L K BAROT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) These two Letters Patent Appeals are directed against the order of the Learned Single Judge in Special Civil Appln. No. 7299 of 1991 according interim relief of stay of an order of transfer made against the petitioner in the Special Civil Application who is respondent No. 4 in Letters Patent Appeal No. 403/91 and respondent No. 2 in Letters Patent Appeal No. 404/91 we shall hereinafter referred to him as the petitioner. Respondents No. 1 and 3 in the Special Civil Application have preferred Letters Patent Appeal No. 404/91 and respondent No. 4 in the Special Civil Application has preferred Letters Patent Appeal No. 403/91. They shall be referred to as respondents as per their array in the Special Civil Application.

(2.) The petitioner challenged his order of transfer from Valsad to Ahwa. Pending the Special Civil Application the petitioner wanted the interim relief to stay of the order of transfer. The learned Single Judge was left with the allegations put forth by the petitioner alone since they not controverted by way of any affidavit-in-reply and accepting the case of the petitioner that the order of transfer which came to be made was only to accommodate respondent No. 4 and further it is tainted with mala fides chose to accord the interim relief.

(3.) It is true that the learned Single Judge was obliged to take note of a situation where there was no controverting of the allegations put forth by the petitioner in respect of his case. But we are of the view that even otherwise it would be appropriate for the Court to assess the legal propriety of according interim relief by way of stay of an order of transfer even as per the case put forth by the petitioner. Transfer is one of the incidence of service. There could be an order of transfer even to accommodate another person in service and it cannot be straightway viewed with suspicion. These are principles set down in pronouncements of the Apex Court in the land. In the present case the order of transfer in fact has been disclosed in the papers filed along with the Letters Patent Appeals and there we find that the order of transfer covers not only the petitioner but also four others including respondent No. 4 who has been transferred in the place of the petitioner. Until and unless the infirmities pointed out by the petitioner with regard to the order of transfer are established at the time of the disposal of the Special Civil Application we do not think that there should be an order of stay of the transfer of the petitioner. For want of an affidavit-in-reply at this stage the Court may not proceed to accept what all has been alleged by the petitioner. They have got to be tested when the Special Civil Application gets disposed of taking note of all the materials that may be placed before Court including the affidavit-in-reply. 4 There are other features also which features we are bound to take note of for the purpose of disposing of these two Letters Patent Appeals. The order of learned Single Judge was made on 5 The learned Single Judge himself directed that his order shall stand stayed upto 19 and on the filing of the Letters Patent Appeals there has been a stay of the order of learned Single Judge. We are told that the petitioner has gone and joined Ahwa to which place he has been transferred and as on date he is functioning there. In view of the above discussion of ours we allow these Letters Patent Appeals set aside the order of the learned Single Judge subject-matter of these two Letters Patent Appeals and the interim relief of stay of the order of transfer asked for by the petitioner shall stand negatived. What all we expressed will hold good for the purpose of testing the propriety or otherwise of according interim relief. When the Special Civil Application gets disposed of by the learned Single Judge it is needless to state that it will happen de hors what all we have stated here and that will be on merits as would transpire from all the materials which the parties may place before Court. There is no order as to costs.