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Shiv Ram v. State Of U.P. And Others - WRIT - A No. 47398 of 2006  RD-AH 17191 (4 October 2006)
Court No. 38
Civil Misc. Writ Petition No.47398 of 2006
The State of U.P. and others
Hon'ble V. K. Shukla, J.
Order dated 23.08.2006 is subject matter of challenge before this Court. On presentation of writ petition this Court on 30.08.2006, had passed following order, which is being quoted below:
" Learned Standing Counsel has accepted notice on behalf of respondents no. 1 to 4.
Issue notice to respondent no. 5.
Each one of the respondents is four weeks time to file counter affidavit.
List this petition on 04.10.2006.
On 25.05.2006, Shiv Ram, petitioner was transferred from Nadi Gaon to Kalpi on personal request. One Mahendra Singh Pal, respondent no. 5 was transferred from Kalpi to Nadi Gaon in public interest. Said Mahendra Pal Singh preferred Civil Misc. Writ Petition No. 33693 of 2006 before this Court and this Court on 3rd July, 2006 asked the Deputy Director, Veterinary (Animal Husbandry) Jhansi Division Jhansi, respondent no. 2 to reconsider the matter and further directed that impugned of transfer shall not be given effect to. The Deputy Director, Veterinary (Animal Husbandry) Jhansi Division Jhansi, respondent no. 2 on 27.07.2006 decide the representation pursuant to directives issued by this Court on 03.07.2006 rejecting the representation preferred on behalf of Mahendra Singh Pal. Against the said order dated 27.07.2006 passed by Deputy Director, Veterinary (Animal Husbandry) Jhansi Division Jhansi, respondent no. 2 Civil Misc. Writ Petition No. 44879 of 2006 was preferred by Mahendra Singh Pal. Said writ petition was dismissed by this Court on 24.08.2006. It appears that aforesaid order of dismissal was passed, Mahendra Singh Pal approached Deputy Director, Veterinary (Animal Husbandry) Jhansi Division Jhansi, respondent no. 2 and the same Officer who had passed order on 27.06.2006 in totally ignorance of the aforesaid order passed the order dated 23.08.2006 and the said order is purported to have been passed pursuant to order dated 03.07.2006.
Seeing series of circumstance which have been noted above clearly reflects that on totally extraneous consideration order dated 23.08.2006 has been passed.
In these circumstance and in this background till the next date of listing operation of the order dated 23.08.2006 passed by Deputy Director, Vetenary (Animal Husbandry) Jhansi Division Jhansi, respondent no. 2 filed as Annexure No. 8 to the Writ Petition shall be kept in abeyance.
On the next date fixed Ram Jeet Dubey, Deputy Director, Veterinary (Animal Husbandry) Jhansi Division Jhansi, respondent no. 2 is directed to be personally present before this Court, alongwith the relevant record, in order to explain his conduct in the matter."
Today Sri Ram Jeet Dubey has appeared in person and has filed counter affidavit, relevant extract of which reads as under:
"3 That the deponent is present posted at Chitrajkootin capacity of Deputy Director and in addition to his charge at Chitrakoot, he is also holding the charge at Jhansi Division, Jhansi, since 30.6.2006.
4.That the transfer order dated 25.5.2006 was passed by the then Deputy Director, Jhansi Mandal, Jhansi Dr. S.K. Dwivedi.
5.That the petitioner had made a request vide application dated 20.5.2006 for his transfer from Nadigaon to Kalpi on the following grounds:
(A) Since the petitioner is senior most, therefore, he is entitled to be posted at Tehsil level and not at Block level.
(B) That the petitioner is a senior by virtue of his 18 years of service and one Sri Mahendra Pal Singh (Respondent No. 5) has completed only 6 years in service.
(C ) That the petitioner is also handicapped person with the permanent disability on his leg.
6.That considering the aforesaid ground, the petitioner was transferred to Kalpi and Respondent No. 5 was transferred in place of the petitioner.
7.That the Respondent No. 5 has preferred a writ petition No. 33693 of 2006 in which vide order dated 3-7-2006, the representation of Respondent No. 5 was directed to be decided. And in the meantime the transfer order dated 25-5-2006 was stayed.
8.That an observation was made in the order dated 30-7-2006 to the effect that a personal accommodation cannot be compatible with the public interest therefore, the matter required reconsideration by the Deputy Director of Veterinary Jhansi.
9.That bare reading of the aforesaid order gives an initial impression that the transfer order dated 25-5-2006 as far as it relates to Respondent No. 5 has bene passed "against" the public interest and in view of this misconceived notion it appears that inspite of the clear observation in the transfer order dated 25-5-2006, that the transfer or respondent No. 5 has been made "in public interest" the Court clearly though inadvertently taking an otherwise view stayed the transfer order dated 25-5-2006 till the disposal of the representation of respondent no. 5.
10.That when the order dated 3--7-2006 was placed before the deponent who had recently taken over the charge at Jhansi Mandal Jhansi, the deponent also inadvertently understood that in the order dated 3-7-2006 it had been observed by this Hon'ble court that the transfer order dated 25-5-2006 as far as it relates to respondent No. 5, has been passed "against" public interest and therefore, on the representation of respondent no. 5 made a noting dated 25-7-2006 that the transfer order in compliance of Hon'ble Court's order dated 3.7.2006 deserves to be cancelled.
11.That, however, the deponent vide order dated 27-7-2006 (Annexure no. 6 to the writ petition) realized that under a misconceived notion by mistake the transfer order dated 25-5-2006 has been cancelled, then eventually vide order dated 27-7-2006 he revised the original transfer order dated 25-5-2006.
12.That it appears that since the order dated 3-7-2006 passed in writ petition No. 33693 of 2006 a contrary view was taken, therefore, with a intention to comply with the order dated 3-7-2006 under a bona fide mistake the deponent passed order dated 23 August, 2006.
13.That the deponent humbly submits that the passing of the impugned order dated 23 August 2006 was very much unintentional and same was passed solely with the intention to comply with the spirit and observation made in order dated 3.72006 and this Hon'ble Court itself at one point of time was pleased to stay the order dated 25-5-2006.
14.That, however, even inadvertently under a bona fide mistake deponent has passed the present impugned order, then in that case the deponent submits an unconditional apology before this Hon'ble Court and also would like to bring to the notice of this Hon'ble Court and on a fresh representation made by the petitioner requesting for his transfer to Eit, Veterinary Hospital which is on the Road and near the house of the petitioner, vide order dated 29-9-2006, the deponent has accepted his request and has given him the posting at Eit Veterinary Hospital. For the kind perusal of this Hon'ble Court a true copy of order dated 29-92006 is being filed herewith and marked as Annexure SCA-1 to this affidavit.
15.That in view of facts the petitioner himself has moved a withdrawal application and he does not want to linger on the present writ petition.
16.That, however, the deponent tenders an unconditional apology before this Hon'ble Court as the impugned order was passed under a bona fide mistake, which has been subsequently corrected by the deponent as soon as it has come to his notice, therefore, in view of the aforesaid facts, the present writ petition be dismissed as withdrawn, as prayed by the petitioner himself."
After hearing counsel for the parties and Dr. Ram Jeet Dubey, a perusal of the counter affidavit clearly shows that a deliberate and willful attempt has been made by Dr. Ram Jeet Dubey to cover up illegal order which was passed by him on 23.08.206. He has tried to mention that this is a case of bona fide mistake, whereas circumstances are speaking for itself. Pursuant to order dated 03.07.2006 considered decision was taken on 27.07.2006 by Dr. Ram Jeet Dubey and copy of the same was forwarded to the Chief Standing Counsel based at High Court, Allahabad. Thereafter on 23.08.2006 pursuant to some order dated 03.07.2006 passed in writ petition No.33693 of 2006 he has recalled the order of transfer dated 25.05.2006. Dr. Ram Jeet Dubey has totally incorrectly mentioned that with an intention to comply with the spirit and observation made in order dated 03.07.2006 he has passed order dated 23.08.2006. The order dated 23.08.2006 does not contain any such reason and even does not refer to order dated 27.07.2006 passed on earlier occasion, and it appears that only as an after thought this theory has been sought to be set up. Not only this, Dr. Ram Jeet Dubey has passed fresh order on 29.09.2006 qua petitioner. The conduct of Dr. Ram Jeet Dubey, in the facts and circumstances of the present case, is not at all fair, transparent and befitting to a Government Servant. In the present case deliberately order dated 23.08.2006 has been passed, and thereafter in order to cover up the same, he has taken a totally incorrect and unsustainable defence before this Court, and even accommodated the petitioner at the place of his choice. The conduct of the officer concerned before this Court is reprimanded. This Court is of the opinion that disciplinary action be initiated against Dr. Ram Jeet Dubey and siad proceeding be brought to its logical end, in accordance with law.
Subject to observations made above, writ petition is disposed of.
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