Chattisgarh High Court
Imtiyaj Khan vs State Of Chhattisgarh on 19 July, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WA No. 377 of 2022
Imtiyaj Khan S/o Late Alijan Khan Aged About 40 Years Presently Posted
As Constable Excise, At Office Of District Excise Officer District
Bemetara (C.G.) R/o Quarter No. 190, Link Road Camp-2, District Durg
(C.G.)
---- Appellant
Versus
1. State of Chhattisgarh Through Its Principal Secretary, Department
of Commercial Tax (Excise), Ministry, Mahanadi Bhawan, Capital
Complex, Atal Nagar, P.S. and P.O. Rakhi, District Raipur,
Chhattisgarh
2. Under Secretary Department of Commercial Tax (Excise), Ministry,
Mahanadi Bhawan, Capital Complex, Atal Nagar, P.S. and P.O.
Rakhi, District Raipur (C.G.)
3. Commissioner (Excise) GST Bhawan, Nawa Raipur Atal Nagar,
District Raipur (C.G.)
---- 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. 4628 of 2022,
dismissing the writ petition.
3. Challenge in the writ petition was to an order dated 24.06.2022
issued by the Secretary, Commercial Tax (Excise), transferring the
petitioner from Office of District Excise Officer, Bemetara to Office of
District Excise Officer, Kabirdham.
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. It is submitted by
Mr. Siddiqui that learned Single Judge erroneously held that the
petitioner had remained in the present place of posting for more than 3
years and in fact, the appellant is transferred after two years and ten
months. 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. Executive 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
