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2011 DIGILAW 1285 (ALL)

Ravi Pratap Verma v. State of U. P.

2011-05-20

SATISH CHANDRA, UMA NATH SINGH

body2011
(Delivered by Hon’ble Dr. Satish Chandra, J.)—By this writ petition, the petitioner has made the following prayer:- (A) To issue a writ, order or direction in the nature of certiorari quashing the order dated 19.11.2010, as contained in Annexure-1 to this writ petition. (B) To issue a writ, order or direction in the nature of mandamus commanding the opposite-parties to allow the petitioner to work and discharge duties on the post of Joint Director of Education, 6th Region, Lucknow and pay his salary regularly. (C) Any other order which is deemed just and appropriate in the nature and circumstances of the case be also passed in favour of the petitioner in the interest of justice along with cost of this writ petition. 2. The brief facts of the case are that by an order dated 3.3.2010, the petitioner was attached to the office of Director of Education (Secondary), Lucknow. The said order was challenged by the petitioner before this Hon’ble Court vide Writ Petition No. 496 of 2010 (S/B). The said writ petition was disposed of on 5.5.2010 by passing the following order:- “Shri Sanjay Bhasin, learned Additional Chief Standing Counsel, at the very out set submitted that as the petitioner has undergone kidney transplantation, he has been temporarily attached to the office of Director, Secondary Education, Camp Office, Lucknow. Learned counsel also submitted that there are serious allegations and thus the petitioner is facing a departmental proceeding. Learned counsel further submitted that the impugned transfer order was passed out of administrative exigencies otherwise normally as per Government policy, regular posting of the petitioner could not have been disturbed in the mid session. However, learned counsel on instructions made a statement before the Court that the State is contemplating to give a regular posting to the petitioner and the proposal is already in pipeline. Besides, from a careful perusal of pleadings of the writ petition it appears that the petitioner is presently 58 years of age and it would be his last posting. Normally, as per the Government policy, a Government servant is entitled to have the last posting as per his choice and in view of the fact that the petitioner has undergone a kidney transplantation, we hope that the State shall give him a posting of his choice within two weeks from the date of production of this order. Normally, as per the Government policy, a Government servant is entitled to have the last posting as per his choice and in view of the fact that the petitioner has undergone a kidney transplantation, we hope that the State shall give him a posting of his choice within two weeks from the date of production of this order. With the aforesaid directions, this writ petition is disposed of.” 3. In pursuance of the above mentioned order, the petitioner submitted the representation before the State Government that he should be allowed to continue as Joint Director, Secondary Education, Lucknow Region and his attachment to the camp office of the Director, Secondary Education, may be cancelled. The opposite-party has passed an order on 15.7.2010 for posting of the petitioner on the post of Joint Director (Education), 6th Region, Lucknow and the petitioner joined on the same day. 4. On 19.11.2010, the petitioner has been transferred from the post of Joint Director of Education (Secondary), Lucknow Region, Lucknow to the post of Incharge Additional Director (Vocational Education), Camp Office, Directorate of Secondary Education, U.P., Lucknow and the opposite-party no.3 was posted at the place of petitioner. Being aggrieved, the petitioner has filed the present petition. 5. With this background, Sri Umesh Chandra, learned senior counsel for the petitioner, submits that despite the order dated 5.5.2010 passed by this Hon’ble Court, the opposite-party did not take any decision for cancellation of the order dated 3.3.2010 for posting the petitioner as Joint Director (Secondary Education), Lucknow Region. He further submits that the petitioner wrongly has been transferred by an order dated 19.11.2010 (Annexure No.1). He also submits that this Hon’ble Court has given an observation in Writ Petition No. 496 of 2010 (S/B) that it would be the last posting of the petitioner, so he may be given the posting of his own choice; in such circumstances, the petitioner cannot be transferred and given the charge of Additional Director of Education (Vyavsaik Shiksha). Further, he submits that with mala fide intention and only to adjust the opposite-party no.3, the petitioner has been transferred by giving the charge of Additional Director of Education (Vyavsaik Shiksha) and the opposite-party no.3 has been given the charge of Joint Director of Education for which he is not competent as he is only Deputy Director of Education. Further, he submits that with mala fide intention and only to adjust the opposite-party no.3, the petitioner has been transferred by giving the charge of Additional Director of Education (Vyavsaik Shiksha) and the opposite-party no.3 has been given the charge of Joint Director of Education for which he is not competent as he is only Deputy Director of Education. The transfer policy of the State Government for the year 2010-11 specially provides that the present session shall be “zero transfer session” and the transfer will be done only in unavoidable circumstances. He continued to argue by mentioning that the impugned order dated 19.11.2010 has been passed in defiance of the order dated 5.5.2010 passed by this Hon’ble Court, so the impugned order is arbitrary as there is no administrative exigency or compelling or unavoidable circumstances under which the impugned order has been passed. The impugned order is also violative of transfer policy of the State Government for the year 2010-11. He also submits that there is absolutely no justification for directing the petitioner to hold the officiating charge of the post of Additional Director without actually promoting the petitioner on the post of Additional Director, Secondary Education. Lastly, he made a request that the impugned order may kindly be quashed as the same amounted to frequent transfer within a period of two months. The impugned order is arbitrary as the same is violative to Articles 14 and 16 of the Constitution of India. 6. On the other hand, Sri D.K.Upadhyay, Chief Standing Counsel, submits that as far as the attachment of the petitioner with the Directorate by order dated 3rd March, 2010 is concerned, it may be stated that at the relevant point of time the Enquiry Officer had submitted an enquiry report in respect of the charges of serious misconduct against the petitioner and the government had taken a decision to inflict major punishment which required the approval of the Public Service Commission. The order dated 3rd March, 2010 was challenged in Writ Petition No. 496 of 2010 (S/B) and the said writ petition was decided on 5th May, 2010. The posting was given to the petitioner at Lucknow. Regarding the transfer policy of the Government and the choice of posting is concerned, provision has been made in para 9(x) of the said Government Order no. The posting was given to the petitioner at Lucknow. Regarding the transfer policy of the Government and the choice of posting is concerned, provision has been made in para 9(x) of the said Government Order no. 1689/15-13/2010-1(20)/93TC III under the head of ‘other guiding principles’ which lay down that Class I and Class II officers who are within two years of retirement may be considered for posting in their desired district (other than their home district) as far as possible. Thus, it is abundantly clear that the concept of choice of posting within two years of retirement is with respect to choice of district only. The concept of that choice of posting cannot be extended to choice of a particular chair/office in a given district. The petitioner is posted at Lucknow as he desired, so there is no violation of the Government guidelines as the regular posting within the district of his choice i.e. in district Lucknow was already given to the petitioner. The post of Additional Director (Vocational Education) is a higher post in comparison to the substantive post of Joint Director, so the petitioner has been promoted. He admitted that petitioner is senior most among all Joint Directors and is consequentially, the obvious choice as the rightful candidate and the Claimant for being asked to officiate on the next promotional post of Additional Director. In these circumstances, the petitioner is to be posted as officiating Additional Director without disturbing his posting from District Lucknow. Lastly, he made a request that the petitioner’s petition may kindly be dismissed. 7. We heard both the parties at length and gone through the material available on record. 8. From the record, it appears that on 5th May, 2010, this Hon’ble Court has disposed of the Writ Petition No. 496 of 2010 (S/B) and passed an order (supra) where it was expected that the State shall give posting of the petitioner as per his choice within two weeks from the date of production of the order. By following the said order, the posting was given to the petitioner on the post of officiating Additional Director (Vocational Education) Camp Office, Directorate, Secondary Education, Lucknow. 9. By following the said order, the posting was given to the petitioner on the post of officiating Additional Director (Vocational Education) Camp Office, Directorate, Secondary Education, Lucknow. 9. Further, by an order dated 12.5.2011, this Hon’ble Court was informed that the designation of the petitioner has been changed what he desires and now he is posted as Joint Director of Education, Camp Office, Directorate of Education (Secondary), Lucknow w.e.f. 29th April, 2011. Thus, the appointment to the petitioner was given as per his status and the place of choice i.e. Lucknow. 10. Needless to mention that Hon’ble Supreme Court in the case of P.K.Chinnasamy v. Government of Tamil Nadu and others (1987) 4 Supreme Court Cases, 601 observed as under:- “It cannot be lost sight of that every public officer is a trustee and in respect of the office he holds and the salary and other benefits which he draws he is obliged to render appropriate service to the State. The scheme postulates that every public officer has to be given some posting commensurate to his status and circumstances should be so created that he would be functioning so as to render commensurate service in lieu of the benefits received by him from the State. If an officer does not behave as required of him under the law he is certainly liable to be punished in accordance with law but it would ordinarily not be appropriate to continue an officer against a post and provide no work to him and yet pay him out of the Consolidated Fund. It is with this view that we had called upon the respondent-government to give the appellant a proper posting and extract work from him. Since the State Government has not done the needful, it has become necessary for the court to interfere. Ordinarily in a case of this type, the court would have no role to play.” 11. As the petitioner has already been posted w.e.f. 29.4.2011 on the substantive post of Joint Director of Education, Camp Office, Directorate of Education (Secondary), Lucknow and at his place of choice i.e. Lucknow, so nothing would survive in this petition as the designation, pay-scale, status are the same. Moreover, the petitioner will shortly attain the age of superannuation. 12. With the above observations, the writ petition stands disposed of. _____________