Chattisgarh High Court
Vaishali Patel vs State Of Chhattisgarh on 2 February, 2022
1
AFR
(Proceeding through Video Conferencing)
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Appeal No. 3 of 2021
Vaishali Patel, W/o. Vijay Kumar Patel, aged about 33 years, Profession -
Patwari, P.H. No.19, Head Office Village - Devri, Sub Tahsil-Seepat,
Tehsil-Masturi, Distt. Bilaspur (CG) Permanent Address C/o. Shri
Parmeshwar Patel, Village Khaira, (Jairamnagar), Tahsil and P.S. Masturi,
District Bilaspur (C.G.)
---- Appellant/Petitioner
Versus
1. State of Chhattisgarh, Through the Secretary, Department of Revenue
and Disaster Management, Mahanadi Bhavan, Mantralaya, Police
Station & Post - Rakhi, Nawa Raipur, Atal Nagar, District - Raipur
(C.G.)
2. Collector, Distt. Bilaspur (C.G.)
3. Sub-Divisional Officer (Revenue), Masturi, Distt. Bilaspur (C.G.)
4. Tehsildar, Tehsil- Masturi, Distt. Bilaspur (C.G.)
5. Naib Tahsildar, Sub Tahsil Seepat, Tahsil Masturi, Distt. Bilaspur
(C.G.)
6. Monika Verma Mishra, Deputy Collector, working on the post of
Sub-Divisional Officer (R), Masturi, Distt. Bilaspur (C.G.)
7. Manoj Khande, Working Tehsildar, Tehsil- Masturi, Distt. Bilaspur
(C.G.)
8. Sandhya Namdeo, Working Naib Tehsildar, Sub-Tehsil: Seepat,
Distt. Bilaspur (C.G.)
9. Tulsi Rathore, Tehsildar, Working Additional Tehsildar, Sub-Tehsil:
Seepat, Distt. Bilaspur (C.G.)
10. Chandramani Pandey, Kanoongo, Tahsil-Masturi, Distt. Bilaspur
(C.G.)
---- Respondents/Non-applicants
(Cause-title taken from Case Information System)
2
For Appellant : Mr. Santosh Kumar Pandey, Adv.
For Respondents No.1 to 5 : Mr. Vikram Sharma, Dy. Govt. Adv.
Reserved on 10-01-2022
Judgment delivered on 02-02-2022
Hon'ble Mr. Arup Kumar Goswami, Chief Justice
Hon'ble Mr. N.K. Chandravanshi, Judge
CAV JUDGMENT
Per N.K. Chandravanshi, J.
1. This writ appeal has been preferred against an order dated
26.11.2020 passed by learned Single Judge in Writ Petition (S) No. 4425
of 2020, whereby writ petition filed by petitioner / appellant has been
dismissed.
2. Facts of the case, in brief, are that the appellant was working on the
post of Patwari at Patwari Halka No. 19, Devri, Sub-tahsil Seepat, Tahsil
Masturi, District Bilaspur. On 4.11.2019 vide Annexure P-1, respondent
No. 3 - Sub-Divisional Officer (Revenue), Masturi, District Bilaspur, on the
ground of administrative exigency, had issued an order posting the
appellant from patwari halka No. 19, Devri to patwari halka No. 13,
Khamahria, Tahsil Masturi, District Bilaspur until further orders. Despite
issuance of posting order dated 4.11.2019 (Annexure P-1) and show
cause notice dated 2.12.2019 (Annexure P-3), the appellant did not join
her new place of posting, hence, vide order dated 9.12.2019 (Annexure
P-4), she was placed under suspension by respondent No. 3. Thereafter,
she made a representation to respondent No. 3 on 13.12.2019 against her
transfer and suspension order. As her representation was not considered
and decided by respondent No. 3, appellant/petitioner had challenged the
order dated 4.11.2019 (Annexure P-1) by way of filing Writ Petition (S) No.
10915 of 2019, which was disposed of vide order dated 07.01.2020 at the
request of the counsel for the appellant herself with a request for a
direction to the respondent No. 3 to decide the representation, that the
appellant had made. Accordingly, the said writ petition was disposed of
and respondent No. 3 was directed to decide the representation of the
appellant within 45 days from the date of receipt of copy of the said order.
3. Pursuant to the aforesaid order, appellant made a representation
dated 13.01.2020 (Annexure P-7), in addition to her earlier representation.
Respondent No. 3 vide order dated 25.01.2020 (Annexure P-11) rejected
her representation. Thereafter, respondent No. 3 vide order dated
19.3.2020 (Annexure P-16) revoked the suspension of the appellant giving
a warning and directed her to take over the charge of Patwari Halka
No. 13, Khamahria, Tahsil Masturi, District Bilaspur with immediate effect.
Again, respondent No. 3 issued show cause notice to the appellant on
4.6.2020 (Annexure P-18) directing her to take charge within a period of
two days, failing which it was indicated that, disciplinary / punitive action
will be initiated against her. Vide notice dated 21.07.2020 (Annexure P-
24), she was afforded last opportunity for joining her new place of posting
but the appellant did not comply with the said order and kept on making
various correspondences with the authorities concerned. Since the
appellant did not comply with the order dated 4.11.2019 (Annexure P-1),
hence, vide order dated 27.07.2020 (Annexure P-26) she was placed
under suspension by respondent No. 3 and on 5.8.2020 (Annexure P-27)
charge-sheet was issued to her. Vide order dated 24.8.2020 (Annexure
P-30) order for initiation of departmental enquiry against the appellant was
issued and enquiry officer & presenting officer were also appointed by
respondent No. 3. Appellant filed an application before respondent No. 3,
seeking time for obtaining certain documents so that she would be able to
file reply of charge-sheet issued to her. Thereafter, vide memo dated 14-
09-2020, Enquiry Officer / Additional Tahsildar, Seepat had issued memo
to the appellant for her appearance before him with a direction that in
absence of her, the case will be proceeded ex parte against her.
4. Thereafter, appellant preferred Writ Petition (S) No. 4425 of 2020 for
setting aside / quashing of the alleged transfer order dated 4.11.2019,
suspension order as well as order of departmental enquiry.
5. Learned Single Judge, after considering the submissions made by
learned counsel for both the sides, dismissed the writ petition (S) by
recording followings findings, which read thus :-
"9. It is at this stage that the present writ petition has
been filed by the petitioner on 29.09.2020. This Court
at the outset would hold that present is not a stage
where petitioner would be permitted to question the
Transfer order and the suspension order now when
the departmental enquiry has already been
contemplated and the Enquiry Officer and the
Presenting Officer have been appointed and the
enquiry proceedings have also been initiated by the
Inquiry Officer.
10. xxx xxx xxx
11. The facts which needs to be considered is the
scope of interference in a transfer matter if at all, if it
is a transfer matter and the distance between the two
places. Further what is reflected from the order is that
both the place of posting is under the same SDO and
it is within the same Sub Division, and hence it is only
a change of place of posting of the petitioner within
the same sub division under the same SDO. The
order of so called change of posting would not in any
manner give rise to any inconvenience to the
petitioner or on his service career or to his service
conditions.
12. Moreover, right from 04.11.2019 till date the
petitioner has not shown any interest in joining at the
place of posting i.e. PH No. 13, though more than a
year has passed. For this more than one year of
period, the petitioner has not discharged her duties
which are otherwise supposed to be discharged by a
Patwari. To add with it, the petitioner now has again
appeared before the authorities and has submitted his
detailed response to the charge-sheet that has been
issued and is contesting the departmental enquiry
itself on its merits, where again the petitioner would be
raising the same grounds which she has raised in the
present petition.
13. xxx xxx xxx
14. Both these grounds raised by the petitioner again
would not be a ground for interfering with the orders in
this case for the reason that substantial time has
lapsed from the date the original order of transfer was
issued and considerable period of time, the petitioner
in-spite of repeated reminders has not assumed her
duties at the new place of posting
15. Considering all the aforesaid facts and
circumstances of the case, more particularly the fact
that there was no interim protection in any manner in
favour of the petitioner during all this period, this Court
does not find any strong case made out by the
petitioner to exercise the power of judicial review at this
stage. Leaving open for the petitioner to approach the
Court in case if the departmental enquiry proceedings
goes against the petitioner.
16. The writ petition therefore being devoid of merit
deserves to be and is accordingly dismissed."
6. Learned counsel appearing for the appellant would submit that as
per Section 104 of Chhattisgarh Land Revenue Code, 1959 (henceforth
'the Code'), the Collector being the appointing authority of Patwari, he is
vested with the power of dismissal, suspension, termination and also
transfer of a Patwari. He would further submit that respondent No. 3 is not
competent to pass an order of transfer, suspension or initiation of
departmental enquiry against the appellant. Even the transfer order dated
4.11.2019 has been passed in violation of the transfer policy for the year
2019 issued by the Govt. of Chhattisgarh on 27.06.2019, but learned
Single Judge did not consider the aforesaid aspects of the matter. It is
further submitted that in several cases of similar nature, interim protection
has been granted by this Court but in the instant case without granting
interim protection, writ petition has been dismissed at the admission stage
itself. He would also submit that since the orders of transfer, suspension
and departmental enquiry initiated against the appellant are bad in law,
arbitrary and malafide, hence, learned Single Judge ought to have granted
relief as sought for by the appellant, but the petition was dismissed at the
motion stage itself without properly appreciating the contentions raised by
the appellant. Therefore, learned counsel for the appellant prays for
setting aside the impugned order by granting the reliefs, as sought for, in
the writ petition. In support of his contentions, he placed reliance in the
case of Vinod Kumar Khare v. State of M.P. & others 1.
7. Learned counsel appearing for the State / respondents No. 1 to 5
has filed reply-affidavit to the writ appeal and while abiding the same
1 2008 (1) CRN (MPHC) 43
would submit that the order dated 4.11.2019 (Annexure P-1) is not a
transfer order but it is only an order, by which, place of posting of appellant
has been changed. It is further submitted that distance between the
aforesaid two places of posting is not too far, that too, within the same
tehsil / sub-division. In view of above, change of place of posting within the
same sub-tehsil / sub-division cannot be considered as transfer of the
appellant. He would next submit that admittedly, under Section 104 (2) of
the Code, the Collector is shown to be the appointing authority of Patwari
but under the Notification dated 1-10-1959 issued by the State
Government, all the powers of the Collector, conferred under Section 104
(2) of the Code have been delegated to the Sub-Divisional Officer
(Revenue). In support of his submissions, he placed reliance on the
decision of a Full Bench of Madhya Pradesh High Court in case of Kala
Bai v. State of M.P. 2, which has been relied upon by this Court in case of
Manoj Vishwakarma v. State of Chhattisgarh 3.
8. We have heard learned counsel appearing for the parties and
perused the material available on record with utmost circumspection.
9. Following are the relevant provisions of the Code with regard to Sub-
Divisional Officer, power to be exercised by him and appointment of
patwaris in the patwaris circle :-
"22 -Sub-Divisional Officers.- (1) The Collector may place one
or more Assistant Collectors or [Joint Collector or Deputy
Collector] in-charge of a sub-division of a district or in-charge of
2 2011 SCC Online MP 21
3 AIR Online 2019 Chh. 1718
two or more sub-divisions of a district.
(2) Such Assistant Collector or [Joint Collector or Deputy
Collector] shall be called a Sub-Divisional Officer and shall
exercise such powers of a Collector as the State Government may,
by notification, direct.
104. Formation of patwaris' circles and appointment of
patwaris thereto. - (1) The Collector shall from time to time
arrange the villages of the tahsil in patwari circle and may, at any
time, alter the limits of any existing circle and may create new
circles or abolish existing ones.
(2) [The Collector] shall appoint one or more patwaris to each
patwari circle for the maintenance and correction of land records and
for such other duties as the State Government may prescribe.
(3) xxxx xxxx xxxx
10. A perusal of section 104 (2) of the Code clearly indicates that the
legislature has conferred upon the Collector power to appoint one or more
patwaris' to each patwari circle for maintenance and correction of land
records and for such other duties as the State Government may prescribe.
Section 22 of the Code deals with Sub-Divisional Officer and specifically
provides that Sub-Divisional Officer shall exercise such powers of the
Collector as the State Government may by notification direct and,
therefore, the provisions under Section 22 of the Code empowers the
State to prescribe such powers of the Collector, that may be exercised by
the Sub-Divisional Officer by issuing a notification.
11. The State Government in exercise of powers conferred under
Section 22 of the Code issued notification dated 1.10.1959, which reads
as under :-
"In exercise of the powers conferred by sub-section (2) of
section 22 of the Madhya Pradesh Land Revenue Code, 1959
(No. 20 of 1959), and in supersession of all previous
Notifications on the subject, the State Government hereby
directs that all Sub-Divisional Officers shall exercise powers of
a Collector under sub-Section (2) of Section 57, sub-section
(5) of section 59, section 87, sub-section (2) of section 104
and sub-section (2) of Section 110 of the said Code, within
their respective jurisdiction."
12. Upon perusal of aforesaid notification dated 1.10.1959, it is apparent
that the State Government while exercising powers under Section 22 (2)
of the Code has authorised the Sub-Divisional Officer to exercise powers
of the Collector under Section 104 (2) of the Code alongwith other
provisions of the Code.
13. The issue with regard to exercise of powers of the Collector by the
Sub-Divisional Officer while dismissing Patwari from service has been
considered by the Full Bench of M.P. High Court in case of Kala Bai v.
State of M.P. (supra) and considering the relevant provisions of the MP
Land Revenue Code, 1959, which are pari materia with the C.G. Land
Revenue Code, 1959, has held as under :-
"26. The conclusion recorded by us on the question referred to
by the Single Judge are summarised as under :-
(a) That the Sub-Divisional Officer has been conferred powers of
the Collector to appoint a Patwari in view of the provisions of Section
22(2) of the Code and the Notification dated 1.10.1959 published in
the M.P. Gazette on 9.10.1959 and as consequence thereof he also
has the power to remove a Patwari from service.
(b) That there is no conflict between the decision rendered in the
case Vishwanath Prasad v. Board of Revenue reported in 1964
MPLJ Note (38) and Mangilal v. State of M.P. reported in 1995 RN
67 as the factual matrix on the basis of which the two judgments
were rendered was totally different and that the Division Bench in
the case of Mangilal (supra) on that count has rightly distinguished
the case of Vishwanath Prasad (supra).
(c) The Single Bench judgments in the case of Vinod Kumar
Khare v. State of M.P., 2008 (4) MPLJ SN 44; ILR (2008) M.P.
1436; Ashok Kumar Khare v. State of M.P. WP No. 7785/2003 dated
10.1.2005; and Phulloo Ram Kol v. State of M.P., No. 8777/2003
dated 25-9-2008 are hereby overruled while the judgment in the
case of Ravindra Kumar Gupta v. State of M.P., W.P. No.
10863/2009 decided on 5-8-2010 [2010 (4) MPLJ 439] is hereby
affirmed and approved. The reference made to this Full Bench is
answered accordingly."
14. Adopting the dictum of the Full Bench of M.P. High Court in the case
of Kala Bai (supra), Division Bench of this Court in the case of Manoj
Vishwakarama (supra), has held that Sub-Divisional Officer (Revenue) is
also competent to pass an order of change of place of posting of a
Patwari. Considering the aforesaid provisions contained in Sections 22 &
104 of the Code, notification dated 1.10.1959 issued by the State
Government and also considering the judgment of the Full Bench of
Madhya Pradesh High Court in the case of Kala Bai (supra), which has
been relied upon by the Division Bench of this Court in the case Manoj
Vishwakarama (supra), we are of the firm view that respondent No. 3 -
Sub-Divisional Officer (Revenue) is also competent authority to pass the
order dated 4-11-2019 (Annexure P-1), suspension order dated
27.07.2020 (Annexure P-26) and order of initiation of departmental
enquiry dated 24.8.2020 (Annexure P-30) against the appellant.
15. The case of Vinod Kumar Khare, (supra), which has been relied
upon by the learned counsel for the appellant, has no relevance, as it has
been overruled by the Full Bench of Madhya Pradesh High Court in case
of Kala Bai (Supra).
16. The order dated 4-11-2019 (Annexure P-1) passed by respondent
No. 3 does not reflect that it is an order of transfer, rather, vide that order
only place of posting of the appellant has been changed, that too, within
the same tehsil / sub-division. Even if it is assumed that it is a transfer
order, then in a series of judicial pronouncements it has been held by the
Hon'ble Apex Court that transfer is an incident of service and the scope of
judicial review of transfer order under Article 226 of the Constitution of
India is very limited.
17. In the case of Shilpi Bose v. State of Bihar 4, it was held that a
Government Servant holding a transferable post has no vested right to
remain posted at one place or the other, he is liable to be transferred from
one place to the other. Transfer orders issued by the competent authority
do not violate any of his legal rights. Even if a transfer order is passed in
violation of executive instructions or orders, the court ordinarily should not
interfere with the order, instead affected party should approach the higher
authorities in the department. In the case of Union of India v. S.L.
Abbas 5, the Apex Court observed that unless the order of transfer is
vitiated by mala fides or is made in violation of any statutory provisions,
the court cannot interfere with it. It was further observed that the
departmental guidelines cannot even confer upon the government
employee a legally enforceable right. Further in the case of S.C. Saxena
v. Union of India and others 6, it has been held that a government
servant cannot disobey a transfer order by not reporting at the place of
posting. It is his duty to first report for work where he is transferred and
make a representation as to what may be his personal problems.
18. In the case of State of U.P. v. Goverdhan Lal 7, the Hon'ble
Supreme Court has observed as under :-
"7. It is too late in the day for any Government Servant to
contend that once appointed or posted in a particular place or
4 AIR 1991 SC 532
5 AIR 1993 SC 2444
6 (2006) 9 SCC 583
7 (2004) 11 SCC 402
position, he should continue in such place or position as long as
he desires. 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 contra in the law governing or conditions of
service. Unless the order of transfer is shown to be an outcome
of a mala fide exercise of power or violative of any statutory
provision (an Act or Rule) or passed by an authority not
competent to do so, an order of transfer cannot lightly be
interfered with as a matter of course or routine for any or every
type of grievance sought to be made. Even administrative
guidelines for regulating transfers or containing transfer policies
at best may afford an opportunity to the officer or servant
concerned to approach their higher authorities for redress but
cannot have the consequence of depriving or denying the
competent authority to transfer a particular officer/servant to any
place in public interest and as is found necessitated by
exigencies of service as long as the official status is not affected
adversely and there is no infraction of any career prospects
such as seniority, scale of pay and secured emoluments. This
Court has often reiterated that the order of transfer made even
in transgression of administrative guidelines cannot also be
interfered with, as they do not confer any legally enforceable
rights, unless, as noticed supra, shown to be vitiated by mala
fides or is made in violation of any statutory provision.
8. A challenge to an order of transfer should normally be
eschewed and should not be countenanced by the Courts or
Tribunals as though they are Appellate Authorities over such
orders, which could assess the niceties of the administrative
needs and requirements of the situation concerned. This is for
the reason that Courts or Tribunals cannot substitute their own
decisions in the matter of transfer for that of competent
authorities of the State and even allegations of mala fides when
made must be such as to inspire confidence in the Court or are
based on concrete materials and ought not to be entertained on
the mere making of it or on consideration borne out of
conjectures or surmises and except for strong and convincing
reasons, no interference could ordinarily be made with an order
of transfer."
19. From perusal of order dated 4-11-2019 (Annexure P-1), it is
apparent that by the aforesaid order not only appellant's place of posting
was changed but 14 other patwaris' place of posting has also been
changed, that too, within the same sub-division. It is also apparent from
the record that several opportunities and sufficient time had been given to
the appellant to join her new place of posting. Despite that she did not
comply with the order dated 4-11-2019.
20. Each case is to be decided according to the facts and circumstances
of the case itself. In appropriate cases, interim protection is granted by the
court, but it cannot be expected that such protection should have to be
granted compulsorily, in each case, and therefore, contention raised by
learned counsel appearing for the appellant in this regard is unacceptable.
There is nothing on the record, which would show that aforesaid order,
even if it is assumed to be a transfer order, is held to be vitiated in view of
the norms set by the Hon'ble Apex Court, i.e. it is an outcome of a mala
fide exercise of power or violative of any statutory provision or passed by
an authority not competent to do so. As has already been held that Sub-
Divisional Officer (Revenue) is also competent authority to pass such
orders, which have been challenged by the appellant / petitioner in the writ
petition.
21.
[ On due consideration, we find no good ground to interfere with the
order passed by the learned Single Judge. Thus, the writ appeal, being
devoid of substance, stands dismissed accordingly. No cost.
Sd/- Sd/-
(Arup Kumar Goswami) (N.K.Chandravanshi)
Chief Justice Judge
Dubey/-
