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Himachal Pradesh High Court · body

2008 DIGILAW 624 (HP)

L. R. Bhardwaj v. State of H. P.

2008-12-26

RAJIV SHARMA

body2008
JUDGMENT (Rajiv Sharma, J.) - Brief facts necessary for the adjudication of this writ petition are that vide notification dated 23.1.1999, the State had created one post of Executive Engineer (Mechanical) Class-I (Gazetted) in the pay scale of Rs. 12000-15500 in the Irrigation and Public Health Department, Himachal Pradesh for I&PH Division No. II, Shimla by way of upgrading one out of the four posts of Assistant Engineers (Civil) created for the office of the Executive Engineer, Survey and Investigation Division, Rohru, in order to monitor the pumping station at Gumma and allied machinery installed at Gumma Station and other Stations at Shimla. The petitioner was promoted to the post of Executive Engineer (Mechanical) from the post of Assistant Engineer (Mechanical) on 20.10.1999. He was ordered vide same notification dated 20.10.1999 to be posted as Executive Engineer (Mechanical) in I&PH Division No. II, Shimla-3. He remained posted in I&PH Division No. II till 20.9.2003. He was transferred to Tube-well Division, Gagret, District Una and joined as such on 1.10.2003. He was transferred to P&I Unit II, Shimla vide notification 10.10.2007. He joined as such on 15.10.2007. He made representation to the Principal Secretary (I&PH) and Secretary (I&PH) vide Annexures A-3 to A-5 against mal-posting and requested that he may be posted as Executive Engineer (Mechanical), which was available at I&PH Mechanical Division No. II. The Engineer-in-Chief vide communication dated 6.6.2008 sent a communication to the Secretary (IPH) to the following effect :- “In IPH Department, the cadres of Mechanical Engineers and Civil Engineers is a separate as per R&P Rules notified by the Government from time to time. The Mechanical Engineers are recruited, promoted and posted against their cadre posts only. Similarly, the Civil Engineers are also recruited, promoted and posted against their cadre posts only.” 2.In sequel to the representation made by the petitioner and recommendations made by the Engineer-in-Chief, IPH Department, the petitioner was transferred to Mechanical Divisional No. II vice respondent No. 3 on 13.6.2008. He assumed the charge of the post of Executive Engineer, IPH Mechanical Division No. II on 13.6.2008. However, vide notification dated 20.6.2008, the transfer of the petitioner was cancelled in public interest. The petitioner has assailed this order dated 20.6.2008 by way of present petition. 3.Mr. He assumed the charge of the post of Executive Engineer, IPH Mechanical Division No. II on 13.6.2008. However, vide notification dated 20.6.2008, the transfer of the petitioner was cancelled in public interest. The petitioner has assailed this order dated 20.6.2008 by way of present petition. 3.Mr. Bipin C. Negi, Advocate has strenuously argued that once a conscious decision has been taken by the State Government vide Annexure A-7 dated 13.6.2008, the same could not be altered on 20.6.2008 abruptly. He then contended that the cadres of Civil Engineers and Mechanical Engineers are separate and the petitioner could not be posted outside his cadre of Mechanical Engineer without his consent. 4.Mr. R.K. Sharma, Senior Additional Advocate General and Mr. Ajay Mohan Goel, Advocate appearing on behalf of the respondents have supported the impugned order dated 20.6.2008. 5.I have heard the learned Counsel for the parties and have gone through the documents placed on record carefully. 6.The post of Executive Engineer (Mechanical) Class-I (Gazetted) was created by way of up-gradation vide notification dated 23.1.1999. The petitioner was promoted to the post of Executive Engineer (Mechanical) on 20.10.1999. He was posted as per Annexure A-2 in IPH Division No. II, Shimla. Thereafter he was transferred to Gagret where he served upto 1.10.2003. He was transferred to P&I Unit-II, Shimla on 15.10.2007. He belongs to cadre of Mechanical Engineer. He should not have been posted in P&I Unit II, Shimla being Mechanical Engineer. He made a representation against his mal-adjustment at P&I Unit-II, Shimla. The Engineer-in-Chief taking into consideration the separate cadre and the specialized duties to be discharged by the petitioner informed the Secretary (IPH) that the cadres of Mechanical Engineers and Civil Engineers are separate and as per Recruitment and Promotion Rules, the Mechanical Engineers are recruited, promoted and posted against their cadre posts only. Similarly, the Civil Engineers are also recruited, promoted and posted against their cadre posts only. It was on the basis of these facts brought by the Engineer-in-Chief to the notice of the Secretary (IPH) that Annexure A-7 dated 13.6.2008 was issued. He joined his duties on the same day. However, no cogent reason has been assigned by respondent-State why the notification dated 13.6.2008 was modified that too after the petitioner had joined his duties. There is sufficient force in the submission of Mr. He joined his duties on the same day. However, no cogent reason has been assigned by respondent-State why the notification dated 13.6.2008 was modified that too after the petitioner had joined his duties. There is sufficient force in the submission of Mr. Bipin C. Negi that the persons appointed in specialized cadre should not be posted outside the cadre. Respondent No. 3 has not disputed that the cadres of Civil Engineers and Mechanical Engineers are different. The Mechanical Engineer has to discharge the duties of mechanical works whereas the Civil Engineer has to look after the civil works. If the persons belonging to Mechanical Engineer cadre are permitted to work as Civil Engineer it will amount to square peg in a round hole. 7.The second question which is equally important is : whether the State could abruptly modify the notification dated 20.6.2008 or not ? The decision dated 13.6.2008 is a conscious decision and has been issued in public interest. The same has been modified on 20.6.2008 though purportedly under public interest, however, neither any public interest nor any administrative exigency has been shown or brought to the notice of the Court by way of records. The words ‘public interest’ and ‘administrative exigency’ are not magical wands. The State was required to clearly spell out what prompted it to cancel the transfer order within a week. The word ‘public interest’ has to be explained in each and every individual case. In this case both the orders i.e. Annexure A-7 and A-9 have been signed by the Principal Secretary (IPH). However, what was the compelling reason to reverse the earlier order, has not been mentioned in the reply except that it has been done in ‘public interest’. It is true that it is a prerogative of the employer to transfer an employee, but anvil of Article 14 of the Constitution of India. The learned Senior Additional Advocate General has also argued that the petitioner had come to Shimla on his own request when he was posted in P&I Unit-II Shimla on 15.10.2007. According to him once he has chosen to be posted in P&I Unit-II Shimla, the representations made by him to be posted against the post of Executive Engineer (Mechanical) were misconceived. There is no force in the submissions of the learned Senior Additional Advocate General. According to him once he has chosen to be posted in P&I Unit-II Shimla, the representations made by him to be posted against the post of Executive Engineer (Mechanical) were misconceived. There is no force in the submissions of the learned Senior Additional Advocate General. The petitioner belongs to the cadre of Mechanical Engineers and was required to be posted only against this cadre. In fact, a person, as noticed above, cannot be transferred out of his cadre without his consent. Posting a person out side his cadre may visit the person with civil consequences. The posting of a person must commensurate his status and qualification. 8.Consequently, in view of the observations made hereinabove, the writ petition is allowed. The impugned order Annexure A-9 dated 20.6.2008 is quashed and set aside. The respondent is directed to permit the petition to complete his normal tenure of three years in the post of Executive Engineer (Mechanical) in IPH Mechanical Division No. II, Shimla. There will, however, be no order as to costs. M.R.B. ———————