G.H. Sagar vs State of Chhattisgarh Others

Hon''ble Shri Satish K. Agnihotri, J.—Challenge in this petition is to the order dated 12.04.2012 (Annexure-P/1) whereby the respondent No. 4 Munendra Kumar Sahu working as Assistant Engineer, office of the Executive Engineer, Water Resources Division-I, Raipur, on promotion to the post of Executive Engineer (for short "EE") was transferred to the post of Research Officer, M.R.P. Quality Control Unit-2, Raipur. The facts, if brief, as projected by the petitioner, are that the petitioner was working as In-charge Research Officer, MRP Quality Control Unit, Raipur, when the substantive post of petitioner is Assistant Engineer (Civil). The Research Officer''s post is equivalent to the post of EE and for want of officer of the rank of EE, the petitioner was working as In-charge Research Officer. On promotion of the respondent No. 4 to the substantive post of EE was posted as the Research Officer, he was posted at a place where the petitioner was working. The petitioner questions the promotion of the respondent No. 4 on the post of Research Officer on the ground that there are 4 Research Officers including the petitioner and 3 other Officers i.e. the respondents No. 5, 6 & 7, who are working as Research Officers.

The service condition of the petitioner are governed under the provisions of the Chhattisgarh Water Resources Department Engineering and Geological Services (Gazetted) Recruitment Rules, 1968 (for short "the Rules, 1968"). The respondents No. 5 to 7 were working on their substantive post i.e. Assistant Research Officers.

Under the provisions of the Rules, 1968 the Research Officer Class-I has to be filled by way promotion and transfer i.e. 50 : 50,. Since the petitioner has already been working on the post, the respondent No. 4 could not have been considered and promoted. Out of total 6 posts, 2 posts are filled. Shri Ashok Mohabia posted as Research Officer, Quality Control Unit, Sakri, District Bilaspur and Shri Shiv Raj Singh Paikra posted as Research Officer, Quality Control Unit, Raigarh. The respondents N.5 to 7 are also from the non-technical cadre. Out of 6 posts, 5 persons have been promoted from non-technical cadre. Thus, the petitioner is the only officer, who is posted as Incharge Research Officer belonging to Technical cadre and, as such, the respondent No. 4 could not have been promoted & posted on the post of Research Officer, as he belongs to Technical cadre. Therefore, the impugned order transferring the respondent No. 4 in place of the petitioner is bad in law, unjust and deserves to be quashed.

Shri Siddiqui, learned counsel appearing for the petitioner, would submit that in spite of the fact that the petitioner is having the Masters Degree qualification in Engineering, he has been disturbed from the present place of posting in an illegal and arbitrary manner. Shri Siddiqui would further submit that. the impugned order whereby the petitioner has been replaced by the respondent No. 4 is vitiated on other count also. The petitioner is the President of the Chhattisgarh Government Graduate Engineers Association (for short "the Association") and as per the circular dated 24.6.1996 of the State of Madhya Pradesh the petitioner could not have been transferred for a period of two terms. According to the petitioner, the said circular has been reiterated by the State of Chhattisgarh vide its circular dated 25.8.2004 (Annexure-P/11).

On the other hand, Shri Bhaduri, learned Panel Lawyer appearing for the State, while supporting impugned order, would submit that the substantive post of the petitioner of the petitioner is Assistant Engineer and he was only officiating on the post of Research Officer. Since the regular incumbent has been posted on the post of Research Officer, the petitioner could not lay his claim on the post in preference to a regular EE.

Shri Bhaduri, would further submit that the order dated 12.04.2012 specifically provides that those officers who are holding the charge of the post of EE/Research Officer would automatically be deemed to be relieved form the date of joining of the regular EE/Research Officer. By virtue of clause 3 of the order dated 12.04.2012, the petitioner was already relieved. Even after joining of the respondent No. 4 the petitioner has unauthorizedly kept some of the articles of the office in his possession i.e. keys of Almirah and one Government vehicle.

Shri Bharat, learned counsel appearing for the respondent No. 4, adopted the arguments advanced by the learned counsel for the State and would submit that the respondent No. 4 had joined on the post of EE/Research Officer on 13.04.2012 in compliance of the order dated 12.04.2012.

None appeared for the respondents No. 6 & 7. However, reply filed on their behalf was considered, wherein, it was stated that the respondents No. 5 & 6 are eligible for promotion to the post of Research Officer. The claim of the petitioner that he is the State President of the Chhattisgarh Government Engineers Association is misplaced. The petitioner is not entitled to any relief, as the said association is not recognized by the State Government and also no document has been produced by the petitioner to establish that the union is recognized by the State Government. It is also not the case of the petitioner that the respondents No. 4, 6 & 7 are junior to the petitioner.

I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto.

The first contention of the petitioner that the petitioner was protected from transfer for a period of two terms under the circular dated 24.06.1996 read with circular dated 25.08.2004 is misunderstood. The circular dated 24.06.1996 clearly provides that there shall be an exemption from transfer for a period of three years in respect of the President and Secretary of the State or District Level association. It is further clarified that after posting for more than three years, the transfer may be made. The petitioner was posted at the present place of posting on 06.05.2006. Thus, three years have already gone and the petitioner has not produced any other relevant date which according to the petitioner is to be counted for the purpose of calculating three years. Thus, on this ground, the petitioner cannot avail any benefit of exemption from transfer. The transfer is an exercise of administrative exigency in public interest. It cannot be said that the petitioner was holding the post of Research Officer substantively. The actual substantial post of the petitioner is Assistant Engineer. The post of Research Officer is equivalent to the post of EE. Thus, the petitioner does not acquire any right to continue at the place, which is meant for the Research Officer/EE. The further contention of the petitioner is that he was engaged in a project, which is at the stage of conclusion, therefore, he ought not to have been transferred to other place, does not merit acceptance, as it is for the Government to decide who is the proper employee for a particular work and this cannot be a good ground for quashing of transfer of the respondent No. 4 on his promotion.

On perusal of the rules, as supplied by the petitioner, it is found that there are 10 posts of Research Officer, 04 permanent posts and 06 temporary posts. The said posts are to be filled up by way promotion and transfer at the ratio of 50 : 50. The petitioner is not claiming any relief to the extent that the petitioner ought to have been promoted in place of the respondent No. 4. Thus, the order under challenge only in respect of the transfer, not on promotion. The petitioner is aggrieved from the transfer of respondent No. 4 and, as such, the promotion of respondent No. 4 cannot be examined and no adverse order can be passed against him in this regard. Even the petitioner has not supplied sufficient material except the statement that 05 Research Officers are from technical cadre, thus, the respondent No. 4 belonging to technical cadre should not have been promoted. The said contention of the petitioner is without any substance and accordingly, the same is rejected.

The further contention of the petitioner is that by order dated 09.05.2012, this Court directed that "if the impugned order dated 12.4.2012 (Annexure-P/1) has not been implemented, status-quo, in respect of placement of the petitioner, as it exists today, shall be maintained, till the next date of hearing", but the said order has not been complied with in its letter and spirit by the officers.

On bare perusal of the order dated 9.5.2012, it is found that the status quo was granted in the event the impugned order dated 12.4.2012 (Annexure-P/1) has not been implemented. It is informed that the regular Research Officer/EE i.e. respondent No. 4 had joined on the said post on 13.04.2012. Even clause 3 of the order dated 12.04.2012, provides that the present In-charge Research Officer was automatically discharged after joining of the regular Research Officer/EE. For the reasons mentioned hereinabove, there is no merit in the petition and accordingly the same is dismissed, leaving the parties to bear their own costs.