Abhishek Kumar Dani Vs. State of Chhattisgarh and ors. - Court Judgment

Excerpt:
service - transfer - petitioner was appointed as teacher - collector passed order of transfer of petitioner to another district - petitioner contended that transfer has caused prejudice to service carrier of petitioner and he will not be promoted soon if transfer is made - hence, present petition - held, on basis of documents available on records, it is evident that career prospects of petitioner would substantially be affected and prejudiced, if petitioner is transferred from present education district where he was appointed by district education officer on post of assistant teacher - petition allowed accordingly - - learned counsel relied on a promotion order dated 2-8-2007 (annexure p-7) issued by the district education officer, bemetara, wherein it is clearly stated that the assistant teachers belonging to unreserved categories have been promoted upto 1-8-1982 to the post of upper division teacher, learned counsel further referred to an order dated 12-12-2006 (annexure p-8) passed by the district education officer, durg, wherein it is clearly stated that the assistant teachers appointed upto 8-9-1972 in general category (unreserved category) have been considered for promotion to the post of upper division teacher in education district, durg. learned counsel further contends that looking into the promotional avenues in the district, bemetara as well as in the district, durg, whereto the petitioner has been transferred, the petitioner has been substantially affected and prejudiced by this transfer. thus, the transfer order is bad and deserves to be quashed. 6. this court, while considering the transfer from the district to other district in case of gram sahayak (assistant gram panchayat officers), after having considered various decisions of the supreme court held that the transfer of an employee where the seniority is maintained at district wise, if on transfer to other district his service conditions are affected, is bad. 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. applying well settled principle of law as stated above to the facts of the case where transfer of the petitioner from education district, bemetara to education district, durg, would substantially affect his service career prospects as he would get opportunity of consideration for promotion to the higher post later in the education district, durg, when in education district bemetara, he would have an opportunity of being considered for promotion at an early date. 11. in view of well settled principle of law and the reasons mentioned hereinabove, the petition is allowed.ordersatish k. agnihotri, j.1. the petitioner was appointed as assistant teacher by district education officer, education district, bemetara on 3-1-1995. the petitioner was posted at government primary school, mohbhattha, block bemetara, education district, durg, at the relevant time, when the impugned order dated 22-7-2007 (annexure p-1), transferring the petitioner from education district, bemetara to the education district, durg at primary school, kotera, block daundilohra, was passed by the deputy collector for collector (revenue), district durg.2. learned counsel appearing for the petitioner submits that the transfer of the petitioner from education district, bemetara to the education district, durg would prejudice and adversely affect the service condition of the petitioner as the petitioner is at serial no. 887 in the seniority list of the assistant teachers as on 1-4-2006, maintained by the education district, bemetara. learned counsel relied on a promotion order dated 2-8-2007 (annexure p-7) issued by the district education officer, bemetara, wherein it is clearly stated that the assistant teachers belonging to unreserved categories have been promoted upto 1-8-1982 to the post of upper division teacher, learned counsel further referred to an order dated 12-12-2006 (annexure p-8) passed by the district education officer, durg, wherein it is clearly stated that the assistant teachers appointed upto 8-9-1972 in general category (unreserved category) have been considered for promotion to the post of upper division teacher in education district, durg. learned counsel further contends that looking into the promotional avenues in the district, bemetara as well as in the district, durg, whereto the petitioner has been transferred, the petitioner has been substantially affected and prejudiced by this transfer. thus, the transfer order is bad and deserves to be quashed. to buttress his contention, mr. sahu, relied on a decision of this court, in the matter of aalekh kumar devta v. state of c.g. and ors. writ petition no. 604 of 2005 and other connected matters 2005 (2) cglj 160.3. per contra, shri vinay harit, learned deputy advocate general appearing for the state/respondents submits that it is true that in the education district, durg, assistant teachers appointed upto 8-9-1972 have been considered for promotion to the post of upper division teacher, but this will not substantially affect the career prospects of the petitioner.4. having heard learned counsel for the parties, perused pleadings and documents appended thereto, it is evident that the career prospects of the petitioner would substantially be affected and prejudiced, if the petitioner is transferred from education district, bemetara, where he was appointed by the district education officer on the post of assistant teacher to the education district, durg. admittedly, in the education district, bemetara, the assistant teachers appointed upto 1-8-1982 have been promoted to the post of upper division teachers and in the education district, durg, the assistant teachers appointed upto 8-9-1972 have been promoted to the post of upper division teachers.5. the state/respondents in their return filed on 26-2-2008 have stated as under:that it is admitted that, there are two separate education districts in revenue district durg and the seniority list of both the education districts are maintained separately. it is also admitted that, the seniority of the petitioner would certainly effect, but, it may possible that the position of the petitioner would change and he will come above in the seniority list.6. this court, while considering the transfer from the district to other district in case of gram sahayak (assistant gram panchayat officers), after having considered various decisions of the supreme court held that the transfer of an employee where the seniority is maintained at district wise, if on transfer to other district his service conditions are affected, is bad.7. in the matter of rajendra roy v. union of india and anr. : air1993sc1236 , hon'ble the supreme court has held as under:it is true that the order of transfer often causes a lot of difficulties and dislocation in the family set up of the concerned employees but on that score the order of transfer is not liable to be struck down. unless such order is passed malafide or in violation of the rules of service and guidelines for transfer without any proper justification, the court and the tribunal should not interfere with the order of transfer. in a transferable post an order of transfer is a normal consequence and personal difficulties are matters for consideration of the department.8. in the matter of k. narayanan and ors. v. state of karnataka and ors. : air1994sc55 , hon'ble the supreme court has held as under:any person entering the service can justly feel secure of equality in continuance, promotion etc. any executive action violating it cannot be upheld. seniority is an incident of service which cannot be eroded or curtailed by a rule which operates discriminately.9. in the matter of state of u.p. and anr. v. siya ram and anr. : air2004sc4121 , hon'ble the supreme court has held as under:no government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned.10. in the matter of union of india and ors. v. janardhan debanath and anr. : (2004)iillj1057sc , hon'ble the supreme court has held as under:additionally, it was pointed out by learned counsel for the union of india that as indicated in the special leave petition itself there was no question of any loss of seniority or promotional prospects. these are the aspects which can be gone into in an appropriate proceeding, if at all there is any adverse order in the matter of seniority or promotion.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 respondents could 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. it is not for this court to direct one way or the other.applying well settled principle of law as stated above to the facts of the case where transfer of the petitioner from education district, bemetara to education district, durg, would substantially affect his service career prospects as he would get opportunity of consideration for promotion to the higher post later in the education district, durg, when in education district bemetara, he would have an opportunity of being considered for promotion at an early date.11. in view of well settled principle of law and the reasons mentioned hereinabove, the petition is allowed. the impugned order dated 22-7-2007 (annexure p-1) in respect of the petitioner is quashed. no order as to costs.

Judgment:
ORDER

Satish K. Agnihotri, J.

1. The petitioner was appointed as Assistant Teacher by District Education Officer, Education District, Bemetara on 3-1-1995. The petitioner was posted at Government Primary School, Mohbhattha, Block Bemetara, Education District, Durg, at the relevant time, when the impugned order dated 22-7-2007 (Annexure P-1), transferring the petitioner from Education District, Bemetara to the Education District, Durg at Primary School, Kotera, Block Daundilohra, was passed by the Deputy Collector for Collector (Revenue), District Durg.

2. Learned Counsel appearing for the petitioner submits that the transfer of the petitioner from Education District, Bemetara to the Education District, Durg would prejudice and adversely affect the service condition of the petitioner as the petitioner is at Serial No. 887 in the seniority list of the Assistant Teachers as on 1-4-2006, maintained by the Education District, Bemetara. Learned Counsel relied on a promotion order dated 2-8-2007 (Annexure P-7) issued by the District Education Officer, Bemetara, wherein it is clearly stated that the Assistant Teachers belonging to unreserved categories have been promoted upto 1-8-1982 to the post of Upper Division Teacher, Learned Counsel further referred to an order dated 12-12-2006 (Annexure P-8) passed by the District Education Officer, Durg, wherein it is clearly stated that the Assistant Teachers appointed upto 8-9-1972 in general category (unreserved category) have been considered for promotion to the post of Upper Division Teacher in Education District, Durg. Learned Counsel further contends that looking into the promotional avenues in the District, Bemetara as well as in the District, Durg, whereto the petitioner has been transferred, the petitioner has been substantially affected and prejudiced by this transfer. Thus, the transfer order is bad and deserves to be quashed. To buttress his contention, Mr. Sahu, relied on a decision of this Court, in the matter of Aalekh Kumar Devta v. State of C.G. and Ors. Writ Petition No. 604 of 2005 and other connected matters 2005 (2) CGLJ 160.

3. Per contra, Shri Vinay Harit, learned Deputy Advocate General appearing for the State/respondents submits that it is true that in the Education District, Durg, Assistant Teachers appointed upto 8-9-1972 have been considered for promotion to the post of Upper Division Teacher, but this will not substantially affect the career prospects of the petitioner.

4. Having heard learned Counsel for the parties, perused pleadings and documents appended thereto, it is evident that the career prospects of the petitioner would substantially be affected and prejudiced, if the petitioner is transferred from Education District, Bemetara, where he was appointed by the District Education Officer on the post of Assistant Teacher to the Education District, Durg. Admittedly, in the Education District, Bemetara, the Assistant Teachers appointed upto 1-8-1982 have been promoted to the post of Upper Division Teachers and in the Education District, Durg, the Assistant Teachers appointed upto 8-9-1972 have been promoted to the post of Upper Division Teachers.

5. The State/respondents in their return filed on 26-2-2008 have stated as under:

That it is admitted that, there are two separate Education Districts in Revenue District Durg and the seniority list of both the Education Districts are maintained separately. It is also admitted that, the seniority of the petitioner would certainly effect, but, it may possible that the position of the petitioner would change and he will come above in the seniority list.

6. This Court, while considering the transfer from the District to other District in case of Gram Sahayak (Assistant Gram Panchayat Officers), after having considered various decisions of the Supreme Court held that the transfer of an employee where the seniority is maintained at district wise, if on transfer to other district his service conditions are affected, is bad.

7. In the matter of Rajendra Roy v. Union of India and Anr. : AIR1993SC1236 , Hon'ble the Supreme Court has held as under:

It is true that the order of transfer often causes a lot of difficulties and dislocation in the family set up of the concerned employees but on that score the order of transfer is not liable to be struck down. Unless such order is passed malafide or in violation of the rules of service and guidelines for transfer without any proper justification, the Court and the Tribunal should not interfere with the order of transfer. In a transferable post an order of transfer is a normal consequence and personal difficulties are matters for consideration of the department.

8. In the matter of K. Narayanan and Ors. v. State of Karnataka and Ors. : AIR1994SC55 , Hon'ble the Supreme Court has held as under:

Any person entering the service can justly feel secure of equality in continuance, promotion etc. Any executive action violating it cannot be upheld. Seniority is an incident of service which cannot be eroded or curtailed by a rule which operates discriminately.

9. In the matter of State of U.P. and Anr. v. Siya Ram and Anr. : AIR2004SC4121 , Hon'ble the Supreme Court has held as under:

No Government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the Tribunals normally cannot interfere with such orders as a matter of routine, as though they were Appellate Authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of Administrative exigencies of the service concerned.

10. In the matter of Union of India and Ors. v. Janardhan Debanath and Anr. : (2004)IILLJ1057SC , Hon'ble the Supreme Court has held as under:

Additionally, it was pointed out by learned Counsel for the Union of India that as indicated in the special leave petition itself there was no question of any loss of seniority or promotional prospects. These are the aspects which can be gone into in an appropriate proceeding, if at all there is any adverse order in the matter of seniority or promotion.

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 respondents could 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. It is not for this Court to direct one way or the other.

Applying well settled principle of law as stated above to the facts of the case where transfer of the petitioner from Education District, Bemetara to Education District, Durg, would substantially affect his service career prospects as he would get opportunity of consideration for promotion to the higher post later in the Education District, Durg, when in Education District Bemetara, he would have an opportunity of being considered for promotion at an early date.

11. In view of well settled principle of law and the reasons mentioned hereinabove, the petition is allowed. The impugned order dated 22-7-2007 (Annexure P-1) in respect of the petitioner is quashed. No order as to costs.