Dismissed

Indrajeet Singh Kawar v. State Of Chhattisgarh

Chhattisgarh HC1 Aug 2018WPS/2812/2017

Case brief

AI extract

What is this about?

In consolidated writ petitions, the High Court dismissed claims by Patwaris seeking to quash orders cancelling their pending inter-district transfers. The Court held that the State had valid grounds to cancel transfers due to staffing deficits and was not barred by prior judicial directions to wait for such cancellations.

What did the court decide?

Writ petitions were dismissed as the impugned transfer cancellation orders were legal and not entitled to interference.

Indrajeet Singh Kawar Vs State Of Chhattisgarh — Service and Employment | Chhattisgarh HC (2018)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Reserved on 25/7/2018

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Delivered on 1/8/2018

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WPS No. 2816 of 2017

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Buddhesh Kumar Dewangan S/o Kishore Kumar Dewangan, Aged About 39 Years Patwari, P. C. No. 24 Dhondara R. I. C. And Tahsil Office Konta District Sukma, CG

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---- Petitioner

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Versus

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State Of Chhattisgarh Through The Secretary, Department Of Revenue Mahanadi Bhawan, Mantralaya New Raipur, District Raipur CG

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Collector, Land Record Section , Sukma Tahsil And District Sukma, CG

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---- Respondents

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WPS No. 2933 of 2017

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Manoharan Lal Rathod S/o Shri Salik Ram Rathod, Aged About 40 Years Patwari, P. C. No. 17 Dornapal, Revenue Inspector Circle And Tahsil Konta, District Sukma, Chhattisgarh., Chhattisgarh

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---- Petitioner

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Versus

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State Of Chhattisgarh Through The Secretary, Department Of Revenue Mahanadi Bhawan, Mantralaya New Raipur, District Raipur CG

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Collector, Land Record Section , Sukma Tahsil And District Sukma, CG

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---- Respondents

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WPS No. 2824 of 2017

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Chait Ram Churendra S/o Shri Laxman Singh, Aged About 42 Years Patwari P. C. No. 08, Gandhi Nagar, Sukma, Distt. Sukma, CG

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---- Petitioner

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Versus

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State Of Chhattisgarh Through The Secretary, Department Of Revenue Mahanadi Bhawan, Mantralay New Raipur, District Raipur, CG

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Collector, Land Record Section , Sukma Tahshil And District Sukma, CG

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---- Respondents

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WPS No. 3088 of 2017

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Sulesh Kumar Verma S/o Shri Padumlal Verma, Aged About 30 Years P. C. No. 06, Tahsil Chhingarh, District Sukma, CG

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---- Petitioner

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Versus

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State Of Chhattisgarh Through The Secretary, Department Of Revenue Mahanadi Bhawan, Mantralay New Raipur, District Raipur, CG

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Collector, Land Record Section, Sukma Tahsil And District Sukma, CG

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---- Respondents

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WPS No. 1992 of 2017

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Aalekh Toppo S/o Shri Bhukhu Ram Nishad, Aged About 33 Years Patwari, Tah. and District Sukma CG

---- Petitioner

Versus

State Govt. Of Chhattishgarh Through The Secretary, State Govt. Of Chhattisgarh, Revenue And Apada Department Ministry, Mahanadi Bhawan, P. S. Rakhi, New Raipur CG

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Collector, Land Record Section, Sukma, Tahsil And District Sukma Chhattisgarh, District : Sukuma, Chhattisgarh

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---- Respondents

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WPS No. 2812 of 2017

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Indrajeet Singh Kawar S/o Shri Neelam Singh Kanwar, Aged About 33 Years Patwari P. C. 25 Tahsil And District Sukma Chhattisgarh., Chhattisgarh

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---- Petitioner

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Versus

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State Of Chhattisgarh Through The Secretary, Department Of Revenue, Mahanadi Bhawan, Mantralay, New Raipur, District Raipur Chhattisgarh, Chhattisgarh

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Collector, Land Record Section, Sukma, Tahsil And District Sukma CG ---- Respondents

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WPS No. 2820 of 2017

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Sangeeta Markam D/o Shri Budharu Ram Markam, Aged About 43 Years Patwari, P. C. No. 23, Tahsil Office Konta, District Sukma, CG

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---- Petitioner

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Versus

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State Of Chhattisgarh Through The Secretary, Department Of Revenue Mahanadi Bhawan, Mantralay New Raipur, District Raipur, Chhattisgarh, Chhattisgarh

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Collector, Land Record Section , Sukma Tahshil And District Sukma, Chhattisgarh, District : Sukuma, Chhattisgarh

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---- Respondents

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For petitioners Mr. Ajay Shrivastava, Adv. For respondents Mr. R.K. Gupta, Dy. Adv. General.

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Hon'ble Shri Justice Sharad Kumar Gupta

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As these petitions involve identical question for decision, they are being disposed of by this common order. For convenience, WPS No. 2816/2017 (Budhesh Kumar Dewangan -v- State of Chhattisgarh and another) is being taken as leading case.

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Heard on I.A. no. 1/2018 for taking documents on record.

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On due consideration, the application I.A. No. 1/2018 is allowed. The documents are taken on record.

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The petitioners have preferred these writ petitions to seek the relief to quash the impugned order dated 31-1-2017 Annexure P-1 by which their transfer from Sukma to different districts has been cancelled and to direct the respondents to relieve them immediately from their places

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of new posting.

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This is admitted by the respondents that the petitioners are Patwari and had been transferred from Sukma to different districts on their own expenses by order dated 21-7-2016 Annexure P-4. The petitioners were not relieved in pursuance of order Annexure P-4. Some petitioners being aggrieved filed the writ petition No. 187/2017 before this Court. The said writ petition was disposed of by this Court on 16-1-2017 Annexure P-2 with the direction that if the transfer order of the petitioners is not cancelled, varied or kept in abeyance by the respondents- transferring authority, the petitioners would be required to be relieved towards implementation of the transfer order Annexure P-4.

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In brief the petitioners' case is that before the cancellation of transfer order Annexure P-4 respondents have not obtained the approval from the coordination which is mandatory according to the transfer policy. There was no urgency for the aforesaid cancellation. Patwari Narendra Kumar and Nagendra Kumar were also transferred by transfer order Annexure P-4 but their transfers have not been cancelled and they have been relieved immediately, thus this is discrimination. The impugned order is not sustainable in the eye of law.

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In brief, case of the respondents is that district Sukma is a scheduled area. As per the transfer policy Annexure P-3, there is a provision that the employees transferred from the scheduled area to non-scheduled area would not be relieved unless and until reliever is available. Therefore, the petitioners have not been relieved in compliance of order Annexure P-4. District Sukma is also facing acute paucity of the Patwaris. Collector, district Sukma has informed that total sanctioned post of Patwari in said district is 66, out of which, 48 posts are filled and 18 posts are lying vacant, it would not be appropriate to relieve the petitioners from Sukma district. The matter was placed for consideration before the coordination and after due consideration, coordination cancelled the order Annexure P-4. The concerned note sheet is Annexure R-1. Transfer is an exigency of service and it is the employer's prerogative.

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Counsel for the petitioners vehemently argued that the impugned order has been passed without obtaining approval from the coordination which is against the transfer policy, some Patwaris have been relieved but the petitioners have not, this is clear cut

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discrimination with them.

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On the other hand, the Government Advocate appearing for the State argued that approval was obtained from the coordination. Transfer is an exigency of service and it is the employer's prerogative. The cancellation of transfer order can only be challenged on the ground that it has not been passed under any circular/policy, it has been passed with mala fide intention. It has been passed by incompetent authority.

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10.First and foremost question for consideration before this court is that whether in spite of order Annexure P-2, transfer order Annexure P-4 may be cancelled by competent authority.

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Counsel for the petitioners placed reliance on the decision of a coordinate bench of this Court in Moh. Idrish Asharafi -v- Dr. Ariyaz Phakir Bhai Tamboli passed in Cont. No. 565/2016 dated 12-1-2017 in para 5 of which it has been held as under :-

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“5. The order passed by this Court in its true spirit was meant to convey that if the transfer of the petitioner has not been varied, modified or cancelled by State Government, the petitioner should be relieved. In its true spirit, the order only mean that the authority was required to verify whether till the date passing of the order, any order was passed by the State Government to cancel, vary or modify the transfer order. It appears that the respondent without due inadvertence to the spirit of the order wrongly construed the order of the Court as if the matter was to be considered by the State Government on his request for cancellation, variation or modification and only in the event, the State Government declining to do so, he was to proceed to relieve the petitioner.”

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12.It would be pertinent to mention the provision of special note of transfer policy Annexure P-3 which reads as under :-

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“fo'ks"k Vhi %& mijksDr esa ls fdlh Hkh izdkj dk LFkkukarj.k vkns'k ;fn fujLr ;k la'kksf/kr fd;k tkuk gks rks ,sls fujLrhdj.k@la'kks/ku vkns'k dk izLrko leUo; esa izLrqr fd;s tk;saxs rFkk leUo; esa vuqeksnu i'pkr~ gh fujLr@la'kksf/kr fd;s tk ldsaxsA”

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13.It would be noteworthy to reproduce the para 9 of Mohd. Idrish's case (supra)-

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“9. For the reasons stated above, particularly taking into consideration that the Government has now cancelled the

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transfer order, I am not inclined to proceed further in the matter and placing on record the aforesaid warning given to the respondent to remain careful in future, the contempt petition is closed and is accordingly disposed off.”

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14.In para 5 of Mohd. Idrish 's case (supra), this court has only observed that if at the time of the consideration of relieving of a transferred employee, the transfer order has not been modified or cancelled then competent authority is bound to relieve such employee. In this para, this Court has not held that competent authority subsequently cannot modify or cancel the order. Moreover, from para 9 of Mohd. Idrish (supra), it is clear that government has a right to cancel or modify the transfer order at later stage. Looking to these circumstances and the aforesaid special note of Annexure P-3, this Court finds that, in spite of order Annexure P-2, transfer order Annexure P-4 may be cancelled by competent authority.

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15.Second question for consideration before this Court is that whether transfer order Annexure P-4 had been cancelled after approval of the coordination.

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16.In the order dated 7-1-2018 filed by the petitioners it has been mentioned that in the case approval of Hon'ble Chief Minister has been obtained in coordination.

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17.In Annexure P-3 it has not been mentioned that what would be constitution of coordination, who can preside over the same. The provision of Clause 5.3 of Annexure P-3 reads as under :-

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“5.3 leUo; ds izdj.kksa ds ekeyksa esa izLrko@uLrh vko';d :i ls NRrhlx<+ dk;Zikyd 'kklu ds dk;Z fu;e rFkk mu fu;eksa ds v/khu tkjh fd;s x;s funsZ'k rFkk vuqns'k vuqlkj izLrqr fd;s tk;saxsA”

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18.Note sheet Annexure R-1 clearly indicates that matter in hand travelled to the Minister, Revenue and Disaster Management, through Joint Secretary.

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19.Though in Annexure P-1 and Annexure R-1 it has not been specifically mentioned that the matter was placed in coordination and approval was obtained from Hon'ble Chief Minister, but looking to this fact that Annexure P-3 is silent about formation of coordination, the approval of Chief Minister is essential, looking to the contents of Annexure R-1, this Court finds that the transfer order Annexure P-4 had been cancelled after approval of the coordination.

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20.Hon'ble Supreme Court in the matter of State of UP and ors. -v-

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Goverdhan Lal [(2004) 11 SCC 402] and this Court in the matter of Miss Manisha Agrawal -v- State of CG and others [2015(4) CGLJ 182], have observed that transfer policy is merely a guideline/ executive instruction and the same is not enforceable in the court of law.

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21.If for the sake of argument it may be deemed that Annexure P-1 is not approved by the coordination, then also, looking to the aforesaid observation made by Hon'ble S uprem e Court in State of UP and ors. (supra) and this Court in Miss Manisha Agrawal (supra) it could not be said that Annexure P-1 is illegal.

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22.Now third question for consideration before this Court is that whether Annexure P-1 had been passed on just and sufficient grounds.

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23.It would be noteworthy to extract the provisions of 2.4, 2.5 and 2.6 of Annexure P-3 which reads as under ;-

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“2.4 foHkkxksa dk ;g nkf;Ro gksxk fd ;fn vuqlwfpr {ks=ksa ds 'kkldh; lsod dk xSj&vuqlwfpr {ks= esa LFkkukarj.k djus ds izLrko gSa] rks mlds ,othnkj dk Hkh izLrko ¼tks xSj&vuqlwfpr {ks= ls gks½ vfuok;Zr% j[kk tk,A 'kgjh {ks= ,oa xzkeh.k {ks=ksa esa fjDr;ksa dk tks vlarqyu ¼becSysal½ gSa] mls larqfyr ¼cSysal½ djus dk fo'ks"k /;ku j[kk tk,A vk'k; ;g gS fd xzkeh.k {ks= esa ftrus izfr'kr in fjDr gS] 'kgjh {ks=ksa esa yxHkx mlh ds vuq:i in fjDr jg ldsaA ,slh fLFkfr fufeZr u gks fd 'kgjh {ks=ksa esa yxHkx lHkh in Hkjsa gks rFkk xzkeh.k {ks=ksa esa dkQh fjDr;ka cuh jgsA

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2.5 ftu inksa ,oa LFkkuksa ij vf/kdkjh@deZpkjh dk vkf/kD; gS] ,sls LFkkuk a s ls LFkkukarj.k U;wurk ¼Deficit½ okys LFkku gsrq gksA fdlh Hkh ifjfLFkfr esa U;wurk ¼Deficit½ okys LFkku ls vkf/kD; okys LFkku esa LFkkukarj.k ugha fd;k tk,xk rkfd larqyu cuk jgs ,oa deh okys {ks=ksa esa inksa dh iwfrZ gks ldsA

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2.6. vuqlwfpr {ks= ds 'kkldh; lsod dk xSj vuqlwfpr {ks= esa LFkkukarj.k gksus ij mlds LFkku ij ,othnkj ds vk tkus ds mijkar gh mls dk;ZeqDr fd;k tk,A ;g Hkh lqfuf'pr fd;k tk, fd vuqlwfpr {ks= ds fjDr in Hkjs tk,aA

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24.As per the note sheet Annexure R-1 Collector Sukma had informed that out of sanctioned 66 posts of patwari only 48 posts of patwari are filled and 18 posts are still vacant and if the 8 patwari have been relieved without their reliever the government work would adversely be affected and it would be appropriate that they should not be relieved from district Sukma. There is no reason to say that these circumstances are unnatural and fictitious. Thus looking to aforesaid provisions of 2.4, 2.5 and 2.6 of the Annexure P-3 and said circumstances, this court finds that Annexure P-1 had been passed on just and sufficient grounds.

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25.Fourth question for consideration before this Court is that whether order Annexure P-1 is discriminatory as Patwari Narendra Kumar and Nagendra Kumar who were transferred by Annexure P-4, have been relieved.

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26.It has been earlier decided that Annexure P-1 had been passed on just and sufficient grounds.

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27.As per order Annexure P-6 Patwari Narendra Kumar Verma and as per order Annexure P-7 Patwari Nagendra Kumar singh have been relieved.

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28.In the case in hand patwari Narendra Kumar Verma and Nagendra Kumar Singh are not the party. Moreover, the circumstances under which they have been relieved, have not been brought in the notice of this Court. Hence merely on the ground of relieving of aforesaid two patwaris it could not be said that the Annexure P-1 is discriminatory.

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29.In the case in hand it does not appear that the impugned order Annexure P-1 violates any statutory rules or regulation or it has been passed by the authority without jurisdiction or issued with malafide intention. It does not cause any prejudice, problem, hardship to the petitioners and it could not be termed as illegal. It does not appear that the impugned order is passed on an irrelevant ground or it is passed by way of or in lieu of punishment.

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30.Looking to the above mentioned facts and circumstances, material placed on record, this Court finds that the impugned order Annexure P-1 does not suffer from any illegality and does not call for any interference by this court in exercise of its jurisdiction vested under Article 226 of the Constitution of India.

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31.Consequently, these writ petitions deserve to be and are hereby dismissed.

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Sd/(Sharad Kumar Gupta) Judge

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pathak

Indrajeet Singh Kawar v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Indrajeet Singh Kawar v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

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