Punjab-Haryana High Court
Mukesh Kumar Solanki vs State Of Haryana on 2 July, 2012
Author: K.Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No.2996 of 2012 (O&M)
Date of decision: 02.07.2012
Mukesh Kumar Solanki, HCS, son of Shri Tulsi Ram, R/o 1358,
Maruti Kunj, Bhondsi, Gurgaon.
...Petitioner
versus
State of Haryana, through Chief Secretary to Government of
Haryana, Civil Secretariat, Chandigarh, and others.
....Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
----
Present: Mr. Puneet Bali, Senior Advocate, with Mr. Shaurya
Sharma, Advocate, for the petitioner.
Mr. Kshitij Sharma, Assistant Advocate General,
Haryana.
Mr. Deepak Bhardwaj, Advocate, for respondents 3 & 4.
Dr. Surya Parkash, Advocate, for respondent No.5.
----
1. Whether reporters of local papers may be allowed to see the
judgment ? Yes.
2. To be referred to the reporters or not ? Yes.
3. Whether the judgment should be reported in the digest ?Yes.
----
K.Kannan, J.
1. The petitioner, who is a member of the Haryana Civil Service cadre and the Estate Officer of HUDA, has a grievance that the order of transfer effected on 14.02.2012 by the Government of Haryana through the Chief Secretary relieving him from his charge Civil Writ Petition No.2996 of 2012 (O&M) -2- as an Estate Officer and posting him as Sub Divisional Officer (Civil), Barwala, is illegal and arbitrary. This order, according to the petitioner, was the result of the complaint which the petitioner had given against the Administrator, HUDA, Parveen Kumar, described in the official capacity as well as in personal capacity and arrayed as respondents 4 and 5. This order of transfer came close on heels to the office order issued by the Administrator sealing the room of the Estate Officer to HUDA. The office order stated that no official of the Estate Office shall hand over any file to the petitioner nor shall any order calling for any file or record be obeyed. The office order is sought to be quashed and the building de-sealed since the petitioner contends that the order of transfer itself has been spirited on account of a complaint which the petitioner has made against the 5th respondent.
2. There is a prayer also that the complaint which the petitioner has made, should be properly enquired into. The complaint is said to have been made through e-mail also, setting out averments that the demolition programme (of alleged unauthorized constructions) in different sectors were being ordered orally without any order in writing and that the petitioner has been pressurized to take action for demolition also in respect of areas which are not within the jurisdiction of the petitioner, but which came under other authorities like the DTP (Enforcement) and Municipal Corporation, Civil Writ Petition No.2996 of 2012 (O&M) -3- Gurgaon. The complaint also pertained to an issue of alleged re-allotment of Plot No.202 against the HUDA rules and policy. Yet another complaint is that the 5th respondent had forced the petitioner to send a proposal for allotment by tender of house to house collection of garbage to a person by name Satyajit, who was close to the 5th respondent and also to send for a proposal to purchase vehicle for the same. Another complaint was that the petitioner had also been forced to file an affidavit in yet another writ petition filed against HUDA to the effect that the parking in Sector 29, Gurgaon was to be free of cost, even though the same had been allotted through public tender and the successful tender had also been deposited the tender amount of three months' advance and also executed a tender agreement. The petitioner has also the complaint to make that the 5th respondent called him by his caste name and wanted him to immediately go on leave so that he may purify the place by performing havan. The petitioner would state that he had been compelled to go on leave from 04.02.2012 to 12.02.2012 as per the verbal direction of the 5th respondent.
3. The reply has been given by Mr. Dhan Singh, Deputy Secretary to Government Haryana, Personnel Department, on behalf of respondent No.1. The statement is cryptic in the sense that the transfer is said to have been made on account of administrative exigency, since Amardeep Jain, HCS, working as Sub Divisional Civil Writ Petition No.2996 of 2012 (O&M) -4- Officer (c), Hisar was holding additional charge of Sub Divisional Officer (c), Barwala. Hence there was an imperative for the posting of some officer permanently. To explain that the order of transfer has been made without reference to a complaint alleged to have been given on 13.02.2012, the Deputy Secretary would state that the complaint to the petitioner itself had been received on 14.02.2012 in the office. The letter sent on 13.02.2012 seeking for certain clarifications whether the office order sealing the premise on 13.02.2012 issued by the 5th respondent had been done under the instructions of the Chief Administrator, had been endorsed to the Chief Secretary on 22.02.2012. A factual report had also been prepared on 09.03.2012. The respondents 1 and 2 would deny that the 5th respondent was in any way responsible for causing transfer to be made, but the transfer order had been filed only on administrative grounds. The respondents would vehemently deny that the transfer was being made as a measure of punishment and would reiterate the legal position that the transfer was an incident of service and there is no scope for judicial review.
4. The chief functionaries of HUDA, namely, the Chief Administrator and the Secretary, Department of Urban Development, Haryana, also filed an independent written statement through Mr. Samwartak Singh, HCS, Secretary, HUDA. It is contended in the written statement that the petitioner was allowed to Civil Writ Petition No.2996 of 2012 (O&M) -5- work as Estate Officer after the Court had passed an order on 14.03.2012 staying the order of transfer. The Chief Administrator, HUDA, would explain that after the complaint dated 13.02.2012 had been received, they had asked the Administrator, HUDA, to give parawise remarks but before they could act, the petitioner had immediately rushed to Court on 15.02.2012. The respondents would append along with the written statement the reply elicited through the Administrator, HUDA, to the complaint which the petitioner had made against the 5th respondent on 13.02.2012. The Administrator, HUDA, had specifically denied that he had given any oral orders for demolition while the demolition operations were being carried on flawlessly. During the operations relating to Village Kanhai, the petitioner ran away from the site and left the Administrator in the middle of the operation. Joining issues with re-allotment of plot No.202, it had been done in open darbar in consonance with the High Court order and the entire proceedings had been video- graphed. The bills of Sandeep Redhu had been pending for a long time and no undue favour had been given to him. As regards the petitioner's allegations regarding free parking at Sector 29, the Administrator would contend that on an inspection carried on by his team on 23.11.2011, it was found that there was no display of various kinds of charges leviable at the site and the contractor was fleecing public at whimsical rates. Action had been proposed against Civil Writ Petition No.2996 of 2012 (O&M) -6- the contractor and fearing serious action against him, the contractor had also abandoned the place on 28.11.2011. To enhance public satisfaction, the place had been decided to be as a free parking and the system operated effectively for about 2 months. Contractor M/s D.S. Development had filed a writ petition and in reply to the said writ petition, the petitioner, who was incharge of the file, did not properly apprise the Court about the circumstances leading to shift to the free parking system, particularly after the contract period had been over on 14.06.2011 and further permission to continue till the finalization of fresh tender was given on 25.07.2011. In the reply given by the Administrator, HUDA to the Chief Administrator, it had been submitted that the petitioner had caused serious detriment to the public by not divulging necessary facts before the High Court and that it would be better that he proceeded on leave than carrying on with such "poor work ethics". There had been never any casteist slur against the petitioner, as alleged. It is further stated that the Administrator, HUDA, had held havan at the tehsil when he had been posted as the Deputy Commissioner, Faridabad, in order to minimize the possibility of prevailing corruption. Havan was performed on 06.02.2012 impromptu and was also video-graphed. Referring to the issue of re-allotment of Plot No.202, it is contended that one Smt.Leelawati wife of Krishan Kumar had filed a CM No.1283 of 2011 in CWP No.13684 of 2007 and the Court had directed on 25.02.2011 that a fresh allotment of Plot No.202, Sector Civil Writ Petition No.2996 of 2012 (O&M) -7- 42, Gurgaon, shall be made in favour of Leelawati. The Court had earlier held on 29.08.2011 (in CM No.1283 of 2011) that if she proved that Santra Devi had sold the plot in her favour, the cost of house construction could be given on production of documents. The petitioner had ignored all the documents produced by Leetawati that compelled her to go to Civil Court to prove her entitlement. She had appeared in the open darbar on 02.01.2012 in Sector 56, Gurgaon, that all the documents proving the sale and the passing of the consideration had been ignored by the petitioner. The petitioner had, in spite of proof of sale by Santra Devi, still passed an order making the allotment in favour of Santra Devi. At the open darbar, on being summoned, Santra Devi was reported to have admitted to the sale in favour of Leelawati and the receipt of consideration. Though it was general policy of HUDA not to transfer the ownership of EWS plots for a period of 10 years, under the special circumstances when an original allottee had received consideration and transferred the rights to Leetawati, the re-allotment in favour of the purchaser has been made as a special case.
5. The reply given by the Administrator, HUDA, to the Chief Administrator, referred to above, has been reiterated in the written statement filed by the 5th respondent. However, in the reply, it is stated that the petitioner had proceeded on leave on his own and had never forced to do so. The 5th respondent would point out in the Civil Writ Petition No.2996 of 2012 (O&M) -8- reply that the petitioner had committed serious indiscretion in releasing advertisements for parking lots beyond the proposals by excluding hotel sites, parking lots attached to Kingdom of Dreams and Leisure Valley. The 5th respondent would contend that there had been also several misdeeds attached to the advertisement and tendering process where the highest bidders had been allowed to cancel their own bids and favouritism had been shown towards parking contracts with lower bids. Also, file relating to the extension of contract of lease to M/s D.S. Development Service, which was suspect had gone missing, presumably at the petitioner's instance.
6. According to the petitioner, the order of transfer has been issued on account of certain complaints made by the petitioner against the 5th respondent. We have already enumerated the complaints. They are broadly under the following heads: (i) the 5th respondent had been issuing oral orders for effecting demolition; (ii) he was cancelling an order of allotment made by the petitioner and was upholding the right of purchaser from the allottee within a period of 10 years which was against the HUDA policy; (iii) the 5th respondent had pressurized the petitioner to go on leave from 04.02.2012 and used their occasion to seal the premise with gag orders that the petitioner shall not deal with any file or be competent to respond to any query from the member of the public; (iv) the petitioner had been abused by 'caste name' by the 5th respondent; (v) Civil Writ Petition No.2996 of 2012 (O&M) -9- to add insult to injury, the place had been cleaned and havan performed after the petitioner was kept out of office. His office had been sealed on 13.02.2012 and on 14.02.2012, the order of transfer had been issued.
7. The run-up of events from the time when the petitioner's order of allotment to Santra Devi was sought to be reappraised till the stage when the petitioner had been fended off from attending his office clearly showed that there was a running feud between the Administrator, HUDA, and the Estate Officer. The reply of the Administrator as well as by the other respondents have sought to bring out their side of story in so far as the allegations contained in the petitioner's complaint against the 5th respondent to the Chief Administrator, HUDA. The justification which the respondents were giving for the action, has itself been cause for the petitioner to bring out new facts and scale up his own offensive against the 5th respondent.
8. The petitioner would give new information about the fact that the 5th respondent wanted a plot bearing No.179 at Sector 39, Gurgaon, to be given to his mother, by exchange with some better plot. The exchange would not have been possible and knowing fully well that the petitioner would not give his approval for such a shady transaction, the 5th respondent had initiated the entire process of securing a fresh allotment for his mother after Civil Writ Petition No.2996 of 2012 (O&M) - 10 - passing an order of transfer. This incident has brought out as a fact posterior to the order of transfer as if to vindicate his case that the 5th respondent was looking for an opportunity to promote his own personal interest after keeping the petitioner out of bounds for his nefarious transactions. The petitioner would also state that after forcing him to go on leave, on the day when he rejoined, the premise had been sealed and the charge had been handed over to one Narinder Yadav on the same day on 13.02.2012. The order of transfer had been issued on the following day. The petitioner would also furnish documentary proof of the fact that the 5th respondent had engaged the Chief Administrator, HUDA, in a communication on 22.03.2012 for securing an alternative allotment for Plot No.179. The communication does not show the interest which the 5th respondent had, namely, that he was making a recommendation in respect of the property belonging to his mother. The petitioner would also reproduce the portion of the reply given in miscellaneous application moved in CWP No.23925 of 2011 where it has been stated that on account of the failure of the petitioner to explain the circumstances under which free public parking was decided to be given, he had been asked to go on leave. Referring to these averments made on behalf of HUDA that the petitioner had been asked to go on leave, the petitioner would also file an independent application under Section 340 Cr.P.C. for taking appropriate action Civil Writ Petition No.2996 of 2012 (O&M) - 11 - against the 5th respondent for perjury. The petitioner would further deny that there was any misconduct about the manner of how the tendering process was done for several areas and would point out to the fact that the tender notices had been published in Hindi newspaper "Veer Arjun" and English Newspaper 'The Pioneer" on 31.08.2011. Joining issues on certain exceptions marked for the places that were not offered for parking, the petitioner would contend that the places opposite to the hotels were the places belonging to the respective hotels themselves and had actually been earmarked for them. The Leisure Valley itself had been booked by HUDA for several functions and marriages and, therefore, it was best decided to be left out of consideration. As regards the place given to M/s Kingdom of Dreams, the lease agreement in their itself had provided for a parking lot exclusively for them and, therefore, it was decided to leave that place out for being offered for tender. The petitioner would affirm that he had at all times acted to the best of interest of HUDA and he had successfully eradicated the tout culture in the office of the Estate Officer. He had transferred one L.R.Gupta and R.K. Gaba in furtherance of public interest. However, on account of the spite against the petitioner, during the short period when the petitioner had been kept out of the office, the 5th respondent had again transferred L.R. Gupta back to the office of the petitioner. He had joined on a public holiday and indulged in the Civil Writ Petition No.2996 of 2012 (O&M) - 12 - practice of handing over files to unauthorized people on non- working days. The petitioner would admit to the fact that some files had been burnt, but would contend that he was not in any way responsible for the same and he had even given detailed report about the incident.
9. The 5th respondent has again given rejoinder to the petitioner's replication setting out of the transactions in which the petitioner had been involved in finalizing the tender process. The 5th respondent would try to give his own version to the issue that the exchange proposals for the plot allotted to his mother had nothing to do with the petitioner going on leave and the fact that the petitioner himself has not referred to the said incident in the writ petition would show that the petitioner is trying to trot a new tale of a subsequent event.
10. As a normal rule of understanding in a transferable service, if a higher official issues an order of transfer, there shall normally be no scope for a judicial review. The extent of interventions shall be limited to situations where the transfer is as a measure of punishment and is not really an incident of administrative exigency. Indeed the continued posting in one station or one department itself is not conducive to good administration as pointed out by the Supreme Court in several decisions vide B. Varadha Rao Versus State of Karnataka-1986(4) SCC 624 and Civil Writ Petition No.2996 of 2012 (O&M) - 13 - Airports Authority of India Versus Rajeev Ratan Pandey-2009(8) SCC 337. The continued posting in the same station creates vested interest and there is also therefore a desirability that transfers are effected periodically to improve the efficiency in the administration. Only if the post itself is not a transferable or when there is a clear stipulation in the contract to the effect that transfer cannot be effected, could the issue of transfer be a subject of successful challenge in the Court. The existence of power is rarely an issue, the question is, the extent of such power. The extent of power would depend on the nature of service and the circumstances prevailing at the time when a transfer is effected. We have not an issue in this case that a transfer is made that affects the employment status. Generally it is the employer who will decide the appropriateness. The bona fide transfer shall leave no cause for intervention. The bona fides or the administrative exigencies are invariably facts that are brought out through particular instances in the case. When we are discussing the issue of lack of bona fides, it has to be clearly borne in mind that it will take within its sweep arbitrary and colourable exercise of power or any other element which goes against established rule of administrative exigency. In Samaraditya Pal on Law Relating to Public Service, third Edition 2011, at pages 422 and 423.
"92. Bona fide exercise of power. The power to transfer has to be exercised according to rules, bona fide Civil Writ Petition No.2996 of 2012 (O&M) - 14 - and for administrative exigencies.
Consequently the exercise of the power will stand vitiated where an order of transfer is not in accordance with rules or which is made mala fide or by an authority incompetent to make the order.
Mala fide, in this context, will take within its sweep arbitrary or colourable exercise of power and any other element which goes to establish non-existence of a real administrative exigency. ........................................"
Referring to instances of administrative exigencies with reference to decision of the Supreme Court, the author would observe, "Transfer orders have been set aside where the conditions to be satisfied were not fulfilled e.g. the condition of "public interest" (see Ramadhar Pandev Versus State of U.P.-JT 1993(4) SC 72: 1993(4) SLR 349 (SC): 1993 Supp (3) SCC 35: (1993) 2 LLJ 817) where the employee was holding a sensitive and important post and the transfer was not only avoidable but the successor was not suitable for the post. (see N.K. Singh Versus Union of India-1994 AIR SCW 4636: 1994(3) SLJ 37(SC): AIR 1995 SC 423)".
11. Though the 5th respondent is not prepared to admit in the written statement filed before this Court that he had asked the petitioner to go on leave, there is a veiled statement that he suggested that such a course of taking leave would be appropriate in Civil Writ Petition No.2996 of 2012 (O&M) - 15 - a situation where several of his decisions relating to finalization of tenders seemed suspect. There had been a 'speaking order' for sealing the petitioner's office premises issued by the 5th respondent and an order of transfer had been issued the next day. It is impossible to miss the link that the petitioner was fended off from attending his office initially by asking him to go on leave, made it impossible to rejoin duty on 13.02.2012 by sealing the premise and on the next day, an order of transfer had been issued. I am not prepared to examine the issue of whether the 5th respondent was motivated to effect the transfer to promote his own personal interest in securing an exchange of plot for his mother by keeping the petitioner absent as pointed out by the 5th respondent himself. This does not find a place in the original averments in the writ petition, but there surely has been an issue relating to the petitioner's integrity in his service in the manner of issuance of contracts. The tenders were floated in newspapers which had no circulation at all. A transfer is not at all times a reward. It becomes essential for an administration to keep sensitive posts free from scope of developing deep rooted interests in a burgeoning town like Gurgaon. The position of an Estate Officer is crucial, for, he is truly a trustee in relation to the very valuable public properties. The financial implication of manning this post is too obvious to be missed. There have been surely instances where there have been some elements of Civil Writ Petition No.2996 of 2012 (O&M) - 16 - indiscretion. It shall not be as serious as to constitute a misconduct for taking departmental action. An indiscretion which is still not a misconduct ought to be dealt with suitably and if the administration decided to transfer a person, I will not find that there is any mala fides in such action. In the same illustration if the petitioner is kept out of office in order that the 5th respondent was securing a benefit for himself, it should be taken as a colourable exercise. If, on the other hand, the 5th respondent found that the petitioner's deeds had caused some loss or the public interest had been compromised unjustly, it shall be perfectly legitimate that a transfer had been effected, if the Chief Administrator had been apprised of his deeds and the transfer was being made on such a basis. Several of the instances that have come about, namely, the exchange of property for the 5th respondent's mother or some complaints given by the 5th respondent to the Chief Administrator for pointing out certain irregularities subsequently, cannot be relied on by me to uphold or reject the petitioner's claim. If the case were to be examined from the point of view of what prevailed on 14.02.2012, I have no doubt in my mind that the administrative exigency that prevailed to take him out of establishment and place him elsewhere, was not merely on account of the fact that a vacancy existed but was also on account of the 5th respondent's assessment about the petitioner's deeds. In T.D. Subramaniam Versus Union of India-AIR 1982 Supreme Court Civil Writ Petition No.2996 of 2012 (O&M) - 17 - 776, the Director of Posts & Telegraphs was transferred to Ambala as Director. The reasons for the transfer was a report of the Deputy Director General of Posts & Telegraphs which said that he was a competent officer with a zeal to root out the malpractices but was lacking in tact in dealing with his subordinates. A challenge to a transfer was rejected by the Supreme Court by holding that dealing with subordinate officials effectively was conducive to good administration and, therefore, the report could well be the basis for a transfer. It must be noticed that the Supreme Court was not finding that it was a case of any misconduct. An assessment of lack of tact was not taken to be a slur but only required a new place and a different environment where an employee could have changed the style of functioning and improved himself. In a similar vein, I would hold that the petitioner had, during his tenure as an Estate Officer conducted himself in a way that was not perhaps misconduct or the situation had not so arisen as to constitute an enquiry. It would be fair enough that the higher administration decided to locate him elsewhere and infuse a new dispensation for bettering its administration. Instances where departmental actions were initiated immediately after a transfer have been seen as punitive and in these communications rendered post facto, there is no hint of any departmental action at all. A transfer made not merely on administrative exigency but that would subserve public interest, cannot normally be interfered with. After all, for the purpose of Civil Writ Petition No.2996 of 2012 (O&M) - 18 - effecting transfer, the question of holding an enquiry to find out whether there was any misbehaviour or conduct unbecoming of an employee is not necessary.
12. All that could be seen in this case is that the matter had not been dealt with tactfully by both the Administrator and the Chief Administrator, HUDA. On the part of the 5th respondent if he had suspicion in his own assessment of an Estate Officer that several of his actions fell below the benchmark of public interest, it should have been appropriate that he engaged the higher officials in appropriate communication, made a report and suggested a transfer. A situation requiring a transfer does not necessarily mean that only in proven cases of misconduct, transfer could be effected. Unfortunately, respondents 2 and 3, namely, the Chief Administrator of HUDA are not prepared to go on record to say that they had any unsavory reports about the conduct of the petitioner that required transfer. The whole of the defence is pinned on a statement of a fact of a vacancy arising in SDO's office at Barwala and, therefore, the transfer was being effected. If the post was being managed by any SDO holding additional charge, how the issue came to be suddenly assuming such importance for immediate transfer when the petitioner was asked to go on leave, kept out of his office and then issued with an order of transfer have not been properly explained. It is difficult to believe that the Chief Administrator was merely Civil Writ Petition No.2996 of 2012 (O&M) - 19 - making a transfer without any reference to what was happening at the office of the Estate Officer starting from the time when there were certain incidents in the matter of carrying out demolition drive and in the matters of issuing tender notices. The decision to transfer itself could have been made with several of the activities of the petitioner which required him to be removed from that place, but it is doubtful whether all these incidents were brought home to the Chief Administrator. I would only find that the actual events leading to the transfer have not been given truthfully by the respondents.
13. The conduct of the 5th respondent itself does not appear to be proper. He has come with inconsistent pleas. He has surely replied in the parawise comments sought by the Chief Administrator that he had asked the petitioner to avail of leave in view of some of the indiscreet acts and complaints against him. The HUDA's application in the writ petition in CWP No.23925 of 2011 filed by the contractor also shows that the 5th respondent had asked the petitioner to go on leave. After deliberately keeping the petitioner away, performing havan was an insensitive act. Religious performances must be within the house and treated as purely personal matters. If they are brought to the public domain, it should be done with such sensitivity that there is no scope at all for any person to feel hurt. It is anybody's knowledge that havan is a religious performance and is meant as an act of purification by fire. I Civil Writ Petition No.2996 of 2012 (O&M) - 20 - will not go to a fact finding exercise in the writ petition that the 5th respondent had uttered any casteist slur but to keep a person out of office, cleaning the office with water and performing havan, were surely an insult; or, at least, it was possible for a person to feel insulted. It was wholly uncivil on the part of the 5th respondent to undertake such a practice at the office.
14. With all the facts at my disposal brought through pleadings, I considered seriously if I could allow for the impugned order of transfer to survive. The course of action could have been to direct the respondents 2 and 3 to consider the issue of exigency of transfer in the light of documents and take a fresh decision. Such an exercise, however would be only cosmetic, since the parties have expressed their mind and the government counsel appearing on their behalf was at pains to point out at length as to why the transfer became necessary in the light of the facts that have come about. Even as I reject the contentions of the respondents 2 and 3 that it was merely intended to fill up a vacancy elsewhere, I find that the order of transfer could not have been passed without any information from the 5th respondent. For the purity of administration, it is better to allow the transfer order to stand but it ought not to be considered as stigma against the petitioner. The impugned order of transfer is therefore not interfered with.
15. The complaint which the petitioner had made against the Civil Writ Petition No.2996 of 2012 (O&M) - 21 - 5th respondent surely has reached the Chief Administrator on the following day, as admitted by him. It is also borne out on record that the Chief Administrator had called for a report from the Administrator in March 2012. There has been indeed a reply also from the 5th respondent giving his parawise remarks. The outcome of action on such a complaint is not known. The petitioner's prayer for constituting an enquiry in respect of the petitioner's complaint against the 5th respondent is quite unnecessary. The Chief Administrator is entitled to take his own assessment on the basis of the reply which he has elicited from the 5th respondent on a parawise remarks for the petitioner's allegations against the 5th respondent and taken an appropriate decision about the course of action.
16. I have already pointed out to the utter indiscretion on the part of the 5th respondent in forcing the petitioner to go on leave, sealing the premises, water washing the room and performing havan. None of these acts could receive commendation from Court. On the other hand, 5th respondent's conduct is unfortunate. It is not uncommon for officers to cloak acts of indiscretion by creating an aura of incorruptibility about themselves and insulate their acts against objective appraisals. Tact and rectitude must co-exist; Absence of one annihilates the inherent value of the other. Doubtless, I have expressed my displeasure at the type of Civil Writ Petition No.2996 of 2012 (O&M) - 22 - functioning of the 5th respondent and it shall be an exclusive privilege of the higher authority to decide on the course of action to deal with the indiscretion on the part of the 5th respondent, including recording of the circumstances of the judicial reprimand in the ACR of the 5th respondent.
17. There is an application filed under Section 340 Cr.P.C. in CM No.5614-15 of 2012. On the facts disclosed in the petition and in the manner that I have dealt with in the writ petition through this order, I am convinced that there is some prima facie material for considering the petitioner's averments but a decision however cannot be made without allowing for the 5th respondent to file his reply to show cause against the prayer in the application. 5th respondent shall file reply in CM Nos.5614-15 of 2012.
18. Post for reply on 26.07.2012.
19. The prayers in the writ petition are disposed of as above.
(K.KANNAN) JUDGE 02.07.2012 sanjeev