Rajendra Kale vs State Of Chhattisgarh
2022 Latest Caselaw 4187 Chatt

                                1


                                                           NAFR
        HIGH COURT OF CHHATTISGARH BILASPUR
                  Writ Appeal No.175 of 2022

Rajendra Kale, aged about 60 years, S/o Shri P.D. Kale, Presently
working as Assistant Revenue Inspector, Nagar Panchayat
Bishrampur, District Surajpur, Chhattisgarh.
                                                   ---- Appellant
                             Versus
1.   State of Chhattisgarh through it's Secretary/Under
     Secretary/Under, Department of Urban Administration &
     Development, Mantralaya, Mahanadi Bhawan, Nava Raipur,
     Atal Nagar, Raipur, District Raipur, Chhattisgarh.
2.   Joint Director, Urban Administration & Development,
     Surguja Division, Ambikapur, District Surguja, Chhattisgarh.
3.   Chief Municipal Officer, Nagar Panchayat Bishrampur,
     District Surajpur, Chhattisgarh.
                                         ---- Respondents

(Cause-title taken from Case Information System)

For Appellant : Mr. Pawan Shrivastava, Advocate For Respondents No.1 & 2 : Mr. Gagan Tiwari, Dy. Govt. Advocate For Respondent No.3 : Mr. Amrito Das, Advocate

Date of hearing : 16.06.2022 Date of order : 04.07.2022

Hon'ble Shri Arup Kumar Goswami, Chief Justice

Hon'ble Shri Parth Prateem Sahu, Judge

C A V Judgment

Per Parth Prateem Sahu, Judge

Challenge in this writ appeal is to the order dated 09.03.2022

passed by learned Single Judge in Writ Petition (S) No.396 of 2022, by

which, the challenge to the order of transfer dated 05.07.2021 and

rejection of his representation vide order dated 16.11.2021 was

negated.

2. Mr. Pawan Shrivastava, learned counsel for the appellant

submits that on the date of issuance of transfer order dated

05.07.2021, appellant was posted as Assistant Revenue Inspector at

Nagar Panchayat, Bishrampur. Vide transfer order (Annexure P/1)

dated 05.07.2021, appellant was transferred to Nagar Panchayat,

Ramanujganj. The said transfer order was put to challenge in Writ

Petition (S) No.3894 of 2021, which was disposed of on 28.07.2021

with a direction to the appellant to file a representation before the

authority to be considered within a period of three weeks and till then,

status quo as exists on that day was ordered to be maintained.

Pursuant to the order passed on 28.07.2021, appellant had submitted

a representation, but respondents have arbitrarily rejected the same

without considering the grounds raised in the representation in

appropriate manner. He submits that rejection of representation vide

order dated 16.11.2021 was also put to challenge in Writ Petition (S)

No.396 of 2022 and learned Single Judge, without taking note of the

fact that appellant is due to retire within two years and his mother,

aged about 80 years, is suffering from various ailments, dismissed the

writ petition. It is submitted by him that looking to grounds raised in the

writ petition as well as representation, impugned order passed by

learned Single Judge be interdicted.

3. Mr. Gagan Tiwari, learned Deputy Government Advocate,

appearing for respondents No.1 & 2 submits that this is second round

of litigation. Learned Single Judge in impugned order has discussed

the grievance raised by the appellant elaborately. State Government

has taken into consideration the representation submitted by the

appellant and decided the same in an objective manner. Learned

Single Judge has concluded that no ground for interference with the

transfer order is made out and dismissed the writ petition, which does

not call for any interference.

4. Mr. Amrito Das, learned counsel, appearing for respondent

No.3 submits that appellant was posted at Office of Chief Municipal

Officer, Bishrampur, District Surajpur, Chhattisgarh since 2017 and he

has completed normal tenure of place of posting. The order of transfer

has been issued after completion of period of four years at Bishrampur

by the State Government, hence, it cannot be said to be arbitrary in

any manner. There is no pleading of malafide in the writ petition,

hence, impugned order does not call for any interference.

5. We have heard the learned counsel appearing for the parties

and have perused the materials on record.

6. Undisputedly, appellant was posted at Office of Chief

Municipal Officer, Bishrampur, District Surajpur, Chhattisgarh since

2017. The order of transfer (Annexure P/1) is issued by State

Government transferring 30 employees working on different posts at

different Nagar Panchayats, like Deputy Commissioner, Chief

Municipal Officers, Revenue Inspector, Assistant Revenue Inspectors,

Assistant Engineers, Sub Engineers, Gazetted Officer, Accountants,

Assistant Grade-II, Assistant Grade-III, Cashier, Drivers, Health

Inspector, etc. First Writ Petition (S) bearing No.3894 of 2021 was

disposed of with a direction to petitioner to file representation to be

decided by the respondent authorities within a specified time.

Petitioner submitted representation, which was considered by the

State Government on 16.11.2021. Petitioner, aggrieved by the

rejection of his representation, filed second writ petition on 16.01.2022.

Learned Single Judge while dismissing the writ petition has held as

under :

"10. Further contention on behalf of the

Respondents is that it is a settled position of law

that the transfer is an incident to service and it is

always the prerogative of the employer to decide

when, where and for what period an employee

has to be posted taking into consideration the

administrative exigencies that arises. According

to the Respondents, even the Transfer Policy

gives the protection to the employee who is

nearing superannuation of a period less than one

year. In the instant case, the Petitioner has got

around two years of his retirement.

11. Learned Counsels for Respondents further

submit that so far as the Writ Court is concerned,

in the light of the catena of decisions laid down by

the Hon'ble Supreme Court in the recent past, the

only ground on which the High Courts can

interfere with an order of transfer is, firstly, if the

order of transfer is contrary to rules; secondly, the

order of transfer issued if has been issued by an

incompetent person not authorized under the

Service Rules and, lastly, in the event of the order

of transfer has been issued with malafides.

According to the Respondents, none of these

three grounds are available to the Petitioner nor

has he raised any such grounds in this Writ

Petition. Thus, prayed for the dismissal of the

present Writ Petition.

12. Having heard the contentions put forth on

either side and on perusal of record, as has been

stated in the preceding paragraphs, the original

order of transfer in the instant case is of 5.7.2021

which was already put to test before the High

Court by way of WPS No.3894/2021 and the High

Court had not granted any benefit to the

Petitioner except for a liberty of representing to

the Respondents and with an interim protection if

the Petitioner was not relieved till that date.

13. From the documents enclosed along with the

present Petition and also the Return that has

been filed by the Respondents, the Respondents

have taken into consideration the contentions that

the Petitioner has raised and have rejected the

representation so made by the Petitioner. From

the pleadings that have been made in the present

Petition, it is apparently clear that the Petitioner

has not been able to make out a case so far as

the impugned Order of transfer passed by an

incompetent or unauthorized Officer. Petitioner

also has not been able to show any malafide on

the part of the Respondents issuing the impugned

Order. Admittedly, the post which the Petitioner

holds is a transferable post. Moreover, so far as

the order of transfer dated 5.7.2021 is concerned,

the matter was already seized by the Writ Court

vide WPS No.3894/2021."

7. Learned Single Judge discussed the grounds on which order

of transfer of a Government Servant can be interfered. Learned

counsel for the petitioner could not point out as to how the reasoning

of learned Single Judge is erroneous, but has made submission of

some difficulty to join the transferred place on the ground that her

mother due to medical ailment has to take treatment at Raipur. Some

medical documents are placed on record, which mention the last date

of treatment at Raipur as 04.01.2021.

8. It is for the employer to consider the posting of its employees

considering the administrative exigency. Order of transfer is not to be

interfered in exercise of discretionary jurisdiction in ordinary course, as

held by Hon'ble Supreme Court in cases of Shilpi Bose (Mrs) and

Others v. State of Bihar and Others reported in 1991 Supp (2) SCC

659; Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey

and Others reported in (2004) 12 SCC 299; Mohd. Masood Ahmad

v. State of U.P. and Others reported in (2007) 8 SCC 150 and State

of Haryana and Others v. Kashmir Singh and Another reported in

(2010) 13 SCC 306.

9. For the foregoing discussions, we find no good ground to

interfere with the order of the learned Single Judge calling interference

of this Court and accordingly, the writ appeal is dismissed. No costs.

                           Sd/-                                     Sd/- Sd/-
               (Arup Kumar Goswami)                      (Parth Prateem Sahu)
                     Chief Justice                                Judge

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