Nafr High Court
Case Details
1 2025:CGHC:12222 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 168 of 2025 1 - Rakesh Jhalke S/o Vinayak Rao Jhalke Aged About 48 Years Posted As Pump Operator, Municipal Corporation Jagdalpur, District Bastar Chhattisgarh versus ... Petitioner(s) 1 - State Of Chhattisgarh Through The Secretary, Urban Administrative And Development Department, Mantralaya, Mahanadi Bhawan, Naya Raipur, District Raipur Chhattisgarh 2 - Under Secretary Urban Administrative And Development Department, Mantralaya, Mahanadi Bhawan, Naya Raipur, District Raipur Chhattisgarh 3 - Director Urban Administrative And Development Chhattisgarh Nava Raipur Atal Nagar District Raipur Chhattisgarh 4 - Municipal Corporation Jagdalpur Through Its Commissioner District Bastar Chhattisgarh ... Respondent(s) (Cause-title taken from the Case Information System)
Legal Reasoning
For Petitioner(s) : Mr. Ghanshyam Kashyap, Advocate For State : Ms. Poorva Tiwari, Panel Lawyer For Resp. No. 4 : Ms. Shruti Parmar, Advocate appearing on behalf of Mr. Ashutosh Singh Kachhawaha, Advocate SB- Hon'ble Shri Justice Amitendra Kishore Prasad 11.03.2025 Order On Board 1. Petitioner has filed this writ petition challenging the impugned orders Dated 23.10.2024 (Annexure-P/1), 27.08.2024 (Annexure-P/2) and 28.08.2024 (Annexure-P/3). Vide order dated 23.10.2024 (Annexure- P/1) issued by the Under Secretary, Urban Administrative & Development Department, whereby representation submitted by the 2 petitioner was rejected & order has been passed. Vide order Dated 27.08.2024 (Annexure-P/2) issued by respondent Under Secretary, Urban Administrative & Development, whereby services of the petitioner was transferred from Municipal Corporation, Jagdalpur to Municipal Corporation, Raigarh. Vide Order Dated 28.08.2024 (Annexure-P/3) issued by the Commissioner Municipal Corporation, Jagdalpur, whereby services of petitioner was relieved. 2. Petitioner is praying for following reliefs :- “10.1 That this Hon'ble Court may kindly be pleased to set-aside/ quash the impugned order Dated 23.10.2024 issued by respondent Under Secretary, Urban Administrative & Development Department (Annexure P/1). 10.2 That, this Hon'ble Court may kindly be pleased to set-aside/ quash transfer order Dated 27.08.2024 issued by respondent Under Secretary, Urban Administrative & Development (Annexure P/2) inrespect of the petitioner. 10.3 That, this Hon'ble Court may kindly be pleased to set-aside/ quash relieved order Dated 28.08.2024 issued by the Commissioner Municipal Corporation, Jagdalpur (Annexure P/3) 10.4 To kindly grant any other writ/ writs, order/ orders, relief/ reliefs in favour of the petitioner, which the Hon'ble Court deemed fit & just in the facts and circumstances of the case, including awarding of the costs to the petitioner.” 3. Facts of the, in a nutshell, are that the petitioner was posted as Pump Operator at Municipal Corporation Jagdalpur District Bastar. Vide order Dated 27.08.2024 issued by respondent Under Secretary, Urban Administrative & Development, services of the petitioner was transferred from Municipal Corporation Jagdalpur to Municipal 3 Corporation, Raigarh. The Commissioner, Municipal Corporation, Jagdalpur vide order Dated 28.08.2024 relieved the services of the petitioner. The petitioner filed a writ petition before this Hon'ble Court bearing WPS No. 5602/2024 (Rakesh Jhalke vs State of C G.) which was disposed of vide order Dated 10.09.2024 giving liberty to the petitioner to make a detailed representation before the competent authority and directed the authorities to consider and decide the same. In compliance of the order Dated 10.09.2024 passed in WPS No.5602/2024, the petitioner submitted an application on 13.09.2024 before the competent authority requesting to consider the representation of the petitioner and quash the transfer order Dated 27.08.2024. Vide impugned order Dated 23.10.2024, the respondent - authorities rejected the representation of the petitioner & passed the order. 4. Learned counsel for the petitioner would submit that the petitioner has challenged the impugned transfer order on various grounds. First ground raised by petitioner is that the employees of one Municipal Corporation cannot be transferred to another Municipal Corporation as provided under Section 58(5) and 58(6) of the Municipal Corporation Act, 1956. Secondly, the wife of petitioner, namely, Smt. Vimla Jhalke is working as Teacher (LB) at Government Primary School Sandevda, Block Bakawand, District Bastar and father of petitioner is 75 years old and is suffering from paralysis and treatment is going on Raipur Son of petitioner is studying in class 11th at Jagdalpur. It is contention of learned counsel for petitioner that according to circular/guidelines Dated 03.06.2015 issued by the General Administration Department (GAD), State of C.G., the G.A.D issued policy/guideline for posting in 4 Schedule Area whereby as per the clause 2.4 which specifically mentions that transfer of an employee from scheduled area to non- schedule area, the posting of the reliever must be done, otherwise, the transfer without the reliever will be treated as "nil". Further, the GAD, State of Chhattisgarh has issued a transfer policy vide Dated 12.08.2022 for the year 2022, according to which, clause 2.6 states that in case of transfer of a government servant from scheduled area to a non-scheduled area, transferee should be relieved only after the substitution/reliever of him and the reliever should be from non- schedule area. It should also be ensured that the vacant posts of Scheduled Areas are filled. He placed reliance upon the judgment passed by High Court of Madhya Pradesh : Bench at Indore on 21.03.2018 in the case of Jitendra Shrivastava Vs State of M.P & another in WP No. 4045/2017, wherein service of petitioner was transferred from Municipal Ujjain Corporation to Municipal Corporation Ashoknagar. The Hon'ble High Court of Madhya Pradesh, quashed the transfer order by relying upon the order of Full Bench in the case of Indore Nagar Nigam Karmachari Sangh, reported in 1998 (1) MPLJ 449. 5. It is further contention of learned counsel for the petitioner that bare perusal of impugned order dated 27.08.2024 would show that the service of petitioner has not been transferred on deputation, it is a simple posting order and period of lien has also not been specified, therefore the order dated 27.08.2024 is in violation of Section 58(5) & (6) of Municipal Corporation, Act 1956 and it may kindly be quashed in respect of petitioner. 6. On the other hand, learned State counsel opposes the submission 5 made by learned counsel for petitioner and would submit that present writ petition is without any substance and deserves to be dismissed as petitioner has failed to demonstrate any infringement of right for which a writ may be issued by this Court. There is no violation of Section 58 (5) of the Chhattisgarh Municipal Corporation Act, 1956 (hereinafter referred as “the Act of 1956”) in passing the order of the petitioner. The Section 58 (5) of the Act, 1956 empowers the State Government to transfer any officer or servant of a Municipal Corporation to any other Municipal Corporation without consultation of the officer or servant concerned and also of the Corporation concerned. Further, the Act of 1956, Section 58 (6) protects the lien on the post of officer or servant and also protects the pay and allowance as entitled in the parent corporation, therefore, the grounds raised by the petitioner that, the transfer is in violation of the rules and is apprehending of seniority, pay and allowances being adversely affected, is not well-founded. It is contention of learned State counsel that the case of the petitioner has duly been examined and the posting of husband and wife at the same place can be considered sympathetically, but it is not mandatory and care of parents and treatment of father can be done from the place of posting also at Municipal Corporation Raigarh, therefore, it does not seem to create any hindrance in the child's studies, thus, the representation dated 13.08.2024, submitted by the petitioner, is not tenable and hence, rejected. In support of his contention, he placed reliance upon the decision of Hon’ble Supreme Court in the case of State of U.P. and another vs. Siya Ram and another, reported in (2004) 7 SCC 405 has held that, transfer, is not only an incident of service, but a condition of service as well and is necessary in public 6 interest and efficiency in public administration. It is further contention of learned State counsel that the impugned order passed by the respondent authorities, is proper, legal, within the jurisdiction and strictly in accordance with law, therefore, there is no infirmity or illegality in the same, the petition filed by the petitioner is devoid of merit and substance, thus, deserves to be dismissed at the threshold. 7. Learned counsel for the respondent No. 4 also opposes the submission made by learned counsel for petitioner and supported the submission made by learned State counsel. 8. I have heard learned counsel for the parties and also perused record
Decision
as well as the documents appended with the writ petition. 9. Perusal of the record as well as the order impugned passed by respondent No. 2 would show that vide order dated 23.10.2024 as well as transfer order dated 27.08.2024, petitioner, a pump operator, has been transferred from Municipal Corporation, Jagdalpur to Municipal Corporation, Raigarh. 10. In the first round of litigation, when petitioner challenged the transfer order, this Court directed respondent authorities to consider and decide the representation filed by petitioner within an outer limit of 30 days from the date of submission of the said representation in accordance with the relevant rules and law applicable to the case of petitioner. The petitioner has made specific ground that according to Section 58 (5) and Section 58 (6) of the Act of 1956, petitioner cannot be transferred from one Municipal Corporation to another Municipal Corporation. It was further case of petitioner that as per Circular dated 03.06.2015 issued by the General Administration Department (GAD), person 7 working in the schedule area are not required to be transferred without their consent. If any employee wants to reside in the schedule area, as per Clause 2.4 of the Circular dated 03.06.2015, he may not be transferred and, if any exigency arises for his transfer, he may be transferred only when there is a reliever is posted in his place. Lastly, it was argued that wife of petitioner is working as a Teacher at Jagdalpur, therefore, as per Policy of the State Government, spouse should be posted in nearby place. 11. On conscious appreciation of the grounds raised by the petitioner with respect to Section 58 (5) and Section 58 (6) of the Act of 1956, transfer can be made only on deputation or having taken lien which is not applicable in the present case. On this ground alone, transfer order seems to be not in accordance with law. I do not consider to appreciate other grounds as raised by the petitioner. Transfer order passed by respondent No. 2 shows that it was neither a deputation order not a lien, as such, transfer order passed in respect of petitioner cannot be said to be in accordance with law. 12. Accordingly, the writ petition is allowed. Impugned order 23.10.2024 (Annexure-P/1), order dated 27.08.2024 (Annexure-P/2) and order Dated 28.08.2024 (Annexure-P/3) are liable to be and are hereby quashed. 13. With the aforesaid observation and direction, this writ petition stands disposed of. Digitally signed by SHAYNA KADRI Shayna Sd/- (Amitendra Kishore Prasad) Judge