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Kailash Prasad v. State Of U.P. And Others - WRIT - A No. 2830 of 2005 [2005] RD-AH 583 (1 March 2005)


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                                                                                                         Court no.7

                     Civil Misc. Writ Petition No. 2830 of 2005

Kailash Prasad                          Versus             State of U.P. and others



Hon'ble Rakesh Tiwari,J.

Heard counsel for the parties and perused the record.

This writ petition is directed against the order of transfer dated 24.12.2004 passed by respondent no.2, the Director Local Bodies, U.P. Lucknow whereby the petitioner was transferred from Nagar Panchayat Pipraich,Gorakhpur to Nagar Panchayat, Madhoganj, Hardoi.

Sri A.R. Dube, the counsel for the petitioner has relied upon a G.O. dated 20th May, 1992 and submits that in the said G.O. it was provided that if an employee is going to retire within two years then in that event he should be posted at the place nearest to his home district. He further submits that the petitioner is going to retire within one and half years, hence in terms of clause (5) of the said G.O. the services of the petitioner should not be transferred.

This contention of the counsel for the petitioner has no force for two reasons, firstly the order of transfer of the petitioner has been passed on administrative ground, hence the case of the petitioner does not fall in the category of clause (5) of the aforesaid G.O. dated 20th May, 1992 which provides that if there is no adverse material against the employee who is going to retire within two years,  should normally be transferred in or near his home district. Secondly, the G.O. dated 20th May, 1992 only provides guide-lines for transfer and is not a law within the meaning of Article 13 of the Constitution of India.

The guide-lines/Circulars have no statutory force and they are not law as held by the apex court in para 19 in State of Kerala Vs Chandra Mohan, (2004) 3 S.C.C. 429. To the same effect are Punit Rai Vs Dinesh Chaudhary, (2003) 8 S.C.C. 204 and Union of India Vs Naveen Jindal, (2004) 2 S.C.C. 510. Under Rule 14 of the Financial Hand Book the services of all the Government employees are transferable. I see no illegality or infirmity in the impugned order warranting interference under Article 226 of the Constitution.

The next contention of Sri A.R. Dube is that the petitioner has worked for the period June,2003 to April, 2004 and from October, 2004 to December, 2004 but he has not been paid his salary. An employee who has worked is entitled to his salary and it can not be stopped by the Government except on some  reasonable and justifiable cause.

The petition is therefore, disposed of with a direction that in case the petitioner moves a comprehensive representation before the competent authority regarding payment of his salary within two weeks from today, the same shall be decided by a reasoned and speaking order, in accordance with law, within a period of six weeks from the date of production of a certified copy of this order.  No interference is required in so far as the order of transfer is concerned.

Dated 1.3.2005



Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites


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