Decided on March 15,2005

Rajesh Pathak Appellant
State Of C G Respondents


DHIRENDRA MISHRA, J. - (1.) HEARD on I.A. No. 1640/2005, being an application for bringing amendment in return on record. The application I.A.No. 1840/2005 is allowed. Respondents to carry out amendment in the return. Also heard the petition finally.
(2.) THE petitioner was posted as Principal, Engineering College Raipur with the charge of Additional Director (Technical Education), Directorate, Raipur with Drawing and Disbursing power. The respondent/State vide order dated 28-10-2004 of Annexure P/11, transferred and posted the petitioner as Additional Director, Technical Education (Project Cell), Directorate, Raipur. By this order, respondent No.2 has been posted as Additional Director (full fledged), Directorate of Technical Education, Raipur and respondent No.3 has been posted as in-charge Principal, Engineering College, Raipur. By the instant petition the petitioner has challenged the above transfer order on the ground of malafide and violation of statutory rules. The case of the petitioner is that he was earlier appointed as professor and confirmed by the Public Service Commission in the year 1992 and vide order of 13-11-2001 of Annexure P/5, he was given the additional charge of Additional Director after reorganization of the State of Chhattisgarh. The petitioner is the only person who is working in the cadre of Principal and he has been declared as the Head of the Department by the State Government vide order of Annexure P/7 in the month of January 2001. The seniority list was published on 1st April 2004 by the State Government wherein the petitioner is the only person who is holding the substantive post of Principal and as per rule 7 of M.P. Shaikshanik Seva (Takniki Shakha Bharti) Niyam, 1967 (hereinafter referred to as 'Rules of 1967'), the post of Director (Technical Education) which includes the Additional director also, is to be 100% filled up from the cadre of Principals working in Government Engineering College, by way of transfer. The State Government has created one post of Director and three posts of Additional Director and the posts of Director and Additional Director are of equal rank having the same pay- scale and according, the posts are to be filled up from the cadre of Principal of the Government Engineering College by way of transfer in accordance with rule 7 of Rules 1967.
(3.) THE above Rules of 1967 have been framed by the State Government exercising powers conferred under Article 309 of the constitution of India and the order of Annexure P/11 has been passed in violation of the above Rules inasmuch 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) vide order of Annexure P/11, After reorganization of the State of Chhattisgarh, the State has received one post of Additional Director from the undivided State of Madhya Pradesh and the petitioner was given the Additional charge of the post of Additional Director and he was also declared as Head of the Department with Drawing and Disbursing powers under the M.P. Book of Financial Powers, 1995, and since then, he was discharging the duties and functions of the Head of the Department (Directorate of Technical Education). However, subsequently on 5-10-2002, one post of Director and three posts of Additional Directors became available and the said posts were sanctioned by the State of Chhattisgarh to set up the directorate of Technical Education. However, instead of posting the petitioner as Director after availability of the post of Director, the petitioner was transferred and posted under respondent No. 2 who is not even promoted to the post of professor and has never been promoted to the post of Principal which is a condition precedent for appointment of Director or Additional Director. In the seniority list of Annexure P/8 circulated by the respondent/State, the name of the petitioner finds place at Serial No.1 where he is shown as Principal in the Government Engineering College, Raipur whereas the name of respondent No. 2 finds place at Item No. 19 as Reader of Mechanical Engineering Department wherein the name of respondent No. 2 is at Serial No.3 in the above list.;

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