- (1.) This writ petition was filed with the prayer for quashing the subsequent transfer order passed in the case of the petitioner. After issuing notices to the respondents, this court passed an interim order dated 8.9.05, which reads as under: "Issue notice to the respondents fixing a date immediately after six weeks. The petitioner as well as the respondent No. 5 are both the Account Clerks working in Nehru Yuva Kendra Sangathan, which is a Government of India undertaking. On their own request the respondent No. 5 was transferred from Ghazipur to Lucknow, whereas the petitioner was transferred from Mau to Ghazipur by order dated 13.7.05 passed by the Zonal Director, Nehru Yuva Kendra Sangathan, Lucknow respondent No. 3. In pursuance of the aforesaid order the petitioner was relieved from Mau on 15.7.05 and he went to Ghazipur to join on 16.7.05. However, although the respondent No.5 had been relieved from Ghazipur but the petitioner was not permitted to join there. Meanwhile the respondent No. 3 passed a fresh order dated 16.8.05 stating that the transfer of respondent No. 5 shall remain stayed till April 2006 and by another order dated 28/29.8.06 the petitioner was attached to Nehru Yuva Kendra Sangathan, Gorakhpur until further orders. The submission of the petitioner is that since the transfer of the petitioner as well as respondent No.5 had both been made on their own request and the respondent No.5 having been already relieved from Ghazipur, the petitioner ought to have been permitted to join at Ghazipur on 16.7.05. It has further been contended that the impugned orders dated 16.8.05 and 28/29-8-2005 have been passed for extraneous consideration and on the influence of respondent No. 5 and the petitioner who was working at Mau has consequently been attached to Gorakhpur for indefinite period instead of being permitted to join at Ghazipur in pursuance of initial transfer order dated 13.7.05. Considering the aforesaid facts and circumstances of this case, the operation of the impugned orders dated 16.8.05 and 28/29/8/05 passed by the respondent No.3 shall remain stayed and the petitioner shall be permitted to join in the office of Nehru Yuva Kendra Sangathan, Ghazipur as already directed by initial order dated 13.7.05".
(2.) Respondent No.5 has filed this recall application under Chapter XXII of the Rules of the Court, 1952 read with Section 151 of the Code of Civil Procedure, with the prayer for recalling the interim order dated 8.9.05 passed by me. The said application is supported by an affidavit of respondent No.5. No counter affidavit to the averments made in the writ petition has been filed. Because a recall application has been filed, this matter has been listed before me as a tied up matter.
(3.) The preliminary question which requires consideration is as to whether a recall application in such a case would be maintainable or not, as the option open to the applicant - respondent No. 5 was to file an application for vacating the ex parte stay order, along with a counter affidavit.;