Albert Tirkey vs State of Chhattisgarh and Others

Satish K. Agnihotri, J.—With the consent of learned Counsel appearing for the petitioner, the petition is heard finally.

The petitioner, by this petition, impugns the legality and validity of the order dated 7-11-2009 (Anncxure P-1) whereby the petitioner has been transferred from Raigarh to Bastar.

Learned Counsel appearing for the petitioner submits that in the present place of posting, i.e., Raigarh, the petitioner has joined on 12-6-2009 and within a period of six months, the impugned transfer order dated 7-11-2009 has been passed by transferring the petitioner to a naxalite infested area, i.e., Bastar. The petitioner has already served in a naxalite infested area for a long period and according to the transfer policy/circular of the State Government if an employee has already served in a naxalite infested area he shall be posted in a non-naxalite infested area. During the course of arguments, learned Counsel appearing for the petitioner placed his reliance upon Section 14 of the Chhattisgarh Police Act, 2007 (for short "the Act, 2007"). Shri Patel further submits that no exceptional circumstances are available for transferring the petitioner from the present place of posting within a period of two years. Thus, the impugned order is against the provisions of Section 14 of the Act, 2007.

I have heard learned Counsel appearing for the petitioner, perused the pleadings and the documents appended thereto. The contention of the petitioner deserves to be rejected on the simple ground that in a catena of decisions it has been held that transfer policy/circular is a mere guideline and it is not enforceable by way of writ in exercise of writ jurisdiction of the High Court. The transfer policy does not have colour of statute. The transfer order has been passed on the basis of administrative exigency.

The petitioner without mentioning anything in the petition about the Act, 2007 has orally made submission. However, from bare perusal of Section 14 of the Act, 2007, which specifically provides that the Police Officer posted as Officer- in-Charge of a Police Station; or as a District Superintendent of Police, in-charge of a Police District shall have a minimum tenure of two years, whereas, in the case on hand the petitioner is not posted as Officer-in-Charge of a Police Station. Thus, Section 14 of the Act, 2007 is not applicable to the facts of the present case. The petitioner has failed to prove the malafide and lack of competence of the officer passing the impugned transfer order. Thus, the transfer order is just and proper.

It is well-settled that transfer is an incidence of service and it is for the employer to decide as to where a particular officer/employee be posted, keeping in view public interest as well as administrative exigency. This Court has limited jurisdiction to interfere with the transfer matter, except in the cases of proved malafide, 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: E.P. Royappa Vs. State of Tamil Nadu and Another, , Mrs. Shilpi Bose and others Vs. State of Bihar and others, , Union of India (UOI) and Others Vs. Sri Janardhan Debanath and Another, , State of Madhya Pradesh, and Another Vs. S.S. Kourav and Others, and Mohd. Masood Ahmad Vs. State of U.P. and Others, ]

In The Chief Commercial Manager, South Central Railway, Secunderabad and Others Vs. G. Ratnam and Others, , the Supreme Court observed as under:

It is well settled that the Central Government or the State Government can give administrative instructions to its servants how to act in certain circumstances; but that will not make such instructions statutory rules which are justiciable in certain circumstances. In order that such executive instructions have the force of statutory rule, it must be shown that they have been issued either under the authority conferred on the Central Government or the State Government by some statute or under some provisions of the Constitution providing therefor. Therefore, even if there has been any breach of such executive instructions that does not confer any right on any member of the public to ask for a writ against the Government by a petition under Article 226 of the Constitution of India.

Even otherwise, there is no challenge to the impugned transfer order on any other permissible legal grounds as aforestated, warranting interference with the impugned transfer order.

For the reasons as aforestated, the petition is dismissed at the motion stage itself.