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2014 DIGILAW 278 (ALL)

Ajay Kumar Gupta v. State of U. P. and Others

2014-01-22

B.AMIT STHALEKAR

body2014
B. Amit Sthalekar,J.:- The petitioner is aggrieved by order dated 19.3.2013. The petitioner was placed under suspension by order dated 26.3.2012 for not getting complete the work of building in the Prathmik Vidyalay. By the impugned order dated 19.3.2013 suspension of the petitioner has been revoked but the petitioner has now been transferred to Prathmik Vidyalay Chholas, Block Dadri, District Gautam Budh Nagar. 2. Heard Sri M.A.Ausaf, learned counsel for the petitioner, Sri Ajay Kumar Sharma, learned counsel for the respondent nos.3,4 and 5 and learned Standing Counsel for the respondent nos.1 and 2. 3. From a perusal of the impugned order dated 19.3.2013, it is noticed that although the order of suspension has been revoked but the petitioner has been transferred to some other Prathmik Vidyalaya. 4. In these circumstances, it is not necessary to call for any counter affidavit from the respondents. 5. Learned counsel for the petitioner submits that such order could not be passed. It is further submitted that if the petitioner was working in the Prathmik Vidyalaya then on the revocation of the order of suspension, he ought to have been reinstated on the same post at the same place where he was working. The order of revocation cannot be converted into as an order of transfer. Learned counsel for the petitioner has relied upon a decision of the Division Bench of this Court in the case of Govind Chandra Gupta vs. State of U.P. and others reported in 2010 (4) ADJ 1 (DB) (LF). Paras 13 and 14 of the said judgment reads as follow:- "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. 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 19.01.2010, 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." 6. Learned counsel for the petitioner has further relied upon a decision of this Court in Writ Petition No.1083 of 212, Suraj Prasad & 2 others vs. Zila Basic Shiksha Adhikari Kheri & another. This Court interpreting the provisions of Section 27 of Right of Children to Free and Compulsory Education Act, 2009 has held that services of the teacher can be utilized for purpose of teaching and a teacher cannot be directed to do construction work of the Institution. Therefore, on both counts the impugned order dated 19.3.2013 cannot survive and is accordingly quashed. On the suspension order being revoked, the petitioner shall be entitled to be reinstated on the same post and at the same place where he was working at the time the order of suspension was passed. 7. Learned counsel for the petitioner further submits that he has been paid half salary by way of subsistence allowance during the period of suspension. Learned counsel for the petitioner states that till date no departmental proceedings have been initiated against the petitioner and no chargesheet has been issued so far. With regard to payment of arrears of difference of salary for the period of suspension the petitioner may prefer a representation before the District Basic Education Officer, Gautam Budh Nagar within ten days from today. If such a representation is preferred before the respondent no.4, the said respondent shall consider and decide the same by a reasoned and speaking order within a further period of one month. 8. If such a representation is preferred before the respondent no.4, the said respondent shall consider and decide the same by a reasoned and speaking order within a further period of one month. 8. If no decision is taken by the said authority within the aforesaid period, the petitioner would be entitled to the difference of arrears of salary for the period for which he has been placed under suspension. With the above directions the petition stands disposed of. _____________