Allahabad High Court
State Of U.P. Thru. Secy. Child ... vs Arvind Jaiswal on 3 January, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:378-DB
Court No. - 1
Case :- SPECIAL APPEAL DEFECTIVE No. - 983 of 2023
Appellant :- State Of U.P. Thru. Secy. Child Development And Nutrition U.P. Lko. And Another
Respondent :- Arvind Jaiswal
Counsel for Appellant :- C.S.C.
Counsel for Respondent :- Alok Kumar Pandey
Hon'ble Attau Rahman Masoodi,J.
Hon'ble Brij Raj Singh,J.
(Civil Misc. Application No.1 of 2023: Application for Condonation of Delay in filing the Special Appeal)
1. Heard learned Additional Chief Standing Counsel for the appellant State and learned counsel for the respondent.
2. This Intra-Court appeal filed under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 is delayed by 27 days. An application seeking condonation of delay accompanied with affidavit has been filed along with the appeal. Sri Alok Kumar Pandey, learned counsel for the respondent has put in appearance on behalf of respondent.
3. Having regard to the explanation offered in the affidavit filed in support of the application for condonation of delay and the cause shown being sufficient, the explanation putforth being plausible, is accepted. The delay in filing present Intra-Court appeal, is accordingly condoned and application is allowed.
(Special Appeal)
1. The State, by means of this Intra-Court appeal, has assailed the judgment and order dated 21.9.2023 passed by Writ Court in Writ-A No.5908 of 2023 directed against the order dated 30.6.2023 whereby the respondent was transferred from Lucknow to Shrawasti in public interest.
2. It is true that the respondent while being posted in Hardoi was attached at the Directorate in Lucknow since 2009 and the impugned order of transfer has come to be passed treating his posting to be at Lucknow. The transfer order was passed from Lucknow to Shrawasti.
3. On perusal of the order impugned in this appeal, it is gathered that Writ Court had attached some significance regarding respondent holding his lien at Hardoi and on this point, it was observed that unless the attachment order was cancelled and posting at Hardoi was revived, the order of transfer could not have been passed from Lucknow to Shrawasti. In this regard, learned counsel for the State has placed before us the order of appointment as well as relevant service rules i.e., U.P. Child Development Service and Nutrition (Group-D) Service Rules, 1992. An amendment was made in the aforesaid Rules on 28.6.2003 whereby, the Appointing Authority of Group-D employees is specified as Director. Once the Appointing Authority of Group-D employees is the Director, it becomes explicit that the services of respondent are transferable within State. An employee belonging to the above service, therefore, holds his lien in service rather than in any district. In these circumstances, the reasoning assigned by the Writ Court for quashing the order of transfer treating the respondent to have held some lien at district Hardoi in our considered opinion, is erroneous and the premises on the basis of which the order has been quashed thus, falls.
4. At this stage, we also take note of the fact that in para-18 of the writ petition the petitioner had averred that his son was appearing in the forthcoming Intermediate Board Examination during the current academic session. This certainly is a cause germane to interference for some period. Para-18 of the writ petition states as under:-
"18. That the petitioner has the peculiar family circumstances, the wife of petitioner has already died in the year 2008, the son of the petitioner is appearing in Intermediate Board Examination and is appearing in the examination. The petitioner is the only person in the family to take care of his son and his studies but acting in the most pathetic manner, the petitioner has been transferred to remote place at Shravasti."
5. The position is not disputed by the State. Having regard to the contents of para-18 of the writ petition, and the respondent having been deputed at Lucknow as an attached employee since 2009, we hereby set aside the order impugned passed by the Writ Court and modify the same to the extent that the respondent shall be allowed to work at Lucknow upto the end of the current academic session i.e., upto the end of April, 2024. As soon as the Intermediate Board Examination, 2023-24 is over, the respondent shall proceed to join at the place of transfer in compliance of the order passed. It is further provided that the salary of the respondent remaining unpaid if any, during any period in the past, shall be released in favour of the respondent without any delay so that no civil consequences are faced by the respondent on that count.
6. It is made clear that the respondent shall proceed to join without fail so that necessary compliance of transfer order is ensured without any further excuse or delay.
(Brij Raj Singh,J.) (Attau Rahman Masoodi,J.)
Order Date :- 3.1.2024
Rajneesh JR-PS)
