Heard Shri H.G.S. Parihar, learned Senior Counsel appearing for the petitioner, learned Additional Chief Standing Counsel and Shri Naresh Chandra Mehrotra, learned counsel for opposite parties.
By means of this writ petition the petitioner has challenged the transfer order dated 08.07.2020 by which has been transferred from Varanasi Division to Mirzapur Division.
By an interim order dated 23.07.2020 protection has been granted that no coercive action shall be taken against the petition.
While posted as Deputy Director, Construction at Varanasi as many as six disciplinary proceedings were initiated against the petitioner by the Director, Mandi Parishad, who is the head of the department. The petitioner was also placed under suspension vide order dated 03.06.2020. On a challenge being made to the said suspension and initiation of disciplinary proceedings, inter alia, on the ground that the same being without jurisdiction as the Board of Directors is competent to taken such action against the petitioner and not the Director, this Court passed an interim order dated 24.02.2020 staying the suspension in Writ Petition No. 10072 (S/S) 2020; Ram Naresh Vs. State of U.P. and Ors.
Consequent to it the petitioner claims to have joined his service on 27.06.2020. A formal order of his reinstatement was passed by the Mandi Parishad on 01.07.2020. Thereafter, on 08.07.2020 by the impugned order the petitioner was transferred from Varanasi Division to Mirzapur Division and as already stated an interim order was passed in this case prohibiting any coercive action against him.
The transfer has been made during Covid-19 pandemic, as such, the petitioner has challenged the impugned transfer, inter alia, on the ground of violation of the State Government Order dated 12.05.2020 by which all transfers were stayed during the Covid-19 pandemic except in the circumstances mentioned in Paragraph 2 thereof.
It is the contention of Shri H.G.S. Parihar, learned Senior Counsel for the petitioner that none of the eventualities mentioned in Para 2 of the Government Order dated 12.05.2020 were attracted in this case and the last line of the said paragraph requiring the approval of Chief Minister of Uttar Pradesh was also in respect of only such eventualities and not independent thereof. On a bare perusal of Para 2 of Government Order dated 12.05.2020 what comes out is that there are two parts of it. In the 1st part - certain eventualities are mentioned on the satisfaction of which the officer/employee can be transferred. However, as per the second part of para 2 even when those eventualities are not present but there are extraordinary and unavoidable circumstances an officer/employee can be transferred but only with the approval of Hon'ble Chief Minister of U.P. However, in the present case, there are documents on record to show that the transfer order was issued with the approval of the Hon'ble the Chief Minister of U.P. and note sheets in this regard have been brought on record by the opposite parties, therefore, this contention is not acceptable. It is also not acceptable that it is not the intention of the said Government Order 12.05.2020 that a person against whom there are serious allegations of having committed financial irregularity, should be allowed to continue at the place of his posting where the said illegalities are alleged to have been committed, even if during the Covid-19 pandemic. The opposite parties were well within the their rights, other than jurisdiction, to transfer him outside the Varanasi Division as some of the allegations against him relates to said Division also. The transfer order has been passed on administrative ground and not in a routine manner. Considering the allegations against the petitioner it was necessary to transfer the petitioner out of Varanasi. No doubt, the earlier disciplinary proceedings as also the suspension order dated 03.06.2020 have been withdrawn, as, informed by learned counsel for petitioner, on 10.02.2021 but this was done on the ground that that they were without jurisdiction and thereafter on i.e. 12.02.2021 a decision has been taken by the Board of Directors of the Mandi Parishad to initiate disciplinary proceedings against the petitioner and also placed him under suspension, Consequent to which an order dated 18.02.2021 has been passed placing the petitioner under suspension and attaching him with the Additional Director, Administration at the Head Quarters of the Mandi Parishad at Lucknow. The said order dated 08.02.2021 was challenged by the petitioner before this Court by means of Writ Petition No. 7446 (S/S) 2021. The same has been dismissed by this Court on 23.03.2021.
In view of the subsequent development by which the petitioner has not only been suspended, but, has also been attached with the Additional Director (Administration), Head Quarter of Mandi Parishad at Lucknow, apart from the fact that the order of transfer does not suffer from any error, it has lost its efficacy, as, now, in view of the suspension order the petitioner is to be attached during pendency of proceedings at Lucknow and impugned order of his transfer from Varanasi to Mirzapur has lost its efficacy.
Shri Parihar also tried to raise the point that the order was passed in colourable exercise of powers. He invited the attention of the Court to Annexure No. 6 dated 03.01.2020 and the F.I.R. lodged by the petitioner in this regard on 21.02.2020 which according to him implicated certain high officials of Mandi Parishad who manipulated his transfer, however, the Court finds that no person has been impleaded by name as an opposite party herein. Even otherwise the facts and documents annexed with the writ petition do not persuade the Court to arrive at the conclusion that the transfer was made in colourable exercise of powers. The petitioner was posted as DDC, Varanasi and there are allegations against him pertaining to his posting at Varanasi also, in addition to the allegations against him while posted at Gonda, Balrampur and Colonelganj, therefore, it was in the fitness of things that he should be transferred elsewhere, especially as, his suspension dated 03.06.2020 had been stayed by this Court on 24.06.2020 which of course has now lost its relevance in view of the subsequent suspension order dated 18.02.2021 as already referred. The plea of colourable exercise of powers and extraneous reasons in passing the order are therefore rejected.
For all the aforesaid reasons, the writ petition fails and is dismissed.
Order Date :- 21.05.2021 R.K.P.