Chandra Shekhar Vijaywar v. State Of Chhattisgarh
NAFR HIGH COURT OF CHHATTISGARH, BILASPUR WPS. No. 7236 OF 2019 Chandra Shekhar Vijaywar S/o - Shri Yashwant Singh Aged About 46 Years Presently Posted As Assistant Teacher (L.B.) At Government Primary School Matekala, Dongargarh, R/o - Shivaji Ward No. 23, Dongargarh Tahsil Dongargarh District Rajnandgaon Chhattisgarh ---- Petitioner
Versus
1. State Of Chhattisgarh Through Its Secretary, Department Of School Education, Mantralaya Mahanadi Bhawan, Naya Raipur District Raipur Chhattisgarh
2. Collector, Rajnandgaon, District Rajnandgaon Chhattisgarh
3. District Education Officer, Rajnandgaon, District Rajnandgaon Chhattisgarh
4. Block Education Officer, Dongargarh, District Rajnandgaon Chhattisgarh ---Respondent(s) For Petitioner :
Mr. Ishan Verma, Adv.
For State :
Ms. Sunita jain, G.A.
Hon'ble Shri Justice P. Sam Koshy Order on Board 13.09.2019
1. The challenge in the present writ petition is to the order (Annexure P-1) dated 26.08.2019, whereby the representation of the petitioner after a direction given by this Court in WPS No. 6007 of 2019 stands rejected.
2. Admittedly, the petitioner is working as an Assistant Teacher with the State Government. The services of the petitioner undoubtedly are transferable. Vide order dated 12.07.2019, the petitioner has been transferred from Primary School, Matekata/Dongargarh to Primary School, Bakarkatta/Chuuikhadan. The distance between the two places of posting is around 150 Kms only. This Court on an earlier round of litigation has disposed of the writ petition directing the respondent authorities to consider the representation which the
petitioner has raised so as to ascertain whether the Administrative Exigency required the transfer or not.
3. The State Government, respondent have now passed the impugned order wherein it has been held that considering the student teacher ratio at the place where the petitioner has been transferred by the order of transfer on 12.07.2019, on Administrative Exigency compelled the respondents to transfer the petitioner vide order dated 12.07.2019.
4. The ground challenge in the writ petition is that the authorities concerned have not considered the representation properly in as much as the contention which the petitioner has raised in the representation as also the order passed by this Court have not properly appreciated nor they have taken a decision in the impugned order.
5. So far as the challenge to the order of transfer is concerned. Law of the Supreme Court has been well settled by a catena of decisions wherein Supreme Court specifically held that unless the order of transfer is contrary to the rules or has been passed by Incompetent Authority or have been issued with malafide, the Court would have no power to interfere with the order of transfer made on Administrative Exigency.
6. The Supreme Court have repeatedly held that If at all, if the employee is aggrieved by an order of transfer he can at best make representation to the authorities concerned and the High Courts can not substitute itself as another Higher Authority in the Administrative
Hierarchy to decide the place of posting, tenure of posting or to decide as to who has to be transferred when and where.
7. In case of State of U.P. Vs. Siyaram (2004) 7 SCC 405, wherein the Supreme Court has held as under:- "The High Court while exercising jurisdiction under Articles 226 and 227 of the Constitution of India had gone into the question as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon peculiar facts and circumstances of the case concerned. No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration.
Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corpn. Ltd. V. Shri Bhagwan".
8. A Similar view has also been taken by the Supreme Court in case of Union of India and others V. Janardhan Debanath and others (2004) 4 SCC 245.
9. Again, in the case of State of U.P. and others V. Govardhan Lal, wherein the Supreme Court referring to the transfer policy of the State Govt. have categorically held that such policies do not have force of law nor is it mandatorily to be followed. Those are only guidelines which the authorities have to bear in mind while making the transfer. The Supreme Court in Paragraph 7 & 8 in the said judgment has 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 official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments.
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.
8. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that courts or tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer".
10.
So far as contention of the petitioner that the impugned transfer order is contrary to the policy of the State Government is concerned, the policies are mere guidelines and not controlled by any statutory provisions. The effect thereof is a advisory in character and thereby no legal right is conferred upon the employee. Chief Commercial Manager, Sought Central Railway, Secundarabad & others V. G. Ratnam & others 2007 (8) SCC 212. 11.
The Supreme Court, in Airports Authority of India V. Rajeev Ratan Pandey & others, 2009 (8) SCC 337 held that "In a matter of transfer of a government employee, scope of judicial review is limited and the High Court would not interfere with an order of transfer lightly, be it at interim stage or final hearing. This is so
because the Courts do not substitute their own decision in the matter of transfer".
12.
Even otherwise, there is no challenge to the impugned order on any permissible legal grounds as aforestated, warranting interference.
13.
This Court has limited jurisdiction to interfere with the transfer matter except in the cases of proved mala fide, non-competence of authority passing the transfer order and not being in conformity with the rules and regulations. The petitioner/employee cannot be permitted to remain at one place forever. Under the provisions of service rules, employer has all the powers to post an employee at a particular place in view of public interest and administrative exigency. (See High Court of Judicature of Madras Vs. R. Perachi (2011) 12 SCC 137.
14.
In view of the aforesaid judgments by the Supreme Court and which have been followed by all the High Courts in the country, this Court does not find any strong case made out by the petitioner calling for interference with the impugned order of transfer, thus, the petition being devoid of merits deserves to be and is accordingly dismissed. Sd/- (P. Sam Koshy) Judge Jyotijha