ASHOK KUMAR TIWARI Vs. STATE OF U P

JUDGEMENT

(1.) HEARD Sri Ishraq Farooqui, learned counsel for the petitioner and learned Standing counsel for the opposite parties. The petitioner vide order dated 11.11.2008 was promoted on the post of Senior Clerk and he was ordered to be posted in the office of Chief Medical Superintendent. He accordingly joined on the said post on 14.11.2008. Vide order dated 9.2.2009 the petitioner was posted at the District Hospital, Sitapur and he joined there on 14.2.2009. Later on by way of order dated 27.2.2009 another person Sri Vijay Shankar Dwivedi, Senior Clerk, Lucknow was transferred to the District Sitapur and posted in the office of Chief Medical Superintendent, Sitapur. He was ordered to be posted on the same post where the petitioner was working. Partially modifying the order dated 9.2.2009, annexed as annexure No.3, the petitioner was asked to be back and was posted in the office of Chief Medical Officer. This was done in order to accommodate Sri Vijay Shankar Dwivedi, who had come from Lucknow in the office of the Chief Medical Superintendent. Learned counsel for the petitioner has raised two fold objections. Firstly, that since the petitioner had joined in pursuance of the order dated 9.2.2009, hence on the joining of the petitioner, the order of transfer and promotion got exhausted and later on no modification of the order which is no more in existence can be made. Hence, the order dated 27.2.2009 partially modifying the order is bad in law. Secondly, the argument is that Sri Vijay Shankar Dwivedi has been shown to be senior to the petitioner on account of seniority at Lucknow. It is settled law that when a person is transferred to another District on his own request he looses his seniority in that cadre of the new district and has to be posted at the bottom. Sri Salik Ram Yadav, learned counsel for the caveator has put in appearance for Sri Vijay Shankar Dwivedi and vehemently argued that Sri Dwivedi has joined the office of Chief Medical Superintendent and there is no occasion to disturb him from the post. In this view of the matter, the petitioner who has been promoted on 9.2.2009 and joined on 14.2.2009, inter alia, becomes senior to Mr. Vijay Shankar Dwivedi, who has come from Lucknow and has to be placed at the bottom of the seniority list. Therefore, the petitioner's order transferring him back to the office of the Chief Medial Officer is bad. Learned Standing counsel has pointed out that the petitioner has approached this court earlier and while declining to interfere with the order, remitted the petitioner for decision of his representation by the executive authority. It is this rejection order which has been challenged in this petition. The reasoning given in the rejection order is hit by the reason and observations made above. The rejection order as well as the partial modification order are both bad in law. However, considering the fact that Sri Vijay Shankar Dwivedi has joined in the office of Chief Medical Superintendent and the petitioner has been directed to be posted in the office of Chief Medical Officer, it appears expedient that no more interference may be made by this Court and the petitioner may be allowed to join at the office of Chief Medical Officer. His apprehension is that now he will be sent to some Primary Health Center out of the head office and the order has been modified only to accommodate Mr. Vijay Shankar Dwivedi to his detriment. In view of the discussions made above, the opposite parties are restrained from sending the petitioner any where out of the office of the Chief Medical Officer. In this way both the petitioner and Sri Vijay Shankar Dwivedi can remain in Sitapur on their respective place of postings. However, it is clarified that transfer of both these officials can be considered at the time of annual chain of transfers. With these observations, the writ petition is finally disposed of.