^.&*-^-t ^.:^^'.^:-"",....-- ^^^~ie\\ so-"-.,-.,c1^ ^w-' >se" •^-t!'~ fTS <i•'fts 'h-l ISSS <Q IN THE HON'BLEHI6H COURT OF JUWCATURE AT BILASPUR C.&., WRITPETETCON (S)NO OF 2011 ; Smt. Purnima Soni W/o. Late Shri fiarib bas Soni, aged about 55 Years, Occupation - Service, Posted as Supervfetfr at Ekikrit Bal Vikas Pariyojna Mungeti, Distt.- Bilaspur ( C.G.) VERSUS RESPONDENT5 1. State of Chhattisgarh through the Secretary Women and Child Development Department Mantralaya &.K. S. Building Raipur (C.6.) 2. The birector , Women and Child, Development Department Chhattissarh Raipur, Distt.- Raipur (C.6.) 3. The Collector Bilaspur. Distt.- Bilaspur 4. The Project officer. Tntegrated ChiJd, Development Project Mungeli, Distt.- Bilaspur ( C. G.) WRIT PETITCON UNDER ARTICLES 226 OF THE CONSTCTUTION OF IN&IA FOR ISSUEANCE OF APPROPRIATE WRIT. ^ ^ ({ ^.^3'^. ^ ^.r?rf^L;^\ ^ 1 '<:8P''!'>Si I //"'* HIGH COURT OF CHHATTISGARH AT BILASPUR PETITIONER WRIT PETITION (S) No. 4658 of2011 Smt. Purnima Soni. RESPONDENTS VERSUS State ofChhattisgarh & Others. WRIT PETITION UNDER ARTICLE 226 OF THE CONST1TUTIQN OFJNDIA SB: Hon'ble Shri Satish K. AgnihotrLJ. Present: Shri Awadh Tripathi, Advocate for the petitioner. Shri Ajit Singh, Panel Lawyer for the Stafe/ respondents. ORDER (Passed on 26th day of September, 2011) 1. 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 trsisferred to Project, Kota, on administrative grounds. 2. Learned counsel appearing for the petitioner submits that contrary to the transfer policy dated 13.06.2011 (Annexure P/2), the petitioner has been transferred without having a proposal from the department, as required. 3. Notice was issued to the respondents and an order to maintain status quo as obtained on 16.08.2011, was passed. 4. Shri Singh, learned counsel appearing for the State/respondents submits that the transfer policy is not binding on it as they are mere guidelines and not controlled by statutory provisions. 5. Indisputably, the proposal was not made by the. concerned department, as is required under the transfer policy dated tt. •VL\ .;' // 13.06.2011. For ready reference, the relevant portion of the transfer policy dated 13.06.2011 (Annexure P/2), is quoted below: teft ^ "2. SF(R-RCT WFncK11! -^T f^? ^rt' i ^cr?r ^jf •to ^ ^tft? »tl]ft T^r 'ci^f ^ift ^4^iF<^i ^ ^ 15 ^T 2011 ^ 15 u^nf 2011 ? ^ aral^ ^i f^ uff ~^ff[ WHMW TRTTcr WR?T ^FFT ^ fSCT nya' gTO ^r IR^CT fN ^I?PT| RMT VMM 'gw 'tsm ^RTCT fSi^r ^ irm^ iNNt cpT HM f^qr uir47n i 141^41^1 wnfv TF^ ciii HTO ^ ^ TWITtT WIRTtTW 3nt?T f^IT <t>p]+d<i gM uirft fS^ ^n^Tfi " 6. 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 Govemor. (2) Orders and otherinstruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in mles 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" 7. The effect of the order passed under Article 166(1) of the Constitution oflndia 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 Govemment shall be expressed to be taken in the nanie of the Governor. 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 .^-... 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 Government." 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 Goverrunent 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 frained in terms ofArticle 166." In the case on hand, the transfer policy dated 13.06.2011 (Annexure P/2) 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/2) is (2009) 15SCC705 <(2009) 8 SCC 492 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 Government 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 mles or regulations, or the order of this nature, the Court may interfere to ensure that the order passed under Article 166 of the Constitution oflndia, has to be complied with by the authorities in its letter and spint. 12. It is further surprising that the State Govemment, having passed the transfer policy in exercise ofits power under Article 166 ofthe Constitution of India, submits that the same are mere guidelines. General instructions, memos, demi-official letters, or other instructions do .not have statutory force, but the transfer policy dated 13.06.2011 (Annexure P/2) like this, has a colour ofstatute being supplemental to the statutory mles. Thus, the same has binding effect and has to be complied with in its letter and spirit. 13. In the case of Chief Commercial Manager, South Central Railway, Secunderabad & Others v. G.Ratnam & Others , relied on by the State counsel, the Supreme Court held that the Central Govemment or the State Govemment can given administrative instructions to (2007) 8 SCC 212 /-m (^ 14. 15. its servants how to acf 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. For the reasons stated hereinabove, the impugned order dated 15.07.2011 (Annexure P/l) in respect ofthe petitioner is quashed. The writ petition is allowed. No order asto costs. T SATISH K. ANGNIHORI Judge Amit