IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Civil Writ Petition No. 3216 of 2009
DATE OF DECISION : DECEMBER 8, 2009
JAGMAIL SINGH
....... PETITIONER(S)
VERSUS
STATE OF PUNJAB & ORS.
.... RESPONDENT(S)
CORAM : HON'BLE MR. JUSTICE AJAI LAMBA
PRESENT: Mr. Kapil Kakkar, Advocate, for the petitioner(s).
Mr. BS Chahal, DAG, Punjab.
Mr. Puneet Jindal, Advocate, for respondent No.4.
AJAI LAMBA, J. (Oral)
This petition under Articles 226/227 of the Constitution of
India has been filed praying for issuance of a writ in the nature of certiorari
quashing order dated 25.2.2009 (Annexure P-6) transferring respondent
No.4-Shri Jagtar Singh, Director Physical Education (Sports) (for short
‘DPE’), working in Government High School, Lang, District Patiala, as
Assistant Education Officer (Sports) (for short ‘AEO’) in the office of
District Education Officer (Secondary Education), Patiala (for short ‘DEO’).
Civil Writ Petition No. 3216 of 2009 2
It has been pleaded on behalf of the petitioner that it has been
the policy of the Education Department that senior most DPE in the
District is always appointed as AEO in the office of DEO, as is evident
from order dated 11.9.1997 (Annexure P-2). Contrary to the said accepted
precedent and policy, respondent No.4, who is junior to the petitioner, has
been appointed as AEO in the office of DEO, Patiala. For claiming the
relief, heavy reliance has been placed on order dated 12.6.1998 (Annexure
P-4), projecting that on the directions of this Court in CWP 17271 of
1997 (Surinderjit v. State of Punjab and others) decided on 21.11.1997,
the senior most DPE was appointed as AEO in the office of DEO.
It has been further argued that order (Annexure P-4) is based
on order dated 5.6.1998, passed by the Secretary, Government of Punjab,
Department of Education, which is required to be followed at all times.
The official respondents have deviated from the same by way of
appointing respondent No.4 on the post of AEO in the office of DEO,
vide order dated 25.2.2009 (Annexure P-6).
Learned counsel for the petitioner further contends that a
perusal of order dated 21.8.2007 (Annexure P-10) would also show that
earlier also, respondent No.4 was appointed as AEO in the office of DEO,
however, after CWP 13457 of 2007 was filed, the order was withdrawn.
Learned counsel for the respondents contend that there are no
instructions or rules that require the senior most DPE to be appointed as
AEO in the office of DEO. It has further been pointed out that the post of
AEO is not significant and a person appointed on the said post has no
supervisory or controlling power over the other DPEs. The only function
Civil Writ Petition No. 3216 of 2009 3
of AEO is to arrange sports activities in the District. It has further been
brought out that there is no change in status. It is a mere transfer and,
therefore, the petitioner cannot have any grievance.
It has further been pointed out that the petitioner is not the
senior most DPE in the District and, therefore, would have no claim as
against respondent No.4. There are a number of other persons senior to
the petitioner.
I have considered the issue.
It is not in dispute that respondent No.4 is serving on a
transferable post and could be posted on the post of AEO in the office of
DEO, Patiala.
Learned counsel for the petitioner admits that there are no
instructions, rules or written policy adopted by the official respondents
that direct that only the senior most DPE is required to be appointed as
AEO in the office of DEO.
So far as reliance on order (Annexure P-4) is concerned, I
find that the said order was passed in reference to decision of this court
dated 21.11.1997 in CWP 17271 of 1997 (Surinderjit v. State of Punjab
and others). Having summoned the file, I find that the following order
was passed in the said petition:-
“After having heard learned counsel for the petitioner
and perusing the paper book, instead of issuing notice of
motion, this writ petition is disposed of with a direction to
respondent No.1 to take a decision on the representation of
the petitioner dated 7.11.1997, copy Annexure P/3 to the writ
petition within one month from the date of receipt of copy of
this order.”
Civil Writ Petition No. 3216 of 2009 4
On a perusal of the above extracted order passed by this
Court, it is made evident that this Court has not adjudicated on the issue,
as projected in this case by the learned counsel for the petitioner. In fact,
learned counsel for the petitioner has not referred to any decision of this
Court, which might indicate that only senior most DPE can be appointed
on the post of AEO in the office of DEO. In such circumstances, reliance
on order (Annexure P-4) is dehors the controversy, as the official
respondents only considered the representation and appointed Surinderjit,
who happened to be the senior most person in District Jalandhar, serving
on the post of DPE, as AEO in the office of DEO (Schools), Jalandhar. It
cannot be construed either as a direction of this Court or even a decision
taken by the executive on behalf of the Government of Punjab,
Department of Education.
For similar reasons, the petitioner cannot gain any mileage on
reference to order (Annexure P-10).
A perusal of the seniority list, appended with the reply filed
on behalf of respondents No.1 to 3, as Annexure R-1, shows that the
petitioner is not the senior most person serving on the post of DPE in
District Patiala. There are a number of other persons senior to the
petitioner, who are serving on the said post in District Patiala. Therefore,
even on the issue of seniority, the petitioner has no ground to invoke the
extra ordinary writ jurisdiction to make a choice of being posted as AEO
in the office of DEO, in place of respondent No.4.
I have also taken notice of the fact that it is a mere posting, in
accordance with service conditions. Even after posting/transfer on the
Civil Writ Petition No. 3216 of 2009 5
post of AEO, respondent No.4 enjoys the same official status.
Appointment of respondent No.4 does not, in any way, affect the official
status of the petitioner and there would be no infarction of his career
prospects. Under the circumstances, the impugned order is in tune with
the judgment rendered by the Hon’ble Supreme Court of India, reported in
State of U.P. v. Gobardhan Lal, AIR 2004 Supreme Court 2165.
Considering the contentions made on behalf of the
respondents, I find that the decision of the official respondents in posting
respondent No.4 as AEO in the office of DEO is only considering
administrative exigency. A particular person in the cadre has to be
appointed on the said post so that sports activities can be arranged in the
District. It is for the administrative authorities to consider as to who
would be most suitable for the purpose. In the absence of instructions,
rules or policy, no such direction is be called for from the Court, on
invoking extra ordinary writ jurisdiction, to impose a particular person for
appointment/posting on the said post of AEO in the office of DEO.
In view of the above, I find that the petitioner has no legally
tenable ground to invoke extra ordinary writ jurisdiction.
The petition is, accordingly, dismissed with no order as to
costs.
December 8, 2009 ( AJAI LAMBA ) Kang JUDGE 1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?