Decided on May 06,2005

O.P.Tiwari Appellant


A.K.PATNAIK,J. - (1.)
(2.) The petitioner is an employee of the Veterinary Department of the Government of Chhattisgarh. He was posted as Incharge, Veterinary Disease Investigation Laboratory, Bilaspur in 1992. By an order dated 31-5-2003 he was transferred from Bilaspur to Korba and respondent No. 5-Dr. S.P. Singh was transferred from Korba to Bilaspur and posted in his place. By a subsequent order dated 6-10-2003 the State Government cancelled the transfer order dated 31-5-2003. Aggrieved by the said order dated 6-10-2003 cancelling the transfer order dated 31-5-2003, respondent No. 5 filed a writ petition bearing W.P. No. 3227 of 2003 and on 17-10-2003, the said writ petition was disposed of by the learned Single Judge of this Court with the direction that respondent No. 5 will make a representation to the Under Secretary, Government of Chhattisgarh, Veterinary Department and the Under Secretary, Government of Chhattisgarh, Veterinary Department will decide the representation within a period of one month after considering all his grievances and till then the respondent No. 5 will not be relieved from his place of posting if he is not already relieved. Pursuant to said order passed by this Court in W.P. No. 3227 of 2003, the State Government passed an order dated 12-11-2003 staying the order dated 6-10-2003 by which the transfer order dated 31-5-2003 had been cancelled. Thereafter, by order dated 5-6-2004, the State Government finally cancelled the order dated 6-10-2003. Aggrieved, the petitioner has filed this writ petition praying for quashing the said order dated 5-6-2004 passed by the Government of Chhattisgarh annexed to the writ petition as Annexure P-27.
(3.) The petitioner and his Counsel Mr. B.P. Sharma submitted that the order dated 31-5-2003 transferring the petitioner to Korba and transferring respondent No. 5 to Bilaspur in place of the petitioner, had been passed by the Government to accommodate respondent No. 5. Relying on the averments made in the writ petition, the petitioner and Mr. Sharma submitted that respondent No. 5 was working as Chief General Manager/General Manager of Haribhoomi whose headquarter was at Bilaspur and he was a very powerful personality and had connection with influential political persons and on account of the influence of respondent No. 5, the authorities have passed the order dated 31-5-2003 transferring him from Korba and posting him at Bilaspur in place of the petitioner as well as the subsequent order dated 5-6-2004. Mr. Sharma, learned Counsel for the petitioner referred to the provisions of Rules 9 and 16 of the Madhya Pradesh Civil Services (Conduct) Rules, 1965 and submitted that the said Rules are applicable to Government servants working under the Government of Chhattisgarh and that the said Rules prohibit Government servants from conducting or participating in the editing or management of any news paper or other periodical publication and from engaging directly or indirectly in any trade or business or undertake any other employment. He submitted that the respondent No. 5 contrary to the said provisions of the said Rules is working for the news paper Haribhoomi as General Manager and this is established by the various documents annexed to the writ petition. Mr. Sharma cited the decision of the Supreme Court in State of N.C. T. of Delhi and Anr. v. Sanjeev alias Bittoo, reported in AIR 2005 SCW 1987 for the proposition that an administrative action can be set aside by the Court if there is manifest error in the exercise of administrative power or the exercise of the power is manifestly arbitrary. The petitioner also cited the judgment of the Supreme Court in B. Varadha Rao v. State of Karnataka and Ors., reported in : (1986)IILLJ516SC , wherein it has been held that an order of transfer which is not made in public interest but for collateral purposes and with oblique motives is vitiated by abuse of powers. He also relied on the decision of the Supreme Court in N.K. Singh v. Union of India and Ors., reported in : (1995)ILLJ854SC , wherein the scope of judicial review in relation to an order of transfer has been laid down and it has been held therein that an order of transfer can be interfered with where the allegations of malafides have been made on affidavit in the petition challenging the order of transfer. The petitioner relying on the averments in Paragraph 5.30 of the writ petition submitted that under the transfer policy of the Government of Chhattisgarh a transfer order can only be issued with the prior approval of the Chief Minister and if the same has been issued it is to be cancelled, also with approval of the Chief Minister, but in this case the name of the petitioner was never proposed by the department for his transfer nor the file of the petitioner's transferor transfer of respondent No. 5 was ever produced before the Chief Minister or the Minister of the department. The petitioner and his Counsel Mr. Sharma vehemently submitted that this is a fit case, in which the Court should interfere with the impugned order dated 31-5-2003 transferring the petitioner from Bilaspur, to Korba and transferring the respondent No. 5 from Korba to Bilaspur in place of the petitioner as well as the impugned order dated 5-6-2004 in Annexure P-27 by which the earlier Order cancelling the said transfer order was cancelled.;

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