and order dated 23.05.2025 passed by respondent nos.2 and 3.

3. Learned counsel for the petitioner submits that petitioner was initially appointed as an Assistant Teacher vide appointment order dated 19.07.1990 and joined on 04.08.1990 at Primary School, Parhauli, District- Kanpur Dehat. He further submits that charge sheet has been submitted against the petitioner on 04.10.2024 to which he submitted his reply on 14.10.2024. After inquiry the order dated 07.12.2024 has been passed withholding two salary increments, which has been challenged by means of a Writ-A No.1509 of 2025 (Suneeta Dwivedi Vs. State of U.P. and 4 others), which is also pending.

4. Subsequently, mentioning about the order dated 07.12.2024, the petitioner has been transferred at Prathmik Vidyalaya, Taiyabpur Vikas Khand/ Nagar Khetra, Bhagyanagar. Thereafter, the petitioner moved an application on 30.04.2024 requesting for medical leave, which has been rejected vide order dated 23.05.2025 mentioning therein the same shall be considered in case the petitioner joins other transfer place. Pursuant to the transfer order, the petitioner has been relieved by order dated 02.05.2025.

5. By means of transfer order, the petitioner has been demoted, therefore, the order has been passed in arbitrary manner. Learned counsel for the petitioner further submits that for the same charge the earlier order dated 07.12.2024 has already been passed and the petitioner second punishment transfer order has been passed by way of order dated 28.04.2025, he cannot be given punishment again by way of same charge. Therefore, the orders impugned are liable to be set aside.

6. Learned counsel for respondent nos. 2, 3 and 4, states that it is simply transfer order and the learned counsel for the petitioner has tried to create confusion as order dated 28.04.2025 only speaks about the earlier order dated 07.12.2024. The order dated 28.04.2024 passed by respondent no.2 is only transfer order and relieving order has been passed on 02.05.2025. The petitioner is trying to create confusion as he is not interested to joined at the place of transfer.

7. The law on the transfer is too settled to reiterate that if the transfer is made contrary to transfer policy or executive order, it does not confer any vested right upon an employee to challenge it.

8. The reference may be made to the judgement of the Apex Court in the Case of B. Varadha Rao v. State of Karnataka and others, reported in (1986) 4 SCC 131, wherein it has been held that the occasion to consider a short point whether an order of transfer is appealable under Rule 19 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957, and the Supreme Court held in paragraphs- 4 and 6 as under:- "4. ........ It is well understood that transfer of a government servant who is appointed to a particular cadre of transferable posts from one place to another is an ordinary incident of service and therefore does not result in any alteration of any of the conditions of service to his disadvantage. That a government servant is liable to be transferred to a similar post in the same cadre is a normal feature and incident of government service and no government servant can claim to remain in a particular place or in a particular post unless, of course, his appointment itself is to a specified, non- transferable post. ....." "6. .......But, at the same time, it cannot be forgotten that so far as superior or more responsible posts are concerned, continued posting at one station or in one department of the government is not conducive to good administration. It creates vested interest and therefore we find that even from the British times the general policy has been to restrict the period of posting for a definite period. We wish to add that the position of class III and class IV employees stand on a different footing. We trust that the government will keep these considerations in view while making an order of transfer"

8. The Supreme Court in the case of Shilpi Bose (Mrs) and others v. State of Bihar and others, reported in 1991 Supp (2) SCC 659, was dealing with the case of transfer of some lady teachers in Primary Schools in the State of Bihar. They were transferred, on their own request, to places where their husbands were posted. The transfer orders were made by the District Education Establishment Committee. The teachers, who were displaced, challenged the transfer order before the Patna High Court on the ground that District Education Establishment Committee had no jurisdiction. Patna High Court allowed the petition, set aside the transfer order and directed for re-posting of the respondents. Ultimately, the matter was carried to the Supreme Court and the Supreme Court set aside the judgment of the Patna High Court and held as under: "4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day-to- day transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders."

9. The law laid down in Shilpi Bose (supra) was again reiterated by the Supreme Court in the case of Union of India and others v. S.L. Abbas, reported in (1993) 4 SCC 357, and observed as under: "6. An order of transfer is an incident of Government service. Fundamental Rule 11 says that "the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority". Fundamental Rule 15 says that "the President may transfer a Government servant from one post to another". That the respondent is liable to transfer anywhere in India is not in dispute. .."

10. This Court in the case of Dharmendra Kumar Saxena v. State of U.P. and others reported in 2013 (7) ADJ 53 has held that it is true that violation of transfer policy or executive order does not confer any vested right on an employee to challenge it, but the Government is bound by executive orders/ policies, and the guidelines are made to follow it and not to breach it without any justifiable reason. The Court also held that in case a transfer is made contrary to transfer policy or executive order, the officer concerned should record reasons for defying the transfer policy or executive order. Recording of reasons are necessary in view of the fact that in case any representation is made to the higher authority, he may be apprised of the reasons for violation of the transfer policy or the Government order. The Court also followed the view consistently taken by the Supreme Court. Relevant paragraph of the order read as under: - "24...the Government is bound by executive orders/policies. The guidelines are made to follow it and not to breach it without any justifiable reasons. Whenever the Government deviates from its policies/guidelines/ executive instructions, there must be cogent and strong reasons to justify the order; when transfer order is challenged by way of representation, there must be material on record to establish that the decision was in public interest and it does not violate any statutory provision, otherwise the order may be struck down as being arbitrary and violative of Article 14 of the Constitution. The authorities cannot justify their orders that breach of executive orders do not give legally enforceable right to aggrieved person. As observed by Justice Frankfurter "An executive agency must be rigorously held to the standards by which it professes its action to be judged".

11. After considering the submission made by the parties as well as careful consideration of the law laid down by the Supreme Court, I am of the view that this Court cannot interfere with the transfer matter as the Government servant has no vested right to continue at a place of his choice. The Government can transfer the officer/employee in the administrative exigency and in public interest. However, if a transfer is made against the executive instructions or transfer policy, the competent authority must record brief reason in the file for deviating from the transfer policy or executive instructions and the transfer must be necessary in the public interest or administrative exigency.

12. This writ petition is, accordingly, dismissed. There shall be no order as to costs.

13. On the aforesaid, learned counsel for the petitioner submits that he will be joined at the place after which in case he moves an application before respondent no.4 the same shall be decided in accordance with law as it is evident from the order dated 30.04.2025.

14. Needless to say in case, petitioner does not join at the aforesaid place the authorities shall not taken into consideration the representation if any, moved by the petitioner. Order Date :- 10.7.2025 Imtiyaz