Hon'ble Ritu Raj Awasthi,J.
The delay of two days in filing the special appeal, is hereby condoned. List and connect with Special Appeal No. 746 of 2010.
We have heard the learned counsel for the parties and gone through the order passed by the learned Single Judge.
We are, prima-facie, satisfied that if a person has been appointed in substantive capacity, may be against a permanent post, he can be transferred to a temporary post as the cadre consists of both permanent as well as temporary post, under the Rules. The view, therefore, expressed by the learned Single Judge that the respondent having been appointed against permanent post, cannot be transferred to a temporary post, prima-facie appears to be not sustainable.
The plea that since the respondent has exposed certain bungling in the department, therefore, he is being transferred, has been specifically refuted by the learned counsel for the appellant saying that it is not a case of malafide transfer for the reason that Regional Laboratories are to be strengthened by posting food analysts and the respondent and other like persons, being expert in the field, are required to be posted in the exigency of service.
The plea of the appellant that the averments made in the transfer order that the respondent is being posted on a clear vacancy stands belied by the own document of the appellant which says that there are surplus staff at Varanasi also, the learned counsel for the appellant says that a large scale transfers have been effected, for the aforesaid reason and that it is not correct that there is any surplus staff of the qualifications and experience as that of the respondent. He, however says that he will file an affidavit giving correct facts, upon reopening of the Courts after Dushara holidays.
Considering the plea of the parties counsel that the order impugned, does not take into consideration the aforesaid plea but is based only on two grounds i.e. it is an action in retaliation because of the exposer of bungling in the department by the respondent and that he being appointed against permanent post, cannot be transferred to a temporary post, we stay the operation and implementation of the impugned order dated 27.08.2010 passed by the learned Single Judge and further direct that status quo, as exists today, shall be maintained by the parties, till next date of listing.
List this matter on 20.10.2010.
Order Date :- 12.10.2010 vks