^' ^ SlngtoBcnch IN THE HON'BLE HIGH COURT OF JUDICATURE AT BILASPUR c.6.: WRIT PETETCON ( S } N0.^ '' OF 2011 -<• o^ PETCTIONER : Smt. Ganga Anchal S/o. Shri ^. P. Anchal aged about 53 Years, Occupation - Service, Posted as Supervisor at Ekikrit Bal Vikas Pariyojna Mungeli, Distt.- Bilaspur ( C.6.) VERSUS RESPONDENTS : 1. State of Chhattisgarh through the Secretary Women and Child Development bepartment Mantralaya D.K. S. Building Raipur (C.G.) The Director , Women and Child, Development Oepartment Chhattisgarh Raipur, Distt.- Raipur (C.6.) The Collector Bilaspur, Distt.- Bilaspur 4. The Project officer, Integrated Child, Development Project Mungeli, Distt.- Bilaspur (C. 6. ) vt •^ WRIT PETETCON UNDER ARTECLES 226 OF THE CONSTETUTEON OF INDIA FOR ISSUEANCE OF APPROPRIATE WRIT. HIGH COURT OF CHHATTISGARH AT BILASPUR PETITIONER WRIT PETITION (S) No. 40 11of2011 Smt. Ganga Anchal. [& RESPONDENTS VERSUS State ofChhattisgarh & Others. WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SBLHon'ble ShriSatish K. Agnihotri, J. Present: Shri Awadh Tripathi, Advocate for the petitioner. Shri Ajit Singh, Panel Lawyer for the State/ respondents. O RD E R (Passed on 26th day of September, 2011) Challenge in this petition is to the order dated 15.07.2011 (Annexure P/l) whereby, the petitioner, working as Supervisor at Project Mungeli, has been transferred to Project, Gaurela, on administrative grounds. Leamed counsel appearing for the petitioner submits that contrary to the transfer policy dated 13.06.2011 (Annexure P/4), the petitioner has been transferred without having a proposal from the department, as required. Notice was issued to the respondents and an order to maintain status quo as obtained on 05.08.2011, was passed. Shri Singh, leamed counsel appearing for the State/respondents submits that the transfer policy is not binding on it as they are mere ;uidelines and not controlled by statutory provisions. Indisputably, the proposal was not made by the concerned department, as is required under the transfer policy dated ^ ^^^\. s %^',/ 13.06.2011. For ready reference, the relevant portion of the transfer policy dated 13.06.2011 (Annexure P/4), is quotedbelow: "2. srw-tor 'wHtaw -^f f^ sm^ i ^ro fSfpjT ^ •to ft ^tftq ^rt ^r ^f ¥plft ^ferfN ^ ^ f^ro 15 ^T 2011 ^r 15 v[d1^ 2011 ?Ic|5 d^ gqfgr ^ f^ ^IT W^T 1 WFTTtRiT ff.RTI^ WTfSRT RrqRT ^ fSl^T HTp? gTO f%CT ^ Sf'^ttcT'T W^ f^IT mr ?rrr ^ ws^ SW fSi^t ^ OTT^ i^Rft ^ CT^ w5\ cpr sn^r fSirn q^Re? g^r ^irft The transfer policy was issued by the State Government in exercise of its power under Article 166(1) and (2) of the Constitution of India. Article 166(1) and (2) ofthe Constitution oflndia, reads as under: "166. Conduct ofbusiness ofthe Government of a State.—(1)All executive action of the Govemment of a State shall be expressed to be taken in the name ofthe Governor. (2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity ofan order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Govemor. (3) xxx xxx xxx" The effect of the order passed under Article 166(1) of the Constitution of India came into consideration before the Supreme Court, in State of Bihar& Others v. Kripalu Shankar & Others wherein it was held as under: "15. Article 166(1) requires that all executive action ofthe State Government shall be expressed to be taken in the name of the Govemor. This clause relates to cases where the executive action , has to be expressed in the shape of a formal order or notification. It prescribes the mode in which an (1987) 3 SCC 34 F1- 10. executive action has to be expressed. Noting by an official in the departmental file will not, therefore, come within this article nor even noting by a Minister. Every executive decision need not be as laid down under Article 166(1) but when it takes the form of an order it has to comply with Article 166(1). Article 166(2) states that orders and other instruments made and executed under Article 166(1), shall be authenticated in the manner prescribed. While clause ( 1) relates to the mode of expression, clause (2) lays down the manner in which the order is to be authenticated and clause (3) relates to the making of the rules by the Govemor for the more convenient transaction ofthe business ofthe Govemment." The above case was referred with approval in Shanti Sports Club & Another v. Union of India & Others , wherein it was held that the decision of the Govemment is sanctified and acted upon by issuing an order in the name ofthe Governor under Article 166 (2) ofthe Constitution oflndia. Further, in Jantia Hill Truck Owners Association v. Shailang Area Coal Dealer & Truck Owner Association & Others and other connected matters, the Supreme Court held as under: "21. Article 162 of the Constitution of India in unequivocal terms provides that the executive power of a State shall extend to the matters with respect to which the legislature of the State has power to make laws. Such executive powers having regard to the rule of executive business are framed in terms ofArticle 166." In the case on hand, the transfer policy dated 13.06.2011 (Annexure P/4) was issued in the name of the Govemor and as such, the same was passed under Article 166(1) and authenticated under Article 166(2) ofthe Constitution of India. Thus, it cannot be held that the transfer policy dated 13.06.2011 (Annexure P/4) is 2 (2009) I5SCC705 • (2009) 8 SCC 492 f' a mere guideline and the same is not to be complied with. It is well settled that if there is no statutory provision available in respect of certain administrative action, the same can be supplemented by executive instmctions or orders issued under Article 166(2) ofthe Constitution of India. 11. It is further well-settled that in the matter of transfer of a Govemment employee, the scope ofjudicial review is limited and the High Court may not interfere with the order of transfer ordinarily. However, in case of mala fide, lack of competence of the officer passing the order, or violation of statutory rules or regulations, or the order of this nature, the Court may interfere to ensure that the order passed under Article 166 of the Constitution of India, has to be complied with by the authorities in its letter and spint. 12. It is further surprising that the State Government, having passed the transfer policy in exercise of its power under Article 166 of the Constitution of India, submits that the same are mere guidelines. General instructions, memos, demi-official letters, or other instmctions do not have statutory force, but the transfer policy dated 13.06.2011 (Annexure P/4) like this, has a colour ofstatute being supplemental to the statutory rules. Thus, the same has binding effect and has to be complied with in its letter and spirit. - 13. InthecaseofChiefCommercialManager.SouthCentralRailway, Secunderabad & Others v. G.Ratnam & Others , relied on by the State counsel, the Supreme Court held that the Central Government or the State Govemment can given administa'ative instructions to (2007)88cc212 its servants how to act in certain circumstances, but that will not make such instructions statutory rules which are justiciable in certain circumstances. Such executive instructions not having force of statutory rules, are mere guidelines. In the said case, there was no challenge to the non-compliance of the order passed under Article 166 ofthe Constitution oflndia, which is supplemental to the rules and have the same force so far as compliance of the said order is concemed. Thus, the facts ofthis case are distinguishable. 14. The second argument of the State counsel that the petitioner has been working for last 10 years at his present place ofposting, is also noticed to be rejected as it is not the case ofthe employee but case of the employer, who has not considered the same earlier and placed the petitioner at any other place. Thus, this can also not be the ground for passing the impugned order by not following the due process as prescribed under the policy dated 13.06.2011 (Annexure P/4). 15. For the reasons stated hereinabove, the impugned order dated 15.07.2011 (Annexure P/l) in respect ofthe petitioner is quashed. 16. The writ petition is allowed. No order asto costs. ___ — Sd/- Satish K. Agnihotn Judge Amit 1