® $5 KM: E§€§$W - IN THE HIGH cou'RT OF CHHAmsGARH AT BILASPUR WRIT PETITION (s)_No. 17: /’5 OF 2011 i PETITIONER ' /=' V.K. ChaTur‘vedi S/o. Shri RS. ChaTurvedi, aged abouT 49 year's, presen’rly posfed and working as i Deputy DirecTor‘, Horficulfur‘e ‘L Durg, DisTT. Durg (C.G.) VERSUS _ RESPONDENTS: x 1. The StaTe of ChhaTTisgarh, Through: The SecreTary, DeparTmenT of AgriculTure, ‘ ManTralaya at D.K.S. Bhawan, I Raipur‘ (CG). ‘ . .- M / 2 5hr! A'Ok KG‘Hyar‘l Aged abOUf 44 ,T year's, S/o. (faTher’s name no‘r , E known To The peTiTioner), presently pos’red as DirecTor 'HorficulTure, DirecToraTe of ‘ Horficulfure and I Regional Fores’rry, above Bank of India, Gaurav Pa‘rh, Near Telibandha, Raipur (C.G.) / 3. Shri N.S. Tomar, aged abouT 56 years, S/o. (fa‘rher's‘ name noT ‘ known To The peTi’rioner), presenTly posTed as DepuTy DirecTor HorTicuiTure, Durg (6.6.) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA ‘1. PARTICULARS OF THE PETITIONERs: As sTaTed in The cause Ti‘He above. . Am \ \\\¥ HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S) NO.363 OF 2011 PETITIONER V.K. Chaturvedi Versus RESPONDENTS The State of Chhattisgarh & Others Post for pronouncement of the orders on the /&@ay of March, 2011 Sd/— Satish K. Agnihotri Judge é \/ HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S) NO.363 OF 2011 PETITIONER V.K. Chaturvedi Versus I? RESPONDENTS The State of Chhattisgarh & Others (Writ petitions underArticIe 226 of the Constitution of India) Single Bench : Hon’ble Shri Satish K. Agnihotri, J. I. Present :- Shri Shashank Thakur, Advocate for the petitioner. Shri N.N. Roy. Panel Lawyerfor the State. Shri A.S. Kachhwaha, Advocate for the respondent No.2. None for the respondent No.3. Shri Alok Katiyar, Director (Horticulture) present in the Court. (Delivered on this k3 *5ay or March, 201 1) 1. By this petition, the petitioner seeks to challenge the legality and validity of the order dated 12—1-2011 (Annexure P/1) passed by the Under Secretary to the Government of Chhattisgarh, Department of Agriculture, by which the petitioner has been transferred from the post of Deputy Director (Horticulture), Durg to the, office of t Chhattisgarh Agriculture Training Academy, Raipur. 2. The indisputable facts, in brief, for adjudication of the case, are that the petitioner was working on the post of Deputy Director r (Horticulture) at Durg. According to the petitioner, the son of the petitioner was selected for the course in National Defence Academy (for short "the NDA") and he had to join the said course at Khadakwasala (Pune). In order to escort his son to the NDA, the petitioner applied for casual leave for the period from 11-1-2011 to 14-01-2011 before the Collector, Durg. During the said leave \“b period, the impugned order dated 124-2011 (Annexure P/1) has been passed transferring the petitioner from Durg to Raipur and in place of the petitioner, the respondent No.3 was posted from Jagdalpur to Durg. Shri Thakur, learned counsei appearing for the petitioner, would submit that in spite of the fact that the concerned authority had knowledge of being the petitioner on leave till 14-1-2011, by order dated 12-1-2011 (Annexure P/2) relieved the petitioner ex-parte to join at the new place of posting. The respondent No.3 though was ¥ posted at Jagdalpurioined his duties at Durg within a short span of two hours, which is not at all possible. The petitioner, after returning from Pune, came to know that he has been transferred and in his place, the respondent No.3 has joined. The petitioner also received a show cause notice dated 13-1-2011 (Annexure P/4) from the office of the Director, Directorate of Horticulture and Regional Forestry, Chhattisgarh, to the effect that why- the petitioner remained absent from his duties unauthorizedly and also directed the petitioner to submit his explanation within a period of three days, failing which, it was proposed to initiate disciplinary proceedings against the petitioner. The impugnedtransfer order has been passed in existence of model code of conduct, as is evident from the press note dated 12-1-2011 (Annexure P/5). Even the impugned order has been issued with mala fide intention only to harass the petitioner and to accommodate the respondent No.3 and the same was against the transfer policy dated 22-6-2010 (Annexure P/6) also. QM Shri Thakur would further submit that the so called administrative exigency and public interest required in case of transfer has been misused by the officers. The ex~parte relieving order was deliberately passed by the respondent authorities, without any intimation to the petitioner. Shri Thakur would next submit that the impugned order has been passed in flagrant violation of model code of conduct issued by the Election Commission of India and against the transfer policy framed by the State of Chhattisgarh. The impugned order has been passed only to accommodate the ¥ respondent No.3. On the other hand, Shri Roy, learned Panel Lawyer appearing for the State, would submit that the petitioner had been posted as Deputy Director (Horticulture), Durg, since last two years and earlier also he had been posted as Deputy Director (Horticulture) at Durg from 23—2-1999 to 23—12-2005. During the service period at Durg, there was a serious allegation against the petitioner and a complaint was also made by one Kapil Gupta before the State Economical Offence Investigation Bureau, Chhattisgarh, Raipur. On the basis of said complaint, an enquiry was conducted against the petitioner, thereafter, the petitioner was placed under suspension. Looking to the said disputes created by the petitioner, the impugned order was passed without making any stigmatic remarks against the petitioner. Shri Roy would further submit that the petitioner was relieved, considering the fact that the respondent No3 had already joined the post of Deputy Director, Durg. Shri Roy would also submit that it is the discretion of the employer to post an employee as and v», V 3x where it is required in administrative exigency and no Government servant can claim posting at a particular place for ever. Shri Kachhwaha, learned counsel appearing for the respondent No.2, adopts the arguments advanced by the learned Panel Lawyer appearing for the State. Shri Kachhawaha would further submit that in view of release of press note dated 12-1-2011 (Annexure — P/5) from the Election Commission of india, whereunder the process of election was to commence from 21-1-2011, the transfer order was passed immediately and it was ‘ ensured that the same was implemented forthwith. The press note, which enforces the code of conduct, was released on 12-1-2011. It is nbt clear asto whether the impugned transfer order was passed after release of press note or before that. On perusal of the return filed by the respondent No.3, it appears that in compliance of the order dated 12-1-2011, he has joined the duties at Durg, as the impugned order has been passed on the .basis of administrative exigency. As far as joining at the new place of posting within a short span of time is concerned, the respondent No.3 contended that since he received the transfer order at Raipur, he immediatelyjoined at Durg. 10. i have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto. 11. The petitioner was already posted at Durg and indisputably, he was absent on account of casual leave. Thus, the respondents No.1 & 2 ought to have summoned the petitioner first to join the duty immediately and thereafter, any transfer order could have been passed. «x \ 12. There is no dispute the respondent No.3 was posted at Jagdalpur, but he was sewed transfer order immediately on 12-1-2011 at Raipur. Thereafter, he joined the new place of posting on 12—1-2011 forenoon, as is evident from Annexure —— P/2—A. On a query asto whether the respondent No.2 informs ail the empioyees over phone to join the new place of posting, it was clear|y stated that this is not done in any case, but in the instant case since the respondent No.3 was available at Raipur, he was asked over phone to join the new place of posting before noon. ¥ 13. This smacks of arbitrary and mala fide exercise of power to relieve the petitioner ex-parte and ensure that the respondent No.3 joins at the new place of posting within a span of about two hours. There is no gainsaying that Jagdalpur, where the respondent No.3 was posted, was more than 300 kms. away from Raipur and by no stretch of imagination, it could be held as it was possible for the respondent No.3 to take relieving order from the original place of posting and join the new place of posting i.e. Durg before noon on 12-1-201 1, itself. 14. it is also not in dispute that before being relieved from the original place of posting an employee cannotjoin the new place of posting. it appears that the entire arrangement was made much in advance to facilitate and accommodate the transfer/posting of the respondent No.3 in absence of the petitioner when he was on leave. Thus, the impugned transfer order is vitiated on account of arbitrary and mala dde‘ exercise of power. it is the well settled principle of law that in normal course, the High Court should be loathe to interfere with the transfer order, as it is 0 {7 an incidence of service except in case of mala f/de exercise of power, Iack of competence or infraction of rules. In the case on hand, it has been proved by the series of events leading to joining of the respondent No.3 at the new place of posting within 2-3 hours at Durg, that the exercise of transfer and joining was not done in normal course. 16. The Supreme Court in Gin'as Investment Private Limited and another v. State of Kamataka and Others’, observed as under : "14....There can be two l. ways by which a case of mala fide can be made out; one that the action which is impugned has been taken with the specific object of damaging the interest of the patty and, second/y, such action is aimed at helping some party which results in damage to the party alleging mala fides. . .. " r/, 17. The further ground of the respondents was that there were several complaints against the petitioner, thus the transfer was necessitated. 18. On perusal of the papers, it is found that alleged complaints were made way back in the year 2007-08 and no action was taken for a long period. All of a sudden without following the due process of transfer and without ensuring that both the parties i.e. petitioner as well as respondent No.3 are informed in advance and they take proper relieving orders from their respective original place of posting to join the new place of posting, the respondent No.3 joined the new place of posting before noon. Thus, the contention of the respondents that the transfer order was passed on account of complaints is misplaced and has no basis. 1 (2003) 7 soc 53 Gowri § \g\ 19. For the reasons mentioned hereinabove and applying the wel! settled principles of law to the facts of the present case, the impugned order dated 12-1—2011 (Annexure — P/1) passed in respect ofthe petitioner as well as respondent No.3 is quashed. As an upshot, the writ petition is allowed. No order asto costs. Sd/-' Satish K. Agnihotri Judge