P.C. Sahu v. State of Chhattisgarh & Ors.

P.C. Sahu, S/o Shri D.R. Sahu, aqed about 46 years, Sub Divisional Officer, Woter Resources, Sub Division No.2, Kota, District Bilaspur (Chhottisgarh)

1. State of Chhattisgorh, Thr-ough the Secretary, Resources Water Oepartment, AAantralaya &.K.S. Bhowan, ftaipur.

2. Shri &.K. Phatnani, Assistant Engineer (brawing), Office of Chief Engineer, Hasdeo Kachhar, Bilaspur. Present: Mr. P. Cs'mokar, Sr. Advocate with Mr. Utkarsh Verma, Advocate for the petitioner. Mr. Ajay Dwivedi, &y. Sovernment Advocate for respondent No.l, br. N.K. Shukln, Sr. Acivocate with Mr. Sonjay K Agarwal &. ttiss ftitu Mishra, Advocates for- the respondent No.2. OR&E R ^ossed onS.ST. 3.200^ Per &hirendra Mistu"a, J:

1. The petitioner by this petition under Article 226/227 of the Constitution of India has prayed for quashing ofthe order dfft'ed 6.7.2007 (Annexure P-Z) as regards to the petitioner, whereby the petitioner has been transferred from Kota to the Office of ^' Chief Engineer, t-lasdeo Kochhar, Bilogpur in place of respondent No.2 herein.

2. The petitioner is posted as Sub bivisionat Officer, Water Resources bepartment, Sub-Division No.2, Kota, District Bilaspur, whefeas, Engineer (brawino) respondent No.2 was posted as Ass'istant in the office of Chief Engineer, Hasdeo Kachhar, Bilaspur. Responderrt No.l vide order dated 6.7.2007 (Annexure P-2) transferred the petitioner on administrative around froni Kota to Hasdeo Kochhor, Bilaspur, whereas, respondent No.Z was transferred by the same order •from ^s£!3t'^ y^"""^"% '? ^' ^: e »^ -Ma \fc'"^S^EBSS'? Hasdeo Kachhar, Bilaspur to Kota on his own expenses. The petitioner has impugned his transfer order on the younds that; • the sarne has been passed in contravention of the transfer policy (Annexure P-3) of the State, as the petitioner has been transferred from his present place of posting u/ithin a period less than two years, whereas, normatly the oovernnnent servant should not be transferred before n period ofthree years froni the date of his posting; • the transfer may be effected keeping in view the option of the concerned officer, however, the same should be justified on administrative ground also. In the instant case the petitioner has been transferred just to accommodate respondent No.Z, as he hafi been transferred on his own expenses; • transfer is also bod as Works Departnnent Manual, 1983 envisa9es thot E.E.s, S.D.Os and Sub-Engineers, who are in-charge of construction of a project, should not be transferred tiil the completion of the project and the transfer should be particutarly avoided when nala closure u/orks are in pr'ogresis unless there are speciol reasons or ¥- circumstances to do so.

3. Learned counsel for the petitioner submits that the petitioner is engaged in the import-ant work of nala closure u/ork and therefore, Executive Engineer, Water Resources bepartment, Kota considering the importance of work of the petitioner had expressed his reluctance to spare the petitioner from his sub-division vide memo of Annexure P-6 addressed to the Superintending Engineer, who in turn communicated the above difficuhy in posting the petitioner, as proposed, to the Chief Engineer vide Annexur-e P-7. Referring to Section 8.1.036 of the Works bepartment AAanual, 1983 it was argued that engineers, who are in-charge of construction of a project, should not be transferred till completion of the project, particularly when nala closure work is in progress unless there are special reaaons or circumstances to do so and whenever such transfers are ordered, it should be the responsibility of the officer in- charge to render completion report of the work ei®cutedin his incumbency up to the time of his transfer. In the instant case it is evident from the transfer order itself that the petitioner was transferred only after a short- period of his posting at the present place juat to acconimodate respondent No.2. Reliance is place in the rniatter of B. Vardha Roo Vs Stat®of Karnateka and others reported in AIR 1986 SC 1955.

4. On the other hand. learned counsel for resoondent No.l in its reply have stated that the petitioner was transferred on adminiatrative exioency to Hasdeo Kachhar, Bilaspur, ii/hich is appro>dmately 30 km from his present place of posting. Wark of the petitioner was not sotisfactory and therefore, he was issued instructions from the superior officers from time to time to expedite the work, as the pace of work was very slow. As per u/ork orders, construction works of AAajhwani A Ringwar dams and nata closure etc. were to becorripleted within four months v' including rainy season froni the date of issuance of u/ork orders i.e. 4.1.2007 & 8.1.2007 respectively. However, the work could not be completed u/ithin time. The petitioner had himself submittedthe completion certificate (Annexure Rl/9) of only one work under his supervision. Transfer order of the petitioner and respondent No.2 was issued on 6.7.2007 and the same was to be complied with u/ithin a period of three days, as per memo of Annexire Rl-3. In compliance of the above order, respondent No.2 u/as relieved from 1-lasdeo Kachhar, Bilaspur on 7.7.2007 ond thereafter he gave his joining at Kota on 9.7.2007 vide Annexure Rl/5. By the impugned order apart from the oetitioner resoondent No.2, 115 other Assisttint o (^ Engineers/Sub bivisionat Officers etc. were tpansferred on adniinistr'ative and other qrounds and it is not a case of an isotated transfer to accommodate respondent No.2, as alleged. Transfer policy of the State fiovernment is mere guidelines and it does not have the force of statutory rule. The transfer is on exigency of adniinistration and the said guidelines do not confer a legaliy enforceable ri9ht. Reliance is ptaced on the matter of Union of India and others Vs. S.i.. Abbos reported in AIR 1993 SC 2444 A Mohd. ttosood Ahmnd Vs. State of U.P. and others reported in (2007) 8 SCC 150.

5. I have heard learned counsel for the parties.

6. The petitioner has inipugned the tremsfer order on the youncf that the same is in violation of Clause 5 A 6 of the transfer poticy of the State (Sovernmen't for the year 2007-08 (Annexure P-3), u/hich provide that so far as possible the fiovernment officers who have not completed three years' in their place of posting, they shoutd not be tr'ansferred and in case their tr'ansfers are to be effected on account of complnint, then only after preliminar-y en^uiry the tronsfer shoutd be effected. While transferring on employee on his requesf at his expenses, it ¥-• shoutd ensured the transfer proper administratively. In the instant case. transfer has been effected in less than two years just to accommodate respondent No.2 without there be'mo. anv odministrative exiflency. Order of tranafer is also bad as the same has been pasaed ionoring the Works Departnient Manuai, 1983, according to which the peti+ioner could not be transferred, as he was engaged in the construction work of a project and work of Nala ctosure was in progress.

7. In the matter of B. Vardha Rao (supra) it hos been hetd that though it is an accepted principle that in public service transfer is an incident of service.It is also an imptied condition of service 'M '%. ^ 'v '%ik^y^ '^SK^-f^ \^\ and einoloyer' has a wide discretion in the rpatter. f-fowever. a transfer is malafide when it is made not for professed purpose, such as 'm normal course or in pubtic or administrative interest or- in the exigencies of service but for o+her purpose that is to •for undisclosed reasons. It is the accommodate another person basic principle of rule of law and good administration that even administrative actions shoutd bejust and fair.

8. In the inettter of S.L. Abbas (supra) it has been held that who should be transferred where, is a motter" for the approprint'e outhority to decide, Unless the order of transfer is vitiated by tnala fides or is made in violotion of any statutory provisions, the Court cannot interfere w/ith it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the (5overnment on the subject. Siniilarly, if a person rnakes any representation with respect to his transfer, appropriate authority must congider the sarne having regard to the exigencies of administrCTtion. The guidelines say that os far as possible, husband and wife inust be posted at the same place. The said guidetine however does not confer upon the &overnnient »- employee a legally enforceable right. fc!

9. In the matter of Mohd. AAasood Ahmad (supra) in Para-7 the Hon'ble Apex Courl', after referring its geverol judgments, held that scope of judiciat review of transfer under Articte 226 of the Constitution of India has been settled by the Supreme ^ourt. It has been further held that an order of transfer is a part of service condition of an emptoyee which should not be interfered with ordinorily by a court of law in exercise of its discre+ionory jurisdiction under Article 226 unless the court finds that either the order is mata fide or thcrt the service rules prohibit such tr'ansfer, or that the authoritjes who issued the or-ders were not competent to pass the orders.

10. In the instant case the petitioner has alteged in his petition that he has been transferred from his present place of posting within two years just to accomrnodate respondent No.2, as the tronsfer order mentioned that respondent No.2 has been transferred on his own expenses i.e. on his oui/n request. Except thEtt respondent No.2 has been transferred on his own expenses, no other mala fide has been imputed on the transferring authority. On the contrary, from perusal of the tronsfer order itself it is seen that by the said order 115 Assistant Engineers/Sub bivisionat Officers posted at various places have been transferred to different places on administrative grounds/personat requests. fteply of the respondent No.l-State also shows that numbers of memos were issued to the petitioner hightighting the importance of the u/orks, which were entrusted to him and expressing that the pace of the work was not sotisfoctory.

11. Takina into consideration the limited scope of interference in the transfer matter, as propounded by the Hon'ble Supreme Court in the above judgments, there is no foundotion to infer v' that the petitioner was trdnsferred not out of odministrctive exigency but mota fidely in order to accomniodate respondent No.Z. Simply because respondent No.2 hns been transferred at the ptace of petitioner on his own expenses, it cannot lead to an inference that actuat purpose of the transfer was accomnnodate respondent No.Z.

12. In the circumstances, I am of the considered opinion that in the facts and circumstances of the case there is no yound to interfere with the transfer order of Annexure P-2 dated

6.7.2007.

13. In the resuH-, there is no substonce in the instant petition, the same deserves to be dismisaed and it is accordingly dismissed. L No order as to costs. Sd/- DhirendraMishra Judge