’e-a’ ‘r @ Q x _ BEFORE THE HON'BLE HIGH COURT OF CHHATTIsGARH AT BILASPUR (c.G.) ~J W.P. (S) NO. 2.70"] [2009 PETITIONER Nathuram Chandrakar S/o. Shri Kejuram Chandrakar, aged about- 54 years, Sub Divisional Agriculture Officer, Saraipali Division, R/o. Biock Ditrict- Colony, Saraipaii, Mahasamund (C.G.) VERSUS 1. State of Chhattisgarh, Through The Secretary, Department of Agricuiture, D.K.S. Bhawan, Raipur (C.G.) 2. Deputy Secretary, Department of Agriculture, D.K.S. Bhawan, Raipur (C.G.) 3 Deputy Director, Agriculture, District Mahasamund (C.G.) RESPONDENTS WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA s HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION 1S! N0. 2707 of2009 PETITIONER Nathuram Chandrakar. Versus RESPONDENTS for State 0f Chhattisgarh & Others. pronouncement ofjudgment and order on .J$ g‘ay of January, 2010. . g ‘ ’ O Sd/- “T3 {Satish K. Agnihotri ' u Judge HTGH COI IRT OF CHHATTISGARH : BILASPUR WRIT PETITION (S) No. 2797 of2009 Nathuram Chandr‘akax. W PETITIONER Versus RESPONDENTS State of Chhattisgarh & Others. (Writ petitions under Article 226 of the Constitution of India) SB : Hon’ble’ Shri Satish K. AgnihotrL J. ' Present :~ Shri Raghavandra Pradhan, Advocate for the petitioner. Shri Y.S.Thakur, Deputy Advocate General for the State/ Respondents. - ‘ JUDGMENT & ORDER (Delivered on the ”Lgfaay of January, 2010) , Challenge in this petition is to the impugned order dated 28.02.2009 (Annexure P/l) passed by the Deputy Secretary to the Government of Chhattisgarh, Agriculture Department, whereby the petitioner working as Sub Divisional Officer, Agriculture, Saraipali, District Mahasamund, was transferred on the post ofAssistant Director, Agriculture, at Raipur. 2. The facts, in nutshell, as projected by the petitioner are that the petitioner joined the post of Sub Divisional Officer, Agriculture by order dated 01.08.2008 (Annextye P/l). Thereafter, the petitioner discovered certain. irregularities with regard to ”Sprinkler Shakambhari Tubewell and l accordingly, wrote to the subordinate authorities by various letters dated 21.10.2008, 2410,2008, 29.1 1.2008, 16.12.2008, 27.12.2008, 15.01.2009, 21.01.2009, 27.01.2009 and 31.01.2009. Consequent thereupon, departmental action was taken and pnnishrnent was imposed on severai officers and employees. Many ofiicers and employees protested against the-action of the petitioner and by memo dated ll/ 12.02.2009 (Annexure i PM), the Deputy Director, Agriculture, Mahasamund, informed the i petitioner regarding the threat given by the employees and the officers to remain away from the work, if the petitioner was not transferred. Pursuant to the said threat of strike, the impugned transfer order was passed transferring the petitioner to the post of Assistant Director, Agriculture, at Raipur. Thus, this petition. 3. Shri Raghavendra Pradhan, learned counsel appearing for the petitioner would submit that the impugned transfer order was passed not in any administrative exigency but under the pressure of the subordinate employees and officer and on their threat of going on strike. The exercise of power transferring the petitioner during the ban period amounts to malafide exercise ofpower. 4. On the other hand, Shri Y.S.Thakur, learned Deputy Advocate General appearing for the State/respondents would submit that this is a classical example of administrative exigency as on account of the posting of the petitioner, there was a chaos in the office. The transfer order has been passed with the consent of the Agriculture Minster as well as the Chief Minister. Thus, there is no Violation of any statutory rules. There is no cogent reason or any document available to establish the allegation of mala pale except indirect inference from the letter dated 11/12.02.2009 (Annexure P/4) whereby the petitioner was advised not to grant leave to / the employees ofhis'office. 5. Having heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto,‘ it appears that the impugned order of transfer has been passed on account of disturbance in the office and a protest was lodged to transfer the petitioner. . The contention of the Shri Pradhan’questioning the competence of the officer concemed passing the order deserves to be rejected on a simple \ ground that the order was passed by the State Government under the \\ \ / \\\ \\ W business rules, framed under Article 166 of the Constitution of India, for conduct of business of the Government of a State that all executive action of the Government of a State shall be expressed to be taken in the name of the Governor. Article 166(3) specifically provides that the Governor shall make rules for the more convenient transaction of the business of the Government of the State. Under the business rules, the Secretary including Additional Secretary, Deputy Secretary, Joint Secretary and Under Secretary are competent to pass order in the name of the Governor. In the case on hand, the impugned transfer order has been passed by the Deputy Secretary to the Government of Chhattisgarh, concerned Agriculture Department in the name of the Governor which is a proper order passed by the State Government. Thus, the impugned transfer order was passed by a competent officer. Mala/ide is well defined. In the present case, malafide is‘not established as the purpose of transfer was not to cause any damage to the petitioner, but to maintain peace in the office. The allegation of mala fide is not supported by any cogent reasons The Supreme Court, in Girz'as Investment Private Limited and another v. State ofKarnataka and othersl, ‘ as under: , if W,“ “14. .....There can be two ways by which a case of mala tides/can be made out; one that the action which’is impugned has been taken with the specific object of damaging the interest of the party and, secondly, such action is aimed at helping some party which results in damage to the party alleging mala fides .....” 8. The Supreme Court, in State of UP. and another v. Siya Ram and another2, observed as under: “5....No Government servant of a‘ public undertaking has any legal right to be posted forever at any one particular place or place of 1 (2008) 7 SCC 53 \t\ \. \VKK \ 2 (2004) 7 scc 405 ,\ his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala tide exercise or stated to be in Violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were appellate authorities substituting their own decision for that of the employer/management, as against as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in' National r x Hydroelectric Power Corpn. Ltd. v. Shrz' Bhagwan. 6. The above position was recently highlighted in Union oflndia v. Janardhan Debanath. It has to be noted that the High Court proceeded on the basis as if the transfer was connected with the departmental proceedings. There was not an iota of material to arrive at the conclusion. No mala fldes could be attributed as the order was purely on administrative grounds and in public interest.” 9. In Mohd. Masood Ahmad v. State of UP. and others3 the Supreme Court summed up the scope of interference in exercise of its discretionary jurisdiction under Article 226 of the Constitution of India, as under: “7. The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in Rajendra/ Roy 11.. Union of India, National Hydroelectric Power Corpn. Ltd. v. Shrz' Bhagwan, State Bank oflndz'a vi Anjan Sanyal.‘ Following the aforesaid principles'laid down by the Supreme Court, the Allahabad High Court in Vijay Pal Singh‘v. State of U.P. and Onkar Natl; Tiwarz' v. ChiefEngineer, Minor Irrigation Deptt. has held that the principle of law laid down in the aforesaid decisions is that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a court of law in exercise of its discretionary jurisdiction under Article 226 unless the court finds that \ 3 (2007) 8 scc 150 ‘ \ \ either the order is mala fide or that the service rules prohibit such transfer, or that the authorities who issued the orders, were not competent to pass the orders.” 10. The court or tribunals, which are appellate authorities should refrain from considering the niceties of administrative needs and requirements of the situation concerned. (See Stale of U.P. and others v. Gabardhan Lal4). ll.With regard to contention of the petitioner that the transfer order has been t passed on the ground of agitation of the subordinate officers and employees is concerned, principle of law on this issue is well settled that if there are certain complaints against an employee without holding any enquiry, the transfer of such employee can be made in the public interest as well as in administrative exigency. On the similar issue, the Supreme Court, in Um’on oflndz’a and another v. Janardkan Debanath & anotheri held as under: “14. The allegations made against the respondents are of serious nature, and the conduct attributed is certainly unbecoming. Whether there was any misbehaviour is a question which can be gone into in a departmental proceeding. For the purposes of ejfecting a transfer, the question ofholding an enquiry to find out whether there was misbehaviour 0r conduct unbecoming of an employee is unnecessary and what is needed is the prima focie satisfaction 0f the authority concerned on the contemporary reports about the occurrence complained of and if the requirement/as submitted by learned counsel l r for the respondents, of holding an elaborate enquiry is to be insisted upon the verypurpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. The question whether the respondents .could be transferred to a different division is a matter. for the employer to consider depending upon the administrative necessities and the extent ofsolution for the (Emphasis supplied) l problems faced by the administration.” r l ‘04) ll SCC 402 904) 4 SCC 245 Z/gty 12. It is further 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 mala fzde, 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 provisions of service rules, employer has all the powers to post an employee at a particular place in view of public interest and administrative exigency. (State ofMP. and another v. S.S.K0urv and others6). 13.In E.P.R0yappa v. State of Tamil Nada and another7, the Supreme Court observed as under: “88. .....with the Vast multitudinous activities in which a modem State is engaged, there are bound to be some posts which require for adequate discharge of their functions, high degree of intellect and specialized experience. It is always a difficult problem for the Government to find suitable officers for such specialized posts. There are not ordinarily many officers who answer the requirements of such specialist posts and the choice with the Government is very limited and this choice becomes all the more difficult, because some of these ppsts, though important and having onerous ”responsibilities, do not carry wide executive powers and officers may not therefore, generally be willing to be transferred to those posts. The Government has in the circumstances to make the best possible choice it can, keeping in View the larger interests of the administration. When, in exercise of this choice, the government transfers an officer from one place to another, the officer may feel unhappy because the new post does not give him the same amplitude of powers which he had while holding the old post. But that does not make the transfer 6 (1995) 3 scc 270 7 (1974) 4 scc 3 /§? arbitrary. So long as the transfer is made on account of exigencies of administration and is not from a higher post to a lower post with discriminatory preference of a junior for the higher post, it would be valid and not open to attack under Article 14 and 16.” l4.In Shilpi Bose (Mrs) and others v. State of Bihar & anotherg, the Supreme Court observed as under: “4. In our opinion, the courts should not interfere With a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in Violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no Vested right to remain posted at one place or the other, he is liable to be transferred from one place to other. Transfer orders issued by the competent authority do not Violate any of his legal rights. Even if a transfer order is passed in Violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the courts continue to interfere With day-‘to-day transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive topublic interest.” 15.The Supreme Court in Airports Authority of India v. Rajeev Rattan Pandey & 0thers9, held that “In a matter oftransfer ofa government employee, scope ofjudicial review is limited and the High Court would not interfere with an order oftransfe’r lightly, be it at interim / stage orfinal hearing. This is so because the courts do not substitute their own decision in the matter oftransfer”. 16.So far as the contention of the petitioner that he has been transferred during the ban period is concemed, it is also noticed to be rejected. In i 8 (1991) Supp (2) scc 659 9 (2009) 8 scc 337 \ Chief Commercial Manager, South Central Railway, Secunderabad & Others V. G. Ratnam & Others”, the Supreme Coutt observed as under : “20. 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.” l7. Even otherwise, there is no challenge to the impugned transfer order on any other permissible legal grounds as aforestated, warranting interference with the impugned transfer order. 18. Applying the well settled principles of law to the facts of the case on hand, the petition deserves to be and is accordingly dismissed. No order asto costs. . Sd/- f Satish K. Agnihotri Judge to (2007) 8 SCC 212