Allahabad High Court
Dipin Kumar vs State Of U.P. Thru. Addl. Chief ... on 25 May, 2023
Bench: Devendra Kumar Upadhyaya, Syed Qamar Rizvi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:37175-DB
Court No. - 1
Case :- SPECIAL APPEAL No. - 256 of 2023
Appellant :- Dipin Kumar
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Agriculture Anubhag-1, U.P. Lko. And 2 Others
Counsel for Appellant :- Mohd. Ateeq Khan
Counsel for Respondent :- C.S.C.
Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Syed Qamar Hasan Rizvi,J.
Heard Shri Ateeq Khan, learned counsel for the appellant and Shri Amitabh Rai, learned Additional Chief Standing Counsel representing the State-respondents.
The appellant-petitioner is before us in this special appeal instituted under Chapter VIII Rule 5 of the Rules of the Court assailing an order dated 15.05.2023 passed by the learned Single Judge whereby Writ-A No.3520 of 2023 which was filed against the order of transfer dated 08.04.2023 has been dismissed.
Submission of the learned counsel for the appellant-petitioner is that he is facing departmental enquiry in respect of which he was placed under suspension, however, initially the order of suspension was stayed by the Court and subsequently by means of order dated 19.04.2023 the writ petition was disposed of making the interim order regarding suspension absolute with the direction to conclude the departmental proceedings within three months. He has also stated that the petitioner has undergone treatment for glaucoma and cataract at Bulandshahr and hence in these circumstances, the transfer order is not sustainable. His submission is that transferring the appellant-petitioner from Bulandshahr to Lucknow is not warranted when the departmental enquiry has not yet been concluded and he is already undergoing treatment for glaucoma and cataract for his eyes at Bulandshahr.
Learned Single Judge while dismissing the writ petition has observed that transfer and postings are the subject matters which are best dealt with by the administration itself and further that the Courts should be slow in interfering with such administrative matters unless the transfer is against service rules or mala fide.
Learned Counsel for the appellant-petitioner has failed to show any mala fide or transfer order being against the service rules. So far as his contention regarding treatment is concerned, it may be noted that at Lucknow, there is a Medical College with excellent facilities in Ophthalmology department.
Regarding enquiry, whenever the petitioner is summoned to participate in the inquiry as per the Rules, he shall be entitled to travelling and dearness allowance. We are thus not convinced by the submissions made by the learned counsel for the appellant-petitioner.
At this juncture, learned Counsel for the appellant-petitioner has cited a judgment of Hon'ble Supreme Court in the case of Bir Bajrang Kumar v. State of Bihar and others reported in AIR 1987 Supreme Court 1345 to impress upon the Court that in similar fact situation, the Courts cannot pass different orders. He has drawn our attention to an order dated 03.05.2023 passed by the learned Single Judge in another case, namely, Writ-A No. 33311 of 2023, Deepak Kumar Ashok v. State of U.P. and others wherein it has been observed that the petitioner of the said case has been posted 400 kms. away from the present place of posting and that he ought to have been posted nearby a station so that he can attend the departmental proceedings. Reliance has also been placed on yet another judgment of Hon'ble Supreme Court in the case of Vishnu Traders v. State of Haryana and others [1995 Supp (1) SCC 461].
We have considered the aforesaid submissions. The order dated 03.05.2023 may have been passed by the learned Single Judge in peculiar facts and circumstances of the said case. Even other wise having regard to the fact that the appellant-petitioner has been transferred to Lucknow where there are better medical facilities, it is advisable for him to join at Lucknow.
For the reasons aforesaid, we are not persuaded to take a view different than the view taken by the learned Single Judge.
The Special Appeal is hereby dismissed.
Order Date :- 25.5.2023
akhilesh/
