C S.TIWANA, J. - (1.) The petitioner in this case is K. K. Jaagia who holds the post of a Chief Engineer, Irrigation Department, Haryana, under article 226 of the Constitution he has prayed for the issue of a writ of certiorari for the setting aside of the order of his transfer dated May 10, 1979, by which his services were placed at the disposal of the Haryana State Minor Irrigation (Tubewells) Corporation for being posted as a General Manager. The order had peen issued by the Commissioner and Secretary to Government, Haryana, Irrigation & Power Departments, respondent No. 1. in the name of the Governor of Haryana Respondent No. 2 to the petition is the Engineer-in-Chief, Irrigation Department. Haryana, though no relief is claimed against him.
(2.) The petition was at first filed by the petitioner under this mistaken belief that without his consent be could not be sent on deputation to the Corporation concerned. Rule 19 of the Punjab Service of Engineers, Class I, Public Works Department (Irrigation Branch) Rules, 1964, as it stood prior to its amendment on November 7, 1973, read as follows:- "Liability to transfer - Every member of the Service shall be liable to transfer under the orders of Government anywhere within the States of Punjab or Delhi or any other place in India where he may be required to proceed by Government." The above-said rule in its amended form made this provision that a member of the Service was liable to serve under the State Government at any place whether within or outside the State of Haryana. A member of the Service could also be deputed to serve under a company an association or a body of individuals whether incorporated or not which is wholly or substantially owned or controlled by the State Government, a Municipal Corporation or a local authority within the State of Haryana. There was further provision with regard to the sending of a member of the service either to the Central Government or to any other State Government, but for sending him on deputation there, the consent of the member was to be specifically obtained. This rule implied that if a member was to he required to serve a company which was wholly or substantially owned or controlled by the State Government no consent was necessary. On May 18, 1979, operation of the impugned order was stayed but when the amended rule was brought to the notice of the Court by the learned Advocate-General, Haryana, the stay order was vacated by an order dated may 25, 1979, and the petitioner was allowed to amend the petition if he wanted to challenge the vires of the amended rule as urged by him. It is under these circumstances that the amended petition was filed so as to allege that the amendement was ultra vires of Articles 14 and 16 of the Constitution.
(3.) The petitioner contended that the order of his transfer which was passed without his consent was also mala fide though he did not name a particular person in this connection. He, however, made reference to the previous litigation that he had against the State and formed this impression that he had been sent to a corporation so that he may not derive full benefit of the previous orders which he obtained in his favour through certain writ petitions. As stated by him, it was on 11 occasions that he had to invoke the writ jurisdiction of this Court. According to the petitioner, he remained in "oblivion" from 1955 to (sic). It was as a result of his success in a writ petition on September 17, 1970, that he was rehabilitated by the passing of composite orders. It was by an order dated December 15, 1970, that his promotion as officiating Executive Engineer took place with effect from November 7, 1955. He was then confirmed in Class II from December 11, 1956, and then in the junior scale of Class I from March 1, 1960. He became a substantive Executive Engineer on December 7, 1960, and then Superintending Engineer on June 1, 1968. At the time this petition was filed there were said to be six Chief Engineers, who were junior to him, namely, Sarvshri K. K. Lakhanpal, R. N. Pandit, B. S Nat, O.P. Datta, D.D. Taneja and R. S. Mehra. It is by taking into consideration the contents of the written statement filed on behalf of respondents Nos. 1 and 2 that those facts became clear on account of which the petitioner had come under a cloud. A case under sections 420 and 165 of the Indian Penal Code and section 5 of the Prevention of Corruption Act was registered against him by the police. He was granted bail after he had been arrested. However, after investigation it was decided that the petitioner was only to be dealt with departmentally. He was ultimately dismissed by the Punjab Government on October 6, 1961, as a result of the inquiry. The dismissal was set aside by this Court as appearing from the contents of the petition itself. In the return filed by the respondents It was made clear that some copies of the statements of the witnesses recorded by the police and a Magistrate had not been supplied. His reinstatement took place on September 20, 1963. Thereafter one increment of the petitioner was stopped. The order in relation to it was set aside by this Court, as it was not a speaking order. In the departmental inquiry which was held against the petitioner, ultimately a punishment of censure was Imposed. This order of punishment was again got set aside by the petitioner by the filing of a writ and at present the Letters Patent Appeal bled by the Mate Government is still pending Further narration of facts is taken from the Petition itself. According to the petitioner, the punishment awarded to him with regard to the stoppage of one increment was set aide by this Court in Civil Writ Petition No. 2790 of 1969 on September 17, 1970, when this direction was given that he was to be considered for promotion through all stages where he had earlier been ignored. A cut of 5 per cent had been imposed on the emoluments of the petitioner and it was also restored as a result of Civil Writ Petition No. 1184 of July, 1971 which had been allowed on September 7, 1971. The petitioner then got the arrears of salary. There was seine reference to the petitioner in the report of the Public Accounts Committee and there acre adverse comments against the Department with regards to the nugatory expense of Rs. 65,000 paid to the petitioner as arrears of salary. It was alleged by the petitioner that further inquiry resulting in the award of the punishment of censure was launched so as to cover the comments of the Public Accounts Committee. When the petitioner succeeded in getting even the punishment of censure set aside, he was required to be taught a lesson by the Department and it is alleged by the petitioner that in his capacity as Superintending Engineer hit services were placed at the disposal of the Corporation through an order dated October 24, 1973, whose copy is Annexure P2. It was mentioned in that order that the posting in the Corporation had been made in the public interest. This order was challenged in Civil Writ Petition No 4035 of 1973. It has been urged in the present petition that the Mate Government had acted in violation of a stay order granted in Civil Writ Petition No 4035. In this connection, it was averred that when that petition came up for motion hearing before a Division Bench on November 12, 1973, a notice of motion was issued for November 14, 1973, and an interim order of stay of order Annexure P2 was passed. Then on November 14, 1973, the petition was admitted and the stay order was made to continue till the decision of the writ petition. Subsequently the State cancelled the order dated October 24, 1973 on April 22, 1974, and the petitioner was sent on deputation to a post in the Beds Project with his consent. The petitioner then came back to his parent Department on August 1, 1977, and assumed charge there on August 14, 1977. It was alleged by the petitioner that he being in foreign service, tie amendment of rule 19 already referred to took place in his absence. The amended rule dispensed with the obtaining of the consent of a member of the Service who was required to be sent on foreign service and it has been urged that such power had been assumed by tie State Government which violated Articles 14 and 16 of the Constitution. This was said to be arbitrary and could not ensure fairness and equality of treatment to the members of the Service. It was also asserted that the transfer in an arbitrary manner of a member of the Service for being employed by a company took him beyond the pale of the jurisdiction of this Court. This is further the averment of the petitioner that a post of a lower status could be given to a member of the Service under any company and for It at reason the power derived from the amended rule 19 was violative of Article 311 of the Constitution. This allegation has been specifically made in para 10 of the petition that when he came back to his Department a joint front was formed by a 'caucus' so as to isolate and neutralise him. It is in this context that the order was said to be malafide and, therefore, liable to be set aside. In para 23 of the petition it was clarified that it was not possible for him to isolate any particular functionary of the Government for being impleaded by name so as to allege mala fide against him.;