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2002 DIGILAW 1196 (JHR)

Ram Prasad Mahto, Nagdeo Yadav, Prabha Xexa And Beena Kumari v. State Of Jharkhand

2002-11-27

SUDHANSU JYOTI MUKHOPADHAYA

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ORDER S.J. Mukhopadhaya, J. 1. In all the cases, as common orders of cancellation of transfer orders are under challenge and involve common points of law, they were heard together for disposal by this common order. 2. The petitioners were earlier transferred from one place to another by common order dated 27th December, 2001 issued by the Director, Primary Education, Human Resources Department, Jharkhand on the recommendation of the Establishment Committee. They having relieved, joined their transferred posts. 3. The details of transfer of different petitioners from one place to another, date of relieving and joining to the other place, are as follows : __________________________________________________________________ Case No. Name of the Petitioners Transferred from Relieved on Transferred to Joined on __________________________________________________________________ WPS 2377/02 1. Ram Pd. Mahto BEEO Bhandra Lohardaga 2. Chandreshwar Pandit BEEO Kara Ranchi 15.1.02 BEEO Bhandra 18.1.02 3. Smt. Mala Kumari Deputy DSE Ranchi 15.1.02 Sub. lnsp. of School Ranchi 15.1. 02 4. Prabhu Narayan Pathak BEEO Raydih Gumla 28.9.02 BEEO Ratu 29.1.02 5. Rajendra Pd. Sharma Dy. DSE Gumla 15.1.02 BEEO Bundu Ranchi 16.1.02 6. Sunil Kr. Keshri Dy. DSE Palamau 18.1.02 BEEO Karra Ranchi 19.1.02 WPS 2587/02 Nagdeo Yadav BEEO Barkattha Hazaribagh 2.2.02 BEEO Bagodar Giridih 4.2.02 WPS 2616/02 Prabha Xexa Lecturer Teachers Tra. Coll., Pindrajora Bokaro 28.1.02 BEEO jaridih Bokaro 1.2.02 WPS 2827/02 Beena Kumari BEEO Chas 1 Bokaro 28.1.02 BEEO Chas 3 Bokaro 1.2.02. __________________________________________________________________ 4. After about three to four months of their transfer and joining, the Secretary, Primary, Secondary and Adult Education, Human Resources Development Department, Jharkhand, suddenly issued impugned Memo No. 1012 dated 11th April, 2002, cancelling the earlier order of transfer dated 27th December, 2001. 5. The stand taken by the respondents is that the earlier notification of transfer dated 27th December, 2001 being defective, it has been cancelled. The counsel stated that the State Government constituted an Establishment Committee, vide Notification No. 347 dated 17th May, 2001. In paragraph 2 of the said Notification, it was envisaged that the Committee shall send its recommendation to the Government for review. The said Notification dated 17th May, 2001 was amended without approval of the Government and paragraph 2 of the Notification was deleted. Because of such deletion of paragraph 2, while Notification of transfer was issued, the Committees recommendation was not sent to the Government for review. 6. Similar stand has been taken by the Intervenor, Bankey Bihari Singh and others. The said Notification dated 17th May, 2001 was amended without approval of the Government and paragraph 2 of the Notification was deleted. Because of such deletion of paragraph 2, while Notification of transfer was issued, the Committees recommendation was not sent to the Government for review. 6. Similar stand has been taken by the Intervenor, Bankey Bihari Singh and others. 7. The aforesaid plea as taken by the State cannot be accepted in view of the fact that the subsequent Notification dated 1st June, 2001 deleting paragraph 2 of the Notification dated 17th May, 2001 was issued by the order of the Governor of Jharkhand. Such Notification having issued by the State Government, they cannot attack their own order/Notification dated 1st June, 2001 and on that ground they cannot recall/cancel an order of transfer which has already taken place. Though it is open to the State/competent authority to transfer an employee from one place to another or retransfer from the subsequent place, but once a Notification of transfer takes effect, the incumbent joins in pursuance of such order of transfer, such Notification of transfer spent up its force and thereafter nothing substantive remains to be recalled/rescinded, was the view taken by the Patna High Court in the case of Shyam Chandra Jha v. State of Bihar and others, (Unreported) CWJC No. 8282 of 1998, disposed of on 9th December, 1998. 8. The aforesaid decision was also followed by the Patna High Court in the case of Mahmood Azam Siddique v. State of Bihar, reported in 2000 (3) PLJR 139 . 9. For the reasons aforesaid and in view of the decision of this Court in Shyam Chandra Jha (supra) and Mahmood Azam Siddique (supra), the impugned common order of cancellation of transfer dated 11th April, 2002, cannot be upheld, it is, accordingly, set aside, so far as it relates to the petitioners. 10. All the writ petitions are, accordingly, allowed.