Allahabad High Court
Ramesh Kumar vs State Of U.P. And 4 Others on 21 August, 2023
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:167373 Court No. - 37 Case :- WRIT - A No. - 13708 of 2023 Petitioner :- Ramesh Kumar Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Bholeshwar Counsel for Respondent :- C.S.C. Hon'ble Abdul Moin,J.
1. Heard learned counsel for the petitioner and learned Standing Counsel appearing for the respondents no. 1 to 5.
2. With the consent of learned counsel appearing for the contesting parties, the writ petition is finally being disposed of.
3. Under challenge is the transfer order dated 30.06.2023, a copy of which is annexure 1 to the petition, so far as it pertains to the petitioner whereby the petitioner has been transferred from Kaushambi to Sonbhadra. Also under challenge is the order dated 03.07.2023 as modified by the order dated 09.08.2023 so far as it pertains to the date 03.08.2023, a copy of which is part of annexure 10 to the petition, whereby the representation preferred against the transfer order has been rejected.
4. The contention of learned counsel for the petitioner is that initially the petitioner has been transferred through the aforesaid order from Kaushambi to Sonbhadra. Being aggrieved he filed Writ A No. 11695 of 2023 in re: Ramesh Kumar vs State of U.P. and others and this Court vide the judgement and order dated 21.07.2023 disposed of the petition leaving it open to the petitioner to make a fresh representation before the competent authority and the competent authority was required to decide the same in accordance with law.
5. The petitioner claims that in pursuance thereof he has submitted a representation which has been rejected by means of the impugned order dated 03.07.2023 the date of which now stands modified to read as 03.08.2023 whereby the representation of the petitioner has been rejected primarily on two grounds namely:
(a) the petitioner despite having indicated that he wants cancellation of the transfer order on the ground that his wife is working at Assistant Teacher at Allahabad has himself prayed for being posted at Kaushambi and
(b) despite the petitioner having indicated that he has got less than two years of service left to his retirement yet the relevant government order dated 07.06.2023 itself provides that an endeavor should be made to accommodate the employee but nowhere does the government order makes it mandatory to accommodate the employee at his choice place.
(c) that Sonbhadra has been identified as an aspirational district in which all the posts are to be filled in, and as such the transfer of the petitioner cannot be cancelled.
6. The contention of learned counsel for the petitioner is that even though the respondents may have a ground so far as it pertains to the petitioner having stated that he wants cancellation of his transfer order to continue at Kaushambi despite his wife working at Prayagraj yet once the government order dated 07.06.2023, a copy of which is annexure 7 to the petition, provides in clause 5(vi) that where employees have got less that two years left for their retirement they should be posted to their desired place of posting (except the home district) invariably as such there cannot be any occasion for rejection of the claim of the petitioner on the ground that the said government order does not make it mandatory to post an employee in as much as in the fitness of things the respondents should have considered the claim of the petitioner for being posted at the fag end of his service at Kaushambi itself more particularly when the government order provides for doing so.
7. So far as the aspect pertaining to aspirational district is concerned, it is contended that certain other employees may also be available with the respondents for being posted at Sonbhadra who may not strictly fall within the ambit of Clause 5(vi) of the aforesaid government order to stake his claim for being posted at the desired place of posting at the fag end of his service. This aspect of the matter has also not been considered by the respondents.
8. On the other hand, learned Standing Counsel has defended the order impugned by indicating that once the petitioner himself has submitted his representation for being continued at Kaushambi, as such it is apparent that he is not desirous of continuing at the place of posting of his wife i.e. Prayagraj. So far as the government order dated 07.06.2023 is concerned, it is contended that the government order itself provides for posting of an employee invariably and as such does not make it mandatory therefore no fault has been occasioned with the respondents in rejecting the claim of the petitioner on this aspect.
9. It is also contended that the posting of the petitioner at Sonbhadra is required in terms of the government order which has declared Sonbhadra as an aspirational district and as such there would not be any occasion to consider of the transfer of the petitioner.
10. Having heard learned counsel for the parties and having perused the record what emerges is that initially the petitioner being aggrieved with his transfer order from Kaushambi to Sonbhadara has approached this Court and this Court has left it open to the petitioner to submit a representation to the competent authority for redressal of his grievance. The said representation had been rejected by the order impugned dated 03.08.2023 by contending that as the petitioner has himself requested for his posting at Kaushambi through the aforesaid representation, as such simply because his wife is working at Prayagraj would not be a ground to post him at Kaushambi.
11. The plea of aspirational district has also been taken by the respondents while rejecting the claim of the petitioner to indicate that Sonbhadra has been indicated as an aspirational district and all the posts should invariably be filled in. However the respondents have conveniently omitted the government order dated 07.06.2023 more particularly clause 5(vi) which provides that employees at the fag end of his service and have got less than two years of service should invariably be considered for posting at their desired place of posting. The said government order, though uses the word "invariably" yet the respondents have not even considered the claim of the petitioner for being posted at Kaushabmi by rejecting his claim on the ground that the government order does not make it mandatory. Needless to mention that once the government order had been issued by the government for consideration of the claim of persons who are at the fag end of service and have got less than two years of service, for being posted at desired place of posting, as such a duty is cast upon the respondents to have considered this aspect of the matter instead of rejecting the claim by contending that the government order does not make it mandatory to do so.
12. Considering the aforesaid, the writ petition is allowed. The order impugned dated 03.07.2023 / 03.08.2023, a copy of which is part of annexure 10 to the petition, is quashed. The matter is remitted to the competent authority to consider the claim of the petitioner afresh in light of the government order dated 07.06.2023, more particularly clause 5(vi).
13. Let such a consideration be done within a period of four weeks from the date of receipt of certified copy of this order. Till then no coercive action shall be taken against the petitioner in pursuance of the impugned transfer order.
Order Date :- 21.8.2023 J. K. Dinkar