Dismissed

Udesh Kumar Bhawani v. State Of Chhattisgarh

Chhattisgarh HC1 Aug 2018WPS/361/2018

Case brief

AI extract

What is this about?

The High Court dismissed multiple writ petitions filed by Patwaris challenging orders cancelling their transfers from Bijapur district. The court held that the employer has the prerogative to cancel transfers, found the cancellation procedurally valid, and determined no discrimination or illegality existed, upholding Article 226 jurisdiction standards.

What did the court decide?

The writ petitions were dismissed; the cancellation orders were upheld and no interference was permitted.

Udesh Kumar Bhawani 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. 6685 of 2016

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Smt. Sharda Sinha W/o Shri Amresh Sinha, Aged About 30 Years Patwari P.H. No 11, Bhairamgarh, Post Thana, Tahsil Bhairamgarh, Distirct Bijapur CG

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---- Petitioner

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Versus

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State Of Chhattisgarh Thorugh The Secretary, Revenue Department, Mahanadi Bhawan, New Raipur Chhattisgarh, Chhattisgarh

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The Collector, Land Record Bijapur, Distirct Bijapur Chhattisgarh, District : Bijapur, Chhattisgarh

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Smt. Arti Washnik Under Secretary, Revenue Department Mahanadi Bhawan, New Raipur Chhattisgarh, District : Raipur, Chhattisgarh

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Dr. Aiyaz Phakir Bhai Tamboli, Collector, Bijapur, Distirct Bijapur Chhattisgarh, District : Bijapur, Chhattisgarh

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---- Respondents

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WPS No. 1586 of 2017

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Moh. Idrish Asharfi S/o Shri Hafij Moh. Ibrahim, Aged About 34 Years Patwari P. H. 11, Paigdapali, Post ,Thana, Tahsil Bhairamgarh, District Bijapur CG

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---- Petitioner

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Versus

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State of Chhattisgarh through the Secretary, Revenue , Mahanadi Bhawan, New Raipur, CG

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The Collector (Land Record), Bijapur, District Bijapur, CG

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Smt. Arti Washnik, Under Secretary, Revenue Department, Mahanadi Bhawan, New Raipur CG

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Dr. Aiyaz Phakir Bhai Tamboli, Collector Bijapur, District Bijapur CG

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---- Respondents

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WPS No. 1587 of 2017

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Smt. Rupwati Tokal W/o. Shri S. R. Tokal, Aged About 26 Years Patwari P. H. 13, Badetungali, Post, Thana, Tahsil Bhairamgarh, District Bijapur CG

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---- Petitioner

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Versus

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State of Chhattisgarh through the Secretary, Revenue Department, Mahanadi Bhawan, New Raipur, CG

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The Collector (Land Record), Bijapur, District Bijapur, CG

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---- Respondents

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WPS No. 1589 of 2017

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Radhyshyam Gour S/o Shri K. R. Gour, Aged About 30 Years Patwari P. H. 25, Bhairamgarh, Post, Thana, Tahsil Bhairamgarh, District Bijapur CG

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---- Petitioner

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Versus

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

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The Collector, (Land Record) Bijapur, District Bijapur CG

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Smt. Arti Washnik, Under Secretary, Revenue Department, Mahanadi Bhawan, New Raipur CG

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Dr. Aiyaz Phakir Bhai Tamboli, Collector Bijapur, District Bijapur CG

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---- Respondents

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WPS No. 7538 of 2017

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Sarjoo Ram Thakur S/o Shri M. R. Thakur Aged About 45 Years Patwari P. H. 23 Pinkonda , Post, Thana Tahsil Bhairamgarh District Bijapur CG

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---- Petitioner

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Versus

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State of Chhattisgarh through the Secretary, Revenue and Calamity Management, Department, Mahanadi Bhawan, New Raipur, CG

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The Collector, Bijapur, District Bijapur, CG

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---- Respondents

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WPS No. 7540 of 2017

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Santlal Teta S/o Late Nohar Singh Teta Aged About 47 Years Patwari P H 04 , Uskapatnam Post Thana Tahsil Bhairamgarh District Bijapur CG

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---- Petitioner

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Versus

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State of Chhattisgarh through the Secretary, Revenue and Calamity Management, Department, Mahanadi Bhawan, New Raipur, CG

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The Collector, Bijapur, District Bijapur, CG

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---- Respondents

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WPS No. 7554 of 2017

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Ram Bilas Yalam S/o Shri B. Yalam Aged About 38 Years Patwari Post Thana, Tahsil Usoor, District Bijapur CG

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---- Petitioner

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Versus

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State of Chhattisgarh through the Secretary, Revenue and Calamity Management, Department, Mahanadi Bhawan, New Raipur, CG

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The Collector, Bijapur, District Bijapur, CG.

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---- Respondents

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WPS No. 7555 of 2017

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Krishna Dhurwey Son of Shri N. R. Dhurwey, Aged About 31 Years Patwari P. H. 10, Chairpali, Post, Thana, Tahsil Bhopalpatnam, District Bijapur, CG

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---- Petitioner

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Versus

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1. State of Chhattisgarh through the Secretary, Revenue and Calamity Management, Department, Mahanadi Bhawan, New Raipur, CG

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1. The Collector, Bijapur, District Bijapur, CG

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---- Respondents

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WPS No. 7 of 2018

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Tikam Sai Mandavi Son Of Shri M. R. Mandavi, Aged About 32 Years Patwari P. H. 13, Maddaid, Post, Thana And Tahsil Bhopalpatnam, District Bijapur, CG ---- Petitioner

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Versus

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1. State of Chhattisgarh through the Secretary, Revenue and Calamity Management, Department, Mahanadi Bhawan, New Raipur, CG

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1. The Collector, Bijapur, District Bijapur, CG

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---- Respondents

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WPS No. 8 of 2018

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Anil Bhaskar Son Of Shri P. R. Bhaskar, Aged About 33 Years Patwari P. H. 16, Mangalnar, Post, Thana And Tahsil- Bhairamgarh, District Bijapur, CG ---- Petitioner

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Versus

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1. State Of Chhattisgarh Through The Secretary, Revenue And Calamity Management, Department, Mahanadi Bhawan, New Raipur, CG

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1. The Collector, Bijapur, District Bijapur, CG

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---- Respondents

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WPS No. 11 of 2018

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Bharat Karma Son of Shri Ganga Karma, Aged About 35 Years Patwari P. H. 34, Padeda, Post, Thana, Tahsil and District Bijapur, CG ---- Petitioner

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Versus

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1. State of Chhattisgarh through the Secretary, Revenue and Calamity Management, Department, Mahanadi Bhawan, New Raipur, CG

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1. The Collector, Bijapur, District Bijapur, CG

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---- Respondents

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WPS No. 84 of 2018 Shriram Markam Son of Late K. C. Markam, Aged About 46 Years Patwari, Post, Thana, Tahsil- Usoor, District Bijapur, CG

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---- Petitioner

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Versus

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State of Chhattisgarh through the Secretary, Revenue and Calamity Management, Department, Mahanadi Bhawan, New Raipur, CG

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The Collector, Bijapur, District Bijapur, CG

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---- Respondents

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WPS No. 361 of 2018

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Udesh Kumar Bhawani S/o Shri S. R. Bhawani, Aged About 32 Years Patwari P. H. 01, Murkinar, Post, Thana, Tahsil Usoor, District Bijapur CG

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---- Petitioner

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Versus

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State of Chhattisgarh through the Secretary, Revenue and Calamity Management, Department, Mahanadi Bhawan, New Raipur, CG

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The Collector, Bijapur, District Bijapur, CG

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---- Respondents

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For petitioners	Mr. Somkant Verma, Adv.
For respondents 1 & 2	Mr. R.K. Gupta, Dy. Adv. General.
For respondents 3 & 4	None.

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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. 6685/2016 (Smt Sharda Sinha -v- State of Chhattisgarh and another) is being taken as leading case.

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Heard on I.A. no. 2, I.A. No. 3, I.A. No. 4 and I.A. No. 5 for taking documents on record.

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On due consideration, the above applications are 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 30-11-2016 Annexure P-1 by which their transfers from Bijapur to different districts, and order dated 3-122016 Annexure P-2 by which government has ordered that the class 3 and 4 employees of districts of Bastar and Sarjuga division and Dhamtari district, are exparte relieved with immediate effect, have been cancelled, and to direct the respondents to relieve them immediately for their places of new posting.

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This is admitted by the respondents that the petitioners are Patwari and had been transferred from Bijapur to different districts on their own expenses by order dated 30-7-2016 Annexure P-3. The petitioners were not relieved in pursuance of order Annexure P-3. Some petitioners being aggrieved filed the writ petitions, petitioner Ku. Sharda Dudhi filed WPS No. 4349/2016 before this Court. The said writ petition was disposed of by this Court on 1-9-2016 vide Annexure P-4 with the direction that if the transfer order of the petitioners is not

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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-3.

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In brief the petitioners' case is that before the cancellation of transfer order Annexure P-3 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. The other transferred patwari of other districts and subsequently parwari of Sarjuga district have been relieved, the order of the transfer of petitioners had only been cancelled because they had preferred writ petitions for their relieving, thus Annexure P-1 and P-2 are discriminatory. The impugned orders are not sustainable in the eye of law.

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In brief, case of the respondents is that district Sukma is scheduled area. As per the transfer policy Annexure P-9, there is a provision that if the employees are transferred from the scheduled area to nonscheduled area, they would not be relieved unless and until reliever is available. Therefore, the petitioners have not been relieved in compliance of order Annexure P-3. Transfer is an exigency of service and it is the employer's prerogative. Likewise the cancelation of transfer is also within the domain of employer.

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Counsel for the petitioners vehemently argued that the impugned cancellation of transfer order has been passed without obtaining approval from the coordination which is against the transfer policy, some transferred Patwari of other districts and later on Patwari of Sarguja division have been relieved but the petitioners have not, moreover the transfer of the petitioners had been cancelled because they have filed the writ petition for implementation of their transfer, thus, this is clear cut discrimination.

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On the other hand, the Government Advocate appearing for the State argued that 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-4, transfer order Annexure P-3 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-9 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 (supra)-

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

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transfer order at later stage. Looking to these circumstances and the aforesaid special note of Annexure P-9, this Court finds that, in spite of order Annexure P-4, transfer order Annexure P-3 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-3 had been cancelled after approval of the coordination.

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16.In Annexure P-9 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-9 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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17.As per Annexure D-1 dated 19-8-2016 and letter dated 26-9-2016 which is the part of Annexure D-1 filed by the petitioners, Collector Bijapur had written to the Secretary, CG Government, Revenue and Disaster management, Raipur.

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Though in Annexure P-1 it has not been specifically mentioned that the matter was placed in coordination and approval was obtained but looking to this fact that Annexure P-9 is silent about the formation of coordination, looking to the aforesaid content of Annexure D-1 and letter dated 26-9-2016, this Court finds that the transfer order Annexure P-3 had been cancelled after approval of the coordination.

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19.Hon'ble Supreme Court in the matter of State of UP and ors. -vGoverdhan 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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20.If for the sake of argument it may be deemed that Annexure P-1 is not approved by the coordination, then looking to the aforesaid observation made by Hon'ble Supreme 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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21.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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22.It would be noteworthy to extract the provisions of 2.4, 2.5 and 2.6 of Annexure P-9 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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As per the Annexure D-1 Collector Bijapur had written that by order Annexure P-1, 15 patwari of Bijapur district have been transferred and only 1 reliever has been posted, the district Bijapur is the deficit place and it would be affected. As per the letter dated 26-9-2016, Collector Bijapur had written that said transfer order be either modified or cancelled otherwise there would be problem in dealing with land matters and disaster management and triable persons would be deprived from the revenue service. 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-9 and these circumstances, this court finds that Annexure P-1 had been passed on just and sufficient grounds.

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Fourth question for consideration before this Court is that whether order Annexure P-1 is discriminatory.

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

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The circumstances under which the transferred patwari of Surguja District have been relieved, are not brought in the notice of this Court.

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27.Petitioners failed to show that such other transferred patwari from Bijapur District who had not filed writ petitions had been relieved for joining in new place of posting.

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28.Looking to the above mentioned facts and circumstances 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 orders

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Annexure P-1 and Annexure P-2 violate 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 orders are passed on an irrelevant ground or order Annexure P-1 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 orders Annexure P-1 and P-2 do not suffer from any illegality and do 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

Udesh Kumar Bhawani v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Udesh Kumar Bhawani v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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