Shri Anil Prakash vs Municipal Corporation Of Delhi ...
2007 Latest Caselaw 1232 Del

JUDGMENT

Kailash Gambhir, J.

1. Aggrieved with the order dated 5.1.2007, the petitioner has filed the present writ petition seeking directions for setting aside of his reversion from the post of Director-in-Chief (Sanitation) to the post of Chief Engineer, Slum and JJ Department of the respondent. Before dealing with the contentions raised by the respective counsels appearing for the parties, it would be appropriate to set out the brief facts for proper appreciation of the controversy involved in the present case. The facts as stated in the petition inter-alia are that petitioner was appointed to the post of Assistant Engineer (Civil) in the year 1982 against direct quota through a process of selection against a regular post. On the recommendation of the Union Public Service Commission, the petitioner was given officiating promotion to the post of Executive Engineer (Civil) vide order dated 1.9.94, on which post he was subsequently confirmed. Vide letter dated 1.5.96, the petitioner was assigned `look-after-charge' on the next higher post of Superintending Engineer (Civil) and vide order dated 18.10.2002, the petitioner was promoted on another higher post of Director (CSE) equivalent to the level of Chief Engineer on the same basis of `look-after-charge'. The petitioner further contended that the post of Chief Engineer is the feeder post for appointment to the next higher post of Engineer-in-Chief under the respondent No. 1 and as per the submission of the petitioner all the present Chief Engineers in MCD are either on current duty charge, `look-after-charge' or on ad hoc basis and no Chief Engineer or Director (Sanitation) is working against regular post. It has also been submitted that whenever the Chief Engineer is posted in the Sanitation Department, then, he is designated as Director (CSE) and therefore, the post of Chief Engineer and Director (CSE) are interchangeable. Similarly, the post of Director-in-Chief (Sanitation) is equivalent to the post of Engineer-in-Chief and therefore, these two posts being equivalent are also interchangeable. The petitioner has further stated that the post of Director-in-Chief (Sanitation) was created by the respondent/MCD and the decision was taken to promote one of the seniormost Chief Engineer from the engineering department to the post of Director-in-Chief (Sanitation) in the CSE Department. The petitioner has further contended that in the MCD there is a practice to first promote the officer either on current duty or `look after charge' on the basis of the seniority of the incumbent in the feeder post, and then, to confirm such promotee on the next higher post. Circular dated 14.12.73 issued by the respondent/MCD stated that current duty arrangement should be made only in order of seniority, subject to condition that such an officer is otherwise fit with reference to service, character roll and clearance from DDC/DOI. In the said circular it is also stated that only those officials/officers will be considered for appointment on current duty charge who have already rendered 2/3rd of the service as prescribed for regular appointment. The petitioner has further stated that vide office order dated 8.11.2005, the petitioner was promoted to the post of Director-in-Chief (Sanitation) after he was selected by the Special Selection Committee and its approval by the competent authority. The petitioner further contended that Special Selection Committee was constituted which has considered the case of all eligible Chief Engineers and finally the Selection Committee made recommendations in favor of the petitioner for appointment to the said higher post of Director-in-Chief (Sanitation) on `look-after-charge' basis. The petitioner further contended that although the said promotion was stated to be for a period of one year but the same was, in fact, of a permanent character as the petitioner continued to perform his duties on the said post of Director-in-Chief (CSE) even after the expiry of said one year period. The petitioner further contended that he was the seniormost Chief Engineer at the time of his elevation to the next higher post of Director-in-Chief (Sanitation) and therefore, because of his seniority he had a vested right to be considered for the said post. The petitioner further contended that vide order dated 5.1.2007 which is impugned herein, the petitioner was directed to be relieved with immediate effect from the said post of Director-in-Chief (Sanitation) and was directed to report to the Additional Commissioner (Slum and JJ) as Chief Engineer for his further duties. This order of the respondent is under challenge in the present writ petition and the petitioner has termed this order as illegal, arbitrary, mala fide and punitive in nature. It is mala fide because as per the petitioner he had raised his voice against the allotment of maintenance of lavatories of 12 zones to one single contractor and since such stand of the petitioner did not find favor with certain high ups in MCD and the concerned contractor, therefore, all of them conspired against the petitioner to get him removed from the said post of Director-in-Chief (Sanitation). The petitioner further stated that the said order dated 5.1.2007 was sent to the petitioner by fax at 7.30 P.M. on the same date and the said stand of the petitioner opposing the allotment of lavatories of 12 zones in favor of one single contractor was also highlighted by various national dailies. The petitioner has also stated that for awarding such a punishment, full fledged enquiry should have been held against the petitioner and without holding any such enquiry or even without issuing any show cause notice, the impugned order dated 5.1.2007, could not have been passed. The petitioner stated that there was nothing adverse against him on any account, concerning his work, integrity, behavior, conduct and discipline and still the petitioner has been divested of the charge of the said higher post. The petitioner stated that even the principle of 'last-come-first go' has not been followed by the respondent/MCD at the time of passing the impugned order.

2. The counsel for the respondent/MCD on the other hand has seriously refuted the case as set up by the petitioner. The respondent/MCD in its counter affidavit has contended that the substantive post of the petitioner was Executive Engineer (Civil) and on the other posts he was merely posted on 'look-after-charge' basis and on the same pattern, the petitioner was entrusted with charge of post of Director-in-Chief (Sanitation) on look after basis. The respondent, therefore, stated that the petitioner has no legitimate or any legal right to retain the post of Director-in-Chief (Sanitation) which was given to him as a `stop gap arrangement'. The respondent further stated that the petitioner was made well aware of the terms and conditions of the said assignment on the post of Director-in-Chief (Sanitation), vide office order dated 8.11.2005 which clearly mentions that the assignment shall be purely on `look after charge' basis as a `stop gap arrangement' and the same shall not entitle the incumbent to claim any benefit on account of that order. It was also made clear that such `stop gap arrangement' could be revoked at any time by the competent authority without assigning any reason and without even prior notice. The said office order also clarified that the petitioner would not be entitled to any additional benefits such as pay, seniority or promotion or any other service benefits whatsoever. The respondent further stated that the petitioner has not been removed or punished or reverted to any lower post, than being held by him as he has been merely relieved from the post which was given to him on look after basis. It is further stated that if a person is given the duties of higher post to meet certain exigencies, then, mere discharge of such duties on the higher post which was essentially in the nature of `stop gap arrangement' cannot be treated as a case of a promotion.

3. The respondent also disputed the nature of duties of the petitioner being not of current duty charge as alleged by the petitioner but of `look after charge' only and the same cannot be equated with the current duty charge or promotion on ad hoc basis. The respondent stated that the action of the respondent was not punitive in nature as the petitioner has been transferred from one Department to another and such a transfer cannot be treated as reversion of the petitioner. The respondent further stated that the transfer of an employee is an incidence of service and employer is the best judge to take decision to post an employee from one department to another. The respondent has also disputed the position as claimed by the petitioner that the slum department is not a part of the respondent corporation and has a distinct entity of its own.

4. The respondent has stated that the officials of the slum wing of the corporation are invariably transferred to the MCD, likewise officer of the MCD are transferred to the slum wing, and therefore, the transfer of the petitioner from the MCD to Slum and JJ Wing cannot be treated to be a case of reversion. The counsel for the respondent has also placed reliance on Section 59 of the DMC Act 1957 to contend that under the said provision, Commissioner MCD is competent to carry out all the executive functions and such order of transfer and posting are passed in routine by the Commissioner, MCD while discharging his administrative duties and functions under the said provision.

5. It has also been stated by the counsel for the respondent that the petitioner has concealed the fact of pendency of enquiry against him and due to such suppression on the part of the petitioner, he cannot be held entitled to the grant of any relief.

At the time of hearing final arguments, the respondent also sought to place additional affidavit on record. In the additional affidavit the respondent has stated that pursuant to order dated 5.1.2007, the petitioner vide office order dated 30.3.2007 was directed to report to the Additional Commissioner, Slum and J.J. Wing as Chief Engineer for his duties and vide order dated 11.4.2004, the petitioner was entrusted to look after the work of demolition of unauthorised construction on the land of slum and JJ wing. This additional affidavit along with the said office orders have been placed on record with a view to advance an argument that these subsequent orders have not been challenged by the petitioner and therefore, the present petition has become infructuous.

6. The petitioner raised serious objection to the filing of the additional affidavit by the respondent at the stage of final arguments of the case. The petitioner has submitted that such an additional affidavit cannot be taken into consideration by this Court of which no notice was directed. I do not agree with this submission of the counsel for the petitioner as the additional affidavit merely give an account of some subsequent developments having taken place during the pendency of the present petition and for the proper appreciation of the facts the Court is not powerless to take into consideration any subsequent development.

7. I have heard at considerable length both the counsel appearing for the parties. The first submission of the counsel for the petitioner is that transfer from one cadre to the other cadre is not permissible and the same being whimsical, arbitrary and punitive in nature and therefore, in violation of Article 14 and 16 of the Constitution of India. The contention of the counsel for the petitioner in support of his argument is that Slum and JJ Department is a separate organisation and has its own cadre. The counsel for the petitioner has submitted that the Slum and JJ Department has its own separate budget, seniority and service regulations etc., and therefore the transfer of the petitioner from his earlier cadre of 'General Wing' of MCD to the cadre of 'Slum and JJ Department' has the effect of reverting the petitioner. Counsel for the petitioner has contended that right from the very beginning the petitioner was employed in the General Wing of the MCD which has its own separate entity, separate budget, recruitment rules, seniority etc., and even the pay of the petitioner was chargeable to the general account of the municipal fund. Counsel for the petitioner has also placed reliance on Section 99 of the DMC Act which provides for the establishment of the municipal fund. Counsel for the petitioner has contended that said Section deals with three different accounts i.e., Electricity Supply Account, Water Supply and Sewage Disposal Account and General Account, and therefore, these three wings of the MCD are independent and separate having their own budget, recruitment rules, seniority list and cadre etc. In support of his argument counsel for the petitioner has placed reliance on the judgment of the Supreme Court , entitled as R.D. Gupta v. Lt. Governor, Delhi Admn. and Ors. The relevant paras of the said judgment are as under:

4. The set up of the MCD is, however, different since the Delhi Municipal Corporation Act provides for the constitution of three separate and independent wings viz. the electricity, the general and the water, sewage and disposal wings. The electricity wing came to be designated as the Delhi Electricity Supply Undertaking (hereinafter referred to as DESU) and is governed by an independent budget and headed by a separate and independent General Manager and its employees are governed by a separate cadre and a separate seniority list. The general wing of the MCD performs the other general civic duties and functions. The third wing is concerned with the distribution of water and the disposal of sewage etc. and it is also independent of the general wing.

21. It is relevant at this juncture to scrutinise the reason which impelled the NDMC to pass the resolution in 1973 for giving the SS Committee pay scales to the staff of the electricity wing alone. The only reason which prompted the NDMC to pass the resolution was that since DESU had implemented the SS Committee pay scales for its technical and non-technical staff, the NDMC should also follow suit insofar as its electricity wing is concerned. In doing so, the NDMC had failed to bear in mind several distinguishing features between its set up and the set up of the DESU and its staff pattern and the staff pattern of DESU. The NDMC, as already stated, is governed by the Punjab Municipal Act while DESU is governed by the Delhi Municipal Corporation Act, 1957. The set up of the NDMC is that of an integrated unit comprising all the three wings while the set up under the Municipal Corporation Act of the MCD is that its three wings have to function as distinct and independent units. Such being the case, the DESU is a separate and independent unit of MCD and constitutes an independent body. The DESU has its own budget and consequently it has freedom of action without reference to the other units. In contrast, the NDMCs revenues is the income derived from all the three wings of it and the expenses are governed by a common budget. Having regard to all these factors, there is no room whatever for treating the electricity wing of the NDMC on par with the DESU and adopting the pattern of pay scales implemented by DESU. Apart from the difference in the set up, it has also to be borne in mind that the ministerial staff in the NDMC are comprised in a unified cadre and the posts in the three wings are transferable and interchangeable which is not so in the case of the staff of the DESU. If regard is had to all these factors, the decision taken by the NDMC originally to place the non-technical staff in the electricity wing on a higher footing and give them alone the SS Committee pay scales cannot be legally sustained. The action of the NDMC clearly suffered from the vice of arbitrariness and discrimination.

8. On the same pattern counsel for the petitioner contends that Slum and JJ Department is a separate and an independent entity and earlier up to the year 1992 the Slum and JJ Department was with the DDA and thereafter the same was transferred to the MCD vide Resolution No. 2585 dated 23.11.92. Placing reliance on the said Resolution, counsel for the petitioner contended that the terms and conditions contained therein, clearly states that Slum and JJ Department shall have its own entity, account and cadre etc., and therefore, the different cadres of Slum and JJ Department under no circumstance can be merged with the independent cadres of the MCD. Regulations 2 and 3 of the DMC Service Conditions Regulations define Rule which consist of Fundamental Rules (F.R.) and Service Rules (S.R.) with statutory instructions of the Government of India, which are applicable to the employees of the General Wing of the MCD whose salaries are paid from the general account of the MCD. The contention of the counsel for the petitioner is that petitioner being in General Wing of the MCD, his salary is chargeable to the general account of the MCD and not to the Slum and JJ Department which has its own budget and account. Counsel for the petitioner has also placed reliance on Regulation 4(2)(b) which empowers the Corporation to exercise powers relating to the service conditions of all those employees having minimum salary of Rs. 350/- or more and the petitioner being in the category of 'A' grade officer is governed by F.R. 15 of the service conditions of the MCD. Counsel for the petitioner has also placed reliance on the judgment reported in 36 (1988) DLT 378 SC entitled Delhi Water Supply and Sewage Disposal Committee v. J.P. Gupta and Ors., where the Supreme Court has held that the employees of Delhi Water Supply and Sewage Disposal cannot be treated as the employees of General Wing of the MCD since the said wing has its own budget, recruitment regulations, seniority list, then, that of General Wing of the MCD. The contention of the counsel for the petitioner is that same yardstick and principles have to be applied vis-a-vis Slum and JJ Department, which Department also stands on the same footing as that of Delhi Water Supply and Sewage Disposal. Counsel for the petitioner has also placed reliance on F.R.9 (4) which defines cadre and F.R. 15 which deals with transfer. In support of his argument that transfer from one cadre to another cadre is not permissible, counsel for the petitioner has also placed reliance on the judgment of this Court reported in 1973 (2) SLR 659 (Delhi), entitled Prem Praveen v. UOI, wherein the scope and ambit of Fundamental Rule 9(4) and F.R. 15 have been discussed by the Supreme Court. Counsel for the petitioner has placed reliance on yet another judgment of the Supreme Court reported in JT 2001 (9) SC 463, V. Jagannadha Rao and Ors. v. State of A.P. and Ors., wherein the Supreme Court has held that transfer in relation to service in simple terms means change of place of employment within an organisation in the same cadre and same cannot be outside the organisation or outside the cadre. Counsel for the petitioner further contended that in Parkash R. Borkar v. UOI and Ors. 1983 (3) SLR 725(D.B.), the Division Bench has held that transfer from one cadre to another cadre would affect the seniority of the employee and such a transfer would also adversely affect his career prospects. Counsel for the petitioner has further placed reliance on the judgments reported as 1982 (3) SLR 266 DB, Kanhaiya Lal v. State of Bihar, Santi Ranjan Gangully v. The State of West Bengal and Ors. 1995 (7) SLR 303, Mahendra Narain Chaudhary and Anr. v. The Sub-Divisional Education Officer-cum-Municipal Education Officer 1976 (1) SLR 445 : 1985 II. LLJ 73, dealing with the issue of transfer/reversion without notice. The judgment reported as Seshrao Nagrao v. State of Maharashtra and Ors. 1976 (1) SLR 445 also deals with a case where reversion was made without notice and the court held that transfer with reversion without notice is liable to be set aside. The judgment of Mahendra Narain Chaudhary (supra) deals with the situation where the transfer was struck down as the same was under the colourable exercise of power. Counsel for the petitioner has cited the judgment rendered by the Supreme Court in State of Punjab and Anr. v. Gurdian Singh and Ors. and contended that such a decision is a clear example of malice in law on the part of the MCD.

9. The counsel for the petitioner has also contended that because of evasive denial in corresponding paras of counter affidavit, there is clear cut admission on the part of the respondent to certain averments made by the petitioner especially in paragraphs 3, 23, 24, 27 and ground Nos. IV, IX and XVI of the petition, therefore, averments contained therein regarding the separate and independent existence of Slum and JJ Department can be straight away taken to have been admitted. Counsel for the petitioner has further stated that para 13 of the petition wherein the petitioner has contended that all chief engineers in MCD are junior to the petitioner has also not been denied by the respondent in its counter affidavit and therefore, the seniority of the petitioner also stands admitted by the respondent. Similarly, the petitioner has dealt with certain facts in paras 19 to 22 and ground V of the petition imputing motives to the respondent behind petitioner's transfer and the same have also not been denied by the respondent. Counsel for the petitioner has contended that on account of these admissions made by the respondent, the case of the petitioner should have been taken as accepted by the respondent in so far averments contained in the aforementioned paragraphs are concerned. The next limb of the argument of the counsel for the petitioner is that the effect of the impugned order dated 5.1.2007 is to reduce the petitioner from his earlier rank/post of Director-in-Chief (Sanitation) to the post of Chief Engineer, Slum and JJ Department. The contention of the counsel for the petitioner is that such an order is punitive in nature with evil consequences, adversely affecting the career prospects of the petitioner including loss of seniority and loss of allowance etc., and therefore such an order is clearly hit by Articles 14 and 16 of the Constitution of India. Counsel for the petitioner contended that admittedly, the petitioner was seniormost Chief Engineer, which position has not been denied by the respondent and the petitioner was selected on the said post of Director-in-Chief (Sanitation) by the duly constituted selection committee which consisted of independent experts and therefore, once the petitioner was selected on the recommendations of the Special Selection Committee, he could not have been reverted from the said post without service of any show cause notice, enquiry or departmental proceedings, and therefore, such act of transfer/reversion of the petitioner from the post of Director-in-Chief (Sanitation) to the post of Chief Engineer is ex-facie illegal. Counsel for the petitioner has further submitted that the post of Director-in-Chief (Sanitation) was specially created by the MCD for the purpose of functional requirements and administrative needs and the decision to appoint the petitioner to the said post was in the public interest and the petitioner had undergone the process of selection competing with the other eligible Chief Engineers and therefore, after passing through such process, the respondent/MCD could not have abruptly thrown out the petitioner from the said `look-after-charge' post of Director-in-Chief (Sanitation) to the post of Chief Engineer in Slum and JJ Department, in such an arbitrary manner. To counter the terms and conditions of office order dated 8.11.2005 counsel for the petitioner has placed reliance on the judgment of the Supreme Court in Secy-cum-Chief Engineer, Chandigarh, v. Hari Om Sharma and Ors. JT 1998 (3) SC 654 and has contended that such unilateral terms and conditions are against the public policy and unenforceable in view of Section 23 of the Contract Act. Counsel for the petitioner has contended that in Hari Om Sharma's case (Supra) the earlier view of the Supreme Court , State of Haryana v. S.M. Sharma and Ors. and also , Shreedharan Chandra Ghosh v. State of Assam and Ors., stands disapproved. Counsel for the petitioner has also placed reliance on the judgment of the Supreme Court in Kumari Shrilekha Vidyarthi Etc. v. State of U.P. and Ors. and contended that even though, where the reasons do not exist in the transfer order/reversion order but such reasons must exist in the records of the MCD and in the absence of the same, the decision of the respondent should be considered as arbitrary and against the public policy. Counsel for the petitioner contended that on 5.1.2007 itself the petitioner raised his voice in public interest against the allotment of public lavatories of all 12 zones in favor of single contractor and on the same date i.e. 5.1.2007 at 7.30 P.M. he received his transfer/reversion order by fax. The petitioner has placed reliance on the judgment of the Supreme Court in E.P. Royappa v. State of Tamil Nadu and Anr. to support his argument that the purpose of Article 14 and 16 is also available to a public servant holding officiating position and if such a government servant is arbitrarily and unfairly treated or subjected to mala fide exercise of power, he can complain violation of Article 14 and 16 of the Constitution of India. Counsel for the petitioner has further placed reliance on the judgments , The Manager Government Branch Press v. D.B. Belliappa , State of U.P. v. Sughar Singh 1976 (2) SLR 395, C. Thiraviam Pillai v. State of Kerala and Ors. , G.S. Ramaswamy and Ors. v. The Inspector General of Police, Mysore State, Banglore , State of Bihar and Ors. v. Shiva Bhikshuk Mishra and 2005 (3) A.D.(Delhi) 229, Raj Mohan Singh v. MCD , Rudra Kumar Sain v. UOI, and contended that all these judgments enunciate fundamental principle of law that the State is under a duty to act fairly and with reasons and in case of employee being placed from officiating place to lower rank, then the same shall amount to reversion. In C.Thiraviam Pillai's case (supra), the Kerala High Court has held that even if there is no right to post but order of reversion shows intention to punish and which may result in postponement of future chances of promotion or loss of allowances, the same would amount to punishment. In support of his proposition that `last come first go principle' has not been adopted by the respondent, the counsel for the petitioner has relied upon G.S. Ramaswamy's case (supra). The Shiva Bhikshuk's case (supra) has been relied upon by the counsel for the petitioner in support of his argument that transfer from the officiating post to the substantive post would amount to reversion as form of the order is not conclusive but the effect of the order should be seen in its entirety. The contention of the counsel for the petitioner is that totality of circumstances and particular situation has to be looked into for examining the intent of the employer behind the said order.

10. Counsel for the petitioner has also invited my attention to the administrative set up of Slum and JJ Department and its transfer to the MCD as per the terms set out by the MCD vide its decision No. 2585/G dated 23.11.1992. Some of the clauses of the same as relevant for deciding the present case are reproduced as under:

A. Transfer of Slum and JJ Deptt. From DDA to MCD.

(iii) On transfer to the MCD, the Slum and JJ Wings of the DDA will be known as "the Slum and JJ Department of the MCD."

(iv) Except to the extent indicated below, working of the Slum and JJ Department will be governed by the same rules of business and procedure as are applicable to any other department of the MCD.

(v) The Slum and JJ Department of the MCD will be maintained as a separate entity with its own staff, accounts, stores etc. till orders are issued to the contrary.

(vi) All the assets and liabilities of the Slum and JJ Wing of the DDA including all lands in JJR colonies will be deemed to have been transferred to the Slum and JJ Department of the MCD with effect from 1.9.1992.

(vii) The employees of the Slum and JJ Wing of the DDA will become the employees of Slum and JJ Department of the MCD. They will continue to be governed by their present terms and conditions of service. They will not be merged with any cadres of the MCD till any orders to the contrary are issued.

(ix) Employees of other Departments and organizations who are on deputation to Slum and JJ Wings of DDA, will be treated as on deputation with the Slum and JJ Department of MCD on the existing terms and conditions.

The Department of Slum and JJ has, therefore, been taken over from DDA by MCD w.e.f. September 1992. Following its transfer, the Department will be known as Slum and JJ Department of MCD.

(i) It will have its separate entity with its own staff, accounts stores etc. till orders are issued to the contrary.

(ii) The employees of the said Department having become the employee of MCD, will not be merged with any cadres of the MCD till any orders to the contrary are issued.

In view of the facts as stated above, it is proposed that:

(i) Ex-post facto approval to the taking over the Slum and JJ Department by MCD w.e.f. September 1, 1992 may be accorded.

(ii) The Slum and JJ Department of MCD should put up to standing Committee statement of schemes already executed by it and those under implementation together with their financial out-lays.

(iii) A statement of all assets and liabilities and land in JJ colonies be put for the information of Standing Committee.

(iv) A statement be put up to standing Committee in regard to number of posts sanctioned and already filled up category-wise.

B. Integration of Slum and JJ Department with the administration hierarchy of MCD. Keeping in view the provisions of the Slum Areas (Improvement and Clearance) Act and over all provisions under the DMC Act, there has to be only one commissioner i.e. Commissioner, MCD and the power of competent authority under the Slum Areas Act will also have to be delegated to the Commissioner, MCD for which the matter is being processed.

C. Unified supervision and control of the Department

(i) As stated above the Slum and JJ Deptt. has presently two Commissioners working independently with similar functions and parallel powers. There does not appear to be any unified set-up in the Deptt. with a single authority for exercising proper supervision and control and lay down its policies and programmes. Earlier when this Deptt. was with the MCD, it was under the overall charge of Dy. Commissioner/Addl. Commissioner in the pay scale of Rs. 4500-5700/Rs. 5900-6700 as the case may be.

(iii) Accordingly, it is proposed that a post of Dy. Commissioner (Slum and JJ)/Addl. Commissioner (Slum and JJ) may be revived/created at the strength of Slum and JJ Deptt. under its own budgetary provisions for supervision and control over the Slum and JJ Deptt. of MCD with usual pay-scale and allowances.

(iv) Accordingly, it is proposed that a post of Dy. Chief Acctt. in the pay-scale of Rs. 3000-4500 with usual allowances, may be created specifically for the Slum and JJ Department.

11. Counsel for the petitioner has also contended that the respondent/MCD has undertaken rigorous exercise in appointing the petitioner on the said post of Director-in-Chief (Sanitation), then, what compelled the respondent/MCD to relieve the petitioner from the said post. The contention of the counsel for the petitioner is that when the post exists, work exists and a selected candidate exists, then at least there should have been some justifiable reasons before the respondent/MCD for taking such a decision of relieving the petitioner from the said post. Counsel for the petitioner has also contended that there were valid reasons for appointment of the petitioner on the said post but no reasons whatsoever are visible for relieving the petitioner from the said post. The contention of the counsel for the petitioner is that it cannot be ipsi dixit of the MCD but the decision of the respondent/MCD which is instrumentality of the State must be backed by some justifiable reasons. Counsel for the petitioner also invited my attention to the Minutes of the Selection Committee dated 27.10.2005 which clearly shows that the petitioner was seniormost to all the four incumbents and his ACRs as compared to the other officers were best and the Selection Committee found the petitioner as the most suitable person for manning the post of Director-in-Chief (Sanitation). In the said Minutes of the Meeting the fact regarding petitioner's facing Regular Departmental Enquiry for a minor penalty was also revealed. Counsel for the petitioner also contended that his reversion being equivalent to the reduction in rank amounts to major penalty and, therefore, the decision of the respondent being punitive in nature is liable to be set aside being in violation of Article 311 of the Constitution of India. Counsel for the petitioner also submitted that stipulations contained in appointment letter dated 8.11.2005 are unconscionable in nature and in violation of Section 23 of the Contract Act.

12. Per contra Mr. Sandeep Sethi, learned Senior Advocate for the respondent has refuted the said contentions of the petitioner with all vehemence. The first submission of the counsel for the respondent is that order dated 5.1.2007, which has been impugned in the present petition should be treated and read in two parts. By the first part, the petitioner, has been relieved from the `look after charge' of the post of Director-in-Chief (Sanitation), while the second part of the order is a direction to the petitioner to report to the Additional Commissioner, Slum and JJ Department as Chief Engineer for his further duties. The contention of the counsel for the respondent is that challenge to the two aforesaid substantive orders have to be separate and since in the present case no challenge has been made by the petitioner to the second part of the substantive order, therefore, relief as sought by the petitioner in the present writ petition without seeking any specific relief against the second part of the order straightway merited rejection. Placing reliance on the office order dated 8.11.2005, counsel for the respondent has submitted that the petitioner was merely "entrusted" with look after charge' of Director-in-Chief (Sanitation) and salient features of the said order would clearly show that no right was conferred on the petitioner in the said post which was merely a `stop-gap arrangement'. It would be worthwhile to reproduce some of the terms and conditions of office order dated 8.11.2005 as under:

(ii) The assignment shall be purely on `Look After charge' basis, as a matter of `stop-gap arrangement' and shall not entitle the officer to claim any benefit on account of this order;

(iv) It will not confer any right to claim ad hoc/regular promotion or seniority to this post or any other service benefits whatsoever;

(v) The period of service rendered on `Look After charge' will not count as qualifying service for promotion to the higher grade/post or for seniority;

(vi) This `stop-gap arrangement' can be terminated at any time by the Competent Authority without assigning any reason thereof and giving any prior notice; and....

13. Based on the said terms of the appointment the contention of the counsel for the respondent is that petition under Article 226 of the Constitution of India can be maintainable only to enforce a right and once no such right existed in favor of the petitioner, therefore, the present petition filed by the petitioner cannot be held to be maintainable. In support of his argument counsel for the respondent has placed reliance on the judgment of this Court in the case of Kalu Ram Ahuja and Anr. v. DDA and Anr. 2006 V AD (Delhi) 367. Counsel for the respondent has contended that the petitioner has no right to insist upon his continuance on the said post of Director-in- Chief (Sanitation), once under the terms and conditions of the said order he has not been given any right to continue on the said post and the MCD has been permitted to bring an end to the arrangement without giving any reason or service of prior notice. Counsel for the respondent has placed reliance on the judgment of the Supreme Court in the case of State of Haryana v. S.M. Sharma and Ors. . Counsel for the respondent has also contended that the petitioner has accepted the terms of the 'entrustment' without any protest or demur and, therefore, at the time of his relieving order from the post of Director-in-Chief (Sanitation), the petitioner cannot be allowed to question the terms and conditions of order dated 8.11.2005. Counsel for the respondent has also contended that the petitioner is estopped by his own conduct, after having accepted and acquiesced the terms and conditions of said order dated 8.11.2005 and now two years later, the petitioner cannot be allowed to challenge the said terms and in support of his argument counsel for the respondent has relied upon the decision of the Supreme Court in Shish Ram and Ors. v. State of Haryana and Ors. and Union of India and Ors. v. N. Chandrasekharan and Ors. . Placing reliance on the Minutes of the Meeting of the Special Selection Committee dated 22.10.2005, counsel for the respondent has contended that the same clearly shows that the appointment of the petitioner on the said post was a `stop-gap arrangement' and no part of the said minutes gives an impression that the appointment of the petitioner was against a regular post.

14. The contention of the counsel for the respondent is that decision of the respondent was neither judicial nor adjudicatory and the same being purely administrative in nature, therefore, for such an administrative decision, no reasons were required to be given by the respondent. In support of his argument counsel for the respondent has placed reliance on the decision of the Supreme Court in National Institute of Mental Health and Neuro Science v. Dr.K. Kalyana Raman and Ors. .

15. With regard to the second part of the impugned order dated 5.1.2007, contention of the counsel for the respondent is that second part of the order placing the petitioner to his new assignment has not been challenged and, therefore, without there being any challenge to the placement order, a mere challenge to the first part of the order dated 5.1.2007 becomes otiose and meaningless.

16. While countering the petitioner's contentions on his being transferred from one cadre to the other cadre, counsel for the respondent submitted that the Slum and JJ Department is a division of the MCD, and therefore, his transfer cannot be considered out of his cadre and he will continue to be governed by the same cadre of Chief Engineer with same seniority list, scale of pay and allowances. The contention of the counsel for the respondent is that there is no restriction on the power of the MCD to place an employee of the General Wing of the MCD to the Slum and JJ Department, which is another Wing of the MCD. Counsel for the respondent has placed reliance on Section 59 of the DMC Act which confers the entire executive power on the Municipal Commissioner and contended that the relieving order was passed in exercise of the said executive powers.

17. Counsel for the respondent further contended that transfer from one post to the other or from one division to the other is an incidence of service and unless any transfer order is tainted with mala fides or is not justiciable, the courts do not interfere in such administrative decisions of the employer. In support of his argument, counsel for the respondent has placed reliance on the judgments of the Supreme Court in Union of India and Ors. v. Shri Janardhan Debanath and Anr. , Union of India and Ors. v. S.L. Abbas and State of U.P. and Ors. v. Gobardhan Lal .

18. In the background of the aforesaid facts and arguments advanced by the respective counsel for the parties, the legality and validity of the impugned order dated 5.1.2007 has to be tested. The original records relating to the appointment of the petitioner on the post of Director-in-Chief (Sanitation) and his subsequent relieving order dated 5.1.2007 have been produced by the MCD/respondent. Perusal of the same shows that there are no recruitment rules for the said post of Director-in-Chief (Sanitation) and therefore, the rules which are applicable to the equivalent post of Engineer-in- Chief were made applicable for appointment to the said post. The post of Director-in-Chief (CSE) has been considered to be the most important and vital post in the MCD, as the incumbent of the post is required to coordinate, monitor and supervise the work of CSE Department. Special Selection Committee was constituted by the MCD for selecting the most suitable person to be appointed on the post of Director-in-Chief (Sanitation) amongst the Chief Engineer Directors, (CSE) working under the control and supervision of the MCD.

19. The said Selection Committee after taking into consideration the ACRs of the Chief Engineers/Directors (CSE), had recommended the name of the petitioner as the most suitable officer for entrustment to `look after the charge' of the said post of Director-in-Chief (Sanitation). Pursuant to the recommendations made by the Special Selection Committee the present petitioner was appointed on the said post of the Director-in-Chief (Sanitation) in the pay scale of Rs. 12,000- 16,500/- on `look after charge' basis subject to the terms and conditions contained in the said Office Order dated 8.11.2005. Perusal of the record also shows that petitioner's selection was not made in a routine manner but after his passing through the process of selection after competing with the other eligible Chief-Engineers. Surprisingly, no discernible reasons are visible for taking the said decision of relieving the petitioner from the said post of Director-in-Chief (Sanitation) with immediate effect. Only ex-post facto approval was sought by the A.C. (Estt.) by putting a note dated 09.01.2007 before the high-ups in the hierarchy including the Commissioner. It is quite strange that a person who was properly selected for the said post and who had already put in more than one year on the said post was abruptly relieved from the post without any rhyme or reason whatsoever. It is no doubt true that the relieving order may not necessarily incorporate the exact reasons resulting into passing such an order but some reasons at least must exist on the record of the file. The assignment of the petitioner on the said post may be a `stop-gap arrangement' or on `look after charge' or under the terms and conditions of the office order such arrangement may be terminated at any time by the competent authority without assigning any reasons and without giving any prior notice, but still the reasons must exist on the file, if not in the relieving order dated 5.1.2007. No State or instrumentality of the State can say that their decision or action can be without any reason. It may be a different thing, that in a given case, reasons may be justified or unjustified, legal or illegal, fair or unfair, biased or unbiased, arbitrary or non-arbitrary but it may be difficult to comprehend a situation where a State Government takes such unpalatable stand by stating that they have taken a particular decision because they were competent enough to take such decision. When no reason exists on the file, then the allegations made by the petitioner that he has been victimized because of his not succumbing to the pressure for award of scavenging contract to one single contractor, have to be accepted. The copies of the press clippings placed by the petitioner on record highlighting the said tussle between the petitioner and other high-ups of the MCD are clear pointers to the discomfiture of these high-ups who had taken the decision to throw the petitioner out from the said assignment. These press clippings are of newspapers dated 6.1.2007, 7.1.2007 and 8.2.2007 and the petitioner was sent the said relieving order dated 5.1.2007 on the same evening by fax at 7.30 P.M. What was the tearing hurry to relieve such an officer who was given the post of Director-in-Chief (Sanitation) after he was found to be the most suitable person by the selection committee. Why an ex-post facto approval was required and if required then why reasons are missing for taking the said decision. These unanswered questions, clearly indicate, that the respondent/MCD is suppressing more than revealing. The action of the MCD in passing the said relieving order dated 5.1.2007, therefore, clearly smacks of arbitrariness. The MCD being an instrumentality of the State unlike any private unscrupulous employer cannot adopt the whimsical approach of taking action without being backed by some reasons or purpose behind it. The MCD cannot be allowed to say that they have taken certain actions because they just wanted to take the same. The MCD, therefore, cannot take the unprincipled stand of 'Meri Marzi' (own wish) while discharging their administrative duties. The State or instrumentalities of the State certainly owe a duty to its citizens to tell that all their actions are legal, fair, justified, free from any vice of arbitrariness, mala fides or biased attitude and in the larger public interest.

20. Since the respondent has failed to disclose any reason behind the said relieving order dated 5.1.2007, therefore, the said relieving order dated 5.1.2007 does not stand the test of reasonability, rationality and fairness. I also find merit in the submissions of counsel for the petitioner that the said relieving order of placing the petitioner with Slum and J.J. Wing Department has visited him with civil consequences on account of Slum and J.J. Department being a separate entity. The petitioner was seniormost Chief Engineer with the MCD although his substantive post was Executive Engineer. Earlier the petitioner was assigned the `look after charge' on the post of Superintending Engineer and then on the post of Director (CSE) equivalent to the level of Chief Engineer. The post of Director-in-Chief is a higher post and as per the practice prevalent in the MCD due weightage is given to the seniority at the time of promotion of these officers to the next higher rank, may be on current duty charge or on `look after charge' and, therefore, although as per the terms of the appointment, current duty charge or `look after charge' may not confer upon the incumbent any right of seniority on the post but still the fact remains that the seniority criteria is adhered to at the time of promotion of these officers working on the current duty charge or `look after charge' basis. The petitioner was also drawing coordination allowance of Rs. 500/- per month on the said post of Director-in-Chief (Sanitation) and vide order dated 5.1.2007, he was directed to report to Additional Commissioner (Slum and J.J. Wing) as Chief Engineer where no such allowance is admissible. The Slum and J.J. Wing was transferred to the MCD vide resolution No. 2585 dated 23.11.92 and terms of the said office order clearly indicate that the Slum and J.J. Wing although, is a department of the MCD but still it will remain an independent and separate entity with its own staff, budget, cadre etc. till any orders to the contrary are issued by the competent authority. In Sub Clause VIII of Clause A of the said office order dated 23.11.1992 it has been clearly stated that the employees of Slum and J.J. Wing will not be merged with any of the cadres of the MCD till any orders to the contrary are issued. The undeniable fact of Slum and J.J. Department having its own budget, recruitment rules, seniority and cadres etc. then that of a General Wing of the Municipal Corporation and non-applicability of DMC Service Regulations, 1959 to the employees of Slum and J.J. Wing and also there being no merger of the cadres with separate allocation of budgets and service rules, there does not appear to be any justification on the posting of the petitioner with the Slum and J.J. Wing. Although in the counter affidavit, the respondent has taken a stand that officers of the slum are transferred to the Corporation and vice versa from Corporation to the Slum Wing and the transfer of the petitioner to the Slum Wing will not affect his promotional avenues in his own cadre but in the relieving order dated 5.1.2007, no such stipulation has been made and, therefore, such a transfer from one cadre to the other cadre unless governed by any specific rules or by some policy decision has the affect of prejudicially affecting the status of the petitioner.

21. On the allegations of mala fide transfer, the respondent/MCD in paras 18, 19, 20 and 21 of their counter affidavit has not made any serious attempt to deny the allegations of the petitioner made in the corresponding paras of the petition. Even otherwise, the respondent-MCD has not offered any explanation for such abrupt decision of relieving the petitioner from the said post and, therefore, in the given facts and circumstances of the case it cannot be ruled out that the said relieving order has not been passed on bona fide grounds or justifiable reasons.

22. The recent judgment of the Supreme Court in Civil Appeal No. 2697/2007, Tejshree Ghag etc. v. Prakash Parashuram Patil and Ors. etc. supports this proposition and in Para 15, the Supreme Court has held as follows:

15. The orders of transfer were passed by Authority in purported exercise of its executive power. Executive power can be exercised only in terms of the extant rules. It is well-settled that where executive order results in civil consequences, principles of natural justice are required to be complied with prior thereto. It is not a case where an order of transfer was passed by way of change of place of employment within an organization simpliciter. An order of transfer ordinarily should be in terms of the existing rules. Transfer may even be incidental to the conditions of service, but thereby nobody can be deprived of his existing right. Existence of a power and exercise thereof are two different concepts. An Executive power in absence of any statutory rules cannot be exercised which would result in civil or penal consequences. Such exercise of power must, moreover, be bona fide. It cannot be done for unauthorized purpose. An Executive order passed for unauthorized purpose would amount to malice in law. An order of transfer cannot prejudicially affect the status of an employee. If orders of transfer substantially affect the status of an employee, the same would be violative of the conditions of service and, thus, illegal. Transfers must be made to an equivalent post.

23. Based on the above observations, the present relieving order of the petitioner dated 5.1.2007 placing his services at the disposal of Slum and J.J. Wing does not appear to be bonafide and shall substantially affect his status.

24. In view of the above discussion, the judgments cited by the respondent are not found to be applicable in the facts and circumstances of the present case. As already discussed above that the competent authority might not have given any reasons or justification in the relieving order itself but reasons must exist in the records justifying such a decision. The giving of reasons is one of the fundamentals of good administration and in the Government of laws there is nothing like unfettered discretion immune from judicial reviewability. Indeed, fairness founded on reason is the essence of the guarantee epitomised in Articles 14 and 16 of the Constitution of India. The reasons, thus, must exist on the record if not in the order impugned herein. Another argument of the respondent stating that the petitioner has no legal or enforceable right to challenge the said order or the same cannot be challenged as the petitioner was well aware of the terms and conditions of his appointment on the said post of Director-in-Chief (Sanitation), lacks any merit or substance. It is no doubt true that the petitioner has never challenged the terms and conditions of his appointment on the said post and the terms and conditions does not create any sort of right in the petitioner to claim any right or seniority on the said post and the entrustment merely being a `stop gap arrangement' was terminable without assigning any reasons or without any prior notice. But at the same time one cannot loose sight of the fact that every such appointment on a higher post or `look after charge' is based on similar terms and conditions, for the appointment of an incumbent to such a higher post. The substantive rank of the petitioner is Executive Engineer although he was Superintending Engineer on the same `look after charge' basis and then Director (CSE), equivalent to the post of Chief Engineer on `look after charge' basis as a `stop gap arrangement' and then to the post in question of Director-in-Chief (Sanitation) equivalent to the rank of Engineer-in-Chief on `look after charge' basis as a `stop gap arrangement'. In the peculiar facts and circumstances of this practice prevailing in the respondent/MCD, it cannot be said that in these office orders of promotion, the petitioner does not get any right. It is settled law that it is not the form of the order but the substance of the order which should be seen to look behind the facade to ascertain the real intentions of the parties behind such arrangement. Without disputing the right of the respondent to invoke any of the terms of the said office order dated 5.1.2007, the respondent/MCD being an instrumentality of the State still has to come out with discernible reasons for taking any action even in terms of the said office order. The State always owe a duty to explain and spell out to its subjects that their actions are not tainted with any vice of arbitrariness, mala fides or violative of fundamental rights or any statute or enactment or any other law and this responsibility the State can never abdicate or escape under any circumstances. The Supreme Court judgment in the case of National Institute of Mental Health and Neuro Sciences (supra) cited by counsel for the respondent is not applicable to the facts of the present case, as in the present case, it is not the decision of the Selection Committee which is under question. The Supreme Court in this case has held that functions of the Selection Committee being purely administrative in nature, therefore, it does not require to give reasons for selecting candidates. Similarly judgment of Union of India and Anr. v. N. Chandrasekharan and Ors. , is also not applicable to the facts of the present case as again, therein challenge was to the selection procedure which was made known to the candidates. The judgment of State of U.P. and Ors. v. Gobardhan Lal , and other judgments cited by counsel for the respondent to support his argument that the Courts should be slow in interfering the transfer order unless such transfer order is mala fide or is passed in violation of statutory provisions, are not applicable to the facts of the present case as the present case does not merely relates to transfer of person but also concerns with an order whereby person has been relieved from a higher rank and, then, has been transferred to a department outside his cadre. The present case of the petitioner cannot be considered to be a case of simple transfer and, therefore, these judgments cited by the respondent are not applicable.

25. In the counter affidavit, the respondent has stated that the petitioner has concealed the fact of pendency of vigilance cases against him and in support of the same, the respondent has placed reliance on the statement of imputations and statement of charges issued by the respondent against the petitioner. In reply to this contention of the petitioner, the respondent has controverter the petitioner by stating that the pendency of the inquiry and issuance of charges etc. were duly considered by the Selection Committee at the time of selecting the petitioner to the said post of Director-in-Chief (Sanitation). Once this material was before the Selection Committee at the time of selection of the petitioner to the said post of Director-in-Chief (Sanitation) therefore, no weightage can be given to this argument of counsel for the respondent that such material became relevant at the time of passing of the relieving order dated 5.1.2007.

26. I also do not find any force in the arguments of counsel for the respondent that since the petitioner has not challenged the second part of the impugned order dated 5.1.2007, therefore, the petitioner cannot be granted any relief in the present petition. The second part of the order is a consequence of the first part of the order, and, therefore, is inseparable from the first part of the order. Since, the petitioner has challenged the entire order dated 5.1.2007 in the present petition, therefore, the said order has to be examined not in part but as a whole.

27. I also do not find any force in the submissions of counsel for the respondent that transfer of petitioner to slum and J.J Wing is well within the power and domain of Commissioner, MCD, who being the Executive head of MCD enjoys such executive power U/S 59 of DMC Act. The contention of the counsel for the respondent is that under Section 59 of the DMC Act, it is within the power of Commissioner, MCD to transfer any Municipal Officer or any employee or to take any decision under his executive powers to deal with all matters relating to the service of any of the municipal employees or officers. It cannot be in dispute that under Section 59 of the DMC Act, the Commissioner being the executive head of the MCD has to exercise all the powers and perform all the duties as conferred upon him by various provisions of the Act or by any other law for the time being in force. However, in the case of petitioner Section 59 of the DMC Act has to be read with Resolution No. 2585 dated 23.11.1992 whereby administrative control the Slum and J.J. Department was transferred to the MCD. The terms of the said resolution clearly indicate that the Slum and J.J. Department was transferred to the MCD but still the same will be maintaining its separate and independent existence. Sub Clause (vii) of Clause A of the said decision dated 23.11.1992 clearly states that the employees of Slum and J.J. Wing of the DDA will become the employees of Slum and J.J. Department of the MCD and they will continue to be governed by their existing terms and conditions of service. It has also been made clear that they will not be merged with any cadres of the MCD till any orders to the contrary are issued. It is not the case of the respondent that with the said transfer of Slum and J.J. Department to the MCD, the erstwhile employees of the Slum and J.J. Wing shall become employees of the MCD itself and rightly so because even with the said transfer of the Slum and J.J. Department, it has not lost its independent entity. Under Clause B of the said resolution dealing with the integration of Slum and J.J. Department with the administrative hierarchy of MCD, the executive powers under Section 59 of the DMC Act came to be vested in the Commissioner as post of Commissioner, MCD was found to be of higher level of Joint Secretary/Additional Secretary to the Government of India in comparison to the Commissioner (SandJJ)-I and Commissioner (SandJJ)-II who were in the lower hierarchy. The Commissioner of the MCD, therefore, enjoys all the administrative powers as envisaged under Section 59 of the DMC Act but for exercising such powers, he will have to remain conscious of the fact that separate cadres exist in the MCD as well as in the Slum and J.J. Department. In this regard, the judgment cited by counsel for the petitioner in the case of R.D. Gupta's case (supra) is applicable to the facts of the present case with all force. The Supreme Court while dealing with the pay scales of employees of Electricity Wing of the NDMC with that of employees of DESU has highlighted the distinction by holding that three wings set up under the Municipal Corporation Act of the MCD have to function as distinct and independent units and, therefore, DESU was held as separate and independent unit of the MCD constituting an independent body with its own budget and freedom of action without there being any reference to the other units. Similar is the position of setting up of Slum and J.J. Wing and its administrative correlation with the MCD. The contention of counsel for the respondent, therefore, has no merit. On the issue of `stop gap arrangement' of employment, counsel for the respondent has placed reliance on the minutes of the meeting of the Special Selection Committee dated 27.10.2005 in which the decision was taken to appoint the petitioner on the said post of Director-in-Chief (Sanitation) as a stop gap. Counsel for the respondent has drawn my attention to Clause IV of the said minutes in which the Committee made it clear that a Special Selection Committee was neither a DPC for recommending officiating promotion nor they were recommending promotion on ad hoc basis. The Selection Committee clearly held that they were recommending only the most suitable person manning the post of Director-in-Chief (Sanitation) as a `stop-gap arrangement'. The contention of counsel for the respondent is that the petitioner was only entrusted with the said job of Director-in-Chief as the `stop-gap arrangement' and, therefore, there was nothing wrong on the part of the respondent in withdrawing the said arrangement and placing the petitioner to his earlier position of Chief Engineer. Counsel for the respondent has placed reliance on the judgment of State of Haryana v. S.M. Sharma and Ors. (supra), wherein the Supreme Court has held that no one has a right to ask for or stick to a current duty charge and once the impugned order did not cause any financial loss or prejudice of any kind, the writ jurisdiction of the High Court could not have been invoked under Article 226 of the Constitution of India. In reply to this argument of counsel for the respondent, Mr.Raman Duggal, counsel for the petitioner placed strong reliance on the judgment of the Supreme Court in Secy-cum-Chief Engineer, Chandigarh, v. Hari Om Sharma and Ors. JT 1998 (3) SC 654, in which the said judgment of State of Haryana v. S.M. Sharma and Ors. was also referred and the Supreme Court in its operative paras has held as under:

7. Learned Counsel for the appellant has placed reliance on Sreedam Chandra Ghosh v. State of Assam as also on State of Haryana v. S.M. Sharma to contend that since the respondent was promoted on the basis of `stop-gap arrangement', he could not claim promotion as a matter of right nor could he claim salary for the post of Junior Engineer I as he was given only current duty charge of that post. Both the contentions cannot be accepted. The Tribunal has already held that the respondent having been promoted as Junior Engineer I, though in `stop- gap arrangement', was continued on that post and, therefore, he has a right to be considered for regular promotion. Having regard to the facts of this case, there is no reason to differ with the Tribunal.

8. Learned Counsel for the appellant attempted to contend that when the respondent was promoted in `stop-gap arrangement' as Junior Engineer I, he had given an undertaking to the appellant that on the basis of `stop-gap arrangement', he would not claim promotion as of right nor would he claim any benefit pertaining to that post. The argument, to say the least, is preposterous. Apart from the fact that the Government in its capacity as a model employer cannot be permitted to raise such an argument, the undertaking which is said to constitute an agreement between the parties cannot be enforced at law. The respondent being an employee of the appellant had to break his period of stagnation although, as we have found earlier, he was the only person amongst the non-diploma-holders available for promotion to the post of Junior Engineer I and was, therefore, likely to be considered for promotion in his own right. An agreement that if a person is promoted to the higher post or put to officiate on that post or, as in the instant case, a `stop-gap arrangement' is made to place him on the higher post, he would not claim higher salary or other attendant benefits would be contrary to law and also against public policy. It would, therefore, be unenforceable in view of Section 23 of the Contract Act, 1872.

28. Based on the above observations of the Supreme Court, it cannot be said that the petitioner has no right to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India. The judgment of this Court in the case of Kalu Ram Ahuja and Anr. v. DDA and Anr. 2006 V AD (Delhi) 367 cited by the respondent in support of his proposition that office order dated 08.11.2005 does not confer any right on him and, therefore, the petition under Article 226 of the Constitution is not maintainable when no legally enforcible right existed in favor of the petitioner, is not applicable in the facts and circumstances of the present case. In the said judgment the issue of infringement of a legal right of a bidder before acceptance of his bid was involved which was subject to the acceptance by the Vice Chairman and the Court held that since no valid contract came into existence, therefore, no right had accrued in favor of the petitioner which can be complained to have been infringed. In the present case the petitioner is aggrieved with the order dated 05.01.2007 which he has impugned in the present petition as being violative of Article 14 and 16 of the Constitution of India being arbitrary, stigmatic and punitive in nature and, therefore, it cannot be said that the petitioner has no legally enforceable right to approach this Court under Article 226 of the Constitution of India. Once the order complained has the propensity of prejudicially affecting one's career or service conditions or the same is stigmatic or punitive in nature, this Court is fully empowered to exercise jurisdiction under 226 of Constitution of India in such a case. Reference is also invited to the judgment of this Court in Prem Praveen v. UOI and Ors. (1973) 2 SCR 659 (Delhi) in which it was held as under:

5. The argument is that as the President had the blanket power to transfer servant from one post to another it necessarily implies the power to transfer even outside the cadre. Now F.R. 15 does not in terms authorise the transfer of the government servant from one cadre to the other. What justification is there to imply such a power.

On the other hand if a reference is made to F.R. 14 (B) which states that subject to the provisions of Rule 15, the President may transfer to another permanent post in the same cadre the lien of a Government servant who is not performing the duties of the post to which the lien relates, even if that lien has been suspended, it will be apparent that F. Rules 14(B) and 15 are talking of the transfer within the same cadre. This is because F.R. 14 (B) specifically says that 'subject to the provision of Rule 15....If F.R. 15 was referring to transfer from one post to another outside the cadre, I do not see how two F. Rules 14(B) and 15 could be read together. F.R. 14 (B) gives power to the President to transfer to another permanent post in the same cadre the lien of Government servant. The exception is provided in F.R. 15 which lays down that the President may transfer government servant from one post to another provided that except on account of inefficiency or misbehavior or on his written request the government servant shall not be transferred substantively to a post carrying less pay than the pay of the permanent post on which he holds a lien. Normally it is to be expected that the Government employees who join a particular cadre would have the range of their transferability determined within that cadre. Logically by it does not stand to reasons that a person who is recruited to a particular cadre should be compelled against his wishes to serve outside the cadre even when the permanent post to which he holds a lien exists within the cadre. At least F.R. 15 is not capable of this interpretation as suggested by Mr. Chadha. All that F.R. 15 means is that even if a government employee holds a lien on a particular post he has no vested right to continue to remain in one particular post all the time and could be transferred to another post, of course within the same cadre, because his lien is only the title to hold substantively post, to which he has been appointed substantaively. In S.K. Srivastava v. Union of India and ORs. 1971 S.L.R. 453, the employee who was working as a Director of Revenue Intelligence, New Delhi challenged the order by which he was transferred and posted as Collector of Customs, Calcutta, on the ground that the Director of Revenue Intelligence did not form part of the cadre of the Customs and Central Excise Department, and therefore the transfer was illegal. This plea was negatived by Division Bench of this Court which held that the post of Director of Revenue Intelligence and Inspection including the post of Director of Revenue Intelligence was not an ex-cadre post in the sense that it was outside the ordinary range of transferability for an officer of Indian Customs and Central Excise Service Class I, and that the Deparatment of Revenue consisting of the three branches of the Income tax, Customs, and Central Excise and the Chemical Service, Class I is itself a service or a cadre functioning as one department, and that the post of Director of Revenue Intelligence belongs to one unit of this department. Referring to F.R. 15 and the interpretation to be given to it the bench observed as:

We have therefore, to construe the authority of the Government to transfer a Government servant neither too widely as to do injustice to the Government servant, concerned nor too narrowly as to fetter the administration of the government, but precisely to meet the object and the work for which the petitioner was appointed and the extent to which he was transferable for the achievement of the said object and in the course of the said work.

7. It will thus be seen that in cases where the Government servant is transferred to ex-cadre post he is considered on deputation with the result that he is entitled to deputation allowance as per the various orders of Government of India. If the contention of Mr. Chadha was correct that the Government was entitled under F. Rules 15 to transfer any Government servant from any post to a post even outside the cadre (of Course carrying the same pay) it is not understood why such elaborate rules and principles should have been made by the President providing the circumstances and the manner of paying the deputation (duty) allowance up to 20 per cent of the employees basic pay when a Government servant is transferred to an ex-cadre post. it is apparent that the orders by the President were necessitated because F.R. 15 provides only for transfer from a post to the other post but within the cadre and not to a transfer to a post outside the cadre. I was referred to the representation made by the petitioner against the order of transfer in which he has pointed out that the Directorate of Extension and the office of Regional Station have no connection with each other and each office has its own rules and no transfer from one office to the other has been done and the only proper procedure is by inviting applications for the post from the eligible candidates, and requesting that his transfer be cancelled. No doubt in the affidavit in return it has been stated that by this transfer the lien of the petitioner in the post held by him is not terminated and that he continues to hold the lien. It is also stated that the petitioner will be eligible for promotion in his turn on the next below basis. But the grievance of the petitioner is a more fundamental and basic one, namely that the the respondents have no power or authority to transfer him outside the cadre without his consent. It is true that once the Government is shown to have the authority to transfer a Government servant the courts would be most reluctant and disinclined to interfere, with the exercise of administrative discretion by the government on the obviously plausible plea that the administration is the best judge and in the know of all relevant circumstances to determine as to the desirability or the propriety of any particular posting and at what place of a government servant. But it is equally well settled that the courts can interfere if the transfer is violative of any legal provision or is otherwise mala fide : see Lachman Das v. Shiveshwarkarand and Ors. A.R.R. 1967 Punjab 76 by H.R. Khanna, J. (as his lordship then was). In a case therefore where it is shown that there is no legal authority in the government to transfer a government servant, it is the bounden duty of the courts to interfere because under our jurisprudence the executive can only act in pursuance of the powers given to it by law and it can claim immunity from challenge only on the condition that it can support the legality of its action before a court of justice. The grievance here is that the petitioner could not be transferred outside the cadre against his will. The conclusion is therefore, irresistible that the impugned order of transfer dated 23rd November 1970 by which the petitioner has been transferred from the Directorate of Extension, Ministry of Food and Agriculture, New Delhi to the office of Regional Station on Forage Production, Dhamrod, P.O. Hathuran, District Surat, is unauthorised and without any support from law or rule hence unsustainable.

29. I also do not find any force yet in another argument of counsel for the respondent that the petitioner is estopped from challenging the terms and conditions of order dated 8.11.2005 when the same were accepted by the petitioner without any protest or demur. In the judgment relied upon by counsel for the respondent reported in (1972) SLR 537, Union of India and Anr. v. Gajendra Singh etc., the Supreme Court has clearly held that if the order entails or provides for forfeiture of his pay or allowance or the loss of his seniority in the substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that though, in form, the Government had purported to exercise its undoubted right to terminate the employment, in truth and reality, the termination was by way of penalty. In the present case, it is not only that the petitioner will be deprived of the allowance attached with the said higher post of Director-in-Chief (Sanitation) but his transfer to a department outside his cadre is in truth and reality has the affect of punishing the petitioner, and, therefore, it cannot be said that the petitioner is estopped from challenging the terms of his appointment letter, more particularly in view of the said judgment of the Supreme Court in the case of Secy-cum-Chief Engineer, Chandigarh, v. Hari Om Sharma and Ors. JT 1998 (3) SC 654, wherein the Supreme Court has held incorporation of such oppressive terms as contrary to law and against public policy.

30. Based on the above discussion, the order dated 05.01.2007 is set aside. All other orders passed by the respondent pursuant to and in implementation of office order dated 05.01.2007 are also set aside. Consequently, the respondent-MCD is directed to place the petitioner on his previous post of Director-in-Chief (Sanitation) in terms of the office order dated 08.11.2005.

31.With these directions the writ petition is allowed.