HIéH COURT OF JUDECATURE OF €HHATTISGARH AT BILAsPUR Wrif Farmm No.2701 of 2003 .DETITIONER: Chandrahas Dewangan, 5/0 5hri Hm‘i Ram Dewangan, Aged abou? 36 years, Presently working as the Commissicner' Municipai Corpofafion, Kcr‘ba: Dis’rf. Karba (6.6.) 5hrl Sanjay K. Agrawal, Dy. Advocaire General Fer responden‘l's 1 and 2. 5hri Prashan‘r Mishra, Advacal‘e For respandenf No.3 w, Before: Hon'ble 5hri Jusfice LC. Bhadoo ORDE£ {Passed on ‘Lgg. September, 2003) 1. By This wrlf pefifion filed under Ari-isles 226/227 of fhe Consfifufian of India, The peTiTioner has challenged The order daTed 26—8-2003 by which The services of The peTiTianer has been repaTriaTed from The DeporTmenT of EnvironmenT & Urban DevelopmenT To his parenT deporTmenT General AdminisTraTion DeparTmenT, 6overnmenT of ChhoTTisgarh, Roipur wiThin a shorT period of 8 monThs. Versus RESPONDENTS: 1. W 5mm 0f Chhaffisgarg Through the Senrefar'y, Deparfmen? of Environment & Urban Development Manfmiaya, Dau Kalyan Singh ghawan, Raipur Chhaffisgarh. 2. Sfafe of Chhafiisgorh, Through The Secrafar'y, General Administrafion Deparfmenf, Manfmyala, Dau Kalyan Singh Bhawun, Raipur, (C.6.). 3. PB. Kashl. Dy. Dlrecfar Urban Developmenf Depfti Govt a‘f Chhaffisgar'h, Ruipur (Chhuf‘risgar'h). Presen+: - Shri R5. Jaiswal, Adveca‘i‘e Far ‘lhe pefiflaner The pe‘i’i‘rioner'3 pefi‘rion is Thu? he emer’ed fhe 5mm Adminisfm‘rive Services in fhe year 1995 affer seiecfim by The Sfa‘i’e Public Service Cammission. Affer' receiving The Training af fhe AdminiSTmfive Academy, Bhopai, The peTiTianer worked as Depufy Coilecfar a'i various places and ul‘rima‘i‘eiy an fhe forma‘rioa of ‘ihe new Sfa‘i‘e cf Chha‘i‘i‘isgar'h ihe pe‘ii‘iisner was aliacai'ed 1'0 i'he Chha‘ii‘isgarh Adminisfm‘iive Services and he was pcsi'ed as Depuiy Coilecicra Kat-be in ’rhe year 2000, he was aiso given fhe charge af Sub Divisional Magisir'afe, Kai‘ghora. , {)f Oh 16—5-2002, he was fransferr-ed and pasied as $gigufy Caliecfor, 5‘ Eiiaspur. 0n promo‘i'ian as Jain? aeiiecier fhe pe‘iifioaer was pasi‘ed a? 8ilaspur, i‘hen vide arder dafeci 29-11-2032 ihe pe‘i‘i‘i‘ianer‘ was sen'r on depu‘ia‘iion ‘i'a Urban Deveiopmenf Depar‘imen‘f and posi'ed as Cammissioneh. Municipal Corpora‘iich, Karba. Durihg This period, fhe pe‘ii‘iianer‘ warked in The inferes‘i ef Municipal Carporai'ion and general public wifh all sincerity and devo‘iion, He u‘l'ilized his efficiency, excellence and adminisi'rai'ive skills for The welfare of i'he people of Karba. During ihaf period he was able To esfablish Elecfronic Sewa Cen‘l‘re, firs? of ii's kind in i‘he Sfafe 6f Chhai'fisgarh, wherein subscribers can deposi‘l‘ fheir felephone bills, elecfricify bills, corpora‘rion faxes, make enquiries of general nafure including Railway Reserva‘i'ion a1- a single place and an Qld Age Homewas also epened _ under fhe rehabilifa‘i'ion scheme for down -’rrodden people consfruci'ed houses under “ValmikVAmbedkor Awas Vogana“. 1 i 3m“, ‘i‘o ui'i‘er surprise §& ihe pei‘i‘l‘ioner vide impugned order dated 26—8—2003 passed by respondeni' No.1, wifhin a shorf span of S‘monfhs ‘ihe pe‘rii‘ioner has again been fransferred and more specifically repairia‘i'ed To The parenT deparTmenT wiThouT indicaTing any furTher place of posTing. The peTiTioner believes ThaT This Time his repaTriaTion is poliTicolly moTivaTed To please and acT on dicTaTes of cerTain persons having poliTical influence, as They were noT geTTing undue favour from The peTiTioner. The peTiTioner believes ThaT There is no adminisTraTive reason or any maTerial warranTing shifTing of The peTiTioner wiThin such a shorT Time. FrequenT Transfer wiThouT any complainT and only on dicTaTes of some persons is vicTimizaTion of The .v C7? } pafifioner‘ and has damomlizing effecf which is violm‘ive of Ari-ides 14. 16 and 21 of The Consfifufion of India. In 1'he normal course under fhe Sfa‘l'e aover‘nmenf 5ervice for sending an officer on depu’rm‘ion is minimum for q period of Two year's unless There is any exigency on adminisfmfive grounds. The acfion of respondeni's of frequenf fransfer wifhou? adminisn‘afive exigency or public infer-es? is arbifrary and in coiourable exercise of power oniy with a View To accammodaTe The respondanT No.3, The peTiTioner has been Transferred. Therefare. The Transfer order is arbiTrary and malafide. ”kl/V ReTurn has been fiied an behalf of respondenTs 1 and grin which iT has been menTianed ThaT The repaTriaTion order daTed 26-8—2093 is ordinary rauTine adminisTraTian acTicn because af The exigency of The services. The peTiTioner has he vesTed righT To conTinue in The deparTmenT of EnviranmenT and Urban Development as The GovernmenT has righT To repaTriaTe The services cf The peTiTianer Te The parenT deparTmenT. IT is a pure and simple candiTion ef The service. IT is incorrecT Ta say The-T The peTiTioner has been repaTriaTed in order To accommodaTe respondenT No.3. The Transfer 0f The peTiTioner is naT poliTically moTivaTed or malafide, Therefore, The peTiTien deserves To be dismissed. RespondenT Na.3 has alse filed The reTurn sTaTingThaT The Transfer arder was issued as a éovernmenT TuncTion and on The ground of adminisTraTive exigency. The answering respondenT has joined as Commissioner of Korba on 27-8-2003. The answering respondenT was working as DepuTy DirecTor, Urban AdminisTraTion, DirecToraTe. Raipur and in his place one Mr. Ram Mani Yadov had already joined as bepuTy DirecTor, Urban AdminisTraTian, DirecTaroTe, haipur and one Mr. Jeevan Lal Thakur has been posTed aT The place of Mr. Ram Mani Yadav, Therefore, The peTiTion be dismissed. 7. I have heard Shri RS. Jaiswal. iearned counsei for The peTiTioner, shri Sonjay K. Agrowal, DepuTy AdvocaTe General for respondenTs 1 and 2 and Shri PrashanT Mishra, learned counsel for The respondenT No.3. 8. The peTiTioner’s challenge which The learned counsel for The peTiTion/r submiTTed in his argumenTs is primariiy on The following grounds:- U} G\ mw: .pa e @ (i) Ordinarily when The afficer is sem‘ on depufafion. in The norma! Caurse fer-m is ‘rwo yzars and fhe pefifioner has been repafr'iafed wifhin a 5harT span 0f 8 monfhs. (ii) The ?ransfer of fhe pei-ifioner has been effecfed as per his balief for- polifical reasans and to accommodate respondznf No.3, Therefar‘e, if is maiafide and in coiourabie exercise 0f powers and i1‘ is nof in fhe administrative exigency. The learned ccunsei for fhe pe‘ii‘iioner furfher‘ submh‘fed fha‘i‘ as per fhe circular, Ahnexur‘e-P/5, issued by The Sfafe of Chha‘iiisgarh ihe éover-nmem has expected Thai The officers beicmging ‘EiggC/ST and OBC shauld rm be subjec’r'ed +0 frequeni Transfers and while making pos'iing af fhe impar‘mm places fhe officers beionging i0 fhese ca‘iegories shauld be cansidered for fhase posfings. Caunsei furihar wbmii‘fed that since ihe peii‘iioner‘ belangs To OBC as such‘ in The iighi' of The «have circular The peTiTianer should noT have been made subjecT Ta frequem Transfers. He relied upon The decisian cf The Han’ble Apex CourT reporTed in AIR 1971 5UPREME COURT 998 in The maTTer af K.H. Phadnis v. ski-e af Maharashfra‘ 10. On The oThen hand, The learned DepuTy AdvocaTe General argued ThaT The peTiTioner has n9 vesTed righT To conTinue on The depuTaTion posT and aT any Time The depuTaTianisT can he repaTr-iafed. There is no provision by which The peTiTioner, by all means, can con-Time on depuTaTian posT for Two years and The Transfer af The peTiTioner has been effecTed on The ground of adminisfrm‘ive exigency. 11. 5hri PrashanT Mishra, learned counsel for respondenT No.3 has else supporTed The argumenTs ef The learned DepuTy AdvacaTe General. \ Ceming Te The quesTion of securiTy of The Tenure To confinue an The depuTuTion posT aT leusT for Twc years is concerned, a similar quesTicn came up for consideraTion before The Full Bench of Punjab and Harayana High CourT reporTed in AIR 1970 PUNJAB & HARVANA 322 in The maTTer of Sohan Singh v. The STnTe of Punjah and eThers in which The High CaurT held ThaT:~ "No cenTracT comes inTo being beTween The STeTe aovernmenf and its employee when he is sent on depuTaTion. VirTually he remains under The effecTive / canTrol af The $TaTe Wermnenf and his legal ;/ / / / posifian confinues fo be mare one of sfafus than of confrncf. He cannot be said to have any indefensibk righf fa insisf fhaf he shouid 0101' be recalled before the expiry af specified period. Hence fhe Stafe éovernmenf having iea‘r fhe services of i'rs officer- on deeufdtion of foreign service fot' o specifieo period can, before eee expiry of fhe aforesaid period. !egally rem" the officer unilaferaiiy wi‘ihouf ‘H'ie camera? of' the officer cancerned." “Ualess fhe bias or maiafide againsi' fhe nuihoriry is established repoh‘iuiion order by ihe depariment 11: eubsi’aafive pas? in ihe pareni deparimenf canno'i be fermed as arbitrary or violafive of Articie 14 of fhe Consfii'ufion of India." Similarly, The Hon'ble Apex Couri' in The mah‘er of Kunal Nando v. Union a? India and anofher reparn‘ed in (2000) 5 supreme Cour? Cases 362 held Thai:- “Depuiaiionis? has no righf 1'0 con'h’nue on depui'o‘iion or to claim Permanen‘l' ubsorph‘on in borrowing depariinenf, unless his permanen‘l" absorpiion is covered by o siutufory provision." in anoiher maiier of Ro'i'ilai 8. sani and oi‘hers v. Sink of éujardi’ and others reporied in AIR 1990 $U?REME COURT 1132 the Hon'ble Apex Cour? held ihai:= “W. servonf on depufah‘on can be rsverfed ro his presenf cadre of any fime - Such servonl‘ do nof 9e? \ any righf 1’s be absorbed on fhe deoui'ofion post." The law as seirled by ihe Hon’ble Apex Courl' in The mailer of fransfer of an employee or repatriaiion of an employee from ihe depu‘i‘ofion posi‘ is Tho? ihe Governmeni can ‘rransfer iis employee on The ground of odminisfrm‘ive exigencies and Transfer is fhe incidem‘ of service. The employee cannof claim as of righi‘ any place of posi'ing or cannof claim for pari'iculor period of posting He hos fo work in 'l'he interes‘i' of the adminlsirai'ion and public interest 14‘ 13. Similar quesiion came up for consideraiion before The Hon‘ble Apex Cour? in flee mairer of 5io1'e of Madhyo Prodeshgnd others v. Ashok Beshmukh and onofher reporied in (1988) 3%;upreme Cour? €3ses 503 in which ihe Cour? held The-i:— Therefore fhe Governmeni- is enfifled To Transfer its employee and on such adminisfrm‘ive oci‘ion The power of fhe Cour? of judicial review comes info play only when such transfers are made againsi' any sfafuféry provisions of service mks or fhe impugned Transfer order sfems from %he malafida aci'ion jusi' f0 demoraiize and harass ”E'he public servanf er ofherwise arder is puni‘h've in mture. As far as The sewrify a‘f The Tenure of fhe depui'afian is concemed, i1” is far the barmwing deparfmam as we“ as fhe paren‘i‘ deparfmenf, bafh ave emh‘led fa withdraw 9r repa‘tr‘iafe, as ‘rhe case may be, the public sewanf a1- any Time in #he adminisfm‘tive exigemy and pubiic inwres‘? and which canmf be subjected To judicial geView, as The governmaiw servanT has n6 indefeasihle righf To irisisT ThaT he $haulci be allwed To eanTinue an The depuTuTion pcsT 3r an The parTicular posT far a parTicular paried, The public servanT musT keep in mind ThaT he is raquiveé To {serve Tor public causa and Gov‘i'. being masTer‘ can uTilize his services in public inTeresT arid in adminisTmTive exigency. Therefore in The lighT 6f The above iaw iaid down, I da hoT find any farce in The nrgumenTs ofThe iearned caunsel far The peTiTioner' ThaT The peTiTienen oughT Ta have been alicwed Ta conTinue an The poeT for Twa years. New, taming To The quesTion ef repoTriaTion of The peTiTionei‘ oh The poiiTical ground and To accommaclo‘ie reeponoenT Nc.3 is concerned, as has been held by The Hon‘ble Apex CourT ThaT a mere vague and bald sTaTemehT in The peTiTion is noT sufficienT for exercising The power of judiciai review againsT The adminisTreTive ecTion. in erder To exercise The pewer of judicial review The employee has To primasfacieiy and neasonabiy esTabiish his case wiTh relevonT maTer‘ial To show ThaT These are The TocTs and circumsTances and maTeriai from which iT can safely be presumed or inferred or held ThaT The paeTiculer Transfer ef The pubiic servanT is malafide and sTems from The orbiTroriness or irroTionai acTien of The 5TaTe Government In This ease, The peTiTioner has said ThaT he believes ThoT for‘The poiiTical reasons he has been shifTed because he could noT accede unreasonable requesT of cerTain persons. The GovernmenT's reply in clean Terms is ThaT The peTiTioner‘s repaTrioTion is on The ground oT adminisTroTive exigency and iT is a simple repaTrioTion. They hove denied ThaT The peTiTioner has been repoTrioTed simpiy To adjusT The respondenT No.3. 17. The repatrimion of fhe pefh‘ioner canno‘l‘ be farmed as arbi‘rr‘ary er malafida or merely on The ground only because he has been repa'rr‘ia‘red wifhin a peried of 8 monfhs.‘ The fenur‘e of +he posting is a genaral rule of The service. 1 Normaliy, if is expecfed Thm‘ fhe empioyeevshould no? be ‘fmnofer‘r’ed in a shorf span of Time because offer joining on The posi', he fakes some fime i'o acquaini‘ himseif wifh requiremen‘i‘ of na‘i'ur‘e of work adjusi‘ himseif, ready To work efficien’riy and if he is transferred in a shorf span of Time Then he cannoi' deliver The desired resul‘i‘ which are expec‘red of him, buf even this rule igynof override The adminisfro‘rive exigeney and The public inTeresT. On These grounds, The governmenT employee can be Transferred even afTer smaller period, as ThoT is always paramouni‘ consideraTion for Transfer. The securiTy of Term cannoT come inTo way of public inTeresT and odminisTraTive exigency and The righT of borrowing deparTmenT or The porenT deparTmenT To uTilize The serviees of his employees wherever They wanT in besT of public inTeresT and To serve The public cause. 18. The auThoriTy relied upon by The learned counsel for The peTiTioner is of no help To The peTiTioner. In ThaT case iT was held ThaT The GovernmenT has righT To reverT o GovernmenT servonT from The Temporary posT To a subsTonTive posT, The maTTer hos To be viewed as one of subsTance and ail relevanT facTors are To be considered in osoerTaining wheTher The order is a genuine one of ”accidenT of service" in which a person senT from The subsTanTive posT To a Temporary posT has To go back To The parenT posT wiThouT an ospersion againsT his characTer or inTegriTy or wheTh'er The order amounTs To a reducTion in rank by way of punishment Reversion by iTself will noT be o sTigma. On The oTher hand, if There is evidence ThaT The order of reversion is noT “a pure acoidenT of service" buT an order in The naTure of punishmenT, ArTicle 311 will be aTTraoTed. As has been menTioned above, The peTiTioner is noT able To esTablish ThaT his Transfer has been effecTed on The ground of malofide or poliTical reason, Therefore, The above law is of no help To The peTiTioner. 19. Now, coming To The circular Annexure-P/5 issued by The 5TaTe GdvernmenT ThaT while making Transfer posTing The officers beionging To SC/ST and OBC should noT be subjecTed To frequenT Transfers and e fhey should aiso be coasider‘ed for The imporfanf posfings is concerned, such circulars are issued as a genera! guidelines and guiding faci'ors while making Transfer po‘si'ings cf public servani‘s. They canno'l' Take a shape 0f ihe sfafufery provisiens and Thai, by all means, such officers are w be kep‘i on parficular pas? for a par'l’icular- periad. Such Type m‘ guidelines and circulars are always subjecf To fhe adminisfra‘l'ive exigencies and public interest The ground of adminisfrafive exigency and public inferes‘r in each and every mo‘h‘er are no’r expected fo pave way ‘i‘o ImplemenT The Circulars There can be also denying facT ThaT These guidelines are rouTme and such guidelines should be adhered To in The ardinary course. BUT when The quesTion comes of adminisTraTive exigency and public inTeresT These circulars cannoT override Them. Moreover, such adminisTraTii/e circuiar does noT creaTe any indefeasible righT in favour of These officers. IT is for The auThariTies To look inTo These insTrucTions while making Transfers, BuT These insTrucTions are noT enforceable aT law. 20. As has been held by The Hon’ble Apex CourT in The case of Shivlekha Vidyarfhi ThaT iT is The general presumpTion ThaT all The public auThoriTies' acTions are in accordance wiTh The esTablished principles of naTural jusTice and according To sTaTuTory rules. IT is for The person who alleges should prove ThaT The acTion OT The GovernmenT or The AuThoriTy is irraTional, orbiTrary and violaTive of esTablished principles of naTural jusTice or law. If any employee has been Transferred afTer shorT span of Time, iT cannoT always be inferred by such Transfers ThaT in all probabiliTy The Transfer is malafide or To adjusT anyone. In The presenT case as has been held above, The peTiTioner has noT been able To esTablish his case. The peTiTion of The peTiTicner is based on belief wiThouT onyThing more i.e. reasons and maTerial for such belief are missing. In View of The above, I do noT find any ground To exercise The power of judicial review in The maTTer againsT The impugned order and The peTiTion is devoid of force and meriT and The same is liable To be dismissed and iT is dismissed. 5d]— L L BHADO»