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2024 DIGILAW 1532 (ALL)

Jitendra Singh v. State of U. P.

2024-06-05

MANISH KUMAR NIGAM, SIDDHARTHA VARMA

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JUDGMENT : The petitioner-appellant who was a Group ''C'' employee had been employed in the services of Food and Civil Supply Department since 1995. After putting in many years of service, he was to retire in the month of February 2025. Relying upon a Government Order/Transfer Policy dated 7.6.2023, which provided that an employee of Group ''C'' or ''D'' who was to retire within a period of two years, could opt for transfer to his/her home Division, the petitioner applied on 15.1.2024. The representation when was decided against the petitioner on 9.2.2024, he filed a writ petition being Writ-A No. 4073 of 2024. When this writ petition came to be dismissed on 16.5.2024 by the learned Single Judge, the instant Special Appeal has been filed challenging both the orders i.e. the order dated 9.2.2024 passed by the Commissioner, Food and Civil Supply Department, Lucknow-respondent No. 2 and the order of the learned Single Judge dated 16.5.2024. 2. Learned counsel for the petitioner-appellant has argued that when the petitioner had only one year to retire, he moved the application as per the Government Order/Transfer Policy dated 7.6.2023. This application was rejected by the Commissioner, Food and Civil Supply Department on the premise that the petitioner had worked in Moradabad Division, which was his home Division, from 16.2.1995 to 11.9.2012 and, therefore, he had remained in that Division for almost 17 years. Learned counsel for the appellant states that in fact the Commissioner-respondent No. 2 missed-out that after the year 2012, the petitioner was posted elsewhere till 11.6.2020 and ever since 11.6.2020, he had been posted in Agra Division which was not his home Division. Learned counsel for the appellant, therefore, states that the order impugned in the writ petition had, on an absolutely wrong premise, rejected the application of the petitioner. Learned counsel for the appellant submitted that even if it had no force of law it was binding on the issuing authority and for this purpose he relied upon a decision of the Supreme Court in A.L. Kalra v. Project and Equipment Corporation of India Ltd., (1984) 3 SCC 316 and therefore, submitted that the petitioner ought to be transferred to his home Division when he had just one year more to retire. Since learned counsel relied upon paragraph No. 26 of the judgement, the same is being reproduced here as under : ''26. Since learned counsel relied upon paragraph No. 26 of the judgement, the same is being reproduced here as under : ''26. Now if what is alleged as misconduct does not constitute misconduct not by analysis or appraisal of evidence, but per se under 1975 Rules the respondent had neither the authority nor the jurisdiction nor the power to impose any penalty for the alleged misconduct. An Administrative Authority who purports to act by its regulation must be held bound by the regulation. ''Even if these regulations have no force of law the employment under these corporations is public employment, and therefore, an employee would get a status which would enable him to obtain a declaration for continuance in service, if he was dismissed or discharged contrary to the regulations. (Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi [ (1975) 1 SCC 421 , 459 : 1975 SCC (L&S) 101, 139 : AIR 1975 SC 1331 : (1975) 3 SCR 619 , 655 : (1975) 1 LLJ 399 ].)'' 3. Learned counsel for the appellant further submitted that the learned Single Judge misdirected itself when it observed that the petitioner had remained in his home district for almost 17 years. Learned counsel for the appellant submitted that after he had stayed in his home district for 17 years, he had been transferred out on 11.9.2012 and for good 12 years he was not in his home division. 4. Sri V.K. Dixit, learned Additional Chief Standing Counsel assisted by learned AGA, however, opposed the Special Appeal and supported the order of the learned Single Judge and submitted that if a person had stayed in his home Division for a very long period which in this case was 17 years, then his request for posting him in his home Division, as per the Government Order/Transfer Policy dated 7.6.2023 could not be considered. 5. Having heard learned counsel for the appellant and learned Additional Chief Standing Counsel for the State-respondents, we are of the view that the appellant stayed in his home district from 16.2.1995 till 11.9.2012, much before the year when he was to retire. Further, after 11.9.2012, he had been posted to two other Divisions which were not his home Divisions. 5. Having heard learned counsel for the appellant and learned Additional Chief Standing Counsel for the State-respondents, we are of the view that the appellant stayed in his home district from 16.2.1995 till 11.9.2012, much before the year when he was to retire. Further, after 11.9.2012, he had been posted to two other Divisions which were not his home Divisions. From the impugned order in the writ petition dated 9.2.2024 and the order dated 16.5.2024 which was passed by the learned Single Judge in Writ-A No. 4073 of 2024, we find that the application of the petitioner for being transferred to his home Division as per the Government Order/Transfer Policy dated 7.6.2023 was refused chiefly on account of the fact that the petitioner had remained in his home Division for 17 years i.e. from 16.2.1995 to 11.9.2012. The respondent No. 2 as also the learned Single Judge missed-out the fact that the appellant had in fact remained in his home Division way back in the year 2012 and thereafter he had been posted for two different terms i.e. from 11.9.2012 to 11.6.2020 and from 11.6.2020 till the present time in two different Divisions which were not his home Divisions. 6. Learned Single Judge also erred in law when he held in the order that the transfer policy is only directory in nature and, therefore, it did not bind the officials who were passing the order impugned in the writ petition. We are of the view that when there is a Government Order/Transfer Policy of the State then there is a legitimate expectation of the employee that the advantages which flowed from the Government Order would be made applicable to that employee. Definitely as per the law laid down in A.L. Kalra (supra), a Government Order had a binding force on the Authority which had issued it and which was taking advantage of it. 7. Under such circumstances, we are of the view that the learned Single Judge has erred in passing the order dated 16.5.2024. It is, accordingly, set-aside. We also find that the order impugned in the writ petition wrongly decided the application of the petitioner on an absolutely wrong premise. We, therefore, also set-aside the order dated 9.2.2024 passed by the Commissioner, Food and Civil Supply Department-respondent No. 2. 8. The Special Appeal, accordingly, stands allowed. 9. It is, accordingly, set-aside. We also find that the order impugned in the writ petition wrongly decided the application of the petitioner on an absolutely wrong premise. We, therefore, also set-aside the order dated 9.2.2024 passed by the Commissioner, Food and Civil Supply Department-respondent No. 2. 8. The Special Appeal, accordingly, stands allowed. 9. The consequence of allowing the appeal and the writ petition would be, that the matter would now be remitted to the respondent No. 2 who would again consider the application of the petitioner dated 15.1.2024 (Annexure 7 to the writ petition) within a period of two weeks from the date of presentation of a certified copy of this order.