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2021 DIGILAW 540 (PNJ)

Subhash Kumar v. State Of Punjab

2021-03-05

SUDHIR MITTAL

body2021
ORDER Sudhir Mittal, J. (Oral). - CM-12746-2020 1. This application has been filed for vacation of order dated 15.11.2017. 2. With the consent of learned counsel for the parties, the date of hearing in the main case is advanced to today and the same is taken on board today. CWP-23744-2017 3. The petitioner was initially appointed as Clerk on compassionate grounds in the office of Director Public Instructions (Secondary Education), Punjab. Vide order dated 18.10.2012, he was promoted as Senior Assistant. In the year 2017, he was posted in the Recruitment Branch in the office of respondent No.2 and was given additional charge in Establishment Branch-I vide order dated 21.7.2017.Since then, he was looking after the work of two seats. Vide order dated 29.8.2017, the petitioner was permanently transferred to the Establishment Branch-I. 4. An order dated 19.10.2017, was issued by the office of second respondent, transferring the petitioner to the office of District Education Officer (Elementary Education), Faridkot, against a vacant post. Aggrieved, he preferred this writ petition on the ground that employees in subordinate offices are governed by a different set of Statutory Rules and the transfer order amounts to an inter-cadre transfer, which is not permissible in law. 5. In the written statement, it has been averred that transfer is an incidence of service and no employee can challenge the same, unless, he establishes that the transfer was actuated by mala fides. No mala fides have been asserted or pleaded and thus, the impugned order does not call for any interference. Further, it has been stated that the petitioner has not been substantively transferred to the subordinate office. Even though, the staff of the subordinate office is governed by different set of Rules, an inter-cadre transfer is not barred. The power of transfer is vested in the employer by virtue of Rule 3.17 of the Punjab Civil Services Rules, Volume-I, Part-I and the said Rule does not prohibit an inter-cadre transfer. Further, all employees of the State of Punjab are governed by the Punjab Civil Services (General & Common Conditions of Service) Rules, 1994. According to Rules 9 & 10 thereof, a member of service may be transferred outside the service or even outside the State of Punjab. Still further, it has been stated that order of transfer was passed on account of a report that the petitioner was inefficient. According to Rules 9 & 10 thereof, a member of service may be transferred outside the service or even outside the State of Punjab. Still further, it has been stated that order of transfer was passed on account of a report that the petitioner was inefficient. In support of this pleading, office note dated 19.9.2017 has been placed on record as Annexure R-2. 6. Learned counsel for the petitioner has raised two fold arguments. A) an inter-cadre transfer is not permissible in law and B) transfer on account of inefficiency cannot be made in exercise of powers under Rule 3.17 (supra). I shall deal with second argument first. Rule 3.17 (supra) is reproduced below:- '3.17. (a) Government may transfer a Government employee from one post to another; Provided that except (1) on account of inefficiency or misbehaviour; or (2) on his written request; a Government employee shall not be transferred substantively to or, except in a case covered by rule 4.22, appointed to officiate in a post carrying less pay than the pay of the permanent post on which he holds a lien, (b) Omitted. Note l.-In cases covered by clause (a) (2) above the Government employee will have his initial pay fixed under rule 4.4 and, if necessary, under rule 4.10. Note 2.-Permanent transfer from a higher to a lower scale in anticipation of the abolition of a post is not transfer within the meaning of this rule. Note 3.-In cases in which it is desired to give to a Government employee an extension of service on the condition that he voluntarily agrees to accept a post in a lower grade, so as not to interfere with the legitimate expectations of his juniors to promotion; the only method is to create a temporary post. Such a step can only be permitted under most exceptional circumstances. It must be regarded as the normal course of events that an extension of service involves delay of promotion to juniors and no proposal for the creation of a temporary post to satisfy legitimate expectations will be considered unless it has been submitted to the competent authority before the extension of service is granted. 7. The Rule is clear. A Government employee can be transferred from one post to another. 7. The Rule is clear. A Government employee can be transferred from one post to another. However, he shall not be transferred to a post carrying less pay than the pay of the post held by him except in a case governed by Rule 4.22. Thus, the argument of learned counsel for the petitioner is mis-placed. 8. Rules 9 and 10 of the Punjab Civil Services (General & Common Conditions of Service) Rules 1994, are being reproduced herein under for considering the argument of the petitioner that an inter cadre transfer is not permissible in law. '9. Liability of members of Service to transfer:- A member of service may be transferred to any post whether included in any other service or not, on the same terms and conditions as are specified in Rule 3.17 of the Punjab Civil Service Rules, Volume-I Part-I. 10. Liability to Serve:- A member of the Service shall be liable to serve at any place, whether within or out of the State of Punjab, on being ordered so to do by the appointing authority." 9. The aforementioned Rules provide that a member of service may be transferred to any post whether included in any other service or not, but on the same terms and conditions and as specified in Rule 3.17 (supra). As has been observed earlier, the only condition stipulated in Rule 3.17 is that an employee may not be transferred to a post carrying lesser salary except in cases governed by Rule 4.22. An employee can even be transferred out the State of Punjab. Thus, it cannot be argued that inter-cadre transfer is not permissible in law. In any case, it has been averred in the written statement that the transfer of the petitioner is not permanent in nature. 10. In view of the aforementioned reasons, the writ petition has no merit and is dismissed. 11. Interim orders stand merged in the final judgment. 12. Pending application(s), if any, also stand disposed of.