D.P. Manhar vs State of Chhattisgarh and Others

Satish K. Agnihotri, J.

The petitioner impugns the order dated 26th August, 2009 (Annexure P/1) whereby the petitioner working as Incharge, Block Education Officer, Mainpur, District Raipur has been transferred as Junior Principal at Government Girls High School, Mainpur, District Raipur.

The indisputable facts, in brief, are that earlier on 20th June, 2008 (Annexure P/3) the petitioner, posted as Incharge, Block Education Officer, Sonhat, District Koria, was transferred to Mainpur, District Raipur in the same capacity. By the impugned order, the respondent No. 4 has been transferred and posted at Mainpur, District Raipur, as Incharge, Block Education Officer, and the petitioner has been transferred to the post of Junior Principal, Government Girls High School, Mainpur, District Raipur.

Shri P.S. Koshy, with Shri A.N. Bhakt, learned counsel for the petitioner submit that the impugned transfer order has been passed to accommodate the respondent No. 4, R.R. Baghel. The respondent No. 4 had earlier filed a petition being W.P. (S) No. 3676/2009 challenging the transfer order dated 30th June, 2009. This Court, on 22nd July, 2009 disposed of the petition with a direction to the petitioner (respondent No. 4 herein) to make a representation to the authorities concerned and the authorities were directed accordingly to consider and decide the representation within a further period of three weeks from the date of receipt of the representation. The representation was decided in favour of the respondent No. 4. Thereafter, the respondent No. 4 made an application on 26th August, 2009 for transferring him either to Chhura, Gariyaband or Mainpur in Raipur District, on the ground that the petitioner had been posted in Dantewada District for the last 17 years and his parents are not keeping well. Having considered the application of the respondent No. 4, the authorities, by the impugned order dated 26th August, 2009 (Annexure P/1) posted the respondent No. 4, as Incharge, Block Education Officer, Mainpur, District Raipur and the petitioner was transferred as Junior Principal, Government Girls High School, Mainpur, District Raipur. It is next submitted that the impugned transfer order has been passed to accommodate the respondent No. 4, and as such, the impugned order is vitiated.

I have heard learned counsel appearing for the petitioner, 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 regulation.

The impugned order whereby the petitioner has been transferred as Junior Principal, Government Girls High School, Mainpur, from the post of Incharge, Block Education Officer, Mainpur, 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. The contention of the petitioner that the impugned order has been passed to accommodate the respondent No. 4 is misplaced as in case of transfer, if one employee is posted at a particular place, the person occupying the said place is always replaced and posted at some other place. The respondent No. 1 has considered the difficulties faced by the respondent No. 4 on the ground of having been posted for about 17 years in a naxal affected area i.e. Dantewada. It appears that the respondent No. 1 has rightly considered the application and posted him at Mainpur.

Further, the impugned order dated 26th August, 2009 cannot be held as transfer as the petitioner has been posted from the office of Incharge, Block Education Officer to the Government Girls High School, at Mainpur itself. The petitioner is not required to shift his place of residence.

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 statute or under 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 instruction 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.

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

For the reasons as aforestated, the petition is dismissed.