...X3..!2^^ p.B.No...—^3v^.-\^ p;^^^STTil!2^.^."- .».«».^a'*'"" ?.fll tif'i IN THB HON'BLE HIGH COURT OF C.G. AT BILASPUR W.P.(StNO. <7( OF 2010 PETITIONER / Piyush Prasad, aged about 38 years, S/o Shri H.K. Prasad, R/o Om Nagar, Jarhabhata, Bilaspur, District-Bilaspur (C.G.) VERSUS RESPONDENTS ^^ ^^J ^TA^:,^" .: 1. State of Chhattisgarh Through The Secretary Finance Department, D.K.S. Bhawan, Raipur (C.G.) 2. Chhattisgarh State Election Commission, through the Secretary, Mahanadi Secretariat Mantralaya Parisar, Raipur (C.G.)M 3. The Commissioner, Local Fund Audit, Government of Chhattisgarh, B-99, Main Road, Samta Colony, Raipur (C.G.) 4. Joint Director, Office of Commissioner, Local Fund Audit, Raipur (C.G.) 5. Shri D.A. Tirki, Deputy Director, Regional Office, Korea (C.G.) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA y[[v i-0 's ^n^ HIGj-LCOURT OF CHHATTISGARH : BILASPUR WRH" PETITION (S) N0.71 OF 2010 PETITIONER PiyushPrasad Versus State of Chhattisgarh & Others RESPONDENTS (Writ petition underArticle 226 ofthe Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri Prateek Sharma, counsel for the petitioner. Shri Y.S. Thakur, Dy. Adv. General and Shri P.K. Bhaduri, Panel Lawyer for the State. ORDER (ORAL) (Passed on this 8th day ofJanuary, 2010) 1. With the consent of learned counsel appearing for the petitioner, the petition is heard finally. 2. The petitioner, by this petition, impugns the legality and validity of the order dated 4-1-2010 (Annexure - P/1) whereby the petitioner has been transferred from Bilaspur to Koriya on the ground of administrative exigency. 3. Learned counsel appearing for the petitioner submits that the petitioner was working as Deputy Director, Local Fund Audit, Bilaspur with great sincerity and honesty. .However, all of a sudden on the basis of an unsigned complaint, without any order the Joint Director was sent for enquiry. During the enquiry nothing has been found proved against the petitioner. In spite of the said fact the petitioner has been transferred from the present place of posting i.e. Bilaspur to Koriya with a mala fide intention. The impugned order has been passed during existence of Model Code of Conduct on account of ensuing panchayat election without obtaining approval from the respondent No.2. Thus, this petition. A^f< f^ cp 7. 1 have heard learned counsel appearing for the petitioner, perused the pleadings and the documents appended thereto. With regard to contention of the petitioner that the transfer order has been passed during existence of the Model Code of Conduct on account of ensuing panchayat election is concerned; the same is for the authorities and employees to observe the Code of Conduct. If the officer who has passed the order in violation of Model Code of Conduct, the petitioner ought to have approached the appropriate authority who has to ensure that the Model Code of Conductis followed properly. At the most the impugned transfer order may be in violation of Model' Code of Conduct, which is neither statutory rules nor any regulation, the violation of the same does not warrant interference by this Court in a transfer matter. The transfer order has been passed on the basis of administrative exigency. On perusal of the order dated 4-1-2010 it does not' appear to be stigmatic. The petitioner has failed to prove the mala fide by cogent and strong reasons and lack of competence of the officer passing the impugned transfer order. Mere selfsame statement and inference that there was an enquiry, therefore the transfer was mala fide, is misplaced. Even if there was an enquiry and allegations have not been found proved and as such no punishment was imposed, but on the basis of complaint, the transfer of an employee can be made. Thus, the transfer order is just and proper. 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 Union of India and another v. Janardhan Debanath & another1, 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 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 concerned on the contemporary reports about the occurrence complained of and if the requirement, as submitted by learned 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 administration to enforce decorum and ensure probity would get frustrated. The question whether the respondents coyld be transferred 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." 8. 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 fide, 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 1 (2004) 4 SCC 245 ^'•'-t ^' forever. Underthe provisions ofservice rules, employer has all the powers to post an employee at a particular place in view of public interest and administrative exigency. (See E.P.Royappa v. State of Tamil Nadu and anothet2, Shilpi Bose (Mrs.) and others v. State of Bihar & anothei^, State of M.P. and another v. S.S.Koun/ and others4 and Mohd. Masood Ahmad v. State ofil.P. & Others5). 9. In Chief Commercial Manager, South Central Railway, Secunderabad & Others v. G. Ratnam & Others6, the Supreme Court obsen/ed 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 h'ave 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 awrit against the Government by a petition under Article 226 of the Constitution of India." 10. 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. 11. For the reasons as aforestated, the petition is dismissed at the motion stage itself. Sd/- Satish K. Agnihotri Judge 21974(4)3cc 3 3 (1991)8upp 2 SCC 659 4 (1995)38cc 270 5 (2007)83cc 150 6 (2007)88cc 212