Chattisgarh High Court
Syed Irfan Ali vs State Of Chhattisgarh on 19 July, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WA No. 382 of 2022
Syed Irfan Ali S/o. Late Syed Abid Ali Aged About 40 Years Presently
Posted as Constable Excise, at Office of District Excise Officer District
Mahasamund, Chhattisgarh R/o Bazar Ward, Swami Chowk,
Mahasamund, District Mahasamund, Chhattisgarh
---- Appellant
Versus
1. State of Chhattisgarh Through Its Principal Secretary, Department of
Commercial Tax (Excise), Ministry, Mahanadi Bhawan, Capital
Complex, Atal Nagar, PS and PO Rakhi, District Raipur, Chhattisgarh
2. Under Secretary, Department of Commercial Tax (Excise), Ministry,
Mahanadi Bhawan, Capital Complex, Atal Nagar, PS and PO Rakhi,
District Raipur, Chhattisgarh
3. Commissioner (Excise) GST Bhawan, Nawa Raipur, Atal Nagar,
District Raipur, Chhattisgarh
---- Respondents
(Cause-title taken from Case Information System)
For Appellant : Mr. Mateen Siddiqui, Advocate
For Respondents : Mr. Jitendra Pali, Deputy Advocate General
Hon'ble Shri Arup Kumar Goswami, Chief Justice
Hon'ble Shri Parth Prateem Sahu, Judge
Judgment on Board
Per Arup Kumar Goswami, Chief Justice
19.07.2022
Heard Mr. Mateen Siddiqui, learned counsel for the appellant. Also
heard Mr. Jitendra Pali, learned Deputy Advocate General, appearing for
the respondents.
2. This writ appeal is presented against an order dated 05.07.2022
passed by the learned Single Judge in WPS No. 4655 of 2022, dismissing
the writ petition.
3. Challenge in the writ petition was to an order dated 28.06.2022
issued by the Secretary, Commercial Tax (Excise), transferring the
petitioner from Office of District Excise Officer, Mahasamund to Office of
Deputy Commissioner Excise, Divisional Flying Squad, Division Durg.
4. The appellant is a constable in Excise Department, which is a Class-
III post.
5. Contention is advanced by Mr. Siddiqui, on the basis of Clause 2.13
of the Transfer Policy, 2019, issued on 27.06.2019, that while only 10% of
the cadre strength in respect of Class-III employees can be transferred, in
the instant case, out of 250 constables, 229 persons have been
transferred, representing about 88% of the strength of the cadre and
therefore, the order of transfer is vitiated. He has further submitted that in
case the Court is not inclined to interfere with the order of the learned
Single Judge, in view of the liberty granted by the learned Single Judge to
file representation, the order of transfer may be suspended till
consideration of the representation.
6. Mr. Pali submits that he has instructions that in many cases the
transferred constables have been relieved on the day of transfer. He,
however, submits that he does not have any particular instruction in this
regard in this case.
7. The learned Single Judge observed as follows :
"6. It is not in dispute that the petitioner remained in the
present place of posting more than three years and it is
well settled position that transfer policy does not confer
any right over Government employee. Hon'ble Supreme
Court in Civil Appeal No.1243 of 2022 (S.K. Nausad
Rahaman and others vs. Union of India and others)
along with other connected matter decided on 10-3-2022
has examined the entire transfer law and has held
in para 24 and 25 which a re extracted as under.
"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".
xxx xxx xxx
8. Further, the Hon'ble Supreme Court in Special
Leave to Appeal (C ) No.36717 of 2017 (Namrata Verma
vs. The State of Uttar Pradesh and others) decided on
6-9-2021 has observed as under:
"It is not for the employee to insist to transfer
him/her and/or not to transfer him/ her at a
particular place. It is for the employer to
transfer an employee considering the
requirement".
xxx xxx xxx
10. Accordingly, the instant writ petition being devoid of
merit is liable to be and is hereby dismissed at admission
stage itself. Consequently, application for grant of interim
relief also stands dismissed. However, the petitioner
shall be at liberty to file a representation before the
respondent authorities raising his grievances."
8. In the case of Union of India and Others v. S.L. Abbas, reported in
(1993) 4 SCC 357, it was observed as follows :
"7. Who should be transferred where, is a matter
for the appropriate authorities to decide. 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. While ordering the transfer,
there is no doubt, the authority must keep in mind
the guidelines issued by the Government on the
subject. Similarly, if a person makes any
representation with respect to his transfer, the
appropriate authority must consider the same having
regard to the exigencies of administration. The
guidelines say that as far as possible, husband and
wife must be posted at the same place. The said
guidelines however does not confer upon the
Government employee a legally enforceable right."
9. There is no allegations of malafides in the instant case. There is no
violation of any statutory provision and what is contended is violation of
transfer guidelines. Exhibited instructions in the form of transfer guidelines
do not confer an infeasible right upon an employee.
10. It is not known whether the person who is transferred to the place of
posting of the petitioner had joined. Such a transferred employee was also
not made party respondent in the writ proceedings.
11. On due consideration, we find no good ground to interfere with the
order of the learned Single Judge. However, considering the matter in its
entirety, we direct that if any representation is filed by the appellant within a
period of 07 days from today, the same shall be disposed of within a period
of 15 days therefrom with intimation to the appellant.
12. With the aforesaid modification of the order of the learned Single
Judge, the writ appeal stands disposed of.
Sd/- Sd/-
(Arup Kumar Goswami) (Parth Prateem Sahu)
Chief Justice Judge
Chandra
