- (1.) CYRIAC Joseph, C. J. The petitioner was appointed as Assist ant Engineer in the Minor Irrigation De partment on 16-04-1986 on the recom mendation of the Public Service Com mission. He was promoted as Execu tive Engineer w. e. f. 22-07-1997. Con sequent on the promotion of Mr. Mohd. Umar to the cadre of Superintending Engineer, the post of Executive Engi neer, Nainital Division fell vacant and ' by an order dated 18-11- 2004, the petitioner was transferred and posted as Executive Engineer, Nainital Division. In the said order dated 18-11-2004 the petitioner was also given additional charge of Superintending Engineer, Haldwani Circle. The petitioner joined duty as Executive Engineer Nainital Division on 29-11-2004 and on the same date he also took over additional charge of Superintending Engineer, Haldwani Circle. The petitioner came to know that the Speaker of Legislative Assembly was interested in getting the petitioner transferred out and giving the third respondent Sri Suresh Chandra, Assistant Engineer, Minor Irrigation Sub-Division, Nainital the additional charge of Executive Engineer Nainital Division. He also learnt that the Speaker had sent a letter to the Chief Minister suggesting to transfer him to somewhere else so that respondent no. 3 can be given charge of Executive En gineer, Nainital Division. The petitioner submitted Annexure 8 representation dated 17-02-2005 to the Secretary, Minor Irrigation Department against the proposed transfer. ' However, by Annexure 9 order dated 19-02-2005 passed by the first respondent the pe titioner's transfer to Nainital Division was cancelled and the third respondent was given additional charge of Execu tive Engineer, Nainital Division. Ag grieved by the said order of transfer, the petitioner has filed this writ petition praying to quash Annexure 9 order dated 19- 02-2005 and to direct the respondents not to implement the said order dated 19-02-2005.
(2.) ACCORDING to the petitioner, pur suant to the transfer order dated 18-11-2004, he had joined duty as Executive Engineer, Nainital Division on 29-11-2004 and there was no valid reason or administrative exigency to cancel the said transfer within a period of three months. It is alleged that the impugned order of transfer was not passed in pub lic interest but due to political pressure. The petitioner has also questioned the propriety of giving additional charge of Executive Engineer to respondent no. 3 who is not in the zone of considera tion for promotion to the cadre of Ex ecutive Engineer. This writ petition was admitted on 24-02-2005 and an interim order, was passed staying the operation of the impugned order. On the strength of the interim order passed by this Court, the petitioner was continuing as Executive Engineer, Nainital Division holding ad ditional charge of Superintending En gineer, Haldwani Circle. Though the re spondents filed Civil Misc. Application No. 2030 of 2005 seeking modification of the interim order so as to enable the Superintending Engineer, Pauri Circle to hold additional charge of Superin tending Engineer, Haldwani Circle, the said application was dismissed by this Court on 11-05-2005. In the order dated 11-05-2005, this Court observed that the petitioner may have a legiti mate grievance about his transfer from the post of Executive Engineer, Minor Irrigation Division, Nainital to the post of Staff Officer in the office of the Chief Engineer at Dehradun, but normally he cannot have any right to insist that he should be given additional charge of the post of Superintending Engineer or that he should be allowed to continue to hold the additional charge of the Su perintending Engineer. However, the Court refused to modify the interim order in view of the conduct of the re spondents and in view of their persist ent failure to file a counter affidavit on behalf of the Government. Later the-first respondent filed a counter affida vit and the arguments in the writ peti tion were heard on 13-06-2005 and the judgment was reserved. Thereafter on 26-07-2005 the first respondent placed the petitioner under suspension pend ing disciplinary proceedings. Challeng ing the order of suspension, the peti tioner filed Writ Petition No. 171 (S/b) of 2005 praying to quash the order of suspension. Though the writ petition was admitted, no interim order was passed staying the order of suspension. Hence, the petitioner has been continu ing under suspension. Writ Petition No. 171 of 2005 (S/b) was disposed of to day quashing the order of suspension and directing the respondents to rein state the petitioner in service forthwith. Therefore, even though the challenge against the transfer had become infructuous due to the suspension of the petitioner, the issue has revived consequent on the quashing of the sus pension order by this Court. In the counter affidavit filed on behalf of the first respondent, it is ad mitted that the petitioner who was posted as Executive Engineer in Dehradun was transferred as Executive Engineer Nainital Division vide order dated 18-11-2004. It is also admitted that the petitioner was given the addi tional charge of Superintending Engi neer, Haldwani Circle for which no fi nancial benefit was payable. The addi tional charge of Superintending Engi neer, Haldwani Circle was a purely temporary arrangement and was liable to be withdrawn as and when the Gov ernment felt that the job assigned was not fulfilled or better arrangement was available. It is asserted that the Govern ment has every right to transfer a Gov ernment official whose continuance on a post at a particular place is against public interest. The first respondent has admitted that the Speaker of the Leg islative Assembly had complained against the petitioner. But according to the first respondent, the Speaker being a public representative had every rea son and right to point out the inaction on the part of the petitioner in his ca pacity as Executive Engineer, Nainital Division. It is pointed out that Nainital Division of the Minor Irrigation Depart ment includes the assembly. constitu ency of the Speaker. It is stated that through a letter dated 01-02-2005 the Speaker informed the Chief Minister who is also the Minister for Minor Irri gation Department that the works of Minor Irrigation Department in District Nainitol were being adversely affected due to the continuous absence of the petitioner from the Division Office at Nainital. The Speaker also pointed out that because of the petitioner's negli gence the supplementary budget de mand of the Minor Irrigation Depart ment under Accelerated Irrigation Ben efits Programme was not made avail able to the Chief Engineer in time. It was further pointed out that other projects also could not be sent to the technical audit cell of the State in the absence of the technical sanction to be granted by the Executive Engineer or Superintending Engineer concerned depending on the quantum of the esti mate. According to the Speaker, be cause of the lapses on the part of the petitioner, no supplementary budget could be allocated under the Acceler ated Irrigation Benefits Programme. It was further pointed out that no supply of cement, pipe and steel had been made in the district Nainital by the Di vision Office at Nainital due to the pe titioner's inaction. According to the Speaker, because of non-supply of the construction material, the ear-marked works could not be completed and sanctioned budget could not be utilized before 31-03-2005. The Speaker also requested the Chief Minister to issue appropriate directions to transfer the petitioner from Minor Irrigation Divi sion, Nainital to elsewhere immediately. In the counter affidavit, the first re spondent has denied the allegation that the Speaker is interested in the third re spondent Sri Suresh Chandra. Accord ing to the first respondent, consequent on the transfer of the petitioner from the post of Executive Engineer, Minor Irrigation Division, Nainital, the charge of Nainital Division was given to re spondent no. 3 who is the senior Assist ant Engineer who has completed six years and three months service in the department and is eligible for promo tion to the cadre of Executive Engineer. According to the first respondent, the transfer of the petitioner was in public interest. The first respondent has spe cifically denied the allegation that the Speaker of the Legislative Assembly was interested in giving additional charge of Executive Engineer of Nainital Division to the third respond ent The first respondent has categorically-stated that though the Speaker had suggested to transfer the petitioner from Nainital Division, he did not make any suggestion as to who should be posted in the place of the petitioner in Nainital Division. The first respondent has also given certain details in the counter affidavit in an attempt to show that the Speaker was justified in com plaining that the work in the Nainital Division was adversely affected by the inaction of the petitioner.
(3.) THE third respondent also has filed a counter affidavit denying the al legations in the writ petition. The petitioner has filed a rejoin der affidavit furnishing details to show that there was no inaction on his part and that the allegations made against him by the Speaker of the Legislative Assembly were baseless.;