89 t 8r CWP Noe733 of2010 4 lN THE HlGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No 733of2010 Date ofDecisionl 17 rV 1K Mitlal 147ETJTIONER VERSUS 1 Stateof Haryana and another eeRESPONDENT Cl 0 CORAM HONBLE MR JUSTICE PERMOD KOHLI C I Present Mr SumanJain Advocatefor thepetitioner C5 Mr RK Malik Sr Advocatewith Mr Vikas Malik Advocatc 5 Z Nlr RlCS3rar Addl Al llaryana C Mr Ashwani Talwar Advocale 888 08 PERMOD KOHLI J 3 The petitionerlS aggrievedof his transfer from Sonepalto Z Kurukshetravice No vide the impugned order dated 13Ol2010 Qm Petitionerand respondentNO2 both are workingas IOistrictFood 8 supplies ControllersThe petitioner was transferred onepatOll 21 082009 whereby as manyas slX transfersof Food 8 Supplies Conlrollerswere rnadeincluding that of the respondent No Petitionerwas transferredfrom Karnal to Sonepatwhereas No transferredSonepat to KurukshctraPetitionerjoincdat Sonepal C on 22082009 ie dayfollowing lhe Orderof transferObviouslythc respondent No alsojoined at KurukshetraWithin lcss than Ovemonths rcspondent No2 llas agalll been transferredto Sonepaland pctitionerordcred to be lransfcrredto Kurukshetravidc thc impugncd order he petitioncrhas the transfer PrlY O tWO rOUndSeOnevicllalivcof lheGovemrent Transferllolicyas als 1 Pooja 2014.04.21 12:45 True Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:25 I attest to the accuracy and integrity of this document 90 1 d 6 e t CWP No 733of2010 2 the guidelines framedin the Food 8 Supplies regarding deliveryof foodgrainstwo thetransferbeingactuatedbymalaOdeand orderedat theinstance oftheChiefMinister ofthe State thedelivery of ther1ce etCe vide memo dated18092009 Under theseguidelines 1 the officer who madepurchasesis responsiblefor delivery to the CentralPool Q otherwisein case olany it lS difflCult to fix the lt is 0 0 I ton paddyup to 17122009and thedelivery of the rice is to be made to the Food C5 of India or lts CentraI Pool up to 3132010 It is stated that I the paddywoorthRs 550 crores hasbeenpurchasedThe Z No2 was to procure45Iocustom milledriceupto31122009whereasonly32Ioof 2 the ricc has been delivered to the I7ood of India 6FCll leaving I of 13Io and undersuch Clrcumstanccstransferof thepetitioner in place CA5 of the No is not desirablc Mr SumanJaion Iearned counsel for the 0 petitioner funherstatedlhat transferof thepetitioneris onlyal the instanceofthe a 1 IZ Chief Ministerand not in publiclnterest As a matter of fact No who P was transferredfrom to Kurukshelraonlyon August2009 He wantedto Stayback at Sonepat for some considerationand hasmanaged his re4ransferto Sonepalthrough the interventionof thc Chief Minister of lhe State Stateof Haryanahas notified transferpolicy for its vide circular dated 7 0704989 It lS prescribedlhat llllnlmum Periodof stayof an employee at a is lhree yearsand maximum Oveyears Il hasalsobeen thal 1 employee should bc from higherauthoritiesand such 1 1 approachrender him liable to action It is arguedthat transferof the r petitionerand the No2 is in gross violation of the Government ISUC1011SbOth relalingto deliveryof paddyand transfer policyfor the 1 I Pooja 2014.04.21 12:45 True Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:25 I attest to the accuracy and integrity of this document 91 e4 CWP Noe 733 of2010 Govemment and additionally on account of considerationsotherthan publiclnterest Petitionerhas placedOll record ofOcial notingsrelatingto the transferof the No Copyof thesame is Annexure P4 With a view to ascertain the of the ofOce notingsthe State counselwas askedto produce the originalrecord which hasbeenproducedby Mr Brar appcaring on behalf of the State When this petitionwas filed vide inlerim order dated m 0 1012010 it was directedthat petitioner shall not be relieved if not already 0 relieved Initially No was not a partybut later he was impleaded as 0 No The Stateas also lhe private filed lheir separate I C5 repliesThe Statc hassoughtthe dismissalof the writ petition on thegroundthat I petitioner has the charge on 0202010 from Sonepat and assumed Z charge at placeof his transferon 03022010 The private hassimply 2 C statedthat in the matter of transferon administrativegroundno reason are required for lransfer He has furtheradmittedthat undcrthe policyof 2009of the Custom I a5 Milled Rice 6CMRO Workhasto becompleted upto31032010 andan employee 1S 0 for even if transferred1he grievance of thepetitioner is that without 7 he beingrelieved No hasin violation of 1heCoun orderassumed chargeat SonepatThis fact is evidentfrom the additionalafOdavitof Mr AK CL Gaur DeputyDirector Food and Supplies Haryana whereinit has beenstatedthat on joiningof K DahiyaDisttood Supplied Controller No21 NlC Mitlal is deemedto be relieved from Sonepat on 14012010 No has also placedon recordhis lOining report on 141Jl2010 As also lhe joiningreport 0l the petitioner on 4e 03022010 at KurukshetraIt is argued on behalfofthe respondenl No that since thepetitioner hasalreadyjoinedat thetransferredposl the writ petitionis rendered infructuousAccording to thepetitioner he was never relieved and since No2 illegallyjoined in hisplacewithoutrelieving him he hadno optionbut tojoin Pooja 2014.04.21 12:45 True Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:25 I attest to the accuracy and integrity of this document 92 W CWP No 733 of2010 4e at Kurukshetrato avoid any disciplinary action againsthin l have perused the transferpolicyas also the guidelines of lhe Government of Haryanaregarding purchase and deliveryof thefoodgrainsJt is admittedpositionon record thatthe No2 has food grainspaddyworth Rs 550 crores at KurukshetraThis paddywaslo be deliveredlo the l7ood of India for the Central Pool up to 31 032010 Neithcr the replyof the Statenor of 0 No2 contain any valid groundfor reransRerof the No2 lo SonepatIn 0 therecordproducedfollowing notings are recorded 0 Honble CM hasdesiredthatShri KS DahiyaDFSC Kurukshetra I C5 maybetransferred to Sonepat againstShri N0 Mittal andvice versa I Sd MS Chopral Z 091209 OSDICM Il HonFSM Away apprisedojo I 08 Examine about stay at thse slations and workingrecord of etc and pul up 7 sd Z FSM ll1209 Qm llhe flle has been sent to FinancialCommissioner l7ood8 Supplies andto otherfunctionariesA detailedreportis recordedbySFSon 1822009 This notereadsas under Usubject Regardingtransferof District Food c Supplies Controllers VideV leller a trr note hasbeen the OSDICMwhereinit has beenwritten thal Honble CM has deserved that Shri KS DohiyaDFSC Kurukshetramay be iransferred to SonepatagainstShn NK Mittal and vice versa On this note Food Pooja 2014.04.21 12:45 True Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:25 I attest to the accuracy and integrity of this document 1 93 00 4 CWP No 733 of2010 1 Minister had orderedto examine about stayat lhese stationsand workingrecord etc and putup With regardto the order of the Honble Food Minister on the V letter it is herebyexplained that vide governmenl order which was issued vide Inemo No 1412512006041SJ248AAon 21082009 Shri KS DahiyaDistrict Food and Supplies Controller 1 0 wastransrredfromSonepal to Kunilcshetraagainst vacant postand 0 Shri NK Mittal DistIt Food and SuppliedController was C3 Karnal to SonepatagainstShri KS DahiyaDistrict I C Food and SuppliedConlroller In this way onlyfour monthshave I expired to the transferof Shri KS Dahiyaand Shri NK Mittal Z District Food and Supplies Controllers Insofwas theirworkingrecordis concerned is will be appropriate to have a reportfrom the Purchase Branch Storage I 08 Branch and General Food Branch of the Headquarter so that the Qo Honble Food Minister will be appraised of accordingly on the basis 2 Z ofthatreportFile is beingpresentedfor ordersAl sd Om 18122009 SFS From the above note ll 1S evident that transfer of respondent No2 was at theinstanceooftheChief Minister who desiredthetransfetof the No2 to Sonepat and lhatof petitioner to KurukshetraIn the note transferof both theseofficersat their respective placcsic Kurukshelraand Soncpat Otl21 182009 is also mentioned A reportwas soughtfromthePurchaseBranch Storage Branch and GeneralFood Branchof the Reportsubmittedregarding boththe officials is as under Pooja 2014.04.21 12:45 True Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:25 I attest to the accuracy and integrity of this document 94 1 1 CWP No 733of2010 ne6 ll Both Sh KS Dahia and Sh NK Mittal are their duties at Kurukshetraand Sonepat thelastfourmonths 29 Both are from the same batch 0 9881HaryanaCivil Services and allied services 3 As per theinformation givenbySupdtPublic Distribution Olereis no cigainst any oflhe 08lcers m C 41 In Kurukshetra we ht711e 83256 M7S of wheat in storageand In 0 Sonepat thequantity is 29546 MTS as on 15122009aoodDepttJ C I 59 The crucial in this case lS that thequantityofpaddypurchased on C5 MSP In Sonepatthequantity is nil lhoughthe in thecase ofKKR we haveaood DepttJprocured415810 MTS fpaddyon MSP The Z fznancial involvementin ICurukslletralS to the tune of 550 crores rupees I The rnciinprincipleofPR work as hQs evolved in the last 75 08 yearsis to see asfaras possible that the same set ofofcerslooicials Cll shouldliquidate the stockswho havepurchased it Otherwisein case 7 Z ofdefaultit becomesvery lo jlx the Most ofthe 0m cases ofdefaultin our are due to slich transfers andsuch caseshave becomeveryledious Casemaypleasebe senl to Honble FSMforhisorder Sd 2609 DFS This reportwas sent by the Financial Minister on 04209 to 1 Financial CommissionerFood 8 Supplieswho also approved it and Onallythe transferorder was issued on 13Ol2010 under the signaturesof the Financial Commissionerand PrincipalSecretary to GovernmentofHaryanaFood Supplies From the above note on the Ole and even from the Ille of the 1 Pooja 2014.04.21 12:45 True Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:25 I attest to the accuracy and integrity of this document 95 CWP Noe733 of2010 7 it appearsthat thetransferis purelyat the askingof theChief Minister No reason for re4ransferof the No back to Sonepat justafterOve monthshasbeen recorded It is surprising to note that in the entirerecordproduced noground hasbeenmentionedfor transferof No2 to Sonepat From the record producedit appearsthaton the occasionof earlier transfer the note is preparedby lhc ofOce and aAcr passingthroughvanous m channelsgoes uptotheChief Minister who Onallyapprovesit and transferorder is 0 issued However in the presentcase theprocedure adopted is totally reverse of the C0 normalprocedurc In thepresentcase the initial note has emanatedfromthe omce C0 ofthe Chief Minister who desiredthetransferand that too onlya singletransferof I the No in placeof the petilioncrIt is relevantto notethatboththese Z 0fllcials were transferredonlyIn the month of August 2009 and just after Ove r monthsimpugncd transofer order hasbeenissued in contraventionof Governments nW own transferpolicyThis transferis purelyat the instanceof the Chief Minister 8 Powerofthe ChiefMinister lo transfera Governmentemployee hasto beconceded Po t to him hebeingthe Chief 13xecutive of thcGovernmentThe question is not ofthe 0 authority and power to transfer a Government elnployeeThe questionis of the legitimacy of thelransfer which is underscruliny In the presentcase is settled principalof law that transfer is an exigencyof servicc and no Govemment 7 employee has a rightto remaln on a particular post or at a particularplacebut transferon consideralionsotherthan lhe publicinterestand to adjust one employee at particularplacein violation of nonnS lS to be construed a transferactuatedby malice Such malice may not be againstthe person who may be affectedbysuch transferbut evcntually thereis official bias Omcial bias lS to helpone of the personmay not be with inlentionto harm the other but the other personis harmed as a natural consequenceof helpingone Undcr normal Clrcumslances interferencein exercising ofjudicialreview in the matter of transfcr Il Pooja 2014.04.21 12:45 True Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:25 I attest to the accuracy and integrity of this document 96 J 1 ef t CWP Noe733 of2010 8 of Governmentemployee is However transfer on account of malafldeandbias is one of thesituation wheretheCourt is entilledto exercisethe powerofjudicialrevleWe I am of theconsidered opinionthat this is one of such caseswhere bias is apparentand exerciseof power ofjudicialreview is warranted lt is also relevant to nole that even lherc is no applicalionon behalf of the No2 for his re4ransferto Sonep It is also admitledpositionthat No made purchases of paddyworth Rs550 crores andis 1 for its delivery to FoodCorporalion ofIndia afier converling 111eIoaddy into tllerice 0 before3132010 13eforehe could discharge the of deliveryoflhe food grainshe was ordered to be transfcrredfrom Kurukshctrato SonepatAs a 9 matter of fact from thc cnlire record 110 publicinterest whatsoeverhas been I revealed Z I do not Ondany valid rcason for thetransferof lhepelitioner witllina 2 periodof Ovemonthsexceptto rcetransferthe No to SonepatThis t transferis 1iable to be set aside thus the impugned order dated 14ll2010 t18 P21is herebyquashed e 311 e9eS 7 Z 172010 PERMOD KOMLII C nareshlc JUDGE 0 11 Note Whethcr to be referred to reporter l Yesl 1 U 111 8ll Pooja 2014.04.21 12:45 True Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:25 I attest to the accuracy and integrity of this document