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2000 DIGILAW 165 (PAT)

Baldeo Choudhary v. State Of Bihar

2000-02-01

SHIVA KIRTI SINGH

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Judgment Shiva Kirti Singh, J. 1. Heard the parties. 2. The intervention application in C.W.J.C. No. 11/2000 is allowed. 3. All these lour writ petitions arise out of and are directed against one common order of transfer notified by the Additional Secretary, Transport Department, Government of Bihar, Patna on 29.12.1999. Since all these cases invoke common question of law hence, they have been heard together with consent of parties and are being disposed of by a common order. 4. Petitioners in all the four cases were holding the post of District Transport Officer at their respective places of posting. They had been so posted for less than a year when the impugned order was issued transferring them on post of District Transport Officer at different, places and the grievance of the petitioners is that the normal period of such transfer is of two years and they have suffered premature transfer without consideration of their cases by the Establishment Committee constituted for the purpose and even at the level of Minister-in-charge the decision to transfer the petitioners has been taken without any reason. 5. The facts of these cases lie within a narrow compass. Petitioner in C.W.J.C. No. 11/2000, Baldeo Choudhary, has been transferred from Ranchi to Gaya and the intervenor-respondent, Uma Shankar Prasad, has been transferred to petitioners place from Gaya. In C.W.J.C. No. 12/2000, the petitioner, Yogendra Paswan, has been transferred from Muzaffarpur to Chapra and in his place another Yogendra Paswan who is writ, petition in C.W.J.C. No. 71/2000 has been transferred from Patna to Muzaffarpur. In C.W.J.C. No. 13/2000. the petitioner Krishna Kumar Prasad has been transferred from Dhanbad to Munger and in his place respondent No. 3, Deo Nandan Yadav, has been transferred from Munger. As noticed above Yogendra Paswan petitioner in C.W.J.C. No. 71/2000 has been transferred from Patna to Muzaffarpur and in his place respondent No. 4, Bijay Kumar Singh, has been transferred from Chapra. 6. On a cursory look, the impugned notification appears to contain chain transfers of nine persons out of which seven notifications bearing Nos. 5689 to 5695 are involved in these four writ applications. However, it is an admitted fact and apparent from perusal of the record concerned which were called for by this Court that the impugned transfer have not been treated as routine transfers. 5689 to 5695 are involved in these four writ applications. However, it is an admitted fact and apparent from perusal of the record concerned which were called for by this Court that the impugned transfer have not been treated as routine transfers. The routine transfers as per policy decision of the Government contained in circular No. 3918 dated 25.10.1980 and as per Rules of Executive Business which are framed In exercise of power under Article 161 of the Constitution of India, are required to be first dealt by an Establishment Committee constituted for the purpose of and on recommendation of the Committee, the matter goes to the Government for decision at appropriate level. In the case of the petitioners, as per their pay-scales, the Minister-in-charge of the Department is the appropriate authority in the Government and the impugned orders have been passed on the orders of the Minister-in-charge but without any discussion or recommendation by the Establishment Committee. 7. On behalf of the petitioners, it was contended that the Government no doubt has power to transfer the petitioners but the petitioners are aggrieved by the manner in which such power has been exercised by the Minister-in-charge. For a transfer on administrative grounds or on grounds akin to the same, there should be some ground to justify out of turn or premature transfer. According to petitioners, the impugned notification does not mention any reasons nor any reasons were discussed in the file and therefore, the decision making process is unfair and suffers from arbitrariness. It was next, contended that in passing the impugned orders there was a total failure to comply with significant parts of Government circulars relating to transfer and also with provisions in Rule 32(ka) of the rules of Executive Business which, according to the petitioners, give power to the Minister-in-charge to pass orders for transfer only on receipt of recommendations from an Establishment Committee. 8. So far as the circulars governing the transfers of Government employees are concerned, a Full Bench of this Court considered one such important circular dated 1.11.1980 in the case of Mart Singh V/s. The State of Bihar and Ors. 1982 PLJR 368 and held that such circulars are directory and not mandatory. However, in paragraph 16 of the judgment four conclusions were recorded which are as follows: (a) The executive instructions contained in Annexure-5 are directory. 1982 PLJR 368 and held that such circulars are directory and not mandatory. However, in paragraph 16 of the judgment four conclusions were recorded which are as follows: (a) The executive instructions contained in Annexure-5 are directory. (b) Although directory they are nevertheless to be followed. (c) Where an order of transfer is made without scrupulously following the procedure laid down therein, and there is substantial compliance, of the instructions, it cannot be held that the order is invalid or vitiated. (d) A total failure to comply with a significant part of the requirement of the instructions cannot be regarded as substantial compliance with the total requirement. Learned Counsel for the petitioners submitted that these cases are covered by conclusion of the Full Bench recorded in paragraph 16(d) as there has been a total failure to comply with a significant part of the requirement, of the instructions inasmuch as these transfers have been admittedly done in special circumstances which in the counter-affidavit of the State is claimed to be in the interest of revenue and on administrative grounds. As per policy decision of the State in the relevant circulars in such special circumstances if the usual transferring authority is Minister or Council of Ministers then specific prior approval of the Chief Minister is required to be obtained. It has further been submitted, on the basis of records produced by the State that no such approval was obtained in this case and there is no discussion in the files regarding interest of revenue or any administrative grounds to support the impugned transfers. 9 Learned Counsel for the petitioners also relied up a Division Bench judgment of this Court in the case of Krishna Mohan Choudhary V/s. The State of Bihar and Ors. reported in 1994 (2) PLJR 315, in support of the prosecution that if the Minister-in-charge orders for effecting alterations in recommendations of the Establishment Committee without assigning reasons therefor then the exercise of power may be found vitiated. 10. I am conscious of the fact, that transfers are not the conditions of service but only an incident of service but this Court for good reasons does exercise power of judicial review on limited grounds. 10. I am conscious of the fact, that transfers are not the conditions of service but only an incident of service but this Court for good reasons does exercise power of judicial review on limited grounds. Generally, transfer is not interfered with but if an order of transfer is without jurisdiction or is mala fide then this Court has been interfering with such transfer orders, mala fide may constitute either on account of (i) malice in fact or ill motives or (ii) malice in law. In these cases, there is no ill motive alleged against any individual but the argument advanced on behalf of the petitioners is that if no ground is shown to exist in the file concerned whose discussion has led to a transfer on administrative ground then such an order of transfer has to be treated to have been passed on impermissible grounds or for extraneous considerations and, therefore, such orders must be held to suffer from malice in law. 11. On the basis of Articles 14 and 16 of the Constitution of India, the Courts have now firmly developed the doctrine of fairness even in administrative actions. In my view, even on applying the test of fairness one will reach the same conclusion that a out-of-turn or premature order of transfer must be supportable by some ground relatable to interest of administration otherwise the Action if challenged may be found to be unfair, arbitrary and violative of Articles 14 and 16 of the Constitution of India. Thus viewed, mala fide and arbitrariness are two sides of the same cloin both being repugnant to requirement of fairness emanating from Articles 14 and 16 of the Constitution of India. 12. In these cases, the stand of the State and also of the private respondents is that the transfers have been made on the ground that the revenue collection in the districts concerned where the petitioners were posted was lagging far behind the target and, therefore, the petitioners were transferred to districts which were of lesser significance from the point of view of revenue. Several tables and charts were shown by the petitioners to suggest that their performance was better than that of their predecessors in office or better than the collection figures of some of the respondents who were transferred in their places. That was, of course, contested by the respondents. Several tables and charts were shown by the petitioners to suggest that their performance was better than that of their predecessors in office or better than the collection figures of some of the respondents who were transferred in their places. That was, of course, contested by the respondents. In my view, such issues relating to interest of revenue or interest of administration should not be ordinarily judged by this Court and it is for the Government to keep these considerations in mind when they form the grounds of unusual transfers. 13. The primary concern of this Court in such matters is to see the fairness and legality of the decision-making process rather than the decision itself. Hence, I do not think it proper to go into the aforesaid contention relating to figures of revenue collection advanced by the petitioners. However, after going through the records concerned, it transpired that there were two letters of recommendation by Ministers in favour of posting Sri Uma Shankar Prasad and Sri Deo Nandan Yadav to important districts but there was no discussion at any level of the issue relating to revenue collection or shortfall in targets in any of the districts concerned although this issue is said to be the ground for the transfers in question. 14. In the facts and circumstances noticed above, in my view, the respondents have failed to show any valid reason for the impugned transfers in question and hence, the exercise of power in such cases by the Minister In-charge of the Department appears to be vitiated on the basis of law laid down be a Division Bench of this Court in the case of Krishna Mohan Chaudhary (supra). Even as per the Full Bench judgment in the case of Man Singh (supra), this Court in paragraph 18 of the judgment gave an illustration as to what may not constitute substantial compliance of the instructions and further observed that in relation to transfers in special circumstances, if the approval of Chief Minister or immediate superior officer, as the case may be, is not obtained, this would not constitute substantial compliance of the requirement of the instructions. From the records, it is clear that in these transfers made in special circumstances without any recommendation of the Establishment Committee, no approval of Chief Minister was obtained as required by the Policy decisions of the Government contained in various circulars. From the records, it is clear that in these transfers made in special circumstances without any recommendation of the Establishment Committee, no approval of Chief Minister was obtained as required by the Policy decisions of the Government contained in various circulars. On these grounds, in my view, the impugned transfers must be held to be vitiated in law. 15. Learned Counsel for the State placed reliance upon a Division Bench judgment of this Court in the case of Kailash Bihari Prasad V/s. State of Bihar reported in 1992 (1) PLJR 209, to submit that recommendations of Establishment Committee are only directory and not binding upon the competent authority. The Minister-in-charge of the Department is competent to alter/modify the recommendations. In my view, this proposition does not help the State in this case because here there was no recommendation at all of the Establishment Committee concerning the District Transport Officers and hence, there was no occasion to make alterations/modifications by the Minister-in-charge. Further, it has not been argued on behalf of the petitioners that recommendations of Establishment Committee are mandatory. 16. On behalf of the respondents, some judgments were cited wherein learned Single Judge had observed that in transfer matters if the grievance of the officer is only against non-observance of provisions of circulars then the appropriate remedy is to file representation before the Government itself. In my view, keeping in mind the principles laid down by Full Bench in the case of Man Singh (supra) and by a Division Bench in the case of Krishna Mohan Choudhary (supra) and also the issues raised on behalf of the petitioners, I have no option but to hold that the impugned orders of transfer challenged in these four writ petitions are bad in law and the same are, therefore, quashed. 17. All the four writ petitions are accordingly allowed but in the facts and circumstances of the case without any costs.