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Court No. 1
Special Appeal No. 471 of 2010
Hari Om Yadav
Vs.
Upendra Bahadur Singh and others.
Hon'ble Pradeep Kant, J.
Hon’ble Ritu Raj Awasthi, J.
Heard the counsel for the appellant Sri Lalit Kishore Tiwari, Sri
Pankaj Kumar Tiwari for respondent no. 1 and Sri Jyotinjay Verma for
respondent no. 3.
Though the present special appeal has been filed against an
interlocutory order but the plea of the appellant is that the order of mutual
transfer of Upendra Bahadur Singh, respondent no. 1 and one Bechu Singh,
which was passed on 28.4.2010, was never acted upon, as Bechu Singh
never reported for joining at the school, where Upendra Bahadur Singh was
to be shifted and, therefore, on the basis of such an order, no interim order
could have been passed, as there existed no mutual order of transfer, when
the writ petition was filed.
Sri Jyotijay Verma rightly points out that the transfer order was
passed on 28.4.2010 but till 8.5.2010 Bechu Singh did not report for duties
in pursuance of the said mutual transfer order and thereafter, the respondent
no. 1 was deputed for census work.
On 30.6.2010, said Bechu Singh retired and in the meantime, on
29.6.2010, the transfer order in favour of the appellant was passed.
Submission of the learned counsel for the appellant is that by means
of the impugned interim order, a non-existent order of transfer, which stood
exhausted and was no more in force, has been directed to be implemented.
Counsel for the appellant further says that the appellant has already
joined on 1.7.2010 at Primary School, Lalganj.
Learned counsel for the respondents, however, submitted that the
impugned order is only an interlocutory order, therefore, special appeal
would not lie and that in any case in the presence of the mutual transfer
order, no order of transfer could have been passed on 29.6.2010 i.e. before
the date of retirement of Bechu Singh.
We have considered the aforesaid pleas and we are of the opinion
that the interim order of stay, which has the effect of reviving of an order
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which has already exhausted, could not have been passed. Moreso, from the
arguments raised, we find that the respondent no. 1 is working in the same
block in Lalganj in another school, whereas appellant has been transferred
from another block and has already joined on 1.7.2010.
We thus, set aside the order dated 5.7.2010 passed by the learned
Single Judge.
The appellant as well as respondent no. 1 are at liberty to join at
their respective schools, if not already joined, within fifteen days.
The special appeal is allowed.
Dated: 16.7.2010
MFA