L."^^ IIISSIS SB^C IN THE HIGHT COURT OF CHHATTISGARH At BILASPUR WP (S) No........5.3.^..L.f..... 2009 Petitioner - (SINGLE BENCH SERVICE MATTER) Tulsi Ram Sahu aged about49years S/o Shri Ram Prased Sahu Excise constable (Class III) Office of Assitant Exceise Commissioner Durg (C.G.) VERSUS Respondents - 1 ftf- '.^/ .••"' ^y /:w StateofChhattisgarh Through: Principal Secretory Commercial Tax (Excise) Govt. of C.G. D.K.S. Bhawan Secretari at Raipur(C.G.) ? ^.-a •^s^y\ /^^i^ 'f~ "''' ~ \ """' \ |/K.F,S'?-ar" rWi K, ^S:;r-L'"-:;^,;,,i • ,-j ?' ^sl. nitiSii'1"-'1 ^iMOlf. ^^./ ^? e.-^" ^l &-A®' ^oc^^0' <-,h-<. %^.G Assistant Exciese Commissioner Durg (C.G.) Shri IVIilap Mandavi Office of Assistant Excise Commissioner Durg (C.G.) PETITIONE UNDER ARTRICAL 226 OF THE CONSTITUTION OF INDIA ^g ftfs- \ HIGH COURT Of CHHAmSGARH AT BILASPUR SB : HON'BLB SHM JUSTICE PRITINKER DIWAKBR W.P.iS) N0. PBTITIONSt Versus Tulsi Ram Sahu State of C.G. & Others WRIT PBTITION ONDER ARTICLB 226 OF THE CONSTITUTIOM OF MDIA ApBearance: Shri V.Q.Tainaskar, counsel for the petitioner. Shri Yashwant Singh Thakur, Dy. A.G. for the State. (29.07.2009) Chailenge in the present petition is to the order dated 30.6.2009 (Annexure P/l) passed by the State Govemment by which the petitioner who is working as Excise Constable has been transterred frcim the Office of Assistant Commissioner Excise, Durg to the Office of District Bxcise Officer, Dantewada. Contention of counsel for the petitioner is that the petitioner is alleged to have been transferred showing administrative ground whereas the respondent Nc.3 who has been transferred in his place has come on his own request and that itself shows that there is no administrative exigency for transferring the petitioner. His further contention is that though the transfer order is dated 30.6.2009 but the same has been served to the petitioner on 20ta July 2009 and according to him, this is ante-dated transfer order. He contends that as the petitioner has admitted his children in the schooi at Durg and therefore the transfer order will cause him great hardship. In support of his contention, he has pia.ced reliance upon the judgment Annexure P/4 as reported in 2009 L&B.I.C.896. He contends that in the said iudgment the Uttaranchai High Court has categorized three points : i) if there are serious complaints against the person sought to be transferred; or ii) if the person sought to be transferred has misbehaved with superior officers; or iii) if the person sought to be trar.sferred has not been taldng mterest in the work. According to the counsel for the petitioner, except for the above mentioned three administrative exigencies, the empioyee cannot -'2- be transferred on administrative ground and as in the present case no such ground has been shown, the petitioner could not have been transferred. He also relies upon the judgment of 2009 Lab.tC. piOC) 707pccsaed bg tfte Lucknow Division Bench. He submits that the transfer order is against the transfer policy and the order has been issued during the ban period, Contention of the counsel for the petitioner is that as the respondent No.3 has been transferred on his own request in place of the petitioner, this shows that there was no administrative exigency. On the other hand, counsel for the State submits that the petitioner has been transferred on adininistrative ground and while transferring the delinquent, the Govemment is not required to assign any reason as to what is the administrative exigency for transferring such person. He further submits that the transfer order has been issued on 30.6.2009 and the same is as per the transfer policy and it hardly makes any difference if the same has been received by the petitioner after 30.6.2009. He submits that while transferring the employee, the Govemment is not required to assign any specific ground or reason in the impugned transfer order, I have heard counsel for the parties. On being pointedly asked about the period of posting of the petitioner in his present place, counsei for the petitioner has no answer to this question. Merely, the respondent No.3 has been transferred on his cwn request does not give any right to the petitioner to remain in his present place of posting forever. The petitioner has been transferred on administrative ground and secondly the administrative exigency is required to be seen by the employer and not by the Court. In the matter of Shilpi Bose (Urs.) and oUvers Vs. State of Bhiar & Odiers1, the Supreme Court observedas under: "3.... If the competent authority issued transfer orders with a view to accommodate a public servant to avoid hardship, the saine cannot and should not be interfered by the court merely because the transfer orders were passed on the request of the employees concemed. The respondents have continued to be posted at their respective places for the last several years, they have no vested right to remain posted at one place. Since they hold transferable posts they are Uable to be transferred from one place to the other. The transfer orders had been issued by the ' 1991 Supp. (2) SCC 659 -&- (^ competent authority which did not violate any mandatory rule, therefore, the High Court had no jurisdiction to interfere with the transfer orders. 4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for adininistrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A govemmerst ser/ant hoiding 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 the other. Transfer orders issued by t'ne 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 govemment and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest." In the matter of JttbhA SSasood Ahmad Vs. State of V.P. emd OtherS2, the Supreme Court observed as under: °7. The scope ofjudicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in Ra/endra Roy Vs. Union of Sidia, National Hydroeiectric power Corpn. Ltd. Vs. Shri Bhagwan, State Bank oflndw V. Anjan Sanyal. Foilowing the aforesaid principles laid down by the Supreme Court, the Allahabad High Court in Wjay Pal S.ngh Vs. State ofU.P. and OnkarNaOi Tvwari Vs. Cfuef Bngineer, 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 emplcyee 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 either the order is mala fide or that the service rules prohibit such transfers, or that the authorities who issued the orders, were not competent to pass the orders." In the matter of Union of Indla &, Others Vs. S.LJUlbctgs the Supreme Court observed as under: 10. The judgment also does not support the respondents contention that if such an order is questioned in a court or the tribunal, the authority is obliged to justify the transfer by 2 2007(8) SCC 150 3 (1993)4 SCC 357 -*<• (^ adducing the reasons therefor. It does not aiso say that the court or the tribuna! can quash the order 01 trarisfer, if any of the administrative instructions/guidelines are not foliowed, much less oan it be characterized as mala fide for that reason. To reiterate, the order of transfer can be questioned in a court or tribunal only where it is passed mala fide or where it is made in violation of the statutory provisions. In the matter of Sfate of fS-f. and another Vs. S.S.Kowrsxs cmd Others4, the Supreme Court observed as under : "4.... The courts or tribunals are not aopellate forums IQ decide on transfers of officers on administrative grounds. The wheels of administration should be allowed to run smooth'ly and the courts or tribunals are not expected to interdict t'ne working of the adniinistrative system by transfemng the officers to proper places. It is for the administration to take appropriate decision and such decisions shaii stand unless they are vitiated either by mala fides or by extraneous consideration v/ithout any factual background foundation. In this case we have seen that on the administrative ground the transfer orders caine to be issued. Therefore, we cannot go into the expediency of posting an officer at a particular place. In the matter of Dhton qfJndia & Ottiers Vs. Janetrdhecn Debdnath and Anothei6, the Supreme Court observed as under: °14... For the purposea of effecting a transfer, the . question of holding an enquiry to find out whether there was misbehaviour or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authority concemed on the contemporary reports about the occurrence complained of and if the requirement, as submitted by leamed counsel for the respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of adnrinistration to enforce decorum and ensure probity would get frustrated. The question whether the respondents could be traiisfen-ed to a different division is a matter for the employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration." , in the matter of E.P.Sogaiya Vs. State of Tvunll JNddu &/ another6, the Supreme Court observed as under: "199$(3) SCC 270 s 2004 (4)SCC 245 61974 (4) SCC 3 -*a- "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 oftheir functions, high degree of intellect and specialized experience. It is always a difficult problem for the Govemment to find suitable officers for such specialized posts. There are not ordinarily many officers who answer the requirements of such specialized posts and the choice with the Govemment is very liniited and this choice becomes all the more difficult, because some of these posts, though important and having onerous responsibUities, do not cany wide executive powers and officers may not, therefore, generally be wiSling to be transferred to those posts, The Govemment 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 Govemment transfers an officer from one post 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 arbitrary. So long as the transfer is made on account of the 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 86 16. 92. We must not also overiook that the burden of establishing mala fides is veiy heayy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility..... In this contest it may be noted that top administrators are often required to do acts which affect other adversely but which are necessary in the execution of their duties. These acts may lend themselves to misconstruction and suspicion as to the bonafides of their author when the full facts and surrounding circumstances are not known. The Court would, therefore, be slow to draw dubious inference from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charge of unworthy conduct against ministers and other high authorities, not because of any special status which they are supposed to enjoy, nor because they are highly placed in social life cr adiiiinistrative set up these considerations are wholly irrelevant in judicial approach-but because otherwise, functioning effectively would become difficult in a democracy. The decision of the Full Bench of Uttaranchal High Court is not applicable in this case for the reason that the administrative exigency was considered in that case confining to the cominunication dated 5tl> June 2008 issued by the Govemment which stipulates the aforesaid three oonditions only. However, the overall spectrum of the administrative exigency is much wider if it is viewed beyond the said cominunication of the concemed State Govemment. In my considered opinion the judgraents as relied upon by the petitioner is of no help to him. In view of the above settled legal position, I do not find any ground to interfere in the present case, Accordingly, the petition is dismissed at the motion stage itself. —-— Sd/- Pritinker Diwaker Judge