G.S. Dhiwar vs State Of Chhattisgarh

Heard Mr. Ghanshyam Kashyap, learned counsel for the appellant. Also heard Mr. Jitendra Pali, learned Deputy Advocate General, appearing for respondents No. 1 & 2 and Mr. Ajay Kumrani, learned counsel, appearing for respondent No. 3.

This appeal is directed against an order dated 14.11.2022 passed by the learned Single Judge in Writ Petition (S) No. 7134 of 2022, whereby, writ petition filed by the appellant was dismissed as without being of substance.

The substantive post of the appellant is Lecturer (English). The appellant was posted as In-charge Block Education Officer, Baramkela vide order dated 22.08.2019 and while working as such, by an order dated 30.09.2022, he was transferred showing him as Lecturer (Political Science) to Government Girls Higher Secondary School Pauni, Block Bilaigarh. In the place of the appellant, the respondent No. 3, who was working as Lecturer (Sanskrit), in Government Higher Secondary School, Malda, was transferred.

The primary ground canvased before the learned Single Judge was that there was violation of Clause 2.9 of Transfer Policy, 2022 in that the appellant is sought to be relieved by the respondent No. 3, who is junior to the appellant.

On the aforesaid ground, the view taken by the learned Single Judge cannot be faulted with. However, in appeal, a ground has been taken that in the school, where the appellant has been transferred, their are two sanctioned posts of Lecturer (English), both of which are filled up.

The appellant came to be relieved on 31.10.2022 and respondent No. 3 had joined the post held by the appellant. As none was transferred to the post held by the respondent No. 3, an interim order dated 08.12.2022 was passed directing the respondents not to fill up the said post.

That the appellant is a Lecturer (English) and that the two posts of Lecturer (English) in the school where the appellant is transferred is not vacant and that the appellant was transferred as a Lecturer (Political Science) though, actually, he is a Lecturer (English) are not disputed either by Mr. Pali or by Mr. Kumrani.

Though transfer is an incidence of service, it cannot be countenanced that an employee can be transferred on administrative ground to another place where there is no vacant substantive post. Likewise, a Lecturer in English cannot be transferred to teach Political Science.

On a query of the Court, Mr. Kumrani very fairly submits that after he had taken over charge of the post earlier held by the appellant, he did not have to shift his residence and he is discharging his duties residing in the very same place from where he used to discharge his duties while serving as a Lecturer in Government Higher Secondary School, Malda.

Though the order of transfer of respondent No. 3, per se, to the post held by the appellant, otherwise cannot be faulted with, having regard to the narration of facts, we are of the opinion that the appellant could not have been transferred to Government Girls Higher Secondary School Pauni, Block Bilaigarh in absence of there being any vacant post of Lecturer (English).

In that view of the matter, the order of transfer dated 30.09.2022 in respect of the appellant has to be interfered with. Ordered accordingly. As a logical corollary, the order of transfer of respondent No. 3 also stands quashed.

It is submitted by Mr. Kashyap that he has not been paid his salary from November, 2022 as he could not join, there being no vacant post.

In that view of the matter, the absence of duty of the appellant during the interregnum period shall be regularized by the respondent authorities as on duty and his pay and allowances be also paid accordingly.

Liberty is, however, reserved to the State respondents to pass orders of transfer, if considered expedient in the interest of administration.

The writ appeal stands disposed of accordingly.