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2016 DIGILAW 3960 (ALL)

Surendra Kumar Srivatava v. State of U. P

2016-12-08

A.P.SAHI, SANJAY HARKAULI

body2016
JUDGMENT Heard Dr. L.P. Misra learned counsel for the petitioner. 2. The order of the learned Single Judge dated 26.10.2016 vacating the interim order granted on 20.10.2016 is under challenge before us in this appeal who granted an interim relief on a prima-facie consideration in relation to a transfer order passed against the appellant who had been transferred from Lucknow to Unnao. 3. The allegation is that this transfer order is an outcome of pure malice and directions on political considerations by the authorities who were not even competent to deal with the transfer of the appellant. Learned counsel Sri Misra has invited the attention of the Court to the letter of Sri Rajesh Yadav, Member, Legislative Council of the ruling Samajwadi Party who had written a letter directly to the Chief Minister of the State requesting the transfer of the appellant on certain allegations. The said letter dated 4.7.2016 according to the appellant appears to have been entertained and the Principal Secretary to the Chief Minister has endorsed an order thereon to the Principal Secretary, Energy indicating therein that according to the request made in the letter of Mr. Yadav, orders of transfer be passed as desired. Sri Misra, therefore, submits that this clearly amounts to the dictates of an authority who did not have any power to issue such directions for transfer of the appellant and whose appointing authority is the Director, Directorate of Electrical Safety, Government of U.P., Lucknow. It is on such directions that the Special Secretary, Government of U.P. wrote a letter on 21.9.2016 thereby giving a further impetus to the aforesaid directions issued for transferring the appellant upon which the order dated 7.10.2016 was passed transferring the appellant on administrative grounds as recited in the said order and was impugned in the writ petition before the learned Single Judge. 4. Sri Misra submits that it was on such material that the learned Single Judge himself came to the conclusion that there was a prima-facie case as no inquiry was held in respect of the complaint prior to the passing of the transfer order. After recording this prima-facie satisfaction and looking to the fact that the order was passed on the dictates of higher authorities the stay order was granted. 5. After recording this prima-facie satisfaction and looking to the fact that the order was passed on the dictates of higher authorities the stay order was granted. 5. Sri Misra further points out that there was no complaint whatsoever about the functioning and discharge of duties of the appellant throughout his career at Lucknow, and so far as his stay for nine years is concerned Sri Misra has relied on a list that was placed before the learned Single Judge to indicate that there were as many as 43 other employees who had been stayed at Lucknow for more than nine years but the appellant was selectively picked up on account of malafidies aforesaid. His transfer to Unnao, therefore, even after the period of nine years is irrelevant for the purposes of transfer of the appellant. 6. Sri Misra submits that the learned Single Judge vacated the interim order after having perused the records which did not contain any adverse material against the appellant and so far as letters having been written in favour of the appellant are concerned the same does not in any way amount to any misconduct under the Government Servants Conduct Rules so as to construe that the appellant attempted to influence the authorities. 7. The conclusion drawn by the learned Single Judge that serious allegations had been made against the appellant was itself a matter of inquiry, and when no inquiry had been conducted, such allegations could not have been adversely read against the appellant for having vacated the order. 8. He also submits that the learned Single Judge himself having found this had issued directions for a confidential inquiry to the Commissioner and get it concluded and in such circumstances the interim order ought to have been extended till such inquiry was conducted and placed before the learned Single Judge. He, therefore, contends that the vacation of interim order affected the rights of the petitioner to continue at Lucknow and there was no justification for having vacated the order which amounts to virtually refusing final relief to the appellant thereby affecting his status of functioning. 9. He submits that the appeal be entertained as interference is called for. He, therefore, contends that the vacation of interim order affected the rights of the petitioner to continue at Lucknow and there was no justification for having vacated the order which amounts to virtually refusing final relief to the appellant thereby affecting his status of functioning. 9. He submits that the appeal be entertained as interference is called for. Sri Misra also submits that the statement which was made by the learned Standing Counsel with regard to the exercise of influence being extended in the inquiry, and the inquiry being delayed on that count, was an absolutely incorrect statement inasmuch as the appellant's statement as well as of others had been recorded by then. 10. We have considered the submissions raised and it has been stated by Sri Abhinav Trivedi learned Standing Counsel that the inquiry has been concluded by the Commissioner and his report dated 25.11.2016 has been made available to the State Government on 28.11.2016 which shall be produced before the learned Single Judge on the date fixed i.e, 14.12.2016. 11. He further submits that the counter affidavit to the writ petition has not been filed as yet but the same shall also be placed before the learned Single Judge as directed therein. 12. In the aforesaid background what we find that it will not be appropriate to entertain the appeal at this stage leaving it open to the appellant to raise this objection before the learned Single Judge, but at the same time we direct the learned Standing Counsel to whom the said case is assigned to serve the counter affidavit with all the material on which the respondents propose to rely in response to the writ petition, including any material that may be relevant for the purpose of decision by the learned Single Judge. The said counter affidavit shall be served on the learned counsel for the appellant by Monday i.e. 12.12.2016. 13. It shall be open for the appellant to file a response to the same and we request the learned Single Judge to dispose of the matter, if possible at the earliest on exchange of such affidavits as directed by the learned Single Judge vide order dated 28.11.2016. The status-quo as on today shall be continued till final disposal by the learned Single Judge. Disposed off.