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1988 DIGILAW 340 (PAT)

Anant Bihari Jha v. State Of Bihar

1988-09-30

S.B.SINHA

body1988
Judgment S.B.Sinha, J. 1. This writ petition is directed against an order dated 27-12-1986 issued under the signature of Secretary to the Commissioner, Tirhut Division, Muaaffarpur whereby and whereunder the petitioner was directed to hand over charge to one Sri Manik Chandra Manjhi. 2. The facts of the case lie in a very narrow compass. 3. The petitioner by reason of an order dated 30th of August 1985 and as contained in Annexure 2 to the writ petition was transferred from Land Acquisition Office, Hajipur to Madhubani Anchal in the district of West Champaran. 4. It is admitted that the said order of transfer was stayed by reason of another order dated 4-10-1985 issued by the State of Bihar dated 4th October, 1985 and as contained in Annexure 3 to the writ petition. Thereafter, by an order dated 1-12-1986 and as contained in Annexure C to the counter affidavit, the State Government vacated the stay order dated 4-10-1985 (Annexure 3). Pursuant to or in furtherance of order dated 1-12-1986 the petitioner, as indicated hereinbefore, was relieved from Hajipur. 5. Mr. Bindeshwari Choudhary, the learned Counsel appearing for the petitioner submitted that upon bifurcation of Tirhut Division into Muzaffarpur division and Darbhanga division, two different cadres were created and the petitioner was to become an employee to be posted in the cadre of Darbhanga Division. The learned Counsel contends that in that view of the matter, the Commissioner of Muzaffarpur Division had absolutely no jurisdiction to transfer the petitioner from Hajipur to West Champaran, the same being within the territory of Darbhanga Division. 6. Alternatively, the learned Counsel submits that the petitioner is to retire shortly and in this view of the matter, he should not be disturbed from his present posting. 7. In this case a counter affidavit has been filed on behalf of the respondents. In the said counter affidavit it has been pointed out although the petitioner was transferred in the year 1977 itself; but he managed to remain at Hajipur and was not relieved till 1985. According to the respondents the Divisional Headquarters of the Tirhut Division was also not informed that the petitioner continued to remain posted at Hajipur. In the said counter affidavit it has been pointed out although the petitioner was transferred in the year 1977 itself; but he managed to remain at Hajipur and was not relieved till 1985. According to the respondents the Divisional Headquarters of the Tirhut Division was also not informed that the petitioner continued to remain posted at Hajipur. The respondents have further clearly stated that the purported transfer of the petitioner to the Darbhanga Division has not been implemented at all as he was transferred to Madhubani circle in the district of West Champaran situate within the Tirhut division in the terms of the aforementioned order dated 30th of August, 1985 and as contained in Annexure 2 to the writ petition. It has further been averred that the petitioner has remained posted at Hajipur for about 15 years now. 8. From an order dated 1st of July, 1977 (Annexure 1), it appears that the petitioner was transferred to the cadre of Darbhanga Division and he was to be posted at Dalsingsarai circle in the district of Samastipur. Admittedly, the said order was not implemented since July, 1977 till date. The petitioner, therefore, cannot complain that he was to be placed in the cadre of Darbhanga Division, as he himself continued at Hajipur since 1977. It evidently, therefore, does not lie in the mouth of the petitioner that he being in the cadre of employees of the Darbhanga Division cannot be transferred by the Commissioner of the Tirhut Division. In my opinion, the petitioner is estopped and precluded from taking the said plea as inspite of the purported order dated 1st of July, 1977, be continued to work in the Muzaffarpur Division for a long time The petitioner, therefore, would be deemed to have waived his right to be within the category of the employees posted under the Commissioner of Darbhanga Division. 9. So far as the second plea of the petitioner is concerned, in my opinion, it cannot be said the petitioner has derived any legal right by reason of the fact that he is to retire within a short period. It is for the State to consider such a plea. The petitioner as an employee of the State is bound to be transferred from one place to another place. 10. It is now well-known that transfer is an incidence of service. It is for the State to consider such a plea. The petitioner as an employee of the State is bound to be transferred from one place to another place. 10. It is now well-known that transfer is an incidence of service. Reference in this connection may be made to B. Vardha Rao V/s. State of Karnataka and Ors. -- and to Dr. Mahabir Rawat V/s. The State of Bihar 1988 Bihar Law Times page 394. 11. Even assuming that there exists a circular that an employee during the last year of his service should be posted at a place of his choice but the same would merely be directory and not a mandatory provision. It has rightly been contended in the counter affidavit that when the petitioner was transferred by reason of the order dated 30th of August, 1985 (Annexure 2) he had more than 3 and 1/2 years of service left and in terms of the resolution 3918 dated 26-10-1980 the Government could have considered the case of the petitioner if he was to retire within a period of one year from the date of the order of transfer. 12. It is now well-known in view of the decision of the Supreme Court reported in AIR 1981 SC 1977 : 1982 PLJR (SC) 6 (Shanti Kumar V/s. Regional Deputy Director, Health Service, Patna) that even if there is violation of any circular issued by the State of Bihar the only remedy open to an aggrieved employee is to file a representation before the authorities concerned. 13. In this view of the matter, in my opinion, there is no merit in this writ petition, which is accordingly dismissed. 14. It is, however, observed that if the petitioner is so advised, he may file a representation to an appropriate authority which would be disposed of on its own merit. 15. In the facts and circumstances of the case, there will, however, be no order as to costs.