l^^' ^^'i^^S^ -Q..-" ^v IN THE HON'BLE HIGH COURT QFCHHATTISGARH AT BILASPUR PETITIONER RESPONDENTS W.P.(S)No. l^C'{j /2Q10 Pawan Kumar Markande, S/o. Late Ramprasad Markande, aged about 50 years, R/o. Gudiyari, Raipur, District Raipur (C.G.) VERSUS 1] State of Chhattisgarh, through: Secretary, Tribal Welfare Department, D.K.S. Bhawan, Raipur, District Raipur (C.G.) 2] Commissioner (Tribal Welfare), University Campus, Raipur, District Raipur (C.G.) 3] Chief Executive Officer, Janpad r,^--. Panchayat, Gariyaband, District Raipur (C.G.) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA 1] PARTICULARS OF THE PETITIONER (S): :-^iaiB HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S) N0. 1604 of2010 Q.-^y PETITIONER Pawan Kumar Markande RESPONDENTS Versus State of Chhattisgarh & Others -^. Post for pronouncement ofjudgment & order on .<?.<?.'^bay ofApril, 201 1 Sd/- Satish K. Agnihotri Judge % '^y^:- J ^ •^y .5;.. '^.^' HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S) N0. 1604 of 2010 PETITIONER RESPONDENTS Pawan Kumar Markande Versus State of Chhattisgarh & Others Single Bench ; Hon'ble Shri Satish K. Agnihotri, J. Writ Petition Under Article 226 Of The Constitution Of India Present:- Shri Manoj Paranjpe and Shri Vikram Dixit, Advocates for the petitioner. Shri Y.S.Thakur, Dy. Advocate General with Shri P.K.Bhaduri, Panel Lawyer for the State. 1-^ (Delivered on ,2<y day of April,2011) 1. Challenge in this petition is to the order dated 26.03.2010 (Annexure P-1), whereby the representation of the petitioner for grant of arrears ofwages from August, 2008 to October, 2009 was rejected and further the petitioner was transferred from Janpad Panchayat Gariyaband, District Raipur to the Higher Secondary School, Mardum, District Jagdalpur. 2. The indisputable facts, in nutshell, are that, initially, the petitioner was working in the Higher Secondary School, Kansinghi, District Raipur, wherefrom he was transferred by order dated 07.07.2007 (Annexure P-2) to the office of the Assistant Commissioner, Tribal Welfare Department, Durg, on his request. Thereafter, the petitioner was transferred to the office of the Chief Executive Officer, Janpad Panchayat Gariyaband, District Raipur, by order dated 30.06.2008 (Annexure P-3). 3. The petitioner challenged the order dated 30.6.2008 in this Court in W.P.(S) No.3579/2008. This Court, by order dated 10.07.2008 (Annexure - P/4), directed the concerned authorities to consider and decide the representation dated 03.07.2008, made by the .-/\ "^ '% ^ ^., •:-i '^ 2 petitioner. It is pertinent to mention that the petitioner did not press the matter on merits. As a sequel, the Secretary, Scheduled Caste & Scheduled Tribe Welfare Department, by order dated 13.08.2010 (Annexure - P/5), rej'ected the representation of the petitioner holding that the petitioner was a surplus employee on the post ofAccountant in the office ofthe Assistant Commissioner, Tribal Welfare Department, Durg. Thus, the order dated 30.06.2008 was found proper. 4. Thereagainst, the petitioner preferred one more writ petition, being W.P.(S) No.4652/2008. The writ petition was dismissed by this Court on 26.08.2008, as being devoid of merit. However, it was observed that the Government may consider and post the petitioner on a particular place, where the post of Accountant was available. A new representation was made pursuant to the order dated 26.08.2008. Meanwhile, the petitioner being aggrieved by the order dated 26.08.2008, passed in WP (S) No. 4652 of 2008 has preferred a writ appeal, being W.A.No. 192/2008, before the Division Bench, which was also dismissed on 11.09.2008. 5. The Under Secretary to the Government, Scheduled Caste & Scheduled Tribe Welfare Department, by communication dated 06.11.2009 (Annexure P-8) directed the Assistant Commissioner, Tribal Welfare Department, Raipur, that if the petitioner joins the place of posting, he should be paid salary from the place of posting. On the same date, a letter was written to the Chief Executive Officer, Zila Panchayat Raipur, stating that since there was a difficulty in drawing the salary from the office of the Chief Executive Officer, Janpad Panchayat Gariyaband, on account of posting of one Rajendra Bahra, Rajendra Bahra may be posted at Zila Panchayat Raipur. 1:~7 3 6. Shri Paranjape, learned ' counsel appearing for the petitioner submits that pursuant to the order dated 30.06.2008, the petitioner has attempted to join the office of the Chief Executive Officer, Janpad Panchayat Gariyaband, District Raipur. Challenge to the order dated 30.06.2008 in W.P. (S) No.4652/2008 was rejected on merits. However, it was observed that the respondent authority may consider and post the petitioner on particular place, where the post of Accountant is available. Thereagainst, the petitioner has preferred a writ appeal, which was also dismissed by the learned Division Bench on 11.09.2008. 7. Thus, except the self-same statement, the petitioner has failed to establish that, before 06.11.2009, the petitioner has taken any steps to comply with the order dated 30.06.2008. Thus, the order of refusal to grant payment of salary for the period August, 2008 to October, 2009 is just and proper as during such period the petitioner has not even attempted tojoin the office at Gariyaband. 8. It is also not a case of the petitioner that there was any interim relief granted by this Court staying the order dated 30.06.2008. Thus, the order is just and proper does not warrant any interference. 9. So far as the order of transfer of the petitioner to the High Secondary School, Mardum, District Jagdalpur, against vacant post of Accountant is concerned, the petitioner has not impleaded S.K. Yadav as a party respondent who has been transferred on the post of Accountant in the office of the Chief Executive Officer, Janpad Panchayat Gariyaband, in place of the petitioner. It is clear from the written submission of the petitioner that one S.K. Yadav has been transferred and posted at Gariyaband on the post of Accountant on his request vide order dated 14.7.2010 and the ^- ...A ..ri'^l^ ^ ^ .¥? ' '^ ^ e{ ?'S. . Sft 8 ^SKSS*'^. V ^scy y\ present petitioner has been transferred to the Higher Secondary School, Mardum, Jagdalpur. 10. The question asto whether the transfer order was punitive in . nature cannot be considered for want of impleadment of proper party, who may be substantially affected by the decision on the nature ofthe impugned transfer order. 11. The legal position has been crystallised in a number ofjudgments that transfer is an incidence of service and transfers are made according to administrative exigencies. It is trite law that transfer is an incidence of service and as such an employee does not have any indefeasible right to be posted at one particular place. Unless an order of transfer is passed contrary to the provisions of the statutory rule or settlement, the same should not be interfered with fSee - Novartis Ind/a Ltd. v. State of W.B.,(2009) 3 SCC 124 and TusharD. Bhatt v. State of Gujarat,(2009) 11 SCC 678). 12. Applying the well settled principles of law as enunciated by the Hon'ble Supreme Court to the facts of the present case and for the reasons aforestated, the petition is devoid of merit and is accordingly dismissed. 13. There shall be no order asto costs. Sd/- Satish K. Agnihotri Judge ashok