The Orissa High Court has recently denied the prayer made by a government employee who insisted to get promoted to a post situated at a particular place. It held that no government employee has a legal or statutory right to claim a post of one particular place and thereby avoiding transfers.
While, dismissing the writ petition, a Single Judge Bench of Justice Sanjeeb Kumar Panigrahi observed,
"The Petitioner's prayer insofar as promoting and repositioning him in the school where he was continuing or at a nearby place, is unsustainable as the Petitioner was holding a transferable post and under the conditions of service applicable to him, he was liable to be transferred and posted at any place within the State of Odisha. The Petitioner had no legal or statutory right to insist for being posted at one particular place."
The petitioner alleged that he was compelled to join at a place of posting which was at a distance of 140 KMs from the place of his residence and he, being a chronic rheumatic arthritic patient, was unable to travel such a long distance. Accordingly, he did not join his promotional post of Sr. SES (Headmaster) and submitted in writing on 18.09.2020 to forgo his promotion to the post of Sr. SES (Headmaster) and requested to allow him to continue as Assistant Teacher in the Girls' High School, Lephripara which was intimated to the Director, Secondary Education, Odisha through a letter dated 30.09.2020.
Then, this writ petition was filed by him challenging the order passed by the Director, Secondary Education, Odisha rejecting his prayer to modify the order of his promotion to the post of Sr. SES (Headmaster) from Jr. SES (Asst. Teacher). He had further prayed to consider his promotion, absorbing him in the Govt. Girls' High School, Lephripara where he is continuing at present or in the alternative, posting him at B.S.D.G.M High School, Jogimal or at a nearer place keeping in view of his health condition.
The Court first highlighted the fact that the petitioner was promoted to the cadre of Sr. SES and posted as Headmaster in Deokaran Vidyapitha, Lathikata on the basis of availability of vacancy at that point of time. However, he decided to forgo the promotion to the post of Sr. SES out of his own volition and was not compelled by any means by the appointing authority i.e., the opposite parties.
The Court was of the view that once the petitioner denied his promotion out of his own volition, he cannot anymore challenge the same. It cited the decision of the Supreme Court in State of M.P. & Ors. v. Ramanand Pandey, wherein the respondent had sent back the order of promotion out of his own volition but approached the High Court through writ petition after two years; challenging the cancellation of his promotion. The Apex Court overruled the decision of the High Court which had allowed the respondent to challenge the order relating to cancellation of his promotion.
Further, it outrightly rejected the prayer of the petitioner insofar as promoting and repositioning him in the school where he was continuing or at a nearby place, terming it to be unsustainable as the petitioner was holding a transferable post under the conditions of service applicable to him. Therefore, he had no legal or statutory right to insist for being posted at one particular place. The Court relied upon the observations made in Gujarat Electricity Board & Anr v. Atmaram Sungomal Poshani:
"Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to other is an incident of service. No Government servant or employee of public undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the Public Administration."
Again, the Court expressed its reluctance to accept the averments made by the petitioner in relation to appointment and promotion of 23 candidates in the same school they were continuing earlier. The Court held that the appointing authority is best placed to decide whether it is expedient to promote and reposition any candidate on basis of their representations.
Having regard for the above facts and points of law, the Court was of the opinion that the petitioner is not entitled to promotion to the post of Sr. SES (Headmaster) as he preferred not to accept the promotion, out of his own volition and, accordingly, the vacancies have been taken for consideration for promotion of other candidates.
Resultantly, the writ petition was dismissed.
Case Title: Dulamani Patel v. State of Odisha & Ors.
Case No.: W.P.(C) No. 19100 of 2021
Judgment Dated: 27 May 2022
Coram: Justice S.K. Panigrahi
Counsel for the Petitioner: Mr. B.S. Panigrahi, Advocate
Counsel for the Respondents: Mr. Sonak Mishra, Standing Counsel
Citation: 2022 LiveLaw (Ori) 91