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2024 DIGILAW 997 (ALL)

Manoj Kumar Arya v. State of U. P.

2024-04-08

PRAKASH SINGH

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JUDGMENT : Hon'ble Shree Prakash Singh, J.-Heard Sri Vaibhav Upadhyay, learned counsel for the petitioner Sri Shailendra Kumar Singh, Chief Standing Counsel assisted by Sri Vivek Kumar Shukla, learned Additional Chief Standing Counsel for the State, Sri Shailendra Singh Chauhan and Akhilesh Kumar Srivastava, learned counsels for the Municipal Commissioner, Nagar Nigam Lucknow. 2. Under challenge is the order of transfer dated 16.3.2024 passed by the State Government. 3. The contention of the learned counsel for the petitioner is that on 5.6.2020, the petitioner was promoted on the post of General Manager (Water Works). After his promotion to the post of General Manager (Water Works), he was posted at Saharanpur, Nagar Nigam on 15.6.2020 and thereafter, he was transferred to Water Institute, Jhansi Division, Jhansi, as General Manager (Water). On 28.11.2023, after serving only 11 months, the petitioner was again transferred to the Department of Water Works, Nagar Nigam, Lucknow, where he joined as General Manager (Water), though the same was in contravention of the policy and as per whims and fancies of the State Government. 4. He further argued that on 16.3.2024 at 03.00 p.m. election is notified and the Model Code of Conduct came into existence and on the said date transfer order was passed with respect to the petitioner and thereafter he was relieved in afternoon, wherein the relieving order was made received to the petitioner at 8:30 p.m., which is evident at Page No. 25 in the bottom. In support of his submission, he referred the provisions of provision 19.4.1 of Model Code of Conduct, which is quoted hereinbelow : 5. Placing reliance to the provisions of (v) of 19.4.1 of Model Code of Conduct, he submits that there is specific provision that no transfer order shall be implemented after the Model Code of Conduct comes into existence, but in the instant matter, Model Code of Conduct came into existence at 3:00 p.m. and the transfer order, which was passed prior to noon, was implemented at 8:30 p.m., which is in contravention to the Model Code of Conduct. 6. 6. Concluding his arguments, he submits that it is not open for the opposite parties to say that the petitioner is one of employees, who is not covered with the provisions of Model Code of Conduct, as after his relieving, once he put his joining at his transferred place, his joining is send to the Election Commission/Committee constituted under the headship of the Chief Secretary. Therefore, submission is that the transfer order dated 16.3.2024 as well as relieving order dated 16.3.2024 are unlawful and against the provisions of Model Code of Conduct, thus, the same may be quashed. 7. On the other hand, counsel for the opposite parties vehemently opposed the aforesaid contention and submitted that the deliberation with respect to the transfer of petitioner was started on 5.3.2024 and the same comes to conclusion on 16.3.2024 and prior to the execution of the Model Code of Conduct i.e. 16.3.2024 at 03.00 P.M, the petitioner was relieved and therefore, there is no any ambiguity or erroneousness in the order passed. It is also added that though the order of relieving is made received to the petitioner at 8:30 p.m. which itself discloses that the order is passed in afternoon and thus, the submission is that there is no merit in arguments of the counsel for the petitioner and the writ petition is liable to be dismissed. 8. Considering the arguments of the learned counsel for the parties and after perusal of the record, it transpires that undoubtedly the Model Code of Conduct came into force at 3:00p.m. on 16.3.2024 and the transfer order was passed though record discloses that relieving order was passed in afternoon, on 16.3.2024 but no time is given thereof. Further, it also discloses that the relieving order is made received to the petitioner at 8:30 p.m. 9. When this Court examines the matter in facts and law, it emerges that the transfer order is passed on 16.3.2024 and the counsel for the opposite parties failed to demonstrate by any record that the order of relieving is passed prior to 3:00 p.m. though it has been asserted that the same has been passed afternoon whereas record discloses that the order of relieving is made received to the petitioner at 8:30 p.m., which is un-refuted. 10. 10. This Court finds that since it is evident that as the relieving order is made received at 8:30 p.m. and the provision of (v) of 19.4.1 of the Model Code of Conduct is very clear on its term that if any transfer is passed prior to notification of election, the same shall not be implemented without prior approval of the Election Commission and in the present matter it is undisputed fact that no permission is taken from Election Commission prior to the implementation of the transfer order. Consequently, the transfer order dated 16.3.2024 as well as relieving order dated 16.3.2024 are hereby quashed. 11. Liberty is given to the State/opposite parties to take a fresh decision on it's own wisdom, if it requires, while adhering the provisions of Model Code of Conduct and the prevailing laws thereoff. 12. With the aforesaid, observations/directions, the writ petition is allowed.