Chattisgarh High Court
G.S. Dhiwar vs State Of Chhattisgarh on 16 January, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Appeal No. 664 of 2022
G.S. Dhiwar S/o Shri Moti Ram Dhiwar, aged about 57 years, Presently
Posted as Lecturer (English) at In-Charge Block Education Officer,
Baramkela, District : Sarangarh (C.G.)
---- Appellant
Versus
1. State of Chhattisgarh Through Its Secretary, Department of School
Education, Mantralaya, Mahanadi Bhawan, Nawa Raipur, Atal
Nagar, District : Raipur (C.G.)
2. The Director, Public Instructions, Chhattisgarh, Hq. Indrawati
Bhawan, Nawa Raipur, Atal Nagar, District : Raipur (C.G.)
3. Shri Narendra Kumar Jangade, The Lecturer, Government Higher
Secondary School Malda-A Block, Sarangarh, District : Sarangarh
(C.G.)
---- Respondents
(Cause-title taken from Case Information System)
For Appellant : Mr. Ghanshyam Kashyap, Advocate.
For Respondents No. 1 & 2 : Mr. Jitendra Pali, Deputy Advocate
General.
For Respondent No. 3 : Mr. Ajay Kumrani, Advocate.
Hon'ble Shri Arup Kumar Goswami, Chief Justice
Hon'ble Shri Rakesh Mohan Pandey, Judge
Judgment on Board
Per Arup Kumar Goswami, Chief Justice
16.01.2023
Heard Mr. Ghanshyam Kashyap, learned counsel for the appellant.
Also heard Mr. Jitendra Pali, learned Deputy Advocate General,
appearing for respondents No. 1 & 2 and Mr. Ajay Kumrani, learned
counsel, appearing for respondent No. 3.
2. This appeal is directed against an order dated 14.11.2022 passed
by the learned Single Judge in Writ Petition (S) No. 7134 of 2022,
whereby, writ petition filed by the appellant was dismissed as without
being of substance.
3. The substantive post of the appellant is Lecturer (English). The
appellant was posted as In-charge Block Education Officer, Baramkela
vide order dated 22.08.2019 and while working as such, by an order
dated 30.09.2022, he was transferred showing him as Lecturer (Political
Science) to Government Girls Higher Secondary School Pauni, Block
Bilaigarh. In the place of the appellant, the respondent No. 3, who was
working as Lecturer (Sanskrit), in Government Higher Secondary School,
Malda, was transferred.
4. The primary ground canvased before the learned Single Judge was
that there was violation of Clause 2.9 of Transfer Policy, 2022 in that the
appellant is sought to be relieved by the respondent No. 3, who is junior
to the appellant.
5. On the aforesaid ground, the view taken by the learned Single
Judge cannot be faulted with. However, in appeal, a ground has been
taken that in the school, where the appellant has been transferred, their
are two sanctioned posts of Lecturer (English), both of which are filled up.
6. The appellant came to be relieved on 31.10.2022 and respondent
No. 3 had joined the post held by the appellant. As none was transferred
to the post held by the respondent No. 3, an interim order dated
08.12.2022 was passed directing the respondents not to fill up the said
post.
7. That the appellant is a Lecturer (English) and that the two posts of
Lecturer (English) in the school where the appellant is transferred is not
vacant and that the appellant was transferred as a Lecturer (Political
Science) though, actually, he is a Lecturer (English) are not disputed
either by Mr. Pali or by Mr. Kumrani.
8. Though transfer is an incidence of service, it cannot be
countenanced that an employee can be transferred on administrative
ground to another place where there is no vacant substantive post.
Likewise, a Lecturer in English cannot be transferred to teach Political
Science.
9. On a query of the Court, Mr. Kumrani very fairly submits that after
he had taken over charge of the post earlier held by the appellant, he did
not have to shift his residence and he is discharging his duties residing in
the very same place from where he used to discharge his duties while
serving as a Lecturer in Government Higher Secondary School, Malda.
10. Though the order of transfer of respondent No. 3, per se, to the
post held by the appellant, otherwise cannot be faulted with, having
regard to the narration of facts, we are of the opinion that the appellant
could not have been transferred to Government Girls Higher Secondary
School Pauni, Block Bilaigarh in absence of there being any vacant post
of Lecturer (English).
11. In that view of the matter, the order of transfer dated 30.09.2022 in
respect of the appellant has to be interfered with. Ordered accordingly.
As a logical corollary, the order of transfer of respondent No. 3 also
stands quashed.
12. It is submitted by Mr. Kashyap that he has not been paid his salary
from November, 2022 as he could not join, there being no vacant post.
13. In that view of the matter, the absence of duty of the appellant
during the interregnum period shall be regularized by the respondent
authorities as on duty and his pay and allowances be also paid
accordingly.
14. Liberty is, however, reserved to the State respondents to pass
orders of transfer, if considered expedient in the interest of administration.
15. The writ appeal stands disposed of accordingly.
Sd/- Sd/-
(Arup Kumar Goswami) (Rakesh Mohan Pandey)
Chief Justice Judge
Brijmohan
