r<C [/VL^ r i p.l •0'^ oap@1 ^ m snaK COUBTor JUDXCATO^E AT BiLA^pxm. CBHATHSQAMH Vicit^etition No, ^^^±of2004 PETmQHER: !J ..•^' ^r 7<^y ^ 8ESPQNDENTS: Dr. Rajesh Pathak, / S/o Late Slii-i Shatniglitia Diitt Patliak, Aged about 60 years, Principal, Engineering College^ Raipm's (holdmg additiotia! chaxge ofAdditional Dii'ector, Tech.xiical Ediication^ Chhattisgai'h), R/o # 1, Recreation Road, Choubey Colony, Raipux^ ChlTattisgQrh. • Versiis - ^r. ^*. N^' A p State Govt. of Chhattisgasi'h, Tlii'ougli; Seci'etasy, Depai'taiient ofTechnical E-ducatio'n, D.K.S. Bhawan, Raipiir^ Clihattisgarh. Dr. D.S. Bal, Proiessor (Mechanical Engineerm^, hi-charge Principal, Engmeermg C-ollege, Jagdalpur, District: Bastai*, Chhattisgaili. Dr. R.P. SLildiija, Protessor (Applied Mechanism), Engineermg College, Raipur, ChhattASgai-h. WSST PB1ITZOH CTTOBR ART3CLES 226 AKD 227 OF THB CONS1STUTIOM OF H8DIA FOR ISSUJSJSICB OF WmiLlS 1HE NATDRB OF MA3SDA3MUS. CBRTIORAm AND/OR ANY OF NATDRE >• £.s£iS5c2B '^ MGH COURT OF ChHM-nSQARK SnaleBench:- Hon'bleShri DhirandraMishra PBtitioner V it Ptetition No.4334 of 2004 Dr.Rs(eshPathak '^ Vs St<<e of Chhtktisyirh <mt Othw<. Petitioner by Shri Saryay K.Agrawat, Advpcate. State/respondent No.1 by Shri Satish Gupta, Dy.G.A. Respondent No. 2 by Shri Utkarsh Verma, Ach/ocato. JUDOEMENT (Deliwred on 16 /03/2005) Heard on I.A.No. 1840/2005, being an applteation for bmging amendment in retum on record. The application I.A.NO. 1640/2005 »s allowed. Respontitents to carry out amendmert: in the return. Also heard the petition flnally. The petttjoner was posted as Prtncipat, Englneerlng Coltege Ratpur with the charge of Addftional Director CTechracat Education ).DJre€torate. Raipur with Drawing and Disbursing power. The respondent/State victe order dated 28.10.2004 of Annexure P/11, transferred and posted the pettttoner as Add^onal Director, Technical Education (Project Cell), Directorate, Raipur. By tNs order, respondent No.2 has been posted as Additiona! Director (M\ fledged), Directorate of Techrocal Education, Raipur and respondent No.3 has been posted as In-charge Princlpal. Englneertng Coitege, Ralpur. By the Instant petition the petitioner has challenged the above transfer order on e ground of malafide and violation of statutory mles. The case of the petittoner Is Vhas. he was eartter appolntect as professor and confirmed by the Public Service Commission m the year 1892 and vide order of 13.11.2001 ofAnnexure P/5. he was given the addltional charge of AdcBtionaJ -^L- (£5 ^r Director after reorganization of the State of Chhattisgarh.The p^itioner is the only person viAo Js working Sn the cadre of Princlpal and he has been deelared as the Head OfThe Department by the State Govemment vide order ofAnneiaire P/7 in the month of January 2001 .The seraority list was published on 1st April 2004 by the Stat®Government wherein the petitioner is the only person who is hoJding the substantwe post of Prindpal and as per nile 7 of M.P.Shaikstenik Seva (Takniki Shakha Bharti)NJyam, 1967(hereJnafter referred to as 'Rutes of 1967'), the post of Director (Technical Education) whtch includes the Addittonal Director also, is to be 100% fllted up from the cadre of Principals working m Government Engineering College, by way of transfer.TTie ^ate Govemm@fit tes created one post of Director and three posts ofAdcBttonaJ Director and the posts of Director and Additional Director are of equal rank having the same pay-scale and accordingly, the posts are to be filled up from the cadre of Prindpat ofthe Govemment En^neering Colleg®by way of fransfer in accordance wtth rute 7 of Rutes 1967. The above Rules of 1967 have been framed by e State Government exercising powers conferrect under Articte 309 of the Gonstittrtion of India and the order of Annexure P/11 has been passed in viotatjon of e ab@ve Rutes inasmwsh as that the respondent No.2 who has not even been promoted to the substantive post of Principal, has been posted by the impugned order as Additional Director (full fledged) vjde order of Aroiexure P/11. After reorganization of the Stat®of Chhattisgarii, the State has received one post of Actctitional Director from the undMded State of Maelhya Pradesh and the petitioner was gh/en the addttional charge ofthe post ofAddttional 0irector smd he was a(so dectared as Head of the Department with Orawing and Disbursing powers under the M.P. Book of Finandal Powers. 1995, and since then. he was discharging the duties and functjons of the Hsad ofthe Departmont (Directorate of Technicai Education). However, subsequently on 05.10.2002.ene post of Director and three posts of Addtttonal Dtreetors became avatiabte and the said posts were sanctioned by the State of Chhattisgarh to set up the Directorate of Techracal Education. However, instead of posting the petiti@ner as Djrector after availability of the post of Director, the petttioner was transferred and posted under respondent No.2 who fe not even promoted to the post of professor and has never been promoted to the post of Principat which Ss a concfition precedent for appointment of Director or Additional Director. In the seniority list of Annexure P/8 clroulated by the respondent/State, the name of the petftloner finds place at Serial No.1 where he is shown as Principal in the Govemment Engineering —3— CoUege, Raipur whereas the name of respondent No.2 finds ptece at Item No. 1^ as Reader of Mechanical Engineering Department wherein the nam@ of respondent No.2 is at Seriat No.3 in the above tist. The respondent No 2 was promoted to the post of prwfessor from the post of Reader w<to documwt of Annexure R-2/A under Career Advancamert Scheme and as such respondent No.2 has not been promoted to ttie iaubstantive post of professor as per recommendation of Departmentat Promotion Gommittee and therefore, he was not ellgNate to be posted as Actel&tonal Directw (ftill fledged). tt is ftffther submitted by the petftioner that the post of Principal of Govemment Engineering Cdtege is promotkmal post and the professors who have minimum five years experience of professor, are only eligibte to be promotect to the post of Principal and only the Principai coutd be considered to b© posted as Diredor or Mditional Director of Technical Edu»ition and a$ such appointment of respondent No.2 on the post of AdcKiond Director is in breach (rf the Rules of 1967 as he does not belong to the Gadre of Prmcipal and thus his name could not be consktered to be posted as Additienal Director and bi any case, could not have been posted above the petttioner who is undisputedly senior to respondent No.2. Thus, the order of Amexure P^11 is in violation of Rules 1967 and the same has been passed matafidely. The respondent No.1, on the other hand, in his retum has not dlsputed the factual aspect of seniority ofthe petttioner as clahned in the petition. Howevw, it is submitted that respondent No.2 was awarded promotion to the post of professor under the Career Advanceinent Sdieme wde order dafted 10.08.2004 wth effect from 01.01.1998 and as such he vms eligiMe to be considered for tto substantive post of Principal as he is fuffilling the mjnimum quatification of -five years teaching experience and thus. respondent No.2 could be appointed to the post of Adclltional Dlrector (Technicat Education). He submits that the order dated 28.10,2004 has been passed by the responctents under adininistrath/e ©xigency. The respondent No.2 in the retum has submitted that there ar©one pest of Director and threo posts of Additional Director in the Oepartnwnt of Technical Educatim and all the posts are of equal category and thus, the sentority of the petitioner is not affected in any way by the impugned order and the prayer ofthe petttioner for quashing of the impugned ordw is R<rt mairtainable. It 'vs further submltted that the petitioner's name ean be Gonsjdered forthe post of Director as ~<Y- he is the senior Addjttonal Oirector but chaUenge to posttng of respondent No.2 as Additionat Direetor is wfthout any foundation. Leamed counsel for the petttioneF submits that (he tonpugned order of transfer has been passed malafictely and in a utter violation of the Rutes 1967 because by the impugned ordar, respondent No.2 has b®enposted as Addltional Director (full fledged), Technical Education in violation of rule 7 of Rutes 1967 where tt Js provided that the post af Director/ Addftional DireGtor of Tedintcal Education Is to be flUed in from the cadre of Principal by way of transfer. As respondent No. 2 was not even duiy promoted to Principal as per recommendation of the D.P.C. and he is hdding ttie substartive post ©fReader only, which is evictent ftom the seniority list on Annexure P/8, he could n<rt have been posted as Additional Direetor (ftitl fledged). The impugned order has been malafidely passed just to favour and accommodate respondent No.2 which is evident from the fact that though the pelftjoner WQS dischetfging th®duties 9f Addjtional Director (Technical Educatton) and was also designated as the Head of the Department wfth Drawing and Disbursing power and he was the only person v^io was posted to the ex-cadre post of Prinoipal vtAlch is a wf«lition precedent for selection to tho post of Director as per rule 7 of Rutes 1967. However, by the impugned order, the petitioner has been posted as Addftional Director (Project CeH) under respondent No.2. Respondent No.2 has himself admitted in para-4 of Ws retum that he was holding the substantive post of professor at the tjme of passing of the impugned order. However, it te contended by the respondents that the peUtioner a$ wdl as respondent No.2 have been posted on the eqiel rank as Addftion^ Dh-ector and therefore, the grievanc® of the petttionw that he i8 mad® to Awrk under respondent No.2 has no force as the impugned order nowhere mentionsthat the petttioner is to work under respondent No.2 and the pay-scate and gtatus ofthe Additional Diroctor posted by the impugned order is ofthe same post and thus, there is no groundto the petitioner to challei^e the Smpugned order. The order of Annexure P/11 is an order of transfer. The parameter to chaltenge th@ order of transfer is Umited as pointed out by counsel for the petitioner. Learned counsel for the petitioner places retiance in paragraph of 7 and 10 of the judgment reported in f1993)4 SCC. ^7 'm th®matter of Khfoit of iixtta arwaf ctthws Va, &L.^Ua&a& The relwant paragraphs 7 and 10 are being reproduced hereunder; ——— ^1^ "7. Who shoulfS be tFansfened wfwie, 'is a matter for tte spproyo/yate authorily to decfde. Unless the ofvler oftransfer is ^iated by mafa Wes or is mads m viofation of 6ny ^atutofy prowsions, ihe couft cannof ii^erfeie w h S. Whfte orclering the tfansfer, there isno ctoyAf, thea^fiority mtf^ keep inmtffd the gwdefines issued by the Gowmme/rf on the suhject. Stmttarfyffaperson ismKes any reppesentation witfi respect to Ifis tmffsfw, the app/vpriate authority nw^ consider the same hawng rsgard to the Qxigeiwies af adminfsiration. The gufctefines say that as faras possfto/e, hustoand andwife must be po^ecf at the same place. Tfie saidgwdelfffe hcw/ever does not confer upon ihe Governmefit employee a Segatty enforceable rigt^. <ii0. The saiti obserwtions in fact tenff to negatiwf the rwp^ntient's contentions ifistead of supporting them. Theft/tfgmentalso does noi supfioftthe resfvondenls' Gontention ihat if sueh an order is que^Soned m a cwri or the tribunal, ihe autfwrity is obllged to fiistify the transfer by addwii^ the wasons thewfor. It efoes nat also say that the couii orthe tribunal can quash the onster of transfer, if any of the administratiw insiwctions/gwdeifines are mst Wtowed, mtich fesscan it be chamctemed asmaia We for that reason. To w^enrfe, the order of transter can bff que^ioned m a coutt ar tiibunaf onty wfwre it i$ passed mafa fide or where it is made in violation of tfie ^ati^oiy provfsi'ORs. Leamed counsei for the petitioner ateo relies upw the judgemerA reported In f2004) 4 SEJWWWB Cowt Caaw 245 (para 9 & 12) in the matter ofj^sa^ Ineffa anef oithem Vs. Jananttwn DrtEwmatft anrf WMffw wherein it has been held that unless an order of transfer is shown to be an outcome of mala flde ©xerciseor stated to be in ^iolatjon of statutory provisjons prohfeiting any such transfer, the courts or the tribunals normally cannot interfere witti such orders as a matter of routine, as though they were the appellat®authorities substitiAirtg their own decision for that ofthe employer/nnanagement, as agains* sych orders passed in the interest of admjnistrath/e exigencies ofthe sen^ce wnewwed. Further relyjng upon the matter of Stoto ofUP. •nrfQna. Wa, ^feanffiWt f^jeported in ^udtmwrt Tocfav. 2004! ^5) SC-<5tfv^iere in para^ph-7 it tes been held that untess an order of transfer is shown to bean outeome of a mala fide exercise of power or violath/e of any statutory provisioh (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightty be interfered wdh as a matter of course or routlne for any or every type of grievance sought to be made. Learned counsel for the petitioner submtts that the impuflned order is bad on the following grounds; (1) that the same has been passed in violation of Rutes 1987 whteh Gategoricalty provides that a person cannot be posted to the post of Additional -6- @ Director untess he occi^tes a substantive post of Wnc4>al and from th<& pleadings of the respectwe parties, it js evident that respondent No.2 has at the most occupying the post of professor arel at no point of time, he has been promoted to the post of Principal whteh a promotiorel post fr<wn the post of professors. (ii) that the petitioner was occupying the post cf Additional Director (Technical EducatJon) with ^atus of Head of the Departnient and v^thdravwng and disbursing powers eonferred, and now the petttioner has t>een made Additlonal Director (Project CeB) wlwreas responctent No.2 who fe not ©ligibteto be posted to the post of Additlonal Director has been destgnated to Additfonal Director (full fledged) with the status of Head ofthe Department, Wrthdrawing and Disbursing powers. that the petttioner is made to work under his junior also smacks malafidely on the part of the respondents. Thus.on the ab<^e grounds ofviolatton of slatutory rutes and ftirther on the ground of malafide and arbitrartness, th®bnpugned order de&erves to be set aside. On the other tend, leamed cowsel for r^pwidents No.1 and 2 submits that the above order has been passed under the admini^rath^e ®(igenciesand the petitioner as also respondert No.2 have been posted t@ the post ofAddttional Director and there is no discriminati«m and it is wrong to say that the petiWoner has b@en made to work under respondent No.2 v»rfio is junior as both the posts are <rf ©qualstatus, having same pay-scate and ttierofore, it Is not correct that the petitioner has been djscriminated. It is further submitted by (eamed counsel for the respondente that respondentNo.2 has been promoted to the post ofprofessor, w.e.f.01,01.1996, and as completed fnw years as professor and was eligible to be posted to the post of Principal and therefore, the contention of ttie petitioner that he was not eligjbje to be posted to the post efAdditional Diredor, ts without any subsfeinc®. Learnect counsd for respondent No.2 submfts that h©is not djsputing the seniority of the petitioner. However, instead ofmaking a prayer that he should be designated as Director, the petitiener's grievance is against respcwident No.2 iHid the petttioner is not abte to demonstrate as to what pre^idioe has been caused te ~'y- him by designation of respondent No.2 as Addjtional Director. (t js ftirther submitted that the petitioner 1s placing on reoord the order dated 17.11.2004 v^ierein respondent No.2 was made Head of the Department but the petitioner by the instant petftton has not challenged this order arui theretore, tt fe not open to the petftioner to seek relief against the ©rclerwhteh is not ehaltonged t>y him. (n support of his Gontention. he placed Ns reh'ance on the jirigement reported in AIR f977 Sumemff Gourt 878 In the matter of D.Afaaanrf ®to.Vs. Slate of Ksama ka and othw»ete where in paragraph-7, it is stated that a person who Js not agyieved by the discrimination complained of cannot maintain a \wit petition. 1 have heard leanwd counsel forth®respectiw parttes. Durtng the course of the aFguinent, teamed counsel for respondent Nos. 1 & 2 have admitted that petitioner is senior to respondent No.2. On the last date of hearing i.e.07.03.2005, wh@n if was poirted out by tWs Court that the petjtioner has made categorical subrwssion in paragraph-6 ofthe petition that he is made to work under respondent Ne.2 who ts junior to him, tt was submitted on behaff of the respondent / ^a^ that he shaB seek instru^fons from th©State regardlng position of the petitioner vis-ii-ws that of respondenl No.2 as per transfer order of Annexwe P/11. However, when on 11.03.2005, the matter was taken up, leamed counsel for the respondent was not able to ctarHy the posftion and on the other hand, leamed ©ounselfor the petttroner ^ated that jn the meanwWle, an order dated 17.11.2004 tes been passed by the State and by which respondent No.2 has been designated as Head ofthe Department with Drawing & Disbursing powers and copy ofthe saM order was shown w(*;h is not disputed by counsel for the State/responderts. The orily questlon requires for examjnation js whether the orcter of Annexure P/11 being a transfer order can be Interfered wtth !n the Ijght of the binding judgments referred by teamed counsel for the petifioner. As ft has already been established inthe foregoing paragraphs that it is not di^>uted that Ihe petitioner is the only person wtio is occupying the substantwe po^ of Principal jn the State of Chhattis^irh and he was posted to the post of Additional Director after reorganizatlon of the State of Chhattisgarh, the petltioner was gh^n additional charge of AdditionaJ Dlrector (Technical Education) and aibsequentty r— (^n ,_J.. he was also designated as Head of the Department of the Directorate of Twhnical Education with Drawing and Disbursing Powers. Jt is atso not disputed by the partjes tftat responctent No.2 has been promoted to the post of professor under the Career Advancement Scheme vide order dated 22.01.2004 w.e.f. 01.01.1996 and fe presentfy occupying the substanth/e post of professor. Seconcfly, it is nc* the case of respondent No.2 or respondent No.1 that respondent No.2 was promoted to the postof R-incipal and thirdjy that in the seniority Nst as on 01.04.2004, th®name of the petitfoner is shown at serialNo.1 against the post of Prineipal In the Govemment Engineertng Coliege whereas the name ©frespondent No.2 finds place at (tem N@. 19 as Reader of Mechanical Engineering Department wheretn the naine of respondent No.2 js at Serial No.3 in the sereority list. Thus. the contention ofthe pettttoner that respondent No.2 who is not even occupying the substanth/e post of Prjndpal which js a eoncBUon precedent for appointment to the post of Additional Diractor has be®nposted as Addftional Registrar (fult fledgecl) in violation ofthe Rules 1967.1s estaMished. (n view of the admttted faetual positjon, the propriety of the order of Annexure P/11 is to be examined. The respondent No.2 has not only been designated as Additional Director of Technical Education (fuli fledged) but also been designated as Head of the Department vide order 17.11.2004 wMch is not djspirted by the respondents. The Rutes of 1967 referred by the petjtioner as Annexure P/10 categorically provicte that 100% postlng ofthe Directors are to be made from the cadre of Principate by way oftransfer. The respondents could not justHy as to how respondent No.2 who wa$ not occupyjng the substanth/e post of Principal/Professor, could be designated as AclcUtional Director, Technicat Education (full fledged), though he did not fuffiU the criteria under the Rules applicabte to his category. Under these circumstances, the orcter of Annexure P/11 is admtttedly in vi<riation of the statutory Rutes1967 and in the light of the fact that the petittoner was eligibJe in all respect to be designated to the post ofAdditional Director and further that the petitioner was already occupying the substantwe post of Addttional Dlrector wtth Head of the Department status, by the impugned orcter he has been made to work under respondent No.2 who has be®isubsequentty designated Head ofthe Department is arbitrary.unreasonabte and malafide. IfaafeB-^TOB^- °> - Therefore, under these drcumstances, pjadng reKance upon the judgment quoted above, I am of the opinton that the impugned order has to be quashed on the ground of the same being in violation of the statutory Rutes and artNtrary. Accordingly, the petition js altowed and ttie orter of Annexure P/11 dated 28.10.2004 so far as it relates to the petftfoner and respondent Nos. 2 and 3. is quashed. Sd/- Dhirendra Mishra Judge •^>y