Chattisgarh High Court

Janardan Mandal vs State Of Chhattisgarh on 11 November, 2022

Page 1 of 19

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Reserved on 18-08-2022

Pronounced on 11-11-2022

WPS No. 4893 of 2022
 Janardan Mandal S/o Shri Shankar Chand Mandal Aged About 46
Years Occupation Patwari, Village - Pendra P.H. No. 1, Rnm/tahsil
- Pendra District Gourela - Pendra -Marwahi Chhattisgarh. R/o
Mandalvilla, Near Police Station - Gourela Hariom Nagar Gourela,
District - Gourela - Pendra Marwahi Chhattisgarh.
---- Petitioner
Versus
1. State of Chhattisgarh Through Secretary, Revenue And Disaster
Management Department, Mahanadi Bhawan, Mantralaya Atal
Nagar Nawa Raipur, District Raipur Chhattisgarh.
2. The Collector, District - Gourela Pendra - Marwahi, Chhattisgarh.
3. The Sub Divisional Officer (Revenue) Pendraroad, District Gourela
- Pendra - Marwahi Chhattisgarh.
4. The Tahsildar Pendra, District Gourela-Pendra-Marwahi,
Chhattisgarh.
---- Respondents
&
WPS No. 5098 of 2022
 Rajesh Banjari S/o Late Shri Ram Chandra Wanjari Aged About 52
Years R/o Durg Nagar, Kokha, Bhilai Durg Chhattisgarh
---- Petitioner
Versus
1. State of Chhattisgarh Through The Secretary, Revenue
Department, Mantralaya, New Raipur , District Raipur Chhattisgarh
2. Collector District Durg Chhattisgarh
3. Sub - Divisional Officer (Revenue Circle 01) Durg Chhattisgarh
4. Sushree Indira Manocha, Patwari Patwari Halka No. 36, Achoti,
Bhilai Durg Chhattisgarh
---- Respondents

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For petitioner : Mr. Santosh Kumar Pandey, Advocate.

(in WPS No. 4893 of 2022) For petitioner : Mr. T.K. Tiwari, Advocate. (in WPS No. 5098 of 2022) For respondent/State. : Mr. Sandeep Dubey, Dy. Adv. General. For respondent No.4 : Mr. Ishan Verma, Advocate. (in WPS No 5098/2022)

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Hon'ble Shri Justice Narendra Kumar Vyas CAV ORDER

1. Since an identical issue is involved in both these writ petitions, they

are heard analogously and are being disposed of by this common

order.

2. The petitioner in WPS No. 5098/2022 has filed writ petition under

Article 226 of the Constitution of India against the order dated 15-7-

2022 (Annexure P/1) passed by the Sub Divisional Officer

(Revenue) Circle-1, Durg, whereby the petitioner Rajesh Banjari

has been transferred from Patwari Halka No. 50 Kurud District

Durg to Patwari Halka No.15 Arasnara, District- Durg. The

petitioner in WPS No. 4893/2022 has filed writ petition under Article

226 of the Constitution of India against the order dated 17-6-2022

(Annexure P/3) passed by the Sub Divisional Officer (Revenue)

Pendraroad, District Gourela, Pendra, whereby the petitioner

Janardan Mandal in WPS No.4893 of 2022 has been transferred

from Patwari Halka No.1 Pendra to Patwari Halka No.06 newly

established Tahsil Sakola, District- Gourela-Pendra-Marwahi.

3. The brief facts, in nutshell, are that in WPS No.4893 of 2022 the

petitioner was earlier posted as Patwari at Patwari Halka No.18

Kudkai and vide order dated 19-11-2021, he was posted at Patwari

Halka No. 01 Pendra. Thereafter vide impugned order dated 7-6-

2022 passed by the Sub Divisional Officer, he has been posted at

Patwari Halka No.06 Sakola. Similarly, in WPS No. 5098 of 2022,

the petitioner Rajesh Banjari was earlier posted as Pawari at

Patwari Halka No.19-A/50 Kurud and has been transferred to

Patwari Halka No.15 Arasnara vide order dated 15-7-2022 passed

by the Sub Divisional Officer, Durg.

4. Learned counsel appearing for the petitioners would submit that the

transfer is bad-in-law as according to the petitioners, posting of

Patwari is made for a particular Patwari Halka which normally

comprises two Gram Panchayats. As per Section 104(2) of the CG

Land Revenue Code 1959 (For short, the Code 1959), the

Collector is the appointing authority and power of posting, power of

dismissal, termination and also suspension, transfer of the

Patwaris lies with the Collector whereas in the present case, the

posting order has been issued by the Sub-Divisional Officer, who is

not a competent authority, therefore, the transfer/posting order is

without jurisdiction and nonest. To substantiate their submissions,

learned counsels for the petitioners would refer to Clause 16 of the

General Clauses Act, 1957, copy of order dated 12-9-2014 passed

by the Secretary, Revenue and also referred to Rule 7 of Patwari

Manual and would further submit that the transfer/posting is in

contravention of the existing transfer policy dated 27-6-2019. To

buttress their submissions, they have also referred to the judgment

passed by Hon'ble Division Bench of this Court in Writ Appeal No.

811 of 2019 (Khushboo Tiwari vs State of Chhattisgarh &

others) decided 14-12-2018 and WPS No 7050 of 2019 (Vijay

Soni vs. State of Chhattisgarh and others) decided on 4-9-2019

and would submit that in view of the order passed by the Division

Bench of this court, since the transfer is bad in law, the same may

kindly be quashed.

5. Learned counsel for the petitioners would further submit that

shifting from one head quarter to another head quarter is also a

transfer, therefore, as per Madhya Pradesh Civil Services (Joining)

Rules 1982 which have been made applicable to the State of CG is

a transfer and has been issued by incompetent person, therefore, it

is bad in law. He would refer to Section 2(b) of the Rules 1982

which reads as under.

^^(2) ([k) ^^LFkkukUrj.k** ls vfHkizsr gS fdlh 'kkldh; lsod dk] ;k rks mlh LVs'ku ds Hkhrj ;k fdlh vU; LVs'ku dks ,d in ls nwljs in ij u;s in dk drZO; xzg.k djus ds fy;s ;k mldk eq[;ky; ifjofrZr gks tkus ds ifj.kkeLo:i tkuk ^^A

6. Learned counsels for the petitioners would further submit that since

the head quarter is changed, therefore, it is a transfer. As per

Fundamental Rule 132 (A)(1) of the Rules 1982, if Patwari travels

beyond eight kms, for official work, then he is entitled to get

traveling allowances. In the present case, there is a change of

head quarter and he has been sent eight kms away from head

quarter, therefore, it is a transfer. He would further submit that the

orders dated 15-7-2022 & 07.06.2022 have been issued without

canceling the earlier order, therefore, the impugned orders are bad

in law and deserve to be set aside. They would further submit that

in WPS No. 5098/2022, the transfer order dated dated 15-7-2022

has been issued only to accommodate the respondent No. 4,

which is malafide and colourable exercise of power by the

respondent No. 3. Thus, they would pray for quashing of the

transfer order.

7. This court vide order dated 15-7-2022 directed the State to file

return and vide order dated 3-8-2022 Secretary (Revenue) was

also directed to remain present before this court. Neither the State

has filed its return nor Secretary has appeared before this court.

The Sub-Divisional Officer, Revenue, Durg & Gourela-Pendra-

Marwahi & Raigarh have appeared before this Court.

8. On the other hand, Mr. Sandeep Dubey, Deputy Advocate General

for the State would submit that the impugned order is not a transfer

order but only an order by which place of posting has been

changed looking to excess work in other Patwari Halkas within

Tahsil and place of posting within tahsil cannot be considered as

transfer. He would rely upon the judgment of Division Bench of

this court in Writ Appeal No.478 of 2019 (Manoj Vishwakarma vs.

State of Chhattisgarh and others) wherein Division Bench of this

court has held in para 5 to 10 as under.

"5. Per contra, learned counsel appearing for the State submits that the impugned order is not a transfer order but only an order by which place of posting has been changed looking to excess work in other Patwari Halkas within the

same Tahsil. He also submits that change of place of posting within Tahsil cannot be considered as transfer of appellant. He further submits that admittedly under Section 104 (2) of the Code of 1959 the Collector is shown to be the appointing authority of Patwari but under the Notification issued by the State Government, all the powers of the Collector conferred under Section 104 (2) of the Code of 1959 have been delegated to the Sub-

Divisional Officer. To buttress his submissions, he places his reliance on the decision of a Full Bench of Madhya Pradesh High Court reported in 2011 (11) MPLJ 547.

6. We have heard learned counsel for the parties and perused the record.

7. Perusal of order (Annexure P-1) would show that the same has been passed by the Sub-Divisional Officer by which place of posting of the appellant has been changed that too within the Tahsil and it does not reflect that it is an order of transfer. Section 22 of the Code of 1959 provides for the 'Sub-Divisional Officer', which is reproduced herein below;-

"22- (1) The Collector may place one or more Assistant Collectors of sub-divisional Officers. Deputy Collectors in-charge of a sub-division of a district or in-charge of two or more sub-divisions of a district. (2) Such Assistant 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."

Section 24 of the Code of 1959 provides for conferral of powers conferred by or under the Code of 1959 by the State Government on any person. Section 24 reads as under:-

"24. (1) The State Government may confer on any person the powers conferred by or under this Code on any Revenue Officer.

(2) The State Government may confer on any Assistant Collector, Tahsildar or Naib-Tahsildar the powers conferred by this Code on a Revenue Officer of a higher grade."

Sub-section (2) of Section 24 in a very specific term provides that the powers conferred by the Code of 1959 on a revenue officer of a higher grade can be conferred by the State Government on any Assistant Collector, Tahsildar or Naib

Tahsildar. The Assistant Collector has been shown to be a 'Sub-Divisional Officer' under Section 22 of the Code of 1959.

8.The State Government in exercise of powers conferred under Sections 22 & 24 of the Code of 1959 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 jurisdictions."

9. From perusal of the above Notification it is apparent that the State Government while exercising powers conferred under Section 22 (2) of the Code of 1959, has authorized the Sub- Divisional Officer to exercise powers of the Collector under Section 104 (2) of the Code of 1959 along with other provisions of the Code of 1959. The issue with respect to exercise of powers of the Collector by the Sub-Divisional Officer while dismissing Patwari from service has been considered by a Full Bench of MP High Court in Kala Bai v. State of MP & ors reported in (2011) 1 MPLJ 547 (FB) and after considering the relevant provisions of the MP Land Revenue Code, 1959, which are pari materia with the Code of 1959, has held as under:-

"26. The conclusion recorded by us on the question referred to by the Single Judge are summarized 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 a 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 of Vishwanath

Prasad (supra) and Mangilal (supra) as the factual matrix on the basis of which the two judgements 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."

10. In view of the provisions of Section 22, 24 of the Code of 1959, Notification dated 1.10.1959 issued by the State Government and also taking into consideration the verdict of the Full Bench of MP High Court, we are of the firm view that respondent No.3 is competent to pass order Annexure P-1 against the appellant.

9. Learned State counsel would further rely upon the decision of

Hon'be Division Bench of this court in Writ Appeal No. 2 of 2021 in

case of Anuranjna Ekka vs. State of Chhattisgarh and others

decided on 2-2-2022 wherein Hon'ble Division Bench of this court

has held in paras 13 to 18 as under:-

"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 Bihar1, 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 2, 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 3, 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.

1 AIR 1991 SC 532 2 AIR 1993 SC 2444 3 (2006) 9 SCC 583

18. In the case of State of U.P. v. Goverdhan

Lal , 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 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 4 (2004) 11 SCC 402

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."

10. Learned State counsel would further submit that posting order has

been passed by the Government being competent authority to

place Patwari in the same district and since the Sub Divisional

officer has been given the power of Collector, as per notification

issued by the Government of Madhya Pradesh, the Sub Divisional

Officer has rightly passed the transfer order which cannot be

interfered with.

11. From the material placed on record, the issue to be determined by

this Court is whether the Sub-Divisional Officer can exercise power

of Collector under Section 104 (2) of the Land Revenue Code and

if yes, whether the posting order of the petitioner by Sub-Divisional

Officers is legal or justify.

12. For better understanding of this question formulated by this Court, it

is necessary for this Court to extract Section, 22, 24 & 104 of the

Land Revenue Code as well as notification dated 01.10.1959,

which read as under:-

"Section 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 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.

Section 24- Conferral by State Government of powers of Revenue Officers on Officials and

other persons. - (1) The State Government may confer on any person the powers conferred by or under this Code on any Revenue Officer.

(2) The State Government may confer on any Assistant Collector, Tahsildar or Naib-Tahsildar the powers conferred by this Code on a Revenue Officer of a higher grade.

Section 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, after 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) Notwithstanding any usage or anything contained in any treaty, grant, or other instrument, no person shall have any right or claim to continue or to be appointed as a patwari on the ground of right to succeed to such office by inheritance.

Notification dated 01.10.1959- 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."

13. From bare perusal of Section 104 of the Land Revenue

Code1959, it is evident that the Collector is empowered to exercise

power with regard to power of posting, transfer of Patwari and to

take disciplinary action against Patwari. The State Government

vide its notification dated 01.10.1959 published in the M.P. Gazette

in 09.10.1959 has conferred power on the Sub-Divisional Officer to

exercise power of Collector and also looked into consideration the

provisions of Rule 8 of Schedule appended to Civil Services

(Classification, Control and Appeal Rules), 1966. This notification

has come up for consideration before the Hon'ble Full Bench of

M.P. High Court in case of Kalabai Vs. State of M.P., reported in

2011 (1) MPLJ 547 wherein the Hon'ble Full Bench has held as

under:-

"In view of the aforesaid provision of law and the notification issued thereunder, we are of the considered opinion that the Sub Divisional Officer has been conferred powers to appoint a Patwari by the State Government itself by Notification dated 01-10-1959 published in the M.P. Gazette, dated 09-10-1959 issued under the provisions of Section 22(2) of the Code and that the provisions of Rule 8 of the Rules of 1966 and the Schedule appended thereto issued subsequent to the enactment of the Code are in conformity with the statutory provisions of the Code and, therefore, the Sub Divisional Officer has the power to appoint a Patwari and as a consequence thereof the power to dismiss him".

14. Thus, from perusal of the above notification, above stated

provisions of law and law laid down by High Court Madhya

Pradesh, it is apparent that the State Government while exercising

power under Section 22 (2) of the Code, 1959 has authorized the

Sub-Divisional Officer to exercise power of the Collector under

Section 104(2) of the Code of 1959 along with other provisions of

the Code, 1959.

15. This issue has come up for consideration before Hon'ble Division

Bench of this Court in Writ Appeal No. 478/2019 in case of Manoj

Vishwakarma Vs. State of Chhattisgarh (Decided on

11.11.2019) wherein, the Hon'ble Division Bench has held in

paragraph 10 & 11 as under:-

"10.In view of the provisions of Section 22, 24 of the Code of 1959, Notification dated 1.10.1959 issued by the State Government and also taking into consideration the verdict of the Full Bench of MP High Court, we are of the firm view that respondent No.3is competent to pass order Annexure P-1 against the appellant.

11. As regards the violation of Clause 1.1 of the transfer policy, the impugned order does not show that it is a transfer order transferring the appellant because no specific word 'transfer' finds place in the order impugned. Even otherwise, transfer policy is only a guideline and not the Statute and therefore second submission made by learned counsel for the appellant is also not sustainable."

16. Again, the Hon'ble Division Bench in Writ Appeal No. 02/2021 in

case of Anuranjana Ekka Vs. State of C.G. (Decided on

02.02.2022) has held at paragraph 14, 16, 20 as under:-

"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 dated27.07.2020 (Annexure P-

26) and order of initiation of departmentalenquiry dated 24.8.2020 (Annexure P-30) against the appellant.

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.

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 malafide 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."

17. So far as the other contentions raised by the learned counsel

for the petitioners that the transfer order has been passed in

violation of the transfer policy, cannot be considered by this Court

in light of law laid down by Hon'ble Supreme Court in case of S.K.

Naushad Rahaman & others Vs. Union of India (Civil Appeal

No. 1243/2022) (decided on 10.03.2022) reported in AIR 2020 SC

1494 has held at paragraph 25, 26 & 27 as under:-

"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.

26. Third, policies which stipulate that the posting of spouses should be preferably, and to the extent practicable, at the same station are subject to the PART D requirement of the administration. In this context, Justice JS Verma (as the learned Chief Justice then was) speaking for a three-judge Bench

of this Court in Bank of India v. Jagjit Singh Mehta 24 held :

"5. There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with the administrative needs. In the case of all-India services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other's posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an all-India service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, they cannot as of right claim to be relieved of the ordinary incidents of all-India service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places. [...] No doubt the guidelines require the two spouses to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible

without any detriment to the administrative needs and the claim of other employees.".

27. The above principle was cited with approval in Union of India v. SL Abbas where the Court held that transfer is an incident of service: "7. Who should be transferred where, is a matter for the appropriate authority 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 guideline however does not confer upon the Government employee a legally enforceable right."."

18. Again Hon'ble the Supreme Court has reiterated its law with regard

to transfer and has held that no Government servant can insist to

remain posted at a particular place for entire service period.

Hon'ble Supreme Court very recently in Special Leave to Appeal

( c) No. 36717 /2017 in case of Namrata Verma vs. The State of

Uttar Pradesh and others, decided on 6-9-2021 has held 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. The Special Leave petition is dismissed".

19. Since the transfer order has been passed by the competent

authority to transfer/posting the petitioners, the contention raised

by the petitioners that the transfer order has been passed without

authority of law, is incorrect submission of facts and law, therefore,

the contention raised by the petitioners deserves to be rejected and

is accordingly rejected.

20. On due consideration, I find no good ground to interfere with the

orders passed by the Sub Divisional Officer. The writ petitions (s)

being bereft of any merit are liable to be and are hereby dismissed

accordingly.

21. Pending applications, if any, stand disposed of.

Sd/-