Allowed¶55

Priylesh Prasad v. State of Chhattisgarh

Service Law – Transfer – Article 226

Chhattisgarh HC23 Jan 2025WPS/146/2025

Download

Case brief

AI extract

What is this about?

WPS No. 146 of 2025; Chhattisgarh High Court Bilaspur; transfer; fag end of service; superannuation 31.05.2025; Clause 22 Transfer Policy; administrative exigency; arbitrary transfer; mala fide; Article 226; writ of certiorari; B. Varadha Rao (1986) 4 SCC 131; Somesh Tiwari (2009) 2 SCC 592; Public Health Engineering; Baikunthpur; Koriya; Jagdalpur; pension papers; Pension Payment Order; model employer; transfer order set aside; no costs.

What did the court decide?

Writ petition allowed; impugned transfer order dated 01.01.2025 (Annexure P/1) set aside; petitioner permitted to perform his duties at his present place of posting till superannuation on 31.05.2025; no order as to costs. ¶55

Priylesh Prasad Vs State of Chhattisgarh — Writ and Judicial Review | Chhattisgarh HC (2025)

What the court decided

AI extract

Outcome

¶55

Issue for consideration

Whether the transfer order dated 01.01.2025 (Annexure P/1) transferring the petitioner, an Assistant Engineer due to retire on 31.05.2025, without any shown administrative exigency, is arbitrary and liable to be quashed. +1 more

¶25

Court's answer

Transfer of an employee at the fag end of his service without assigning any reason or showing what administrative exigency existed is arbitrary, and such action of the employer has to be deprecated.

¶52

Ratio / Principle

Insistence on transferring an employee with very little time left to retire is misplaced, runs against public policy and the guidelines of the transfer policy, and is tainted with trappings of extraneous consideration, since no ground except administrative reasons was referred.

¶53

Key takeaways

Though transfer is an incident of service and interference in transfer matters is normally not permissible, where an employee is arbitrarily or frequently transferred the authorities' conduct amounts to mala fide action and the High Court has every right to interfere; the scope of such interference is limited.ratio¶49
Under Clause 22 of the Transfer Policy, officers/employees due to superannuate within one year are ordinarily not to be transferred; transferring the petitioner (in service since 19.09.1989) with about four months left for retirement served no dire administrative need, rendered the State's case doubtful, and as a model employer the State must heed the employee's pension-paper and retirement exigencies.ratio¶30

Detailed headnote1 paragraphs

Service Law - Transfer - Article 226 - Transfer of Assistant Engineer, Public Health Engineering, four months before superannuation (retirement due 31.05.2025) without any recorded administrative exigency - Clause 22 of the Transfer Policy ordains that employees due to superannuate within one year are ordinarily not transferred - transfer at the fag end of career impedes collection of papers and preparation of Pension Payment Orders and serves no public purpose - held arbitrary, contrary to public policy and the transfer-policy guidelines, and tainted with trappings of extraneous consideration - transfer is an incident of service and interference is normally impermissible, but arbitrary transfer at the fag end of service is mala fide and open to judicial scrutiny, relying on B. Varadha Rao v. State of Karnataka, (1986) 4 SCC 131 and Somesh Tiwari v. Union of India, (2009) 2 SCC 592 - impugned order dated 01.01.2025 (Annexure P/1) set aside; petitioner retained at present posting till superannuation; no costs (High Court of Chhattisgarh, Amitendra Kishore Prasad, J., 24.01.2025).

¶1

Digitally signed by YOGESH YOGESH TIWARI TIWARI Date: 2025.01.30 10:47:40 +0530

2025:CGHC:4479

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

¶6

WPS No. 146 of 2025

¶7

Priylesh Prasad S/o Late Shri Dwarika Prasad Aged About 61 Years Currently Posted As Assistant Engineer At Office Of The Executive Engineer, Public Health Engineering, Division - Baikunthpur District - Koriya Chhattisgarh

¶8

... Petitioner

¶9

versus

¶10

1 - State of Chhattisgarh Through Secretary, Public Health Engineering Department Mahanadi Bhawan, Nawa Raipur, Atal Nagar, District - Raipur Chhattisgarh

¶11

2 - Under Secretary Public Health Engineering Department Mahanadi Bhawan, Nawa Raipur, Atal Nagar, District - Raipur Chhattisgarh

¶12

3 - Engineer in Chief Public Health Engineering Department Indravati Bhawan, Nawa Raipur, Atal Nagar, District - Raipur Chhattisgarh

¶13

4 - Chief Engineer Public Health Engineering Department, Raipur Chhattisgarh

¶14

5 - Executive Engineer Public Health Engineering, Division - Baikunthpur District – Koriya.

¶15

... Respondents

¶16

(Cause-title taken from Case Information System)

¶17

For Petitioner : Mr. Ashish Tiwari, Advocate For Respondents : Mr. Ajit Singh, Govt. Advocate

¶18

Hon’ble Shri Amitendra Kishore Prasad, Judge Order on Board

¶19

24.01.2025

¶20

1. Heard Mr. Ashish Tiwari, learned counsel for the petitioner as well as Mr. Ajit Singh, learned Government Advocate, appearing for the State/respondents.

¶21

¶22

2. The instant writ petition is preferred by the petitioner under Article 226 of the Constitution of India who was working as Assistant Engineer, Public Health Engineering, Division Baikunthpur, District Koriya (C.G.) and has been transferred to Sub Divisional Officer, Public Health Engineering, Ground Water Recharge Sub-Division, Jagdalpur (C.G.). By filing this writ petition, the petitioner has prayed for following relief(s):-

¶23

“a) Issue a writ of certiorari or any other appropriate writ order or direction quashing the impugned transfer order dated 01/01/2025 (Annexure P/1) issued by Respondent No.1 qua the Petitioner herein and/or,

¶24

b) Pass any other order that this Court may deem fit in the facts and circumstances of the case.”

¶25

3. Learned counsel for the petitioner submits that at present petitioner is working as Assistant Engineer, Public Health Engineering, Division Baikunthpur, District Koriya (C.G.) in the respondents/Department and he has only 04 months to retire. He specifically submits that petitioner is going to retire on 31.05.2025 and no administrative exigency would be served. Therefore, his transfer order may be quashed.

¶26

4. On the other hand, learned State counsel opposed the prayer and prayed for dismissal of petition submitting that impugned order is well merited.

¶27

5. I have heard learned counsel for the parties and perused the documents appended thereto.

¶28

¶29

6. This is a case where petitioner who is working as Assistant Engineer, Public Health Engineering, Division Baikunthpur, District Koriya (C.G.) in the respondents/Department since 19.09.1989. On close scrutiny, it appears that petitioner is an old man and any administrative exigency would not be served if the petitioner is transferred for 04 months at such a distant place, where petitioner would not be able to coordinate for preparation of his pension related papers.

¶30

7. It is also true that Clause 22 of the Transfer Policy stipulates that those officer/employees who are to be superannuated within one year usually, would not be subjected to transfer in normal course, meaning thereby under normal circumstances or usual course, they may retire from the place where they are working if they have one year to retire. In the present case, almost four months are left for petitioner to retire. What was the dire administrative need which compelled the respondents/State to transfer an employee when four months are left for petitioner to retire. Such an attempt rendered the case of respondents doubtful. If petitioner was not performing the duties properly then other options were available including some stringent measures but if at the fag end of his tenure, employee is being sent on transfer then it is difficult for him to collect the relevant papers and make preparation of Pension Payment Orders. Besides that, at the fag end of his career, he has to take care of his retirement, coupled with the other family issues to resolve. As a model employer, it is the duty of the State to look into the said exigencies.

¶31

¶32

8. It seems that no public purpose would be served, if petitioner is posted at different place for four months because that time would be consumed by him for getting acclimatized with the new surroundings and would lose interest in performance of public duties effectively. On this count alone, it appears that attempt of respondents is contrary to principle of public policy.

¶33

9. It is an accepted principle that in public service transfer is an incident of service. The said issue has been dealt with by the Hon’ble Supreme Court in the matter of B. Varadha Rao v. State of Karnataka and others reported in (1986) 4 SCC 131 , in which, it has been held as follows :-

¶34

“ 5. It is no doubt true that if the power of transfer is abused, the exercise of the power is vitiated. But it is one thing to say that an order of transfer which is not made in public interest but for collateral purposes and with oblique motives is vitiated by abuse of powers, and an altogether different thing to say that such an order per se made in the exigencies of service varies any condition of service, express or implied to the disadvantage of the concerned Government servant. The petitioner who appeared in person placed reliance, as he did in the High Court, on the decision of the Bombay High Court in Seshrao Nagorao Umap v. State of Maharashtra (1985) 2 LLJ 73 (Bom). We do not see how the decision can be of any avail to the question at issue. The learned Judges

¶35

¶36

were dealing with a petition under Article 226 of the Constitution by which a Medical Officer challenged his order of transfer on the ground that it was not only mala fide but was issued in colourable exercise of power and therefore wholly illegal and void. It was contended by the petitioner that he was being transferred contrary to the Government policy with a view to accommodate one Dr. R.P. Patil because of the political influence he wielded. In allowing the writ petition, the learned Judges observed that it was no doubt true that the Government has power to transfer its employees employed in a transferable post but this power has to be exercised bona , fide to meet the exigencies of the administration. If the power is exercised mala fide, then obviously the order of transfer is liable to be struck down. They relied on the observations made by this Court in E.P. Royappa v. State of T. N. (1974) 4 SCC 3, for the positivistic view that 'equality is antithetic to arbitrariness' and held that the observations equally apply to the policy regarding the transfer of public servants. It was observed :

¶37

It is an accepted principle that in public service transfer is an incident of service. It is also an implied condition of service and appointing authority has a wide discretion in the matter. The Government is the best judge to decide how to distribute and utilise the services of its employees. However, this power must be exercised honestly, bona fide and

¶38

¶39

reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power. Frequent transfers, without sufficient reasons to justify such ; transfers, cannot, but be held as mala fide. A transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose, than is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration, that even administrative actions should be just and fair.

¶40

The observation that transfer is also an implied condition of service is just an observation in passing. It certainly cannot be relied upon in support of the contention that an order of transfer ipso facto varies to the disadvantage of a government servant, any of his conditions of service making the impugned order appealable under Rule 19(1)(a) of the Rules.

¶41

6. One cannot but deprecate that frequent, unscheduled and unreasonable transfers can uproot a family, cause irreparable harm to a

¶42

¶43

Government servant and drive him to desperation. It disrupts the education of his children and leads to numerous other complications and problems and results in hardship and demoralisation. It therefore follows that the policy of transfer should be reasonable and fair and should apply to everybody equally. But, at the same time, it cannot be forgotten that so far as superior or more responsible posts are concerned, continued posting at one station or in one department of the Government is not conductive to good administration. It creates vested interest and therefore we find that even from the British times the general policy has been to restrict the period of posting for a definite period. We wish to add that the position of Class III and Class IV employees stand on a different footing. We trust that the Government will keep these considerations in view while making an order of transfer. ”

¶44

10. Further, in the matter of Somesh Tiwari v. Union of India and

¶45

others reported in (2009) 2 SCC 592 , Hon’ble Supreme Court has held as under :-

¶46

“16. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds - one malice

¶47

¶48

in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal. ”

¶49

11. Undisputedly, transfer is an incident of service and interference in transfer matters in a writ petition in normal course is not permissible but it does not mean that if an employee is frequently transferred by the authority and not allowing him to continue or complete his normal tenure at one place, the High Court cannot examine the validity of the order. The scope of interference in transfer matters is very limited for the reason that transfer is considered to be an administrative exercise and is an incident of service therefore, if administrative exigency arises, the employer has every right to transfer the employee but on several occasions, the Supreme Court as well as the High Court has considered this aspect that if an employee is arbitrarily transferred frequently then that conduct of the authorities is considered to be a mala fide action on their part and in such a circumstance, the High Court has every right to interfere in the matter.

¶50

¶51

12. The transfer order passed in public interest must be supported with sufficient reasons necessitating for passing such order. Once the transfer order is made in public interest, Court normally does not interfere unless the order is passed with mala fide or against the statutory rules. While processing the transfer order various factors are taken into consideration, therefore, if the transfer order made in public interest is allowed to be taken away by another cryptic order modifying/canceling or keeping in abeyance of the transfer order without assigning any reasons, it ceases to be in public interest, therefore, it must be held that the order has been passed at the whims and caprice of the authorities exercising the power.

¶52

13. In view of the above, it is clear from the facts of the case in hand that the petitioner has been transferred at the fag end of his service without assigning any reason as to what administrative exigency existed. As such, in absence of such an explanation, the Court should have no hesitation to form an opinion that the petitioner is being arbitrarily transferred at the fag end of the service of the petitioner and such an action of the employer has to be deprecated.

¶53

14. In the considered view of this Court, when petitioner is left with such little time to retire then insistence of the respondents/State to transfer the employee appears to be misplaced against public policy, guidelines by way of transfer policy and tainted with trappings of extraneous consideration because no ground has been referred for transfer except administrative reasons which ought be based upon some sound purpose, reasons and thoughtfulness.

¶54

¶55

15. Resultantly, writ petition stands allowed. Impugned order dated 01.01.2025 (Annexure P/1) stands set aside and petitioner is allowed to perform his duties at present place of posting till superannuation i.e. on 31.05.2025. There shall be no order as to cost(s).

¶56

Sd/-

¶57

(Amitendra Kishore Prasad) Judge

¶58

Yogesh

Priylesh Prasad v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Priylesh Prasad v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Smt. Kaushalya Bai Vs State of Chhattisgarh

Kamta Prasad Patel Vs State of Chhattisgarh

Lalaram Chandrakar Vs State of Chhattisgarh

Khilendra Kumar Kar Vs State of Chhattisgarh

Vijay Kumar Sidar Vs State of Chhattisgarh

Sulochana Sonari Vs State of Chhattisgarh