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2015 DIGILAW 74 (CHH)

Manisha Agrawal v. State Of Chhattisgarh

2015-03-02

PRITINKER DIWAKER

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ORDER Pritinker Diwaker, J. 1. Vide order dated 8.7.2014 (Annexure P/2) the petitioner who is working as Supervisor in the Department of Woman and Child Development was transferred from the office of Integrated Child Development Project, Katekalyan Sector - Parcheli, Distt. Dantewada to the office of Integrated Child Development Project, Dhamdha Sector -Dhamdha, Distt. Durg on her own expenses. As this order was not given effect to and the petitioner was not relieved from Dantewada, she filed a writ petition i.e. W.P.(s) No. 5066/14 seeking issuance of writ of mandamus against the respondents and for relieving her. On 25.9.2014 the said writ petition was disposed of by this court directing the respondents to relieve the petitioner from her present place of posting for the place where she has been transferred subject to compliance of any other administrative instructions issued by the State Government. Pursuant to direction of this Court, the representation of the petitioner has been decided and order dated 10.10.2014 (Annexure P/1) has been passed by the District Programme Officer, Woman and Child Development, Dantewada holding that as the petitioner has been transferred from the scheduled area to a non-scheduled area and no reliever of the petitioner has joined, the petitioner cannot be relieved. It is this order which has been assailed by the petitioner in this writ petition and simultaneously, the petitioner has also prayed for implementation of the transfer order dated 8.7.2014. 2. Learned counsel for the petitioner submits as under:--- "(i) though the petitioner was transferred on 8.7.2014 but till date she has not been relieved; (ii) even in case of posting of someone as reliever of the petitioner, if the said person does not join, the petitioner cannot be punished for the same and once she has been transferred, she has to be relieved. (iii) that the petitioner is working at Integrated Child Development Project, Dantewada Sector - Parcheli and this project has been divided into three sectors and in all these sectors, supervisors are working and in place of the petitioner one Ku. Jayshree Bichiya has been posted, though she has not yet joined; (iv) that even if out of three supervisors, the petitioner is transferred, the remaining supervisors can very well take care of the work of such transferred supervisor. (v) the stand of the State Government that as Ku. Jayshree Bichiya has been posted, though she has not yet joined; (iv) that even if out of three supervisors, the petitioner is transferred, the remaining supervisors can very well take care of the work of such transferred supervisor. (v) the stand of the State Government that as Ku. Jayshree Bichiya who has been posted in place of the petitioner has not joined, the petitioner cannot be relieved, is not tenable because the transfer policy dated 5.6.2014 (Annexure P/5) is merely a guideline or executive instruction which cannot be enforced. If despite posting Ku. Jayshree does not join, the State authorities are under an obligation to ensure implementation of the posting order of Ku. Jayshree so that the petitioner could be relieved. In catena of cases, the Hon'ble Apex Court and this Court as well have held that transfer policy is merely a guideline/executive instruction and the same is not enforceable in the Court of law. Reliance has been placed on the judgments in the matters of State of U.P. and others v. Gobardhan Lal (2004) 11 SCC 402 , Mrs. Shilpi Bose and others v. State of Bihar and others AIR 1991 SC 532 and Union of India and others v. S.L. Abbas AIR 1993 SC 2444 . Further, till date the transfer order of the petitioner has neither been cancelled nor been modified and therefore, it has to be given effect to. Placing reliance on the judgment of the Apex Court in the matters of Sreedam Chandra Ghosh v. State of Assam and others (1996) 10 SCC 567 it is argued that writ of mandamus can be issued directing the respondents for enforcement of the transfer order, (vi) that in the neighbouring district Sukuma, in the same department three supervisors namely Ku. Swarnlata Singh, Smt. Uma Singh and Smt. Anjana Sahu have been relieved despite the fact that there were no relievers for them. The petitioner cannot be victimized just because she was posted in the scheduled area and no one has been joined there in place of the petitioner. (vii) that if the stand of the State Government is allowed to sustain, then the petitioner will have to remain at her present place of posting forever and she would never be relieved for want of reliever, (viii) that fresh recruitment of supervisors has already been completed and only posting orders are required to be issued. (vii) that if the stand of the State Government is allowed to sustain, then the petitioner will have to remain at her present place of posting forever and she would never be relieved for want of reliever, (viii) that fresh recruitment of supervisors has already been completed and only posting orders are required to be issued. If the Government is interested to relieve the petitioner, out of the fresh recruitees anyone can be posted in her place." 3. On the other hand, supporting the impugned order it has been argued by the State Counsel that normally the government employees are reluctant to work in the scheduled area as a result of which the work of scheduled area is being affected and considering this aspect of the case, clause 2.6 has been inserted in the transfer policy to ensure that in the scheduled area also, the government employee should work. State counsel submits that one Ku. Jayshree Bichiya has been posted in place of the petitioner vide order dated 3.11.2014 but she has not joined yet. The State Government has to maintain balance while posting the employees and therefore, the petitioner has not been relieved yet. 4. Heard learned counsel for the parties and perused the material available on record. 5. Before adverting to the rival submissions made by the parties, it would be appropriate to refer to clause 2.4 and 2.6 of the transfer policy for the year 2014 (Annexure P/7) which reads as under: ^^2-4 foHkkxks dk ;g nkf;Ro gksxk fd ;fn vuqlwfpr {ks=ks ds ‘kkldh; lsod dk xSj&vuqlwfpr {ks= esa LFkkukUrj djus ds izLrko gS] rks mlds ,othnkj dk Hkh izLrko ¼tks xSj&vuqlwfpr {ks= ls gks½ vfuok;Zrk% j[kk tk,A ‘kgjh {ks= ,oa xzkeh.k {ks=ks esa fjfDr;ksa dk tks vlarqyu ¼becSysal½ gS] 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=ks esa yxHkx mlh ds vuq:Ik in fjDr jg ldsaA ,sLkh fLFkfr fufeZr u gks fd ‘kgjh {ks=kksa esa yxHkx lHkh in Hkjsa gks rFkk xzkeh.k {ks=ks esa dkQh fjfDr;kW cuh jgsA 2-6 vuqlwfpr {ks= ds ‘kkldh; lsod dk xSj &vuqlwfpr {ks= esa LFkkukarj 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 ^^ 6. Though according to the respondents, one Ku. Though according to the respondents, one Ku. Jayshree has been posted in place of the petitioner but till date she has not joined. The respondents have utterly failed to establish as to what steps they have taken against said Ku. Jayshree for not carrying out the order posting her in place of the petitioner. Merely posting a person in place of the petitioner on paper will not justify the stand of the State Government that the petitioner cannot be relieved for want of reliever. If the State Government is so serious to post someone in place of the petitioner, then it is their bounden duty to ensure enforcement of the order posting the person in place of the petitioner. Further, as informed by the petitioner, posting of supervisors after fresh recruitment is under process and as such, considering the administrative exigency, the respondents can take immediate steps for posting any of such recruitees in place of the petitioner for execution of the petitioner's transfer order. 7. It would not be out of place to mention here that the guidelines issued by the State Government in relation to transfer of the employees are merely executive instructions and are not enforceable by the Court of law. Thus, only on the strength of any guideline mentioned in the transfer policy, the State Government cannot take a stand that unless the reliever is posted in place of the petitioner, the petitioner cannot be relieved. Once the employee has been transferred, execution of the said order is to be ensured by the State Government unless and until the said order is varied by the State Government, either by cancelling or modifying it. In the present case, the transfer order of the petitioner has neither been modified nor been cancelled. Under the facts and circumstances of the case, the State Government is under an obligation to ensure enforcement of the transfer order. In the matters of Sreedam Chandra Ghosh (1996) 10 SCC 567 (supra) it has been observed by the Apex Court in para 6 as under: "6. It is then contended that the transfer orders are to be enforced by the Government as per the rules in vogue and the High Court cannot interfere with these orders. We are unable to appreciate this contention also. It is then contended that the transfer orders are to be enforced by the Government as per the rules in vogue and the High Court cannot interfere with these orders. We are unable to appreciate this contention also. When the Government views non-compliance of the transfer order as a serious indiscipline on the part of the erring officer and when the person complains of the non-compliance to the court, the court necessarily has to give effect to the order and give directions for enforcement thereof. Under these circumstances, we do not find any merit in the petition." 8. For the reasons stated above, the petition stands allowed. The respondents are directed to take immediate steps for relieving the petitioner pursuant to transfer order dated 8.7.2014. Consequently, the impugned order dated 10.10.2014, insofar as it relates to the petitioner, is quashed.