A.P.SAHI, J. - (1.) THESE writ petitions arise out of an action taken by the Commissioner, Chitrakoot Dham Division, who has intervened in the matter of transfers of Lekhpals governed by the Uttar Pradesh Lekhpals Service Rules 2006. The challenge is to the order passed by the Commissioner, who has reversed his action exercising his power for transferring Lekhpals from district Banda to district Chitrakoot and vice-versa. A learned single Judge of this Court passed an interim order in Writ Petition No. 44938 of 2008 on 9.9.2008 staying the impugned order. A Division Bench of this Court in a Special Appeal filed against the said interim order stayed the effect and operation of the said order of the learned single Judge on 15.10.2008. The order of the learned single Judge dated 9.9.2008 and that of the Division Bench dated 15.10.2008 are quoted below: "Learned Standing Counsel has accepted notice for the respondents No. 1 to 5 and Sri Rakesh Prasad and Sri Abhay Raj for the newly added respondent No. 6. They are granted a month's time to file counter affidavit. The petitioner shall have two weeks thereafter to file rejoinder affidavit. List immediately thereafter. The short facts of this case are that the petitioners were working as Lekhpals in district Banda. By an order dated 19.6.2008 passed by the Commissioner, Chitrakoot Dham Division, Banda they were transferred on their own request from Banda to Chitrakoot. Then by subsequent order dated 19.7.2008 the said transfer order has been cancelled by another Commissioner, Chitrakoot Dham Division, Banda primarily on the ground that there is no provision for transfer of Lekhpals outside the district. Learned Counsel for the petitioners states that the matter with regard to transfer of Lekhpals outside the district made on their own request is to be governed by the Government Order dated 29.1.1991 (Annexure-7 to the writ petition) which states that in such a case the Lekhpal who is transferred to another district will not get seniority of the earlier place of work and would be treated as if freshly appointed. It is further submitted that the petitioners have been transferred to Chitrakoot on the vacant posts of Lekhpals. The said question of transfer of Lekhpals outside the district has also been considered by the Division Bench of this Court in the case of Prabhu Nath v. State of U.P., 1995 R.D. 43 and the then existing Rules in this regard were also considered and confirming the view of the learned Single Judge, the Division Bench held that since the Rules do not contain any specific provision regarding transfer, the general rule relating transfer of a Government servant will apply and under the general law they could be transferred from one district to another. On the other hand, Sri Rakesh Prasad has stated that the Rules have been framed in this regard and in case if the provision of transfer from one district to another was to be made, the Government ought to have made provision for it as the same was within the domain of the rule making power of the State Government. In support of his submission, he has relied on a decision of the Apex Court in the case of Home Secretary v. Darshjit Singh Greval, (1993) 4 SCC 25. Since the question relating to transfer of Government servant was under consideration before the Division Bench, which after considering the relevant Rules, as exiting then, (which are similar in the new Rules of 2006 also) has held that the transfer of a person can be made from one district to another, hence, I am of the view that the petitioners have made out a prima-facie case for grant of interim protection. Accordingly, it is directed that the operation of the impugned order dated 19.7.2008 passed by the Commissioner, Chitrakoot Dham Division, Banda shall remain stayed. Sd/- Hon. Vineet Saran, J Dt/-9.9.2008" "We have heard Sri A.R. Yadav, learned Counsel for the appellant, learned Standing Counsel appearing for respondents No. 1 to 5 and Sri Rahul Sahai, learned Counsel appearing for respondents No. 6 and 7 who pray for and are allowed three weeks time to file counter-affidavit. Learned Counsel for the appellants shall file rejoinder-affidavit within two weeks. List this appeal after expiry of the aforesaid period for final disposal. Admit. Learned Counsel for the appellants has urged that by interim order final relief had been granted which is not permissible. He urged that specific provision has been made with regard to transfer of Lekhpal under the U.P. Lekhpal Service Regulations, 2006. The Government Order of 1991 has exhausted itself after Regulation 2006 has been enforced. It is further urged that Regulation 24 provides for transfer of Lekhpal within the district by the Collector or the Assistant Collector, as the case may be but the Lekhpal cannot be transferred outside the district. He has urged that rule making authority was conscious of the fact that transfer of Lekhpal has to be made within the district and for transfer of Lekhpal from one district to another district, there is no provision. But the rule making authority had not provided for transfer of Lekhpal outside the district. It is further urged that help of the provisions of Regulation 28 cannot be taken. He has lastly urged that under the Rules the Commissioner, Chitrakoot Dham Division, Banda, has no power to transfer the Lekhpal even on their own request from Banda to Chitrakoot. It has further been urged that in the disciplinary proceedings initiated against the appellants even if the appellants are exonerated or some punishment is awarded and the appellants are retained in service then also they have to work outside the district at Banda as junior most employees which will amount to double jeopardy. The argument of learned Counsel for the appellants, prima fade, has force which has been rebutted by the Standing Counsel and Sri Rahul Sahai. However, we are prima facie satisfied that the appellants are entitled for interim order. Until further orders of this Court, the effect and operation of the impugned order dated 9.9.2008 passed by learned Single Judge in Civil Misc. Writ Petition No. 44938 of 2008 shall remain stayed. However, the learned single Judge may decide the writ petition on merits as per his Lordship's convenience. Sd/-Hon. V.M. Sahai, J Sd/- Hon. Sanjay Misra, J Dt. 15.10.2008"
(2.) AGGRIEVED against the stay order of the Division Bench, Mata Badal and another preferred Special Leave to Appeal before the Apex Court, which was dismissed on 7.1.2009 by the following order:- "We are not inclined to entertain the special leave petition, having regard to the liberty granted by the Division Bench to the learned Single Judge to dispose of the writ petition and decide it on merits. The learned single Judge is requested to dispose of the writ petition as expeditiously as possible, but preferably within three months from the date of communication of this order. The Special Leave Petition is dismissed." Resultantly, all the petitions, raising the same issue, have been listed before this Court to be heard and disposed of finally. The only question rather the legal question that arises for consideration is as to whether the Commissioner of the Division has been empowered under the 2006 Rules aforesaid to pass any order of transfer of a Lekhpal from one district to another.
(3.) LEARNED Counsel Sri Harish Chandra Singh contends that the Commissioner has the power to proceed to pass an order of transfer in view of the Government Order dated 29.1.1991 and the Government Order dated 14.4.1998. He submits that the said Government Orders read together would indicate that the Commissioner is the authority for approving an order for transfer of Group-C employees from one district to another. Supplementing the said submission, Sri Singh further points out to Rule 28 of the Rules, to contend that in such matters for which the Rules do not make any provision, the aforesaid Government Order will continue to apply and, therefore, an order of transfer can be passed for giving effect to from one district to another. He has further relied on a Division Bench judgment of this Court in the case of Prabhu Nath v. State of U.P. and others, 1995 RD 43, to contend that such a power has to be read into the hands of the Commissioner of the division.;