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2000 DIGILAW 1119 (RAJ)

Om Prakash Purohit v. Union of India

2000-09-06

A.R.LAKSHMANAN, RAJESH BALIA

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Honble BALIA, J.–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and Jaisalmer Central Division and the Chief Engineer, CPWD vide his letter dated 21.07.1999 and on 21.07.1999 he had withdrawn advance of the Transfer Travelling Allowance amounting to Rs. 49,300/- which included rail fare for five persons from Jodhpur to Bhopal and also drew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 Thus, in all Rs. 74,825/- were withdrawn by the petitioner by 22nd of July, 1999.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. 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 applicants 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. 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. (3). 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. (4). 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. 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 Honble Chief Justice Mr. Shivaraj V. Patil, as His Lordship then was, and Honble Mr. Justice Bhagwati Prasad. (5). 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, Honble 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 Honble 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 Honble Chief Justice for appropriate direction. Whereupon, under the direction of the Honble Acting Chief Justice, the review application came to be listed for hearing before Honble 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. Whereupon, under the direction of the Honble Acting Chief Justice, the review application came to be listed for hearing before Honble 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. (6). 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. (7). 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. (8). 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. (9). 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. (10). 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. (10). By framing of Rule 64, providing a procedure for dealing with the review application, the provisions of Order 47 Rule 5 have been extended to review of any order made by the High Court under any of its jurisdiction notwithstanding that Order 47 Rule 5 may not be applicable on its own force. The Rajasthan High Court has also expressed the view similar to one expressed by Andhra Pradesh High Court as noticed by learned Judge over-ruling the objection of the petitioner in Review Application No. 6/88 - Govind Kalwani vs. State of Rajasthan on 26.9.88 (supra). (11). The appellant invited our attention to order made by the Supreme Court in State of Rajasthan vs. Gopal Singh (4). We are of the opinion that the said decision is of little assistance. It was a case in which an order passed by Division Bench was reviewed by a learned Single Judge without the matter being referred to Chief Justice as required under Rule 64 of the Rajasthan High Court Rules for constitution of an appropriate Bench in accordance with provisions of Order 47 Rule 5 CPC. A perusal of Rule 64 of the High Court clearly goes to show that where one or some of the members of a Bench consisting of more than one member is not available, the procedure does not authorise the surviving available Single Judge to decide the review petition on his own but bench has to be constituted by Honble Chief Justice appropriately keeping in view provisions of Order 47 Rule 5 CPC of hearing of review petition. The Court said: ``The proper procedure to be followed is to lay the application before the learned Chief Justice, who with due regard to the provisions of Rule 5 of Order 47 will constitute a bench for hearing and disposal of such application. In the instant case unfortunately this procedure was not followed but one of the learned Judges constituting the Division Bench which disposed off the main petition exercised power of review and reversed the earlier order. (12). In the instant case unfortunately this procedure was not followed but one of the learned Judges constituting the Division Bench which disposed off the main petition exercised power of review and reversed the earlier order. (12). Thus, the Court emphasised that constitution of appropriate Bench keeping in view the provisions of Order 47 Rule 5 of the Code whether such application be heard by surviving Single Judge or a Division Bench under Rule 64 is the prerogative of the Chief Justice to decide. In the case at hand, the learned Single Judge has disposed off the review petition as the surviving member of the Bench deciding the writ petition No. 4919/99 only as per the direction of the Actg. Chief Justice after the application was laid before him for constitution of an appropriate Bench. (13). Be that as it may, after the preliminary objection was over- ruled, the review petition No. 9 of 2000 was finally dismissed by the Court on 4.04.2000. The Court again reiterated about the contention of the parties which had entailed the imposition of costs under the orders in the writ petition. (14). The matter did not rest there. The appellant-petitioner filed a fresh writ petition which was registered as Civil Writ Petition No. 526 (Def.) of 2000 challenging the order of the High Court in Review Application. Though the petitioner has marked it to be D.B. Civil Regular Writ Petition but the Registry was of the opinion that this was not a Division Bench matter and placed it before the Single Bench. However, some defects were pointed out, inter alia, that no writ petition is envisaged against the order of the High Court. By its order dated 2.06.2000, the learned Single Judge upheld the office objection that no writ petition is maintainable against the order passed by the High Court whether by a learned Single Judge or a Division Bench as it is not a Tribunal subordinate to the High Court. The said writ petition was dismissed as not maintainable. It is against this order dated 2.06.2000, that the present appeal has been filed on 3.07.2000. (15). The appellant, in this appeal, has prayed to set aside the order dated 2.06.2000 and also to set aside the order dated 4.4.2000 passed in S.B. Civil Review Petition No. 9 of 2000, passed by the learned Single Judge, arising out of D.B. Civil Writ Petition No. 4919/99. (15). The appellant, in this appeal, has prayed to set aside the order dated 2.06.2000 and also to set aside the order dated 4.4.2000 passed in S.B. Civil Review Petition No. 9 of 2000, passed by the learned Single Judge, arising out of D.B. Civil Writ Petition No. 4919/99. (16). We have heard the petitioner appearing in person at some length giving him all the latitude to a party appearing in person. (17). So far as the prayer regarding order dated 2.06.2000 is concerned, it cannot be a matter of argument that no writ can be issued under Art. 226 or 227 to set aside or quash an order of High Court whether by a Single Judge or Division Bench. The remedy against the order passed by the learned Single Judge, if any, is either by way of a letters patent appeal, if so provided under the Statute or by way of appeal to the Supreme Court. The High Court not being a Tribunal subordinate to itself, it cannot issue a writ to itself in the orders made by it in its judicial side. (18). Assuming it to be an appeal against the order passed by the learned Single Judge in Review Petition No. 9 of 2000 as his companion Judge was not continuing with the High Court at the time when review petition was being heard, sitting singly is concerned, as discussed above, we do not find any illegality in review petition being heard by the learned Single Judge who was Member of the Bench who had made the order sought to be reviewed and was the only Member continued to be attached with the High Court by sitting singly. We are further of the opinion that in the circumstances where a Judge sitting singly decides a review petition against an order passed by a Division Bench because of non-availability of the other members of the Bench, it must still be deemed to be a decision by Division Bench against which no appeal lay, as has been held by High Court of Andhra Pradesh in Achutams case (supra). (19). On merit also, we do not find any substance in the contentions made by the appellant. All the assertions made in review petition were about erroneous nature of the order passed in the petition filed by Mr. (19). On merit also, we do not find any substance in the contentions made by the appellant. All the assertions made in review petition were about erroneous nature of the order passed in the petition filed by Mr. R.P. Mathur but not for making out a case for review on the basis of any error apparent on the face of record. If the appellant-petitioner was dissatisfied with the order of the Division Bench, his remedy was to have approached the Supreme Court by way of appeal but not by way of review before this Court by pointing out the alleged erroneous nature of the order. The scope of review is well defined and confined to errors apparent on the record and is not meant for re-hearing of the appeal or petition again at the behest of unsuccessful party. (20). Moreover, having gone through the record of Writ Petition No. 4919/99, which included Original Application filed by the present appellant, from which we have narrated the facts stated hereinabove, clearly goes to show right from the beginning the appellant has initiated these litigations with sole object to continue to stay at Jodhpur, which is his home town, at which place he was serving for more than six years at the time the order of his transfer was made in 1999 atleast for the period of three years if not more, from the date of his posting as Superintending Engineer in Jodhpur. That is clear from the very nature of relief claimed and ground on the basis of which such relief was claimed. He has referred to ordinarily continuance of three to four years on one posting and has prayed for allowing him to continue on the post for full term. Instead of proceeding in normal manner in prosecuting his remedy, he has adamantly persued a course by which for one reason or other the matter remain pending at High Court in Jodhpur and create an excuse for not joining at the place of posting until completion of three years at Jodhpur notwithstanding having withdrawn a sum of about Rs. 75,000/- way back in July, 1999 for undertaking journey to place of new posting under the impugned order of posting at Bhopal. (21). 75,000/- way back in July, 1999 for undertaking journey to place of new posting under the impugned order of posting at Bhopal. (21). Taking into account, four years serving as Executive Engineer in the Valuation Cell of the Income Tax Department at Jodhpur, which made his posting stay at Jodhpur for over six years. This fact he did not disclose. He did not disclose in his Original Application that as per his own report Annex. 3 in Writ Petition No. 4919/99, the charge was assumed by Mr. R.P. Mathur on 21.07.1999 itself and without disclosing the fact that he has withdrawn a sum of Rs. 74,825/- as advance Transfer allowance and Travelling Allowance for travelling by air for himself and members of his family without having intention to undertake any journey in near future and asked for relief for not sparing him by handing over charge to Mr. R.P. Mathur when according to his own knowledge charge has already been assumed from him by Mr. R.P. Mathur and confining his prayer for allowing him to continue until the full term prescribed under the Manual, is only suggestive of the fact that the appellants sole object in this litigation was to continue to stay at Jodhpur (his home town) and simultaneously enjoying the use of the advance money taken for transfer/travelling expenses for the purpose of carrying out the transfer orders and to this end this protracted litigation is being continued by filing frivolous and non-maintainable application taking advantage of the latitude given to the party appearing in person in hearing. This is also apparent that not a whisper of malafide has been alleged against the competent authority who passed the order of transfer in exercise of his jurisdiction and yet the order was sought to be set aside on the basis of malice of somebody who was not a decision making authority in the matters of transfers and postings. He has so far been successfully able to prolong his stay in Jodhpur for over a year since the charge has been assumed from him and has continued to enjoy the use of money taken by him in advance. (22). In the aforesaid circumstances, dismiss this appeal with Cost quantified at Rs. He has so far been successfully able to prolong his stay in Jodhpur for over a year since the charge has been assumed from him and has continued to enjoy the use of money taken by him in advance. (22). In the aforesaid circumstances, dismiss this appeal with Cost quantified at Rs. 2,000/- with the direction that the appellant shall assume charge at his place of posting in pursuance of order dated 19.07.1999 on or before 30th Sept., 2000 and submit the account of expenses incurred by him in this connection failing which he shall deposit the entire amount drawn by him as advance transfer/travelling allowance with interest at the rate of 18% per annum with effect from the date of withdrawal of such amount until the date of deposit by 10th of Oct., 2000 after expiry of time allowed to him to join at the place of posting. The period of absence from duty since 21.07.1999, the date on which the charge has been assumed by Mr. R.P. Mathur, until joining at place of posting shall be properly investigated and dealt with by the competent officers, in accordance with law. The appellants failure to comply with the aforesaid directions punctiliously may entail for further action by the disciplinary authorities of the appellant in the matter of conduct of the petitioner in connection with the non-compliance of the transfer orders in question inspite of withdrawing full amount of travelling allowance/transfer allowance for that purpose in accordance with law.