PURAN SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) BY this petition under Articles 226 and 227 of the Constitution of India, the petitioner; who is a Deputy Commandant (DC) in BSF Academy, Tekanpur, has challenged the order of his transfer (Annexure P/22) dated 23-7-1993, to the extent the petitioner was directed to move from BSF Academy, Tekanpur, to 14 Bn. , BSF, at Gandhidham, in Gujarat State. Petitioner has challenged the order of transfer as actuated by malice because the petitioner, for seeking seniority and promotions in the light of the order passed in M. P. No. 257 of 1980, decided on 8-2-1990 in case of Babu Joseph, filed a petition (M. P. No. 2840 of 1990) before this Court along with other petitioners wherein this Court, following the decision in the case of Babu Joseph, directed the respondents to consider the. case of the petitioner for promotion on higher post that of the Inspector at least on the date on which Baby Joseph became entitled for consideration and was considered and given promotion. After the decision, the petitioner made a representation to give promotion due to him. When the petitioner was not granted his promotion, the petitioner initiated proceedings for contempt on 24th January, 1993, registered as M. C. C. No. 50 of 1993, for seeking a direction to implement the order. The respondents also filed a petition seeking nine months' time for compliance of the order passed in M. P. No. 2840/90 (M. C. C. No. 66 of 1993 ). This Court granted six months' time to respondents to comply with the order. Before the final decision is taken in the time granted by this Court, the petitioner was directed to move to 144 Bn. , located at Gandhidham in Gujarat, hence the petitioner challenged the order by a writ petition, M. P. No. 861 of 1993, as based on mala fides, wherein, the operation of the order dated 30-4-1993 was stayed.

(2.) IN the said petition, the respondents did not file any return or reply, but on 5-7-1993, made a statement through their counsel at the Bar that the transfer order of the petitioner has been cancelled by the authorities and in that regard, a copy of the wireless message was filed which was not disputed by the petitioner. Therefore, the Court dismissed the petition as infructuous. But, to the surprise of the petitioner, the Director General, BSF, again passed an order dated 23rd July, 1993 by sending a signal (Annexure P/22) which reads as under :

(3.) THE petitioner contends that respondents misrepresented and played fraud upon the Court as also on the petitioner and managed to obtain the order of the Court of dismissal of the petition without getting a decision or verdict on merit of the mala fides alleged. Cancellation of the order of cancellation of transfer is with a view to victimise the petitioner as he approached the Court to get his due right and when the order of this Court of not giving seniority and promotion was not complied with, the petitioner initiated proceedings for contempt; but as the Court granted time to comply with the order which is to expire on 31st January, 1994, the petitioner was again directed to move to a long distance from Gwalior to Gandhidham so that if compliance is not made, the petitioner may not take recourse to the contempt proceedings or other appropriate proceedings. The transfer order was also attacked on the ground of being violative of guidelines and having been made in the mid-session.