Court No. - 16
Case :- WRIT - A No. - 2179 of 2018 Petitioner :- Kamal Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Awadh Behari Singh,Manish Singh Counsel for Respondent :- C.S.C.,Suresh Bahadur Singh
Hon'ble Mrs. Sangeeta Chandra,J. Order on Exemption Application.
1. Heard Shri A.B. Singh and Shri Neeraj Tripathi, the Assistant Advocate General assisted by Mr. Pradeep Kumar Tripathi for the State-respondents on the exemption application filed today, which is taken on record.
2. This Court had earlier passed an order on 07.12.2018 on the basis of the arguments made by the learned counsel for petitioner directing the Principal Secretary, Rural Development Department to appear and to explain the submissions made in the counter affidavit filed earlier in writ petition No. 33851 of 2017 decided on 21.09.2017 and the statements made in the order impugned.
3. Today, an application for exemption from appearance of the Principal Secretary, Rural Development Department, Shri Anurag Srivastava has been filed. In the affidavit filed in support of the exemption application in para - 10 it has been stated that the Principal Secretary is suffering from severe backache and as per his MRI report showing collapsed intervertebral disc with posterior central bulge, he has been advised by the Senior Consultant by the Orthopaedic Department of Balrampur Hospital Lucknow complete bed rest for a period of two weeks. A copy of the prescription slip of the Senior Consultant has also been filed as Annexure - 5 to the affidavit.
4. The explanation for non appearance of the Principal Secretary, Rural Development Department is accepted. His exemption application is allowed.
Order Date :- 21.12.2018 LBY
Court No. - 16
Case :- WRIT - A No. - 2179 of 2018 Petitioner :- Kamal Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Awadh Behari Singh,Manish Singh Counsel for Respondent :- C.S.C.,Suresh Bahadur Singh
Hon'ble Mrs. Sangeeta Chandra,J. Order on Writ Petition.
(Oral)
1. Heard Shri A.B. Singh and Shri Neeraj Tripathi, the Additional Advocate General assisted by Mr. Pradeep Kumar Tripathi for the State-respondents.
2. With regard to the averments made in the writ petition and the statements made in the order impugned and also the observations of this Court in its order dated 21.09.2017 in Writ - A 33851 of 2017: Kamal Vs. State of U.P. and 4 others, Shri Neeraj Tripathi has produced before this Court the original file relating to the transfer of two employees which shows that initially Smt. Vimla Singh Solanki, an MLA from Sikandrabad, Bulandshahar had only on an application of petitioner's wife Smt. Poonam Singh dated 02.05.2017, requested to transfer the petitioner who as Assistant Engineer in DRDA, Mainpuri to either Bulandshahar or Shaharanpur or Bijnor.
3. The Commissioner had asked the file to be put up before him. When the file was put up, a noting was made by the Administrative Officer that there was a vacancy on the post of Assistant Engineer in DRDA, Saharanpur and the petitioner's case for transfer to Saharanpur can be considered, on the basis of which an approval was granted to the draft order by the then Commissioner, Rural Development Department on 28.06.2012 and order of transfer of petitioner was thereafter issued on 29.06.2017.
4. In the meantime, another application was made by the father of the respondent No. 4 which application was also entertained this time by the Minister, and the respondent No. 4 was directed to be transferred to Saharanpur.
5. When this fact came to the notice of the department, the department moved the file before the Minister again that already an order has been issued for transfer of the petitioner from Mainpuri to Saharanpur. The file was put up for directions from the Minister. There is a noting on the file at internal page No. 9 that the Minister concerned may consider transferring the petitioner either as Assistant Engineer to Mahoba, Balrampur, Mainpuri, Saharanpur, Deoria, Kanpur, Etah, Prataphgarh where also the post of Assistant Engineer, DRDA was lying vacant.
6. The further noting on the file says that the transfer of Rajeev Srivastava to DRDA, Saharanpur be cancelled. It has been signed by the then State Minister Dr. Mahendra Singh holding the independent charge of Department of Rural Development.
7. It is apparent that such order was passed cancelling the transfer order of the petitioner after the approval on the file by the State Minister concerned on 07.07.2017.
8. The learned Additional Advocate General has led this Court through the judgment and order dated 21.09.2017 in Writ - A No. 33851 of 2017 and he has specifically pointed out the observations made by this Court at internal page No. 2 of the order. It sas quoted the counter affidavit filed by Shri Rajeev Khare on behalf of the State-respondents and the counter affidavit filed by the private respondent No. 4.
9. It appears that in the counter affidavit of the private respondent No. 4 in paragraph - 7 there is a mention that the order dated 29.06.2007 in favour of the petitioner's transfer to Saharanpur was made at the level of Commissioner, Rural Development on the basis of the recommendation made by the Member of the Legislative Assembly as well as the Minister.
10. However, it is apparent that the private respondent No. 4 could not have had access to the original record/file where the transfer order of the petitioner was approved by the Commissioner on 28.06.2017 only, because of the application of the petitioner's wife being forwarded by the sitting MLA. There is no order passed by the Minister in his favour.
11. This Court was also not sure with regard to the transfer order of the petitioner dated 29.06.2017 having been passed on the approval of the Minister and therefore, in the concluding part of the order dated 21.09.2017 it had directed the Secretary/Principal Secretary of the Department concerned to verify from the record as to whether the approval with regard to the petitioner's transfer on 28.06.2017 had been made by the Hon'ble Minister. In case it came out from the record that such transfer was made on approval of the Hon'ble Minister, then, the subsequent approval in favour of the private respondent No.
4 could not be allowed to stand.
12. It was after this order was passed that a letter was sent from the Department of the Rural Development to the office of the Commissioner, Rural Development on 16.10.2017 which has been referred to in the reply sent by the Commissioner, Rural Development dated 27.10.2017.
13. This reply clarified the position as mentioned herein above, that the transfer of the petitioner was made only on the approval of the Commissioner, whereas the transfer in the case of respondent No. 4 was proposed and approved by the Minister concerned.
14. This Court therefore does not find any good ground to entertain this writ petition on the allegation that the respondents have resorted to misrepresentation and concealment of correct facts in passing the impugned order. The writ petition deserves to be dismissed.It is dismissed. No order as to costs.
Order Date :- 21.12.2018 LBY