Gujarat High Court
Bhrugu Gunavantbhai Kotak vs State Of Gujarat on 3 October, 2025
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/15587/2023 JUDGMENT DATED: 03/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15587 of 2023
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 15587 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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Approved for Reporting Yes No
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BHRUGU GUNAVANTBHAI KOTAK & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR BHARAT T RAO(697) for the Petitioner(s) No. 1,2,3,4
MR ADITYA PATHAK ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 5,7
MR RUTVIJ M BHATT(2697) for the Respondent(s) No. 4
MR. DEVANG D DAVE(2627) for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 3,6
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 03/10/2025
ORAL JUDGMENT
1. Heard learned Advocate Mr. B.T. Rao on behalf of the petitioners, learned Assistant Government Pleader Mr. Aditya Pathak on behalf of respondent no.1- State, learned Advocate Mr. Devang Dave on behalf of respondent no.2, learned Advocate Mr. Rutviz Bhatt for respondent no.4 and learned Advocate Mr. H.S. Munshaw on behalf of respondents no. 5 and 7.
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2. By way of this petition the petitioners have sought for following prayers:
[A] Your Lordships may be pleased to admit and allow this petition.
[B] Your Lordships may issue a writ of Mandamus or any other appropriate writ, order and/or direction by directing the respondent authorities to accept the request of inter district transfer application of present petitioners for the post of Additional Assistant Engineer Class III at Gandhinagar District Panchayat;
[C] Your Lordships may issue a writ of Mandamus or any other appropriate writ, order and/or direction by directing the respondent authorities to keep the posts of Additional Assistant Engineer- Class III at Gandhinagar District Panchayat vacant as per the Roster Register as the petitioners are eligible for the same;
[D] Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay the execution, operation and implementation of the request transfer camp qua the posts of Additional Assistant Engineer-Class III at Gandhinagar District Panchayat as the Government Resolution dated per 08/06/2023;
OR [E] Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondent authorities to accept the request of inter district Page 2 of 13 Uploaded by NIRU AMIN(HC00211) on Sat Oct 04 2025 Downloaded on : Tue Oct 07 01:18:04 IST 2025 NEUTRAL CITATION C/SCA/15587/2023 JUDGMENT DATED: 03/10/2025 undefined transfer application of present petitioners for the post of Additional Assistant Engineer- Class III at Gandhinagar District Panchayat;
[F] Such other and further reliefs as may be deemed just and expedient may be granted.
3. It is the case of the petitioners that the petitioners who had been appointed as Additional Assistant Engineer - Class III by a selection process carried out by the Gujarat Panchayat Service Selection Board having completed five years of satisfactory services, their services came to be regularized in the year 2022. It is the case of the petitioners that the State having come out with a Government Restitution dated 08.06.2023, for facilitating inter district transfer of Class III and Class IV employee under the District Panchayat and whereas, though the petitioners are desirous to be transferred under the District Panchayat Gandhinagar yet, since certain posts of Additional Assistant Engineer Class- III available with Gandhinagar District Panchayat are not reflected in the Roster Register as contemplated under the Government Resolution dated 08.06.2023, which according to the petitioners gravely prejudiced them and causes a grave injustice and hence the petitioners have approached this Court by way of this petition.
4. Learned Advocate Mr. Rao on behalf of the petitioners would submit that the petitioners are unable to get benefit of inter district transfer as per Government Resolution dated 08.06.2023 more particularly since Gandhinagar District Panchyat is not stating the exact number of vacancies which are available with the Panchayat. Learned Advocate would submit that though the Gandhinagar District Panchayat has within its set up a total Page 3 of 13 Uploaded by NIRU AMIN(HC00211) on Sat Oct 04 2025 Downloaded on : Tue Oct 07 01:18:04 IST 2025 NEUTRAL CITATION C/SCA/15587/2023 JUDGMENT DATED: 03/10/2025 undefined of 27 posts in the cadre of Additional Assistant Engineer, yet, in the Roster Register which the Panchayat is required to display as per the provisions of Government Resolution dated 08.06.2023, only 12 posts are being shown. Learned Advocate would further submit that as such, majority of the posts which are not shown, are occupied by Additional Assistant Engineers from the Road and Building Department and whereas it is contended that such employees do not have any inherent right to continue in deputation. Certain resolutions of the Government have also been cited to contend that an employee cannot continue in deputation for more than four years after which they are to be repatriated back to the original department. Learned Advocate would submit that the posts which are manned by employees on State cadre in deputation, should have been reflected in the roster register and the petitioners sought to have been granted an opportunity to seek transfer upon such a post and whereas intervention of this Court is fervently requested.
5. On the other hand, the present petition is vehemently opposed by learned Assistant Government Pleader Mr. Aditya Pathak on behalf of respondent- State. Learned AGP would submit that the petition is completely misconceived, bereft of any merits and should be rejected by this Court. Learned AGP would submit that the submissions being made on behalf of the petitioners, could not be co-related with the prayers as have been sought for. Learned AGP would submit that perusal of the prayer reflects as if beyond the number of vacancies of Additional Assistant Engineers in the District Panchayat, Gandhinagar, which are filled in by employees of the panchayat cadre, rest of the posts as being vacant, without any reference to the actual position. Learned AGP would submit that though the prayers sought for are in different context, the submission, is Page 4 of 13 Uploaded by NIRU AMIN(HC00211) on Sat Oct 04 2025 Downloaded on : Tue Oct 07 01:18:04 IST 2025 NEUTRAL CITATION C/SCA/15587/2023 JUDGMENT DATED: 03/10/2025 undefined completely beyond the context inasmuch as it is submitted that the arguments made by learned Advocate for the petitioner concentrated on why the Additional Assistant Engineers in the State cadre, should not be allowed to continue in the posts in question for an indefinite period. Learned Assistant Government Pleader would submit that the petition does not deserve any interference only on the above short issue.
5.1 It is further submitted by learned Assistant Government Pleader that it has been a long standing practice /policy of the State Government to fill up vacancies in the cadre of Additional Assistant Engineers in District Panchayats through Additional Assistant Engineers working with the Road and Building Department i.e. from the State cadre. Learned AGP would submit, referring to the affidavit-in-replies that there are various State sanctioned, State monitored and State responsible projects, which are executed, maintained and supervised by Additional Assistant Engineers in District Panchayat belonging to the State cadre. It is submitted that the State Government to ensure that projects which are of State level importance like major roads, bridges, etc., which are within the jurisdictional limits of District Panchayat, be built, supervised and maintained by and under the the Additional Assistant Engineers of the State cadre i.e under the Road and Building Department of the State and to facilitate such a distribution of work, it has been a long standing practice to keep certain number of posts of Additional Assistant Engineers in the District Panchayat to be earmarked for Additional Assistant Engineers of the State cadre and the remaining to be filled in by the Panchayat through Additional Assistant Engineers under the Panchayat cadre. It is further submitted to buttress the above submission that there are circulars and instructions of the State Government whereby the District Panchayats are precluded from assigning any work to Page 5 of 13 Uploaded by NIRU AMIN(HC00211) on Sat Oct 04 2025 Downloaded on : Tue Oct 07 01:18:04 IST 2025 NEUTRAL CITATION C/SCA/15587/2023 JUDGMENT DATED: 03/10/2025 undefined the Additional Assistant Engineers of the Road and Building Department appointed on deputation in the District Panchayat, except the work assigned to such Additional Assistant Engineers by Road and Building Department directly. Learned AGP would submit that as such, Circulars of the State Government namely Circulars dated 12.05.2006 and 16.05.2017, clearly reflect the above. It is submitted that as such, even in a recent meeting held to decide filling up of vacancies in the engineering cadre in the District Panchayat, which was attended amongst others by the Secretary, Panchayat Department, the Secretary, Road and Building Department, Development Commissioner, etc., it was inter alia decided that since posts of Additional Assistant Engineer under the Road and Building Department for Panchayat, have now been included in the District Panchayat yet, District panchayats have been directed to ensure that such posts of Additional Assistant Engineer, which were earmarked for being filled by the State cadre. should not be included in the roster and the Panchayat has been expressly directed not to assign any work to such officers relating to Panchayat services except with prior approval of the Road and Building Department. Learned AGP would thus submit that the Gandhinagar District Panchayat had rightly shown only 12 posts as being available with them since remaining 15 posts have been earmarked for being filled up deputation basis through Additional Assistant Engineers of the State cadre. Learned AGP would submit that since the same is a decision of the State, that is for the larger interest, in co- ordination between both the Departments, therefore, the petitioners as members of the Panchayat services, cannot claim for being transferred to such posts.
6. In any case it is the submission of learned Assistant Government Pleader that the above being a policy of the State, the petitioners, without Page 6 of 13 Uploaded by NIRU AMIN(HC00211) on Sat Oct 04 2025 Downloaded on : Tue Oct 07 01:18:04 IST 2025 NEUTRAL CITATION C/SCA/15587/2023 JUDGMENT DATED: 03/10/2025 undefined questioning such a policy, are indirectly attempting to question the same by stating that actual number of posts are not being reflected. Learned AGP would submit that the State having taken an overall /holistic view of the issue, had ensured that State level projects would be manned by officers in the cadre of Additional Assistant Engineers in the State cadre and whereas projects of Panchayat would be manned by officers in the cadre of Additional Assistant Engineers in the Panchayat cadre and in absence of any challenge to the above decision of the State Government, it is submitted that the present petition may not be entertained.
7. Learned Advocates for the Gandhinagar District Panchayat as well as other Panchayat have adopted the submissions made by learned AGP and would submit that the petition may not be entertained.
8. Heard learned Advocates appearing for the respective parties and perused the documents on record. While the prayers as made in the petition, would reflect as if the petitioners are seeking for a limited relief of being declared to be eligible for transfer to the posts of the Additional Assistant Engineer in the District Panchayat Gandhinagar and since the oral submission, enlarged the scope of the petition, whereas, both the scenarios being countered by the State, to this Court it would appear that in addition to the findings on the issues raised by the petitioners, the present petition also raises an important issue as regards the right of an employee to seek for a transfer.
9. Considered from the above perspective, the following questions arise for consideration for decision of this Court:
[1] Whether the respondent- Gandhinagar District Page 7 of 13 Uploaded by NIRU AMIN(HC00211) on Sat Oct 04 2025 Downloaded on : Tue Oct 07 01:18:04 IST 2025 NEUTRAL CITATION C/SCA/15587/2023 JUDGMENT DATED: 03/10/2025 undefined Panchayat is justified in reflecting only 12 posts as being available for the purpose of the inter district transfer?
[2] Whether an employee has an inherent right to seek for transfer to any particular post or vacancy?
10. This Court will now deal with the above issues. Insofar as the first issue is concerned as regards the Gandhiangar District Panchayat not mentioning /reflecting the entire number of vacancies available with it, it would appear that the principal opposition to such a prayer is by the State. It would appear in this regard that though the Gandhinagar District Panchayat has 27 posts of Additional Assistant Engineers, in their set up, the Panchayat has only shown availability of 12 posts of the said cadre with it. To this Court it would appear thar the reason being a long standing practice and arrangement as per the directives of the State Government as regards bifurcating State level projects and District level projects. It would appear that State level projects are sought to be implemented, supervised and maintained by Additional Assistant Engineers from State Cadre whereas District level projects are manned, supervised and executed by Additional Assistant Engineers in the panchayat cadre. To facilitate such a bifurcation, the practice being followed is of filling up a certain number of vacancies of Additional Assistant Engineers with the District Panchayat through the Additional Assistant Engineers of the Road and Building Department cadre and an understanding being arrived at that certain number of posts will be available to be filled in through deputation by employees of the Road and Building Department of the State, whereas the Panchayat would be competent authority for the rest.
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11. To this Court while it would appear that since there is no challenge on the said decision, this Court is not required to go into such an aspect, yet, it also requires to be mentioned that it is the exclusive domain of the State to decide the duties and responsibilities of an employee for a particular post, the education qualifications and experience for being appointed on the post in the first place and the manner in which such a post is required to be filled in. To clarify, the State as an employer is well empowered to appoint suitable candidates on the basis of direct recruitment, promotion or deputation as the case may be on any post as per this requirement. The State in its wisdom deciding that State level projects in Panchayats are to be supervised, managed, executed and maintained by officers of State cadre, it would be well within the domain of the State to earmark vacancies in a particular Department to be filled in by way of deputation of employees in a different department.
12. To this Court it would appear that such a classifications, i.e earmarking of certain posts of Additional Assistant Engineers in panchayat service to be filled in by Additional Assistant Engineers of the State Government, does not appear to be either arbitrary or perverse or beyond the jurisdiction and also appears to have a clear nexus with the object sought to be achieved.
12.1 Thus the decision of the Gandhinagar District Panchayat, being as a result of long standing practice, and since this Court is of the opinion that there is neither any arbitrariness or perversity in such a decision, issue No. 1 is answered accordingly.
13. Insofar as the second issue is concerned, as to whether an employee Page 9 of 13 Uploaded by NIRU AMIN(HC00211) on Sat Oct 04 2025 Downloaded on : Tue Oct 07 01:18:04 IST 2025 NEUTRAL CITATION C/SCA/15587/2023 JUDGMENT DATED: 03/10/2025 undefined has inherent right to claim for a transfer to a particular place, it is a well settled proposition of law, that while transfer is an incident of service, it is also held to be implicit as an essential condition of service, and it is further held that it is open for the State to transfer an employee from one place to another in administrative exigencies. Observations of the Hon'ble Supreme Court in case of Rajendra Singh and others vs. State of Uttar Pradesh reported in 2009(15) SCC 178, more particularly at paragraph no. 8, relying upon an earlier decision of the Hon'ble Supreme Court in case of State of Uttar Pradesh vs. Gobardhan Lal reported in 2004(11) SCC 402 being relevant for the present purpose is reproduced hereinbelow for benefit:
"8. A Government Servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. No Government can function if the Government Servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires."
13.1 The law laid down by the Hon'ble Supreme Court in the above decision, being that neither can a government servant seek for continuing to remain posted at a place of his choice more importantly an employee cannot insist that he or she must be posted at one particular place or other. An employee is liable to be transferred in administrative exigency.
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14. Considered from the above perspective, it would appear that since no government servant has a right to seek for posting at any particular place and since it is an exclusive right of the State to transfer employees in administrative exigency, therefore while the State would have all the rights to even appoint government employee on a particular post on deputation, at the same time the government, would also be justified in turning down the request of an employee, who seeks transfer on a particular post. In the factual scenario, it would be open for the Government to fill up the posts of Additional Assistant Engineers in administrative exigency through persons in the State cadre and on the other hand, the petitioners from the Panchayat cadre could not seek an absolute right to be transferred over such post.
14.1 The position has been further explained by the Hon'ble Supreme Court in case of Sk. Naushad Rahaman vs. Union of India reported in 2022 (12) SCC 1, paragraphs no. 24 and 25 being relevant for the present purpose are reproduced hereinbelow for benefit :
"24. First and foremost, transfer in an all-India Service is an incident of service. Whether, and if so where, an employee should be posted are matters which are governed by the exigencies of service. An employee has no fundamental right or, for that matter, a vested right to claim a transfer or posting of their choice.
25. Second, executive instructions and administrative directions concerning transfers and postings do not confer an indefeasible right to claim a transfer or posting. Individual convenience of persons who are employed in the service is subject to the overarching needs of the administration."Page 11 of 13 Uploaded by NIRU AMIN(HC00211) on Sat Oct 04 2025 Downloaded on : Tue Oct 07 01:18:04 IST 2025
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15. Considering the law laid down Hon'ble Supreme Court though in the perspective of All India Services yet, the proposition would be equally applicable in the present case that no employee has a fundamental right or a vested right to claim a transfer or positing of their choice. Importantly the executive instructions and administrative directions concerning transfer and posting, would not confer an indefeasible/inherent right for the employee to claim transfer or posting. Ultimately, individual convenience of employees, is subject to the overarching requirements of the administration.
16. The observations of the Hon'ble Supreme Court viewed from the perspective of fact situation, it would appear that while employees i.e the petitioners have no fundamental or vested right to claim transfer to the posts of Additional Assistant Engineers in the District Panchayat Gandhinagar. Furthermore, while Government Resolution dated 08.06.2023 is being relied upon and whereas while it appears to this Court that the said resolution also does not lay down that any Additional Assistant Engineer in the Panchayat cadre would have a right to claim or transfer of posting at any place where he chooses, yet, it has been laid down by the Hon'ble Supreme Court that such executive instructions, do not confer any indefeasible right to an employee to claim transfer or posting. Most important and relevant being the law laid down that ultimately, the individual convenience of an employee would always to be subject to overall requirement of administration that is in other words administrative exigency. Thus, even if Government Resolution dated 08.06.2023 is stated to give a right to an Additional Assistant Engineer in the panchayat cadre to claim transfer as a matter of right, though as discussed above, it is not, yet presuming otherwise, the Additional Assistant Engineer could not claim transfer to a Page 12 of 13 Uploaded by NIRU AMIN(HC00211) on Sat Oct 04 2025 Downloaded on : Tue Oct 07 01:18:04 IST 2025 NEUTRAL CITATION C/SCA/15587/2023 JUDGMENT DATED: 03/10/2025 undefined post which is sought to be filled in by the State keeping in mind its requirements, as discussed above. Having regard to the above discussions, question no. 2 is also answered accordingly.
17. Having regard to the discussion, observations and conclusions arrived at, to this Court no case for interference being made out, the present petition is disposed of as rejected.
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