Rajesh Kumar Pandey v. State of Chhattisgarh

Judgment

#4. State of Chhattisgarh Through Its Principal Secretary, Department of Commercial Tax (Excise), Ministry, Mahanadi Bhawan, Capital Complex, Atal Nagar, PS and PO Rakhi, District Raipur, Chhattisgarh Under Secretary, Department of Commercial Tax (Excise), Ministry, Mahanadi Bhawan, Capital Complex, Atal Nagar, PS and PO Rakhi, District Raipur, Chhattisgarh Commissioner (Excise) GST Bhawan, Nawa Raipur, Atal Nagar, District Raipur, Chhattisgarh Deputy Commissioner (Excise) District Bilaspur Chhattisgarh ---- Respondents (Cause-title taken from Case Information System) For Appellant For Respondents : :

Mr. Mateen Siddiqui, Advocate 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

21.07.2022 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 08.07.2022 passed by the learned Single Judge in WPS No. 4747 of 2022, dismissing the writ petition. 2

#3. Challenge in the writ petition was to an order dated 23.06.2022 issued by the Secretary, Commercial Tax (Excise), transferring the petitioner from Office of Assistant Commissioner Excise District, Bilaspur to Office of Assistant Commissioner Excise District, Raigarh.

#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 further submitted by Mr. Siddiqui that as the appellant is holding the post of President, Rajya Karmchari Sangh, District Bilaspur w.e.f. 04.07.2020, as per the policy in force, he being an office bearer, is not liable to be transferred for a period of three years from date of his appointment as a President. However, this aspect of matter was not considered by the learned Single Judge. 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 : 3 “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”. 4

#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”.

#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 5 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 indefeasible 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. 6

#12. With the aforesaid modification of the order of the learned Single Judge, the writ appeal stands disposed of. Sd/- (Arup Kumar Goswami) Sd/- (Parth Prateem Sahu) Chief Justice Judge Chandra