Court No. - 36
Case :- WRIT - A No. - 10102 of 2021 Petitioner :- Aavesh Kumar Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Abhishek Mayank Counsel for Respondent :- C.S.C.
Hon'ble Neeraj Tiwari,J.
Heard learned counsel for the petitioner and learned Standing Counsel for State-respondents.
Learned counsel for the petitioner submitted that vide order dated 17.11.2016, petitioner was temporarily transferred from Ghaziabad to Baghpat as Driver in the State Level Emergency Control Unit (P.I.M.S.) U.P.-112 for a period of one year. Thereafter, it has been directed to petitioner to vacate the official accommodation which he has challenged before this Court by filing Writ-A No. 4607 of 2018 which was disposed of vide order dated 22.02.2018 on the undertaking given by the State-respondent that petitioner shall remain continue in his official accommodation (Quarter No. 1/202 at Ghaziabad). Order dated 22.02.2018 passed in Writ-A No. 4607 of 2018 is quoted below:-
"Learned Standing Counsel pursuant to order dated 13 February 2018 has received instructions from the Senior Superintendent of Police, Baghpat vide communication dated 22 February 2018 and submits that the petitioner was transferred temporarily to Baghpat for a period of one year which has been extended by another year, hence, petitioner is not entitled to vacate the official accommodation at Ghaziabad. It is, therefore, urged that family of the petitioner can continue to reside at official quarter no. 1/202 at Ghaziabad until temporary posting.
The undertaking is recorded and accepted.
In the circumstances, no further order is required to be passed. The petition is, accordingly, disposed of in terms of the undertaking."
Learned counsel for the petitioner further submitted that again, without change of any factual scenario, show cause notice dated 22.07.2021 has been issued by respondent No. 3 to the petitioner to vacate the official accommodation at Ghaziabad. Undisputedly, petitioner is temporarily posted at Baghpat, therefore, show cause notice dated 22.07.2021 is in the teeth of order dated 22.02.2018 passed by this Court Writ-A No. 4607 of 2018, therefore, the same is liable to be quashed.
Pursuant to the order of this Court dated 02.09.2021, learned Standing Counsel has produced instruction dated 11.09.2021 duly signed by S.S.P., Ghaziabad, which is taken on record. According to the instruction, proceedings are initiated for repatriation of petitioner at Ghaziabad. Further, in compliance of order of this Court dated 02.09.2021, status quo shall be maintained.
I have considered rival submissions made by learned counsel for petitioner and perused the records.
It is very unfortunate that for the very same cause of action, earlier notice was issued to the petitioner to vacate the house which was challenged by him before this Court by filing Writ-A No. 4607 of 2018 and the same was disposed of vide order dated 22.02.2018 on the undertaking of State-respondent. In compliance of said order, ultimately show cause notice was withdrawn by the State Government. Further, without change in factual scenario and on the very same ground, another show cause notice dated 22.07.2021 has been issued to the petitioner by respondent No. 3 which is not sustainable in the eye of law. Now upon instruction, again S.S.P., Ghaziabad has taken same stand that they would take proper course for repatriation of petitioner to Ghaziabad. Issuance of such notice is absolute abuse of power and also harassment of petitioner.
It is apparent that present show cause notice dated 22.07.2021 has been issued to the petitioner without going through the earlier order dated 22.02.2018 passed by this Court in Writ-A No. 4607 of 2018.
Under such facts and circumstances of the case, impugned order dated 22.07.2021 passed by respondent No. 3 is bad in law and is hereby quashed.
Accordingly, writ petition is allowed.
Petitioner shall not vacate the official accommodation (Quarter No. 1/202 at Ghaziabad) until his regular posting/transfer to other District.
S.S.P., Ghaziabad is directed to issue warning to respondent No. 3 for his negligence in issuing show cause notice dated 22.07.2021 to the petitioner without going through the order dated 22.02.2018 passed by this Court in Writ- A No. 4607 of 2018.
Order Date :- 21.9.2021 Sartaj