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Judgment
Hon''ble Devendra Kumar Upadhyaya, J.—Notice of the writ petition has been accepted by Shri Shishir Jain,learned Standing counsel appearing for opposite party nos. 1 to 4,who prays for and is granted two weeks'' time to file counteraffidavit. One week''s time thereafter shall be available to the learned counselfor the petitioner to file rejoinder affidavit, if he so desirous.
List after expiry of the aforesaid period.
In respect of grant of interim relief, learned counsel for thepetitioners submits that vide order dated 16.12.2011 as contained inAnnexure no.1 to the writ petition, the Addl.General Manager(Agra Zone) has transferred the petitioner no.1 from Unit-I Kanpurto Agra Unit and by the same order, the petitioner no.2 has beentransferred from, Unit-I Kanpur to Manpuri Unit, which order couldnot have been passed by the Addl.General Manager (Agra Zone) for the reason that any transfer order in respect of the petitioners couldbe passed by the Managing Director as it is the Managing Directorwho is the appointing authority of the petitioners.
Learned counsel for the petitioners also states that pursuant to theorder dated 16.12.2011, the relieving orders dated 22.12.2011(Annexures 2 and 3 to the writ petition) were passed by the Addl.Project Manager, Unit-I, Kanpur relieving the petitioners fromKanpur for their joining at Agra and Manpuri respectively. Learned counsel for the petitioners further states that in fact the transfer order could have been passed by the Managing Director and not by the Addl.General Manager and the Managing Director while passing the formal transfer order dated 23.12.2011 (Annexure 4 to the writ petition) has acted unlawfully as he has not applied his mind while passing the transfer order.
Learned counsel for the petitioners further submits that in view of the G.O. Dated 12.12.1988, which has been annexed as Annexure no.5 to the writ petition, the petitioners being the elected representatives of the Employees Union could not have been transferred before expiry of the period of two years from their taking charge of the elected office and since the petitioners were elected as Secretary and President of the Employees Union on 25.05.2011 as such they could not have been transferred before May, 2013.
Learned counsel for the petitioners also states that the relieving order dated 22.12.2012 could not have been passed before the formal order was passed by the Managing Director.
On the other hand learned counsel for the opposite parties has tried to justify the impugned action.
I have considered the arguments advanced by the learned counsel for the petitioners and the opposite parties and also perused the record.
A perusal of the order dated 16.12.2011 shows that the petitioners in fact, have not been transferred to different Units of the Corporation in the traditional sense of transfer, rather on account of the petitioners being surplus, they have been adjusted to other Units within Agra Zone. The said order dated 16.12.2011 also reveals that the decision to adjust the surplus employees was taken in the meeting held on 13.12.2011. The Office memorandum adjusting the petitioners from Unit-I Kanpur to Agra Unit and Manpuri Unit respectively has admittedly been taken note of by the Managing Director and the formal order of transfer was also issued by the Managing Director on 23.12.2012. Merely because the order for relieving the petitioners was passed before the order by the Managing Director was passed, it cannot be said that the impugned action is vitiated.
In this regard, it is also note worthy that the petitioners have received the order of transfer only on 02.01.2012 and 03.01.2012, that is, after passing of the order by the Managing Director. So far as the argument of the learned counsel for the petitioners regarding applicability of the G.O. Dated 12.12.1988 is concerned, this Court is prima facie of the view that the same is not applicable in the present case for the reason that the benefit of the said Government Order is available in the case of usual transfer of the employees who are office bearers of the Employees Union from one place to another. In the instant case, the impugned action is in fact, not transfer of the petitioners rather it is an adjustment of the surplus staff.
In the aforesaid view of the matter, this Court, prima facie, is of the view that the Government Order dated 12.12.1988 does not have any application to the case of the petitioners.
Learned counsel for the petitioners has submitted that the petitioners are not surplus and the work at Unit I, Kanpur is available. The question as to whether the petitioners at Unit I, Kanpur are surplus or not, can be considered after filing of the counter affidavit. Accordingly, at this juncture, the prayer for interim relief is rejected.