HIGH COURT OF CIEIATTISGARH AT BILASPUR WRIT PETITION No. 5658 OF 2005 N. R. Chandrakar Versus State of Chhattisgarh and others ORDER POST FOR: a1) [3/2006 I‘vb Sdl- , Fakhruddin Judge WRIT PETITION No. 5658 OF 2005 N. R. Chandrakar Versus State of Chhattisgarh and others Petitioner by' Shri Manoj Dubey, Advocate State/RespondentNo. 1 and 2 by Shli GK. Beriwal, Dy. Advocate General. ' Respondent no. 3 by Shri Ayaz Naved, Advccate. ORDER As Qer Fakhruddin,J Heard. ‘2. By this petition under Articles '2‘26/227 of the Constitution of India the petitioner challenges the order No. F- 1— 2/2005] 14-1 dated ‘27/ 10/2005 (Annexure—P/ 1) whereby the petitioner has been transferred from Bagbahara, District ‘ Mahasamund to District Dantewara. 3. By Annexure-P/ l issued by the State, 15 persons have been transferred on administrative gounds and the petitioner’s name nnds place at S.No.7 . The petitioner has filed this petition on the gound that State has framed a policy for 2005-06 and there is a ban imposed vide order dated 18-8—2005 (Annexure— P/2) and between 15-8-2005 to 3 l-8—2005, only in special cases transfer can be made with the coordination of the Chief Minister t and no transfer can be made after 31—8—2005. ’lt is contended 1 that there is no administrative exigency and the transfer has been en‘ected mala fide at- the behest of the Member of 1 ' 3 g1s1at1ve Assembly It ls further oontended that‘ petltwncr was dlschargng the dutles w1th full dethcatwn and smcenty It is also contehded that during his posting at Bagbahara the petitioner had come across a number of cases under the State sponsored and subsidized schemes namely Nalkup Yozana and Bio-Gas Sayantra Nirman Yazana. It is stated that the petitioner made various efforts to the higher auth nties appraising them with correct picture and due to the report V' submitted by the petitioner some persons got annoyedand they approach to the Member of Legislau‘ve Assembly who inspite of appreciating the petitioner, got him transferred. It is contended that the order of transfer has been issued during the ban period and against the transfer policy. Reports submitted by the petitioner have been med as Annexure‘P/4. Annexure-P/S is the letter written by respondent No.3 making a request for transfer of four persons including the petitioner. The petitioner ‘by letter dated 28-7-2005 (Annexure-P/7) informed the Secretary, Department of Agiculture, about the irregularities. 4. The respondents No. l and 2 have med joint return. The respondent No. 3 has also filed return. 5. In the return med by the respondents no. 1 and ‘2 in para 2, it is stated that the petitioner has been transferred purely on administrative ground along with 14 other persons and that too with prior co-ordination of the Chief Minister as per the transfer policy and since the petitioner has been transferred purely due \\ \to the administrative exigencies, therefore, it cannot be z th interfered “mess and until it is'provedhy cogant, evideme and material document. In Para 3 of the return, it is stated that the petitioner has been performinghis duty since 1985 inhishome a district Mahasamund and he has remained posted in his home district for more than twenty years and he cannot claim to be remained there for a long. It is stated that the petitioner was earlier transferred vide order dated 6-8-2002 from Saraipali to, z Dantewara but, instead of joining, he went on leave for a long time and subsequently joined at Baghahara’ oniy after the order was modined. 6. It is contended that the order of transfer is exclusively _ Within the domain of the administrative authorities, to decide that Who should ‘be transferred and posted where. Reliance has I been placed in the case of Kendal!a Vidgaxg Sanggthan‘ vs. Damodhar Prasad Fandexreported 2004 Am SCW 5563and 1. e aim? and othersrvs. Goverdhan Lal‘ reported in i2004} \Xi see 402. While replying to Para 5.1 of the petition, it has been reiterated that vide Annexure—R/l dated 6-8—2002 the petitioner was transferred from Saraipali, District Mahasamund to the omce of the Deputy Director, Agriculture, Dantewara, but instead of joining he went on leave for a long period and \ subsequently on his. request the said transfer order was , modified vide order dated 30—9-2003 (Annexure-R/2) and he was transferred to Bagbahara District Mahasamund i.e. the petitioner’s home block. While replying to para, 5.2 of the V petition, it has been specincally denied that the petitioner has V Stat . ~ _ t i Assembly. It has been reiterated that he has been there for ' more than twenty years. It is further stated that the transfer order has been passed 1n accordance w1th the transfer pohcy 1n due co—ordmatlon w1th the Chlef Mlmster Copv of note sheet showmg the pmor approval of Chief Minister has also been flled as Annexure-R/3. In reply to para 5.4 of the petition, it is stated that in Dantewara District only ten Senior Agriculture Development Ofticers are working against twenty six posts and sixteen posts are still vacant. Document Annexure-R/4 has been filed to show that if the impugned transfer order is quashed it would rather cause loss to the Department. It has also been denied that any of the ineligible candidates has been given any beneiit under the Scheme 7. In the return med by respondent No.3, which is duly supported by an ahidavit, it is stated that the petitioner is resident of village Ganjar, Block Bagbahara, District Mahasamund and Since last two years he 1s posted at Block Bagbhahara 1n which Ins home Village comes It is stated that the petitioner being posted at his home block he 1s misusing his . i I 1‘ is also stated that the subordinate 61d Sm of the petitioner had made representation to respondent No.3 as per Annexure- R—3/3 about the working of the petitioner. in para 10 of the return it has been stated that the respondent No.3 has no introduction with the petitioner, therefore, the question of i11- will/mala iide intention‘against him does not arise. It is further stated that the respondent No.3 requested for petitioner’s transfer because of representations made to him by the agriculturists and local representative and also due to the feeling of dissatisfaction amongst the people. It is stated that transfer has not been done with mala tide intention. 8. The validity of the transfer order has been assailed on the ground that the order is 'vitiated by mala hde and has been passed at the behest and under the influence of Member of Leg’slative Assembly and sliders from mala tide and further that § the transfer is made contrary to the policy laid down by the State Government. 9. Before dealing with the rival contentions, it is to be noted that ambit and scope of judicial review in matters of transfer of public servant specially those who are working under the State is very limited. It is the prerogative of the State employer to decide who should work where to meet the exigencies of service and in the public interest. It is now settled principle of law that the transfer order can be questioned when it is vitjatad on account of mala tide and it is passed in contravention of imandatory provisions of any statute or regulation or rules framed thereunder. It is well settled by catena of decisions that transfer of a Government or public servant who is appointed to a cadre of transferable post from one place to another, is an ordinary incident of service and, therefore, does not result in any alteration of conditions of service to his disadvantage and therefore, transfer cannot be said to be punitive in nature. Transfer is an incident of service and an employee has no right .to be posted at a particular place. An employee holding a transferable post has no legal right to insist for his posijng at a particular place of his choice. Transfer of public servant made on administrative grounds of public interest should not be interfered with by the Courts unless there is strong and pressing grounds rendering the transfer order illegal on the gound of violation of mandatory statutory rules or on the ground of mala nde or on the ground of lack of authority. The Courts or the Tribunals cannot sit as appellate Court on the orders of the transfers made on administrative grounds. The reason for this Self-imposed restraint is that the wheels of administration should be allowed to run smoothly and the Courts or the Tribunals are not expected to interdict the administrative system. This Court in the case of N.D. Atulkar — v- State of Chhattiggarh and others reported in 2006 LT. [c.G.) 1, held as under : ‘It is well settled by oatena of decisians of the Apex Court and High Courts that transfer of a Gouemment or public servant who is appointed to a cadre of transferabie post from one place to anothenpis an ordinary incident of service and, therefore, does not result in any alteration of Li' conditions of service ta his idisaduantage‘ and. therefore, transfer‘cannot be sbid to be'puriitive in: nature. Transfer is an incident of service and an employee has no right to be posted at a particular place. An employee holding a transferable post has no legal right to insist for his posting at a particular place of his choice. Transfer of public servant made on administrative grounds ofpublic interest should not be interfered with by the . Courts unless there is strong and pressing grounds rendering the transfer order illegal on the, ground of violation of mandatory statutory rules or on the ground of mala‘nde or on the ground of lack of authority. The Courts or the Tribunals cannot sit as appellate Court ‘ on the orders of the! transfers made on administrative grounds. The reason for this self-imposed restraint is that the wheels of administration should be allowed to run smoothly and theCourts or the Tribunals are not expected to interdict the administrative system” 10. Division Bench of this, Court in the case of Haider All Rizavi‘ -—v— State of Chhattismh and» others in W.P.No.4926/2005 decided on 29th November 2005, whexe similar question arose regarding involvement of Minister, held as under: ‘ .........However, Mr. Rajeev Shrivastava would: specifically draw our attention to the allegation that the transfer order was issued an the basis of a letter written by respondents 7 and 8. It is stated in paragraph 5.7 that after receipt of the s impugned transfer order; when he made enquiry he came to know that ‘ the sixth respondent Minister passed'the impugned order at the behest of respondents 7 and 8. Quite curiously, the source of information is‘ not disclosed for the reasons best known/to the petitioner. Be that as it/ may, if the respondents 7 and 8 who are holding certain 0W3 in local bodies and f they had made representations. and the Minister m-charge even assuming that he has taken into consideration along with other materials and utility decrded to transfer the petitioner in the public interest, the said action cannot be faulted with simply because the Minister In-charge has taken into account not only other relevant materials but also the letter written by respondents 7 and 8. It needs to be u notwed that so long as the actwn of the svcth respondent Is not mttated by malw fide factual or legal the actton taken by mm cannot be condemned as arbitrary or illegal simply because the letter written by respondents 7 and 8 has also gone into the decision-making. e say ts because it is the rerogative of the State employer to decide who should serve where. 1t is not the vested right of any employee under the State to insist that he should be allowed to serve at a partiwlar place or a particular post. On the other hand it is the liability of each and every publi servant to be transferred mm one post to another post, which is equivalent and pom one place to another place. If the right of the State Employer is meddled or interfered with by the Court lightly, we are ap'aid, the public adminisration would a collapse and would not be e}7‘ective in sub-serving the public nterest....... ’ 1 1. Shri Dubey, counsel for the petitioner, referred a decision of the Hon’ble Supre Court rendered in the case of Dattatraya Dhand reported in AIR 19 SC to contend that the order is 97 3067 mala tide and liable to be set aside. In thi case the Hon’ble s Supreme Court held that : “in view of th unimpeachabie and eloquent testimony of the pedormarwe of te duties, it will be obvious that the transfer is not in publi interest but is a case of victimization of an honest oyicer at the behest of the aggrieved complainants carrying on th business in liquor and teddy. Uner ese cimimstarwes, as state earlier, the transfer of the appellant is nothing but mala flcle emra‘se of the power to demoralize honest officers who would ey‘iciently discarge the duties ofa public oyicei’ 1‘2. In the instant case in the return med by the respondents no. 1 and '2 it has been caegorically stated that the petitioner t has been transferred purely on an administrative gound along with 14 other persons and that too with prior co—ordination of the Chief Minister as per the transfer policy and since the \petitioner has been transferred purely due to the administrive at W hi p c t i me Arvind e vs. State of Maharashtra and others e h c e d th d h , it cannot be interfered unless and until it _ is proved by cogent evidence and material document. In para 3 of the return, it is stated that the petitioner has been performing his duty since 1985 in his home district Mahasamund and he years and he cannot claim to be remained there for a long. It is stated that the petitioner was earlier transferred vide order dated 6-8-2002 from Saraipali to Dantewara but instead of joining, he went on leave for a long time and subsequently joined at Bagbahara only after the order was modified. In para 7 exigencies, therefore home district for more than twenty has remained posted in a of the return, it has been reiterated that earlier the petitioner was transferred from Saraipali, District Mahasamund to the office of the Deputy Director, Agiculture, DanteW-ara, but he did not join and when the above order was modified, then only he joined at Bagbahara. It has been denied that the petitioner has been transferred mala fide for harassing. him and order has been issued in the vested interest of Member of Legislative Assembly. It has been reiterated that he has been there for more than twenty years and the transfer order has been passed in accordance With the transfer policy in due co—ordination with the Chief Minister, which is evident from Annexure—R/3. As contended by respondents No. l and '2, in Dantewara District only ten Senior Agriculture Development omcers are working posts and sixteen posts are vacant. The Deparunent has come forward with a plea that if the impugned i transfer order is quashed it would rather cause irreparable loss ' to_the Department. The respondent No.3 has come forward with again st twenty six the retuxn that the petitioner is resident of village Ganjar, Block Bagbahara, District Mahasamund and since last two years he is posted at Block Bagbhahara in which his home village comes. it is stated that the petitioner being pasted at his home block he is misusing his administrative powers and ill-mating the local agriculturists and is doing paltiality by giving priority to his personal work and contacts than discharg’ng his duties. It. is stated that the agriculturists of that area made representan’ons ‘V" to respondent No.3. One representation is made by dumber of villager compl about th petitioner, whic is a pa N6 s aining e h t ge o. of the' return of respondent No.3, then four person ly; s name Anand Ram Sinha, Motilal handrakar, Dhan R Sinha n yl , n rndent No.3 for transfer of th petitioner, which s at page No. On ‘ e i .7 e Bhana Lal Sahu, Membe Janpa Panchaya, Bagbahara uv r, d t als submitte a presentation dated 6—7~2005 to the o d re respondent No.3 compling abou the activities of t ain t he petitioner, thereter villagers of Saraipali a submitte letter af gain d to th Member of Legislativ Assembly, which i at page No.9. e e s The Sarpanch ram Panchaat Bhadarsi Bloc Bagbahara , G y, , k also mad comp against th petitioner on 10~ 10-00 Th e laint e 25. e airma o me a Chn, Krisbi Upaj Mandi Samiti, Saraipali als ad compiaint t the Collector Mahasand an to theCoeetor o , mu d ll (Vigilance) agains the petitioner, which are a age l 15 f , t t p l & o the return. The Secretary of the Krishi Upaj Mandi Samiti, - Saraipali also made a complaint to the Dy. Director, Agriculture against the petitioner, which is at page l3. Newspaper clippings Dee Daa Sinha submitted representatio to the espo Y C i am & have also been med against the illegalities committed by the petitioner. 13. So far as legal position is concerned, it is well settled that where the malaflde is established in transfer matter, judicial review is available and transfer order is liable to be set aside. It is home out that the petitioner has been serving for last twenty years in his home district and he has been posted for last two years at Block Bagbahara 1n which his home village comes i.e. village Ganjar. Representations against the wor ‘ g of the petitioner have been filed. The State has also come forward with the case that the serviees of the petitioner are required at Dantewara where there is shortage of Onicers and if the transfer order is quashed the Department would suffer irreparable loss. This Court has considered the entire material and is of the opinion that the mala tide is not at all established and on the other hand, the material on record goes to Show that transfer has been made as an exigency of service. Sometimes shifting of the person is required in his own interest as well specially when he is posted in his own home block. These questions are within the domain of the concerned authorities. l4. The legal position has been reiterated in the case of Kendriya Vidgaya $ang§han vs. Damodar hasad Pandeg and others 12004 Am SCW 5563) in which the Hon’ble Apex Court in para 4 has held that:— “ interfered “Transfer with which by is the an Courts incidence unless of it is service shown is to not be clearly to be arbitrary or visited by malajide or irg‘raction of any prescribed norms of principles governing the transfer (See Ambam‘ Kama 1995 (Suppi) 4 scc 169). Uraess the Ray ——v- State qf Om'aL d by mala fide or is made in violation ordgr of Union operative of of transfer India guidelines, —v- is S.L. visite Abbas, the Court AIR 1 camwt 993 SC interfere 2444). Who with should it (See be administraiive transferred authoriiy and posted to decide. where Unless is the u mutter order qf for transfer the is vitiated by malafide or is made in violation of operative any with idelines it. In or Union rules of the India Courts & ops. should Vs. not Janardan ordinarily Dehanath interfere & am). (2004) 4 SCC 245, it was observed asfollows : ‘No government servant or employee of a public particular undertaking place has any or plane legal right of his to be choice posted since forever transfer at any of one a particular transferable employee posts from appomte tion one of place service to necessary another is too not in only public an incident, but a oondi in the public administration Unless an interest and efflciency hown to be an outcome of mala jlde order of transfer is s be in violation of statutory provisions prohibiting exercise or any stated such to transfer, the Courts or the Tribunals routine, as though they were the appellate authorities, ' rfere with such orders as a matter of substituting their own decision for that of the normally cannot mte enwloyery’mwmgement, as against ' ' such of the orders service passed concerned in the interest This position of administrative was highlighted exigencies by this Court in National Hydroelectric Power Corpn. Ltd vs. Shri Bhagwan (2001) 8 SCC 574’.” facts and material on record and in view of the circumstances of the case, and recent decisions in the cases discussions made hereinabove of Kendrlya Vidayalaya Sangthan (Supra) {s5 Hydroelectric Power Corgn. Ltd. vs. Shri Bhggggg reported in g2001] 8 SCC 5?4’, it is not a case 15. Having g’ven thoughtful consideration to the Where the petitioner has been able to make out a ground for interference under Article 226/ '2'2’7 of the Constitution of India. 16. 1n the result, the petition fails and is dismissed. ‘ Fakhrudd‘m judge Jr W,»Mil» ”x sdl- .P/ Gown' /