Court No. - 39
Case :- SPECIAL APPEAL No. - 174 of 2018 Appellant :- Wasi Ahmad Respondent :- State Of U.P. And 5 Others Counsel for Appellant :- Anant Vijay Counsel for Respondent :- C.S.C.,Ravindra Singh
Hon'ble Dilip Gupta,J. Hon'ble Jayant Banerji,J.
This Special Appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules (hereinafter referred to as the 'Rules') is directed against the judgment dated 30 January 2018 by which the learned Judge has dismissed the writ petition as not maintainable under Chapter XXII Rule 7 of the Rules.
Learned Standing Counsel appears for respondent Nos. 1 and 2 and Sri Ravindra Singh appears for respondent Nos. 3 to 6.
It transpires from the records of the writ petition that the petitioner, who is the Secretary in the Cane Cooperative Society, was transferred by order dated 26 August 2017. This order was assailed by the appellant in Writ A-No.42416 of 2017 which was dismissed on 12 September 2017 and the order is reproduced below:-
"Heard learned counsel for the petitioner, learned standing counsel and Sri Ravindra Singh who appears for the respondent Nos. 2 to 6.
The challenge in the instant writ petition is to an order of transfer dated 26 August 2017.
The order of transfer is not shown to fall foul of any statutory rule or regulation which may govern the terms and conditions of service of the petitioner.
In view thereof it would not merit any interference by the Court under Article 226 of the Constitution.
The submission of the learned counsel for the petitioner, is however based upon the provisions of the Government Order dated 1 May 2017 and an alleged violation thereof. Quite apart from the issue as to whether the same would apply to an employee of the respondents, this would also not constitute a ground for invocation of Article 226 of the Constitution in light of the settled legal position that an infraction of a policy measure would not merit the Court interfering with an order of transfer except to permit the employee/officer to represent his case to the higher authorities.
Accordingly, this Court dismisses the writ petition, leaving it open to the petitioner to move an appropriate representation to the second respondent who may, if so moved, take an appropriate decision thereon in accordance with law."
The petitioner thereafter filed a representation which was rejected by a detailed order dated 27 October 2017.
These two orders dated 26 August 2017 and 27 October 2017 were then assailed by the petitioner before the Lucknow Bench of this Court in a Writ Petition being Service Single No.29769 of 2017. This petition was dismissed on 8 December 2017 and the order is reproduced below:-
"Learned counsel for petitioner submits that he may be permitted to withdraw the present writ petition to take appropriate remedy against the order dated 12.09.2017 passed by this Court in Writ A No.42416 of 2017, Wasi Ahmad Versus State of U.P. & Others.
With the aforesaid liberty, present writ petition is consigned to record."
It is thereafter that the petitioner filed Writ A No.3545 of 2018 for quashing the transfer order dated 26 August 2017 and the order dated 27 October 2017. The learned Judge has dismissed the writ petition for the reason that a second petition for the same cause of action would not be maintainable.
Learned counsel for the appellant has submitted that since liberty was granted by the Writ Court on 8 December 2017 in Service Single No.29769 of 2017 by the Lucknow Bench of this Court for want of jurisdiction, the writ petition filed by the petitioner out of which the present Special Appeal arises was maintainable.
We express our inability to accept this submission of learned counsel for the appellant. It is not in dispute that the transfer order dated 26 August 2017 as also the order dated 27 October 2017 rejecting the representation filed by the petitioner were assailed by the petitioner in the aforesaid Writ Petition Service Single No.29769 of 2017 before the Lucknow Bench of this Court. Learned counsel for the petitioner submitted that he may be permitted to withdraw the writ petition to take appropriate remedy against the order dated 12 September 2017 passed by the Court in Writ A No.42416 of 2017 which had earlier been filed by the petitioner. The Court, accordingly, consigned the writ petition to record with the aforesaid liberty. The Court did not grant liberty to the petitioner file a fresh petition to assail the transfer order dated 26 August 2017 or the order dated 27 October 2017 by which the representation filed by the petitioner had been rejected.
The learned Judge was, therefore, justified in dismissing the writ petition for the reason that a second writ petition for the same cause of action would not be maintainable since the same transfer order and the order rejecting the representation were assailed in this petition.
We, therefore, propose to dismiss this Special Appeal with costs of Rs.5,000/-.
The Special Appeal is, accordingly, dismissed with costs of Rs.5,000/- which the appellant shall deposit before the Registrar General of the Court within a period of two months from today. On deposit of such cost, it shall be transmitted to the account of Allahabad High Court Mediation and Conciliation Centre. If the appellant fails to deposit the cost, the Registrar General of the Court shall inform the District Magistrate /Collector, Pilibhit for recovery of the said amount as arrears of land revenue and after recovering the said amount, it shall be transmitted to the Registrar General of the Court for depositing in the account of Allahabad High Court Mediation and Conciliation Centre.
Order Date :- 27.2.2018 NSC (Dilip Gupta, J.) (Jayant Banerji, J.)