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2010 DIGILAW 693 (ALL)

GOVIND CHANDRA GUPTA v. STATE OF U. P.

2010-02-24

DEVENDRA KUMAR ARORA, UMA NATH SINGH

body2010
JUDGMENT By the Court.—Heard Sri U.K. Srivastava, learned counsel for the petitioner and the learned Chief Standing Counsel, appearing on behalf of the opposite parties. 2. By means of the instant writ petition, the petitioner has challenged the impugned transfer order dated 19.1.2010 by which he has been transferred from Etawah to Ghazipur. 3. Submission of learned counsel for the petitioner is that the impugned order has been passed in order to harass the petitioner under garb of the order, passed by this Court on 22.12.2009 in Writ Petition No. 1734 (SB) of 2009, Govind Chandra Gupta v. U.P. State and others. 4. Learned counsel for the petitioner further submitted that the petitioner was placed under suspension vide order dated 11.11.2009. The petitioner challenged the same before this Court by filing Writ Petition No. 1734 (SB) of 2009, Govind Chandra Gupta v. U.P. State and others. Initially, this Court by means of order dated 25.11.2009, passed in the aforesaid writ petition, directed the Principal Secretary of the Department to file his personal affidavit containing parawise reply to the contents of the writ petition and also to produce the record on the next date of listing i.e. 10th December, 2009. Subsequently, vide order dated 22.12.2009, this Court while staying operation of the order dated 11.11.2009, gave liberty to respondents to proceed with the enquiry proceedings to its logical end and further directed to allow the petitioner to discharge his duties and to pay salary. Liberty was also given to the Government to transfer the petitioner with the same status at any other place to meet the exigency of services. 5. Sri Umesh Kumar Srivastava, learned counsel for the petitioner argued that in pursuance of the above order it was incumbent upon the respondents to reinstate the petitioner on the same post and place from where he was placed under suspension but the opposite party No. 2 in a most arbitrary and illegal manner transferred the petitioner from Etawah to Ghazipur under garb of the order passed by this Court on 22.12.2009 by which liberty was given to the Government to transfer the petitioner with the same status at any other place to meet the exigency of services. 6. The further submission of learned counsel for the petitioner is that the petitioner is being harassed by the Department since long and he had to approach this Court on so many occasions. 6. The further submission of learned counsel for the petitioner is that the petitioner is being harassed by the Department since long and he had to approach this Court on so many occasions. Initially, in the year 1996, the petitioner preferred Writ Petition No. 424 (SB) of 1996 for his promotion to the post of Executive Engineer which was allowed on 25.5.1998 thereby directing the opposite parties to consider the case of petitioner for promotion to the post of Executive Engineer. However, in the year 2002 the petitioner had to move Contempt Petition being Crl. Misc. Case No. 1699 (C) of 2002 for compliance of the order dated 25.5.1998. Further, petitioner preferred Writ Petition No. 1663 (SB) of 2002, challenging the seniority and this Court was pleased to stay the seniority list resulting in delay of promotion of one Sri Sahangoo Ram Arya on higher post of Superintendent Engineer. Again, the petitioner preferred Writ Petition No. 764 (SB) of 2006, challenging his attachment order at Head Office, Lucknow. This Court was pleased to summon the Principal Secretary alongwith the relevant record and after perusing the record, Court found that attachment order was passed at the dictate of Minister concerned even without there being any proposal made by the Department and without any reason for attachment, consequently, the attachment order was quashed vide judgment & order dated 03.7.2006. Thereafter, the petitioner preferred another Writ Petition No. 146 (SB) of 2006 challenging the disciplinary proceedings as well as attachment order at Headquarter, Lucknow and the same was stayed by this Court vide order dated 19.10.2006. The Department filed Special Leave Petition No. 20393 (Civil) of 2006 before the Hon’ble Supreme Court against the interim order but the same was dismissed on 20.7.2007. Further, in the year 2008, the petitioner had to prefer another Writ Petition No. 1855 (SB) of 2008, challenging the warning/adverse entry as well as for consideration of his case for confirmation. This Court vide order dated 12.12.2008 directed the opposite parties to consider the case of the petitioner for confirmation, ignoring the warning/censor entries. Further, in the year 2008, the petitioner had to prefer another Writ Petition No. 1855 (SB) of 2008, challenging the warning/adverse entry as well as for consideration of his case for confirmation. This Court vide order dated 12.12.2008 directed the opposite parties to consider the case of the petitioner for confirmation, ignoring the warning/censor entries. In the year 2009, the petitioner preferred another Writ Petition No. 1734 (SB) of 2009, challenging the suspension order dated 11.11.2009 and this Court considering the facts and circumstances of the case directed the Principal Secretary of the Department to file his personal affidavit, containing parawise reply to the writ petition and also to produce the record on the next date of listing i.e. 10th December, 2009. Subsequently, vide order dated 22.12.2009 this Court, while staying further operation of the order dated 11.11.2009, gave liberty to respondents to proceed with the enquiry proceedings to its logical end and further directed to allow the petitioner to discharge his duties and to pay him salary. Liberty was also given to the Government to transfer the petitioner with the same status at any other place to meet the exigency of services. 7. It is also submitted that it was incumbent upon the respondent authorities to first reinstate the petitioner on the post from where he was placed under suspension and thereafter if exigency of the service required, only then petitioner could have been transferred. The authorities while complying the orders of this Court dated 22.12.2009, suspended the order of suspension vide order dated 19.1.2010 and transferred the petitioner on a vacant post of Executive Engineer, Minor Irrigation Division, Ghazipur. The action of the opposite parties, thus, smacks mala fide. 8. Sri U. K. Srivastava, learned counsel for the petitioner vehemently argued that the action of the opposite parties of transferring the petitioner without reinstating him at the place from where he was suspended, is a mala fide action and liberty of transferring the petitioner given by the Court in exigency of the service was used as a tool. It is also submitted that this has been done at the instance of Sri Sahangoo Ram Arya against whom the petitioner has filed a writ petition in order to challenge his seniority. 9. It is also submitted that this has been done at the instance of Sri Sahangoo Ram Arya against whom the petitioner has filed a writ petition in order to challenge his seniority. 9. Learned Standing Counsel, while opposing writ petition, submitted that this Court has given liberty to the Government to transfer the petitioner with the same status at any other place to meet the exigency of services and, therefore, petitioner was posted as Executive Engineer, Minor Irrigation, Ghazipur on the vacant post by staying the suspension order dated 11.11.2009 and, as such, the transfer order is perfectly legal and does not warrant any interference by this Court. 10. We have considered the arguments advanced by the parties’ counsel and gone through the record. 11. From perusal of the record it appears that petitioner filed several writ petitions against the department on one or other score. The record further reveals that earlier there was a dispute of seniority and also with respect to promotion with Sri Sahangoo Ram Arya who was subsequently promoted to the post of Chief Engineer. It appears that since Sri Sahangoo Ram Arya has attained the age of superannuation on 31st January, 2010, he has not been made party in the said writ petition. 12. The record also shows that since the petitioner was attached to the Headquarter at Lucknow, he filed a writ petition challenging his attachment order, which was allowed by this Court and similarly petitioner’s suspension order dated 11.11.2009 was also stayed by this Court vide order dated 22.11.2009 and prior to staying the suspension order, the Court called upon the Principal Secretary of the Department to file personal affidavit giving parawise reply to the contents of the writ petition. There is chequered history of the litigation of the petitioner with the Department on various counts. This is a matter of record that this Court in Writ Petition No. 1734 (SB) of 2009 while staying the operation of the suspension order, directed the respondents to allow the petitioner to discharge his duties and to pay him salary, simultaneously, liberty was also given to the Government to transfer the petitioner with the same status at any place to meet the exigency of service. The respondents although in compliance of the order of this Court dated 22.12.2009 suspended the order of suspension vide order dated 19.1.2010, but instead of reinstating the petitioner at the place from where he was placed under suspension, transferred the petitioner as Executive Engineer, Minor Irrigation Division, Ghazipur using the liberty given by the Court as a tool. 13. It is settled law that an employee can be transferred at any place in exigency of service and the same is normally not interfered by the Court, but where the of transfer appears to be mala fide, the interference of the Court is always warranted. In the present case, neither there was written order nor the impugned order shows any exigency of the service which may warrant the petitioner’s transfer from the place where he was placed under suspension, to a new place while complying the order passed by this Court. It was incumbent upon the respondent authorities first to reinstate the petitioner in compliance of the order dated 22.12.2009 and thereafter if exigency of service required, he could have been transferred. The element of honest compliance of the order of this Court dated 22.12.2009 appears to be lacking and the sequence of events also demonstrate mala fide intention of the Authorities. It is always open for the respondent authorities to transfer the petitioner at any place in the exigency of service but the exigency of service should be real and not artificial one. 14. We, therefore, allow this writ petition at the initial stage. The impugned order dated 19.1.2010, transferring the petitioner as Executive Engineer, Minor Irrigation is hereby quashed. The petitioner is allowed to discharge his duties at the place from where he was suspended and he will be paid his salary accordingly. 15. No order as to costs. ————