- (1.) APPELLANT in this appeal is an Engineer employed in the Central Public Works Department. While he was working as Superintending Engineer, Jodhpur Central Circle, CPWD, Jodhpur, the appellant was ordered to be transferred as Superintending Engineer, (Valuation) Bhopal vide order dated 19.7.99, which was communicated by the Deputy Director (Administration), New Delhi, from the office of the Directorate General of the Central Public Works Department. The order was at the instance of the Director General of the Central Public Works Department. By the same order Mr. R.P. Mathur, respondent No. 5 in this appeal who was then working as Superintending Engineer, P&A, North Zone III, Jaipur was posted vice appellant. The order dated 19.07.1999 in all contained 4 transfers including of the appellant and said Mr. R.P. Mathur. According to that order, one Lalit Mohan, S.E. (Valuation), Bhopal has been transferred as S.E. (P&A) North Zone III Jaipur vice Mr. R.P (2) Mathur and one Vipin Chand, who was S.E. (Parliament Library Project, New Delhi was transferred as S.E. (Planning) IBBZ, Siliguri. While the transfers of Mr. O.P. Purohit and Mr. R.P. Mathur and Mr. Lalit Mohan were part of the chain of transfers, the transfer of Vipin Chand was independent of it in pursuance of this order said Mr. R.P. Mathur had assumed charge of his office at Jodhpur where the present appellant was working on 21.07.1999, about which the appellant has made communication to Executive Engineers of Jodhpur, Bikaner, Jaisalmer and Jaisalmer Central Division and the Chief Engineer, CPWD vide his letter dated 21.07.1999 and on 21.07.1999 he had withdrawn advance of the Transfer Travelling Allowance amounting to Rs. 49,300/- which included rail fare for five persons from Jodhpur to Bhopal and also drew additional amount of Rs. 25,525/- as the balance required for air fare for five persons for the said distance of journey on 22.7.99. Thus, in all Rs. 74,825/- were withdrawn by the petitioner by 22nd of July, 1999. The appellant appears to have made a representation on 29.07.1999 against his transfer. Ultimately, he filed Original Appeal No. 194/99 before the Central Administrative Tribunal, Jodhpur, in which amongst other parties, Mr. D.N. Bhargava, Chief Engineer, Central Public Works Department, Sector 7, Vidhyadhar Nagar, Jaipur was impleaded by name as respondent No. 4 and Mr. R.P. Mathur, the person who was posted against him, as respondent No. 5. The relief claimed by the appellant-applicant before the Central Administrative Tribunal was that the applicant's transfer order dated 19.7.1999 may be quashed and the applicant may be allowed to remain at Jodhpur to complete his term as provided in the Manual and secondly in the meanwhile if Mr. R.P. Mathur comes to join, the applicant may not be directed to handover the charge. The applicant also prayed for interim order that he may not be spared from Jodhpur till his representation dated 20.7.99 made to the competent authority is heard and decided. The grounds for challenging the transfer order were; firstly, that the applicant has not completed 3 to 4 years tenure at Jodhpur as prescribed in Para 5 of Sec. 8 of Central Public Works Department Manual and that the transfer has been actuated before completion of 3 to 4 years of stay at Jodhpur because of ill disposition on account of respondent No. 4 Mr. D.N. Bhargava in order to secure posting of respondent No. 5 Mr. R.P. Mathur at Jodhpur. In his application before the Central Administrative Tribunal, the petitioner has not stated the facts about assumption of charge by Mr. R.P. Mathur on 21.07.1999 nor he disclosed the fact about withdrawal of advance Transfer Travelling allowance by 22.07.1999 notwithstanding making representation against transfer alleged to be made by 20.07.1999. Apparently, these facts were not disclosed in order to support his prayer for restraining Mr. Mathur from taking over charge from the petitioner and his prayer for not to be spared from Jodhpur wherefrom he was already relieved on assumption of charge by Mr. R.P. Mathur on 21.07.1999.
(2.) BE that as it may, no interim relief was granted. Reply was filed by respondents No. 1 to 3 i.e. by Union of India, the Director General of Works, CPWD, New Delhi and Chief Engineer, CPWD, Vidhyadhar Nagar, Jaipur. In reply the charges concerning the transfer being malafide at the behest of respondent No. 4 Mr. D.N. Bhargava were categorically denied. It was further stated that the respondent No. 3 viz. the Chief Engineer, CPWD, Jaipur had neither proposed for posting of respondent No. 5, nor he had any role in choosing the successor of the applicant and that these transfer orders were issued by respondent No. 2 viz. Director General of CPWD, who alone was competent to issue such orders, no allegation of malafide or bias has been alleged against the authority who exercised the power of transfer in administrative exigency viz. the Director General of Central Public Works Department, New Delhi. It was also stated in the reply that the applicant had remained at Jodhpur, which is his home town, for four years as Executive Engineer in Valuation Cell of Income Tax Department in addition to his present tenure of two years as Superintending Engineer on promotion. It was also pointed out that like the applicant, the respondent No. 5 has also served in remote areas of M.P. and Gujarat and at Border Fencing Works, which is considered as a difficult area positing for about 7-8 years. The Central Administrative Tribunal, inspite of finding that no violation of the rules has been made in the matter of transferring the petitioner from Jodhpur to Bhopal, nor that any allegation of malafide has been alleged against the authority issuing the orders of transfers, still allowed the application filed by the present appellant by its order dated 30th Nov. 1999, quashed the transfer order dated 19.07.1999 and directed the respondents to restore status quo ante on the ground that transfer order is malafide and is liable to be quashed. The inference of malafide was drawn solely on the basis of positing of Mr. R.P. Mathur vice petitioner at Jodhpur. Aggrieved with the aforesaid order, Mr. R.P. Mathur, the person sought to be displaced by the order of the Central Administrative Tribunal, preferred D.B. Civil Writ Petition No. 4919/99. The writ petition was admitted on 13.12.99 and the operation of the order passed by the Tribunal was stayed and the petition was decided on 10.2.2000. The court found that in the absence of any allegation of malafide against the Director General of Central Public Works Department, the authority exercising the power of transfer, the allegations of malafide against Mr. D.N. Bhargava were wholly irrelevant for the purpose of challenging the order of transfer issued by the Director General on the ground of malafide. There being no allegation against the authority exercising the power of transfer, the Tribunal was not right in setting aside the order of transfer taking it to be as a malafide exercise of power merely because respondent No. 5 was posted vice the applicant. The Court was also of the opinion that the conduct of O.P. Purohit in withdrawing a sum of about Rs. 75,000/- for undertaking transfer journey since July, 1999 and retaining this huge amount, transfer orders having not been carried out, call for action against him. The writ petition was allowed and the order of the Central Administrative Tribunal was set aside and the Original Application filed by applicant O.P. Purohit was dismissed with cost of Rs. 4,000/- by the Division Bench consisting of Hon'ble Chief Justice Mr. Shivaraj V. Patil, as His Lordship then was, and Hon'ble Mr. Justice Bhagwati Prasad. Present appellant, Om Prakash Purohit, did not file any appeal against the said order but filed a review application No. 9 of 2000. Since, in the meanwhile, Hon'ble Chief Justice Patil has been elevated as a Judge of the Supreme Court of India, only one of the Presiding Judges continued to be attached with this High Court. In the first instance, the matter was ordered to be placed before a Division Bench consisting of Hon'ble Justice Balia and Justice Bhagwati Prasad. However, when attention of the Court was drawn to the provisions of order 47 Rule 5 CPC, the matter was directed to be placed before the Hon'ble Chief Justice for appropriate direction. Whereupon, under the direction of the Hon'ble Acting Chief Justice, the review application came to be listed for hearing before Hon'ble Bhagwati Prasad, J. on 31.03.2000. On 31.03.2000, the petitioner, who appears in person, raised an objection that the review application is not to be heard by a learned Single Judge but by a Division Bench. The learned Single Judge relying on an earlier decision of this Court in Govind Kalwani vs. State of Rajasthan & Ors. (1), decided on 26.9.89 overruled the objection, and in our opinion, rightly so. The rules of procedure of the High Court are governed by the Rules of High Court of Judicature for Rajasthan, 1952. Chapter V deals with the jurisdiction of Judge sitting alone or in Division Bench. Rules 64 of Chapter V deals with the applications for review of judgments of the High Court, which reads as under:- "64. Application for review - An application for the review of a judgment shall be presented to the Registrar who shall endorse thereon the date when it is presented and lay the same as early as possible before the Judge or Judges by whom such Judgment was delivered with an office report as to limitation and sufficiency of court-fees. If such Judge or Judges or any one or more of such Judges be no longer attached to the Court, or all, or one of them, are or is precluded, by absence or other cause for a period of six months next after the application, from considering the decree or order to which the application refers, the application shall be laid before the Chief Justice, who shall with due regard to the provisions of Rule 5 of Order XLVII of the Code, arrange for a Bench for the hearing and disposal of such application."
(3.) FROM the aforesaid rule, it is apparent that so far as review applications are concerned, the constitution of Bench is to accord with the provisions of Rule 5 of Order 47 of the Code of Civil Procedure, Order 47 Rule 5 CPC, which governs the procedure relating to the hearing of review by the civil courts, reads as under:- O.XLVII R. 5 Application for review in Court consisting of two or more Judges. - Where the Judge or Judges, or any one of the Judges, who passed the decree or made the order, a review of which is applied for, continues or continue attached to the Court at the time when the application for a review is presented, and is not or are not precluded by absenee or other cause for a period of two months, next after application for considering the decree or order to which the application refers, such Judge or Judges or any or them shall hear the application, and no other Judge or Judges of the Court shall hearing the same." Aforesaid provisions makes it abundantly clear that so long as the Judge or Judges or any one of the Judges, who passed the decree or made the order of which a review is sought, continues or continue to attach to the Court at the time when the application for a review is presented, it is to be heard by such Judge or Judges or any of them but by no other Judge or Judges. That is to say, so long as the Judges who had made the order sought to be reviewed, continue to be attached to the Court, the matter cannot be assigned to any other Judge. In case the order is passed by a Bench consisting of more than one Judge and if any of them continues to be a Member of the Court, the hearing of the review petition cannot be assigned to a Bench consisting of the Judge making the order sought to be reviewed in company of the other Judge who was not one of the Presiding Judges who made the orders sought to be reviewed. Considering the aforesaid rule, Andhra Pradesh High Court in Bhadraiah vs. Board of Revenue (2) held that where one of the members constituting the Bench dies, the surviving member can alone hear the review petition. In yet another case Achutam vs. Annapurna (3) the said Court held that an order passed by a Single Judge where the other member of the Division Bench whose order is subject matter of review is not available, is deemed to be an order of the Bench and no letters patent appeal lay against such order. ;