Ashok Kumar Ukey vs State of Chhattisgarh and Others

Satish K. Agnihotri, J.

With the consent of learned counsel appearing for the parties, the petition is heard finally.

By this petition, the petitioner impugns the transfer order dated 30-6-2009 (Annexure P/1) whereby petitioner has been transferred from Community Health Centre, Balod to Community Health Centre, Navagarh, District Durg and the order dated 02-09-2009 (Annexure P/5) passed by the respondent No. 1 whereby representation of the petitioner was rejected.

The indisputable facts, in nutshell, as projected by the petitioner, are that initially the petitioner challenged the legality and validity of the order dated 30-06-2009 (Annexure - P/1) by filing a petition being W.P. (S) No. 3692/2009, which was disposed of by a coordinate Bench of this Court, with liberty to the petitioner to make a representation before the authorities concerned within 10 days. Thereafter, the respondent authorities were directed to consider and decide the same within a period of three weeks from the date of receipt of the said representation. The impugned order was kept in abeyance during that period.

The petitioner cannot challenge the same order i.e. 30-6-2009 (Annexure - P/1) in the present petition, as the same has been considered and disposed of in the aforestated terms. The respondent No. 1 after considering the represention of the petitioner rejected the same on the ground that there are certain complaints made by the public representatives against the petitioner and on that very basis, the transfer order has been passed by transferring the petitioner from one place to another place within the same district.

Mr. Deshmukh, learned counsel appearing on behalf of the petitioner relies on a decision of the Supreme Court in Somesh Tiwari v. Union India & Others, AIR 2009 SCW 854. The facts of the said decision were entirely different, as the enquiry was initiated against the employee and he was exonerated in the said enquiry. Thereafter, on the basis of complaint, the employee was transferred. In that context, it was observed as under:-

The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal.

The case law cited by learned counsel for the petitioner is clearly distinguishable on the facts of the present case.

I have heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto.

The petitioner has not questioned the impugned order on the ground of mala fide exercise of power by a particular officer. There is a general allegation of mala fide and favoritisms. There is no allegation of lack of competence of the officer passing the order, or breach of any statutory rules or regulations. The impugned order whereby the petitioner has been transferred does not seem to be irregular or in breach of any statutory rules or regulations. The vague allegation of favoritisms and mala fide have not been proved strongly.

It is well-settled principle of law that transfer is an incidence of service and it is for the employer to decide asto 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 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 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,

So far as contention of the petitioner that the impugned transfer order is contrary to the transfer policy is concerned, the transfer policy is mere guidelines and not controlled by statutory provisions. The effect thereof is advisory in character and thereby no legal right is conferred upon the employee. The transfer policy has been issued neither under the authority conferred on the Central Government or the State Government by some provisions of the Constitution providing therefor.

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.

As far as transfer of the petitioner on the basis of complaints made by the public representatives is concerned, this Court in Gautam Prasad Naik v. State of Chhattisgarh & Others, W.P. (S) No. 591/2007 (decided on 31.1.2007) after relying upon the decision of the Supreme Court rendered in Janardan Debanath (supra), observed as under:-

It is well settled that the transfer of an employee can be made on the basis of complaints. Transfers unless they involve any such adverse impact or visit the persons concerned with any penal consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration. For the purposes of effecting a transfer, the question of holding an enquiry to find out whether the complaint was true, is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirement, as submitted by the respondents, of holding an elaborate enquiry is to be insisted upon, the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated.

The Hon''ble Supreme Court in Mohd. Masood Ahmad Vs. State of U.P. and Others, has upheld that the public representative or the concerned Minister may make recommendation in administrative exigency to transfer the employee from one place to other place.

Thus, the petitioner has not acquired any right to continue at a particular place. Even otherwise, there is no challenge to the impugned orders on any permissible legal grounds as aforestated, warranting interference with the impugned orders.

For the reasons as aforestated, the petition is dismisses.