M.S. Raghuvanshi vs State of Chhattisgarh and Others

Satish K. Agnihotri, J.

Challenge in this petition is to the transfer order dated 30th June. 2009 (Annexure P/1) whereby the petitioner has been transferred from Tahsil Bagicha, District Jashpur to District Bastar, and the order dated 21st August 2009 (Annexure P/2) where by the representation of the petitioner for cancelling his transfer order, has been rejected.

The facts, in nutshell, are that the petitioner was posted at Tahsil Bagicha as Tahsildar. He was appointed as Assistant Registration Officer for preparation of electoral roll for the elections of local bodies. The petitioner was transferred vide order dated 30th June, 2009 (Annexure P/1) from Tahsil Bagicha, District Jashpur to District Bastar. The petitioner filed a writ petition being W.P. (S) No. 3403/2009, challenging the aforesaid transfer order. The writ petition was disposed of vide order dated 13th July, 2009 (Annexure P/ 11) with a direction to the petitioner to make a representation to the respondent authorities within a period of 10 days and in turn, the respondent authorities were directed to consider and decide the representation of the petitioner within a further period of three weeks from the date of receipt of the representation. Accordingly, the petitioner made a representation on 23rd July, 2009. The said representation was considered by the authorities and was rejected vide order dated 21st August, 2009 (Annexure P/2).

Learned counsel appearing for the petitioner submits that the impugned transfer order has been passed in violation of the transfer policy 2009-10. He further submits that the impugned order is contrary to the circular dated 1st July, 2009 (Annexure P/10) issued by the Joint Secretary to the Government of Chhattisgarh, General Administration Department, wherein it is provided that any person involved in the work of preparation of voter list shall not be transferred.

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

Submission of the petitioner is contrary to the well-settled principle of law that if there is any violation of any executive instructions that may not be the ground for interfering with the transfer order. Thus, the aforesaid contention that the transfer order has been passed contrary to the circular/ policy issued by the Government, is rejected.

It is well-settled 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 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 provision 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 and circular dated 1st July, 2009 (Annexure P/10) is concerned, the transfer policy and circular are mere guidelines and not controlled by statutory provisions or under some provisions of the Constitution providing therefor. The effect thereof is advisory in character and thereby no legal right is conferred upon the employee.

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, in preceding para 6, warranting interference with the impugned transfer order.

For the reasons as aforestated, the petition is dismissed.