Gohil Girirajsinh Tirthubha vs State Of Gujarat
2023 Latest Caselaw 3633 Guj

     C/SCA/7089/2023                              ORDER DATED: 29/04/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 7089 of 2023

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                       GOHIL GIRIRAJSINH TIRTHUBHA
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR VICKY B MEHTA (5422) for the Petitioner(s) No. 1
MS JYOTI BHATT, AGP for the respondent - State
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 CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                             Date : 29/04/2023
                              ORAL ORDER

1. This petition is filed challenging the order of transfer dated 31.03.2023, passed by respondent No-4.

2. The brief facts are as under: -

The petitioner came to be appointed as Daily-wager in the irrigation department in the year 1980. From the day of his appointment, the petitioner is working with the respondents on the same post. It is the case of the petitioner that he was posted at Shetruji Left Bank Main Canal Sub Division, Talaja Sathara Section by an office order dated 28.06.2013 and from that day he is serving and discharging his duties regularly as a daily-wager on the same post. Suddenly, a transfer order dated 31.03.2023, came to be passed, without providing any opportunity of hearing, posting him from Shetruji Left Bank Main Canal Sub Division, Talaja Sathara Section to Shetruji Right Bank Main Canal Sub Division, Talaja Fulsar Section. It is

C/SCA/7089/2023 ORDER DATED: 29/04/2023

the case of the petitioner that the transfer order dated 31.03.2023, is punitive in nature because it is counter blast of an FIR filed by present petitioner on 07.03.2023, against 5 persons who are politically influential. Aggrieved by the action of the respondents of transferring the petitioner, this petition is filed.

3. Heard learned advocate Mr. Vicky Mehta for the petitioner and learned AGP Ms. Jyoti Bhatt for the respondent- State.

3.1 Learned Advocate Mr. Mehta submitted that the order of transfer dated 31.03.2013, is bad in law because, it refers to communication dated 14.02.2023 and 31.03.2023, which were not provided to the present petitioner. The subject matter of order dated 31.03.2023, refers to 'Transfer in Public Interest, however, the order does not specify why public interest. Further, before order dated 31.03.2023, no opportunity of hearing was given to the present petitioner. Even the language of order dated 31.03.2023 suggest punitive action. Further there is no policy under which the respondents can transfer the present petitioner.

3.2 He submitted that the petitioner had filed FIR against politically influenced people and because of which he has been transferred. Moreover, a complaint to Collector has been made and person against whom is made being influential people, the petitioner has been transferred.

3.3 In support of his submissions, he relied upon the decision

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of this Court in the case of Madhusudan D. Tank V/s. A. Rajiv reported in 2001 (0) AIJEL-HC 207065 in which it is held as under: -

"10. In the case reported in 7932 (1) GLR 149, it has been observed and held by this Court that "Sainik School Society" is the "State" within the meaning of Articles 12 and 14 of the Constitution of India. On careful consideration of the order of appointment produced by the petitioner, in special reference to the nature of employment and occupation where the petitioner is working, it transpires that the petitioner was appointed on contractual appointment and in absence of express condition, the petitioner could not have been transferred. The transfer is a condition of service of State employees. Ratio of the decision of this Court reported in 1977 GLR 788 that transfer cannot be considered as an implied condition of service, is not a good proposition of law today. It is not necessary to provide for transfer in Recruitment Rules or in appointment order. Even the decision reported in 1977 GLR 788 (supra) also says that the transfer can be an implied condition of service in a case where nature of employment so requires. The petitioner is undisputedly serving in an institution which is a "State" within the meaning of Article 12 of the Constitution of India. The ratio of the decision of the Apex Court reported in 2001 (5) SCC 508 says that the Court can interfere with the transfer order on three grounds;

namely (i) if the transfer is prohibited by Rules, (ii) if the transfer is not for

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administrative exigency, and (iii) if the transfer is mala fide. So, it can be said that in absence of existence of any of these grounds, an employee/State servant cannot challenge his transfer. New Rules and Regulations which have come into force with effect from 26-3-1997 can be made applicable to the employees who are in service of Sainik School managed and controlled by Board of Governors of Sainik School Society. Rule 6.24 deals with inter se seniority of the staff and Clause (d) of Rule 6.24 of the Rules says that "each Sainik School has to be treated as a separate unit for the purpose of recruitment, retrenchment and promotion and inter-transfer of employee has to be discouraged as a normal rule." Rule 6.25 provides for inter-school transfer on mutual consent, but it would not be legal to say that inter-school transfers are only permissible in case of mutual consent. There is an element of scope of inter-school transfer and for administrative exigency, an employee of Sainik School can be transferred irrespective of absence of express condition in the order of appointment. In absence of express prohibitory condition or such specific contract that a particular employee would not be transferable from one unit to another, one can be transferred. There must be express or implied prohibition as to transfer and in absence of such prohibition, transfer should be considered as one of the conditions of service especially in State employment or its instrumental institutions or such set-up. It can, therefore, be said that employer has inherent powers to transfer

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the employee unless there is express rule or prohibition."

3.4 Learned advocate for the petitioner also relied upon the decision of the Hon'ble Supreme Court in the case of State of Uttar Pradesh V/s Gobardhan Lal reported in 2004 (3) GLH 317, wherein the Hon'ble Supreme Court held 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

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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.

9. The very questions involved, as found noticed by the High Court in these cases, being disputed questions of facts, there was hardly any scope for the High Court to generalise the situations based on its own appreciation and understanding of the prevailing circumstances as disclosed from some write ups in journals or newspaper reports. Conditions of service or rights, which are personal to the parties concerned, are to be governed by rules as also the inbuilt powers of supervision and control in the hierarchy of the administration of State or any Authority as well as the basic concepts and well-recognised powers and jurisdiction inherent in the various authorities in the hierarchy. All that cannot be obliterated by sweeping observations and directions unmindful of the anarchy which it may create in ensuring an effective supervision and control and running of administration merely on certain assumed notions of orderliness expected from the authorities effecting transfers. Even as the position stands, avenues are open for being availed of by anyone aggrieved, with the concerned

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authorities, the Courts and Tribunals, as the case may be, to seek relief even in relation to an order of transfer or appointment or promotion or any order passed in disciplinary proceedings on certain well-settled and recognized grounds or reasons, when properly approached and sought to be vindicated in the manner known to and in accordance with law. No such generalised directions as have been given by the High Court could ever be given leaving room for an inevitable impression that the Courts are attempting to take over the reigns of executive administration. Attempting to undertake an exercise of the nature could even be assailed as an onslaught and encroachment on the respective fields or areas of jurisdiction earmarked for the various other limbs of the State. Giving room for such an impression should be avoided with utmost care and seriously and zealously courts endeavour to safeguard the rights of parties."

3.5 He submitted that in this case, there are no administrative exigencies and there is no transfer policy, therefore, transfer of the present petitioner being punitive in nature deserves to be quashed and set aside.

4. On the other hand, learned Assistant Government Pleader Ms. Jyoti Bhatt for the respondent - State referring to the affidavit-in-reply dated 26.04.2023, submitted that it is true that the petitioner has been transferred from Shetruji Left Bank Main Canal Sub Division, Talaja Sathara Section to Dhetruji

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Right Bank Main Canal Sub Division, Talaja Fulsar Section. The reason of transfer is that in the Left Bank of Shetruji Main Canal Sub Division, Talaja Sathara Section there are 29 employees working presently and in the Right Bank of Shetruji Main Canal Sub Division, Talaja Fulsar Section there are only 10 rojamdars working and the present petitioner being rojamdar and there being shortfall on the Right Bank of Shetruji Main Canal Sub Division, Talaja Fulsar Section, he has been transferred. Learned AGP submitted that the transfer effected under order dated 31.03.2023 is purely on administrative grounds.

4.1 In support of her submissions, she relied upon the table showing vacancy position where the present petitioner has been transferred. Perusal of the table at Annexure-R1 to the affidavit shows that there are less number of dailywage rojamdars on Right Bank of Shetruji Main Canal Sub Division, Talaja Fulsar Section and that is the reason for transferring the petitioner.

5. Submissions are considered. From the affidavit and vacancy position shown by the respondents it is clear that there are less number of dailwagers in Right Bank of Shetruji Main Canal Sub Division, Talaja Fulsar Section, where the petitioner was transferred and therefore it cannot be denied that it is because of the administrative reasons. Moreover, there is nothing on record to support the case of the partitioner that the registration of the FIR or the complaint made before the Collector is the reason for transfer.

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5.1 Further, in the decision of Hon'ble Supreme Court in the case of Union of India and Anr. V/s. Deepak Niranjan Nath Pandit reported in (2020) 3 SCC 404, it has been held as under:-

"However, we are categorically of the view that the impugned order of the High Court interfering with the order of transfer was in excess of jurisdiction and an improper exercise of judicial power. We are constrained to observe that the impugned order has been passed in breach of the settled principles and precedents which have consistently been enunciated and followed by this Court. The manner in which judicial power has been exercised by the High Court to stall a lawful order of transfer is disquieting. We express our disapproval."

5.2 In another decision the Hon'ble Supreme Court in the case of Major General J. K. Bansal V/s Union of India and Ors. reported in (2005) 7 SCC 227, held as under:-

"9. In Mrs. Shilpi Bose and others vs. State of Bihar and others AIR 1991 SC 532, the appellants, who were lady teachers in primary schools, were transferred on their requests to places where their husbands were posted. The contesting respondents, who were displaced by the appellants, challenged the validity of the transfer orders before the High Court by filing a writ petition under Article 226 of the Constitution, which was allowed and the transfer orders were quashed. This Court allowed the appeal and set aside the judgment of the High Court by

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observing as under: -

"In our opinion, the courts should not interfere with a transfer order which are made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. 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 Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department""

6. In view of above and in view of the settled legal position, more particularly the scope of judicial review in relation to the transfer, this Court is not inclined to entertain the present petition and therefore the same is rejected summarily. No order as to costs.

(MAUNA M. BHATT,J) SHRIJIT PILLAI