Shiv Prasad Sinha vs State Of Chhattisgarh
2022 Latest Caselaw 4521 Chatt

                                                                                           Page No.1




             HIGH COURT OF CHHATTISGARH, BILASPUR

                                    WPS No. 4755 of 2022

    1. Shiv Prasad Sinha, S/o Late Shri Son Sai Sinha, Aged About 58 Years
       R/o. Shiv Nagar, Kanker, Tahsil, P.S. And District Kanker Chhattisgarh.

                                                                                    ---- Petitioner

                                              Versus

    1. State of Chhattisgarh Through Its Upper Secretary, Department of
       Excise (Commercial Tax), Mahanadi Bhawan, Mantralay, Police Station
       And Post Rakhi, Atal Nagar, New Raipur, District Raipur Chhattisgarh.
       Chhattisgarh.

    2. District Excise Officer (D.E.O.), Officer of District Excise Officer,
       Kanker, District Kanker Chhattisgarh.

                                                                               ---- Respondents

      __________________________________________________________

For Petitioner                      :        Mr. Abhishek Pandey & Ms. Laxmeen
                                             Kashyap, Advocates.
For Respondents/State               :        Mr. Amrito Das, Addl. Adv. General.

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Hon'ble Shri Justice Narendra Kumar Vyas Order On Board (15.07.2022)

1. Learned Counsel for the petitioner would submit that petitioner was

posted at Kanker and now he has been transferred vide order dated

22/06/2022 (Annexure P-1) to Bastar, which is core scheduled area.

2. The petitioner is working on the post of Constable in the Department of

Excise and posted in Kanker since 2008, about 14 years have already

been elapsed, but still he has been transferred from Scheduled Area to

Core area, which is a violation of posting policy of State Government

dated 03.06.2015. He further submits that petitioner's wife is also

working as Teacher(LB) at District-Kanker. As per the policy of the

Government, the Government should make endeavor that the husband Page No.2

and wife should live together. It is not in dispute, that the petitioner has

already posted at Kanker for more than 14 years, but the policy of the

Government said that if, any employee posted to Scheduled area then

after completion of his first appointment, he should be posted in a Non-

Scheduled area. Whereas by impugned order, the petitioner is posted

in Core Scheduled area, which is against the policy.

3. It is well settled principle of law that the personal difficulties and

personal disablement should be considered by the government while

considering the transfer of its employee. Hon'ble Supreme Court in the

matter of SK Naushad Rahaman & Other Vs. Union of India & Other

[Civil Appeal No. 1243/2022 decided on 10/03/2022] has observed in

para 53, which reproduced as below:-

"53 In considering whether any modification of the policy is necessary, they must bear in mind the need for a proportional relationship between the objects of the policy and the means which are adopted to implement it. The policy above all has to fulfill the test of legitimacy, suitability, necessity and of balancing the values which underlie a decision making process informed by constitutional values. Hence, while we uphold the judgment of the Division Bench of the Kerala High Court, we leave it open to the respondents to revisit the policy to accommodate posting of spouses, the needs of the disabled and compassionate grounds. Such an exercise has to be left within the domain of the executive, ensuring in the process that constitutional values which underlie Articles 14, 15 and 16 and Article 21 of the Constitution are duly protected. The appeals shall be disposed of in the above terms."

4. In view of the above stated position and considering the facts and

circumstances of the case, I am inclined to give liberty to the petitioner

to make representation before the concerned authorities within four

weeks from the date of receipt of copy of this order and respondents

shall consider the same within six weeks from the date of receipt of

representation. Till the decision taken by the respondents with regard Page No.3

to transfer of the petitioner, vide order dated 22/06/2022 (Annexure P-

1) shall remain stayed and respondent authorities are directed to

consider the case of the petitioner as per law laid down by the Hon'ble

Supreme Court in the matter of SK Naushad Rahaman & Others

(Supra).

5. With the aforesaid observations & directions, this petition is disposed

off.

Sd/-

(Narendra Kumar Vyas) Judge Nisha