Wahid Hussain vs State Of U.P. And 5 Others
2013 Latest Caselaw 6077 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 05.08.2013
 
Delivered on 26.09.2013
 
Court No. - 34
 

 
Case :- WRIT - A No. - 34147 of 2013
 
Petitioner :- Wahid Hussain
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- G.C. Pant,Nitin Pant
 
Counsel for Respondent :- C.S.C,R.D.Singh
 
Connected with 
 
Case :- WRIT - A No. - 38430 of 2013
 
Petitioner :- Wahid Husain
 
Respondent :- State Of U.P.& 4 Ors.
 
Counsel for Petitioner :- G.C.Pant,Nitin Pant
 
Counsel for Respondent :- C.S.C.,Randhir Singh
 

 
Hon'ble Sudhir Agarwal,J.

1. The petitioner was appointed as Lekhpal and on 25.01.1993 joined at Amroha, District Moradabad. There is another Lekhpal Riyasat Hussain, respondent No.4 in Writ Petition No.34147 of 2013, (hereinafter referred to as "first petition"), working in District Moradabad. Since he (respondent no.4)had worked for more than ten years in one Tehsil, District Magistrate, vide order dated 21.5.2012, which was communicated to respondent no.4 by Additional District Magistrate (Administration), Moradabad, transferred him from Tehsil Moradabad to Tehsil Thakurdwara. However, within three days, the District Magistrate vide order dated 25.5.2012, (communicated by Additional District Magistrate's letter dated 26.5.2012), the place of transfer of respondent no.4 was changed and instead of Thakurdwara, it was made to Belari. Again on personal request of respondent no.4, he was transferred back to Tehsil Moradabad vide order dated 20.7.2012 of District Magistrate. Then the Deputy Collector, Sadar, Moradabad vide order dated 6.8.2012 posted respondent no.4 at Daulaari in Tehsil Moradabad Sadar. However, respondent no.4 managed to stay at Lekhpal Area (Halqa) Laakari-Fazalpur.

2. Three Lekhpals including respondent no.4 as well as petitioner were promoted as Revenue Inspector by District Magistrate's order dated 15.3.2013. Consequently, petitioner was transferred from his existing place Bilari to Tehsil Kanth/Chajlaith while respondent no.4 was transferred from Tehsil Moradabad, Lekhpal area Laakari Fazalpur to Tehsil Bilari/Kundarki.

3. Tehsildar Sadar, Maradabad issued relieving certificate dated 18.3.2013 relieving respondent no.4 from the charge of Lekhpal area Laakari Fazalpur so as to enable him join promoted post of Revenue Inspector at Tehsil Bilari (area Kundarki).

4. The respondent no.4, having not handed over charge of Lekhpal area Laakari Fazalpur, was issued a charge sheet dated 8.4.2013 (Annexure 11 to the first petition).

5. The respondent no.4 was not inclined to go on transfer so as to leave his place of posting of Lekhpa, area Laakari-Fazalpur, Tehsil and District Moradabad and came to this Court in writ petition No.21192 of 2013, wherein following order was passed on 17.4.2013 disposing of the writ petition.

"Heard learned counsel for the petitioner and learned Standing Counsel for the respondents.

Petitioner submits that petitioner's name has been finalized for being accorded promotion from the post of Lekhpal to Revenue Inspector and in the said direction, petitioner submits that an order has been passed on 15.3.2013 according placement to the petitioner. Petitioner at this juncture has approached this Court and his contention is that he is prepared to forgo his promotion and he be permitted to continue as Lekhpal.

Consequently in the fact of the case, District Magistrate, Moradabad is directed to see and ensure that final decision is taken on the request of petitioner in accordance with law, preferably within period of next eight weeks from the date of production of certified copy of this order.

With these observations, writ petition is disposed of."

6. Consequently District Magistrate, Moradabad accepted request of respondent no.4 of giving up promotion, and, allowed him to continue in the cadre of Lekhpal. The promotion and posting order dated 15.3.2013 was cancelled vide order dated 29.5.2013.

7. Since no specific order was passed whether respondent no.4 will continue to work as Lekhpal, (area Laakari Fazalpur), Moradabad, one Haji Mohd. Usuf Ansari, Nagar Vidhayak (Member, Legislative Assembly), Samajwadi Party, Moradabad sent a letter to Deputy Collector, Sadar, Moradabad requesting that respondent no.4 be posted at Lekhpal area Laakari Fazalpur as he is very close friend of him. Consequently, order dated 5.6.2013 was passed posting respondent no.4 at Lekhpal area Laakari Fazalpur and changing area of functioning of petitioner from Lekhpal area Laakari Fazalpur to Paakvada and consequential posting order was also passed on 5.6.2013.

8. Since these two orders were passed on political consideration, the petitioner came in Writ Petition No.34147 of 2013 assailing the aforesaid orders. Hon'ble P.K.S.Baghel, J., while entertaining writ petition on 20.6.2013, noticed contention of petitioner's counsel that transfer of respondent no.4 is on political consideration and for accommodating him. The respondents were asked to file counter affidavit/seek instructions and transfer order was stayed, subject to the condition, if petitioner has not already been relieved.

9. It is said that just two days back i.e. on 18.6.2013, on the allegation that petitioner has not complied with transfer order dated 5.6.2013, Deputy Collector, (Sadar) Moradabad passed another order placing petitioner under suspension. Thereagainst, writ petition no.38430 of 2013 (hereinafter referred to as "second petition") came up and order of suspension was also stayed on 18.7.2013.

10. A counter affidavit has been filed by respondent-State of U.P., in second petition. Sri C.S.Singh, learned Addl. Chief Standing Counsel has requested that same may be read in first petition also.

11. It is admitted therein that respondent no.4 was posted at Lekhpal area Laakari Fazalpur, Tehsil Sadar, Moradabad on 3.9.2012 and since then he was working thereat. On his promotion vide District Magistrate's order dated 15.3.2013 as Revenue Inspector, he was relieved from the aforesaid area on 18.3.2013 but after accepting his request of forgoing promotion, Deputy Collector passed order on 05.6.2013 allowing respondent no.4 to continue to work at Lekhpal, area Laakari Fazalpur. This order is not influenced by any political consideration. Lekhpal Area, Pakwada and Laakari Fazalpur are both adjoining to Moradabad town and at a distance of three kms. to each other. When the petitioner failed to hand over charge, he was suspended on 18.6.2013 whereupon charge was handed over to concerned Revenue Inspector, Iftedar Hussain. The charge of Lekhpal area Laakari Fazalpur then was handed over to respondent no.4 by Sri Iftedar Hussain, in the afternoon of 19.6.2013. About letter of Nagar Vidhayak, it is said that when enquired, concerned Vidhayak has informed vide letter dated 5.7.2013 that he has not sent any such letter and document filed along with first petition is a forged one.

12. Sri Riyasat Hussain, respondent No.4 has filed counter affidavit separately in both the writ petitions. He has justified request of stay as Lekhpal, area Laakari Fazalpur, on the ground that nineteen months only are left for him in service since he is going to retire. Even otherwise, on account of illness, he was visiting Delhi for treatment and hence gave up even promotion. The documents pertaining to medical treatment showing treatment of Asthma have also been placed on record.

13. The original record, relating to transfer, posting and promotion of these two Lekhpals has also been placed before Court for its perusal.

14. It shows that in Tehsil Moradabad, respondent no.4 was appointed as Lekhpal on 16.6.1975. After promotion of respondent no.4 and petitioner, both submitted letters expressing their intention to forgo promotion. The letter of Riyasat Hussain is dated 24.1.2013 and that of petitioner is dated 5.2.2013. The respondent no.4 assigned reason of his illness and less than two years for his retirement while petitioner gave reason for his short period left for retirement. It appears that petitioner was to retire in September, 2013. The record also shows that Smt. Nazma Begum (wife of Riyasat Hussain, respondent no.4) sent a letter dated 19.3.2013 to Principal Secretary, Revenue requesting that her husband Riyasat Hussain be allowed to forego his promotion and continue to work as Lekhpal. The aforesaid letter was forwarded by Hazi Mohd. Usuf Ansari, Nagar Vidhayak, Samajwadi Party, vide letter no.MLA-8/1-9-2013-Ra-9. On this letter, Principal Secretary Revenue made following noting:

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15. Consequently, Sri P.Lal, Under-Secretary, forwarded this letter to District Magistrate vide his own letter dated 25.3.2013 giving reference to Members of Legislative Assembly's letter and representation of Smt. Nazma Begum W/o Riyasat Hussain.

16. Another similar representation was made by wife of respondent no.4 to Chief Minister. It was also recommended by Sri Haji Mohd. Usuf Ansari, Member of Legislative Assembly, Samajwadi Party vide letter no.K-5 no.168039 dated 20.3.2013. Thereon, Sri Alok Kumar, Secretary to Chief Minister, passed following order :

^^d` layXu ifj"knkns'[email protected]'kklukns'k ds vuqlkj vuqjks/k ij dk;Zokgh djus dh vis{kk dh x;h gSA**

17. The record, thus, show that for approaching to political higher ups, respondent no.4 took help of his wife getting letters/ representations sent under her signatures though neither she is a Government employee nor otherwise can lawfully make any request giving undertaking to forgo promotion etc., which is a matter concerned with the employee himself and anything must have come from him. Taking note of such representations of wife of respondent no.4, which needed undertaking or request by employee concerned, I find that respondent officials at different hierarchy, have simply proceeded under the influence of ruling party's Member of Legislative Assembly.

18. This is not confined to respondent no.4 alone. The petitioner has also not left opportunity unavailed in his matter, He also availed similar political clout, inasmuch as, one of his representation is also on record wherein he made a complaint against inaction on the charge sheet dated 8.4.2013 issued to Riyasat (respondent no.4). This letter dated 8.6.2013 is addressed to the Revenue Minister. The minister concerned was fair enough at this time, inasmuch as, his Private Secretary's letter dated 12.6.2013 shows that on the one hand he directed District Magistrate to look into the complaint made against Riyasat Hussain and simultaneously, on the other hand, to take appropriate action against complainant Wahid Hussain, who forwarded representation directly to the Minister, flouting Conduct Rules in this regard. This conduct on the part of concerned Minister is really commendable.

19. The record which has been produced before this Court does not contain any document to show, how and in what manner, posting order of respondent no.4, posting him at Laakari Fazalpur, was passed on 5.6.2013, though relevant documents on account whereof, petitioner was placed under suspension, are on record. It shows that respondents officials have shown audacity of withdrawal/removal of relevant record of transfer of respondent no.4 posting him at Lekhpal area Laakari Fazalpur vide order dated 5.6.2013, impugned in the first writ petition. It also cannot be doubted that respondent no.4 has a political access and support of local M.L.A. Haji Mohd. Usuf Ansari of the party in power, whose two letters, sent along with letter of respondent no.4's wife, are already on record, as noted above.

20. I failed to appreciate why District Magistrate concerned took no notice of these facts so as to take appropriate action against respondent no.4 also. Simultaneously, the conduct of petitioner also cannot be appreciated since he has not disclosed the fact that he also gave up promotion and approached Minister of Department concerned directly, sending representation, as a result whereof, disciplinary proceeding has been initiated against him.

21. In the entirety of circumstances, I do not find that these are fit cases where Court should interfere with the orders impugned but, simultaneously, for withholding record by concerned District Magistrate and Deputy Collector Moradabad, this Court records its strong disapproval upon their conduct and direct that an adverse comment in their annual character roll shall be noticed by competent authority.

22. With the aforesaid directions, these writ petitions are dismissed.

23. A copy of this order shall be communicated to Principal Secretary, Revenue, as also the Chief Secretary, U.P. Lucknow for communication and compliance of directions, made above.

24. No costs.

Order Date :- 26.09.2013

KA