Rb vs State on 29 August, 2008

Gujarat High Court
Rb vs State on 29 August, 2008
Author: Abhilasha Kumari,&Nbsp;
   Gujarat High Court Case Information System 

  
  
    

 
 
    	      
         
	    
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SCA/10/2000	 7/ 7	JUDGMENT 
 
 

	

 

IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
 

 


 

SPECIAL
CIVIL APPLICATION No. 10 of 2000
 

 
 
For
Approval and Signature:  
 
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
 
 
=====================================================
 
	  
	 
	  
		 
			 

1
		
		 
			 

Whether
			Reporters of Local Papers may be allowed to see the judgment ?
		
	

 
	  
	 
	  
		 
			 

2
		
		 
			 

To
			be referred to the Reporter or not ?
		
	

 
	  
	 
	  
		 
			 

3
		
		 
			 

Whether
			their Lordships wish to see the fair copy of the judgment ?
		
	

 
	  
	 
	  
		 
			 

4
		
		 
			 

Whether
			this case involves a substantial question of law as to the
			interpretation of the constitution of India, 1950 or any order
			made thereunder ?
		
	

 
	  
	 
	  
		 
			 

5
		
		 
			 

Whether
			it is to be circulated to the civil judge ?
		
	

 

 
=====================================================
 

RB
PATEL SENIOR CLERK - Petitioner(s)
 

Versus
 

STATE
OF GUJARAT,THROUGH ADDITIONAL ENGINEER & 1 - Respondent(s)
 

=====================================================
 
Appearance : 
MR
RA PATEL for Petitioner 
Mr.K.L.Pandya,learned Assistant Government
Pleader for
Respondents 
=====================================================
 
	  
	 
	  
		 
			 

CORAM
			: 
			
		
		 
			 

HON'BLE
			SMT. JUSTICE ABHILASHA KUMARI
		
	

 

 
 


 

Date
: 29/08/2008 

 

 
 
ORAL
JUDGMENT

1. This
petition has been filed by the petitioner, with the following
prayers:

(A)
Your Lordships be pleased to issue a writ or order or direction,
quashing the impugned order at Annexure :A dated 2nd
November, 1999

(B) Your
Lordships be pleased to stay the implementation of the order dtd.2nd
November, 1999 and direct the Executive Engineer, Medium Irrigation
Scheme,Ankleshwar, not to relieve the petitioner from the Post of
Senior Clerk;

(C
) Pending admission, hearing and final disposal of this petition;
grant such other and further relief/s that may be deemed fit and
proper in the facts and circumstances of the case in the interest of
justice.

2. The
brief facts of the case, as emerging from a perusal of the averments
made in the petition, are that the petitioner, who was at the
relevant period of time, serving as Senior Clerk at Ankleshwar, was
transferred by the impugned order dated 2-11-1999, to Palanpur.
According to the petitioner, Palanpur is at a distance of more than
400 Kms. from Ankleshwar and since, the transfer has been made in the
academic term of the children of the petitioner, he is put to great
hardship and, therefore, the impugned order deserves to be quashed
and set aside.

3. Mr.R.A.Patel,
learned counsel for the petitioner, submits that even though the
impugned transfer order has been issued under the pretext of
administrative exigency, the said order has caused hardship to the
petitioner, who has two daughters and one son, who were studying in
College and School and, therefore, it is very difficult for the
petitioner to move from one place to the other. It is further alleged
that the transfer has been made on the basis of a vague letter
written by someone else, whose interest is not being fulfilled by the
petitioner and, therefore, the impugned order of transfer has not
been passed on the ground of administrative exigency and is liable to
be quashed and set aside.

4. An
affidavit-in-reply has been filed by the respondent No.2 wherein it
is stated that the allegation that the transfer of the petitioner has
been effected due to some vested interest is wrong and misleading and
is not supported by any material on record. It is further stated that
the transfer of the petitioner has been effected due to
administrative reasons and as far as the academic term of the
children of the petitioner is concerned, the court has taken care of
the same by passing order dated 15-2-2000.

5. I
have heard Mr.R.A.Patel,learned counsel for the petitioner and
Mr.K.L.Pandya,learned Assistant Government Pleader for the
respondents.

6. It
is relevant to notice that this court (Coram:Miss.R.M.Doshit,J) by
order dated 15-2-2000 has directed that the implementation and
operation of the impugned order of transfer dated 2-11-1999 shall
remain stayed till 30-4-2000. A perusal of the order of the court
shows that it has been passed keeping in mind the fact that the
transfer of the petitioner has been made in the midst of the academic
term, which will adversely affect the education of his children. It
has been categorically stated in the said order that the
implementation of the transfer order shall remain stayed till
30-4-2000, meaning thereby that the respondents shall permit the
petitioner to resume duty at Ankleshawr, restoring the status quo
ante, till 30-4-2000. Mr.K.L.Pandya, learned Assistant Government
Pleader has produced a copy of the order dated 29-4-2000 issued by
the respondent No.2 whereby the petitioner has been directed to join
his duties at Palanpur, on 1-5-2000.

7. It
is a settled position of law as held by the Supreme Court in Union
of India v. S.L.Abbas, AIR
1993 SC 2444 that Who should be
transferred where, is a matter for the appropriate authority to
decide. Unless the order of transfer is vitiated by mala fides or is
made in violation of any statutory provisions, the Court cannot
interfere with it. Transfer is an incidence of service and the
employer is the best person to decide where the services of the
employee are to be placed. As long as the transfer of the employee is
not in violation of any statutory rule or motivated by malafide
intention, the courts, normally, shall refrain from interfering with
the same. In the present case, although vague allegations of malafide
have been raised but, they are totally un-substantiated and there is
no material on record to show that the transfer of the petitioner has
been effected for any reason otherwise than that of administrative
exigency.

8. The
main thrust of the argument of the learned counsel for the
petitioner is that the place of transfer i.e. Palanpur is 400 Kms.
away from Ankleshwar and the impugned order of transfer will disturb
the eduction of his children as it has been made in the midst of the
academic session. As has been noticed above, this Court by order
dated 15-2-2000 has taken care of the situation and has directed that
the implementation of the impugned order of transfer shall remain
stayed till 30-4-2000. By efflux of time, the impugned order no
longer survives and, as is clear from order dated 29-4-2000, whereby
the petitioner has been directed to join at Palanpur on 1-5-2000. The
petitioner has no vested right to remain posted at a particular
place, especially as the reason for impugning the transfer that is
the mid-academic sessions of his children, no longer survives. There
is no merit in the petition which deserves dismissal.

9. It
is, accordingly, dismissed. Rule is discharged. There shall be no
order as to costs.

(Smt.Abhilasha
Kumari,J)

arg

   

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