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2005 DIGILAW 656 (PAT)

Veena Prasad v. State Of Bihar

2005-07-28

S.N.HUSSAIN

body2005
Judgment S.N.Hussain, J. 1. This writ petition was originally filed by the petitioner against proposal of the Government dated 10.6.2005 (Annexure-1) by which the petitioners transfer to Bahadurpur, Darghanga, as well as transfer of respondent No. 5 to Ghelar, Mahepura, both dated 29.3.2005, was recommened to be cancelled and it was further recommended that the petitioner be transferred to Ghelar, Madhepura, whereas respondent No. 5 be retained at Bahadurpur, Darbhanga as he had not completed three years period and was posted there since before the transfer of the petitioner. 2. The short fact of this case is that earlier the petitioner was waiting for posting and by Notification of chain transfer dated 29.3.2005 the petitioner was transferred to Bahadurpur, Darbhanga, as Circle Officer whereas respondent No. 5 who was working there was transferred as Circle Officer, Ghelar Block, Madhepura. 3. It is further contended that as per the said Notification the petitioner joined on 30.3.2005 whereafter respondent No. 5 handed over charge of office only and not of Cash Book due to which the Collector, Dharbhanga, directed the petitioner on 27.4.2005 to assume charge and the petitioner assumed charge and reported it to the Collector who approved the same. 4. The learned counsel for the petitioner further contended that vide letter dated 15.9.2004 (Annexure-6) the Regional Development Officer on the orders of the Commissioner, Darbhanga Division had asked respondent No. 5 to file his show-cause with respect to the allegation of irregularities and misappropriations against him failing which the departmental proceeding was to be initiated. However, since neither any departmental proceeding was initiated against him nor the authorities passed any order following the said letter and there were clear irregularities in the accounts, the petitioner vide letter dated 11.6.2005 (Annexure-7) sought permission of the Collector for filing FIR with respect to the said matter against respondent No. 5. Hence , the learned counsel of the petitioner submits that in the aforesaid circumstances, the impugned recommendation of the,department for cancelling the aforesaid transfers of the petitioner and respondent No. 5 vide Notification dated 29.3.2005 was clearly malafide and was with a view to conceal the irregularities and misappropriations of respondent No. 5 and to punish the petitioner for exposing the same. 5. 5. However, during the pendency of this writ petition the said recommendation dated 10.6.2005 was modified and the petitioner was transferred from Bahadurpur Block of Darbhanga to Haya ghat in the same district whereas respondent No. 5 was allowed to remain at Bahadurpur, Darbhanga from where the said charges and allegation were levelled against him. 6. The learned counsel for the petitioner also avers that there was a specific policy decision dated 17.3.2005 by which the Joint Establishment Committee of the Department of Rural Development and the Department of Revenue and Land Reforms had clearly specified that since only one Deputy Collector has to remain in one Block/Anchal due to the paucity of such Officers the person remaining at that place for a longer period should be transferred. Hence, according to the said Government policy, respondent No. 5 should have been transferred as he was working at Bahadurpur, Dharbhanga, for much longer period whereas the petitioner had joined there only on the basis of the Notification dated 29.3.2005 In that regard learned counsel for the petitioner further submits that respondent No. 5 has remained at Darbhanga through out his service period except a few short stints at Patna. Hence, there was no occasion for retaining him for a longer period specially when such serious allegations had been levelled against him. 7. So far the proposal dated 30.3.2005 is concerned, the learned counsel for the petitioner submits that no such policy decision is taken and it is a proposal of only the Establishment Committee of one department of Revenue and Land Reforms information of which was given to the learned Advocate General on 8.4.2005, but the said proposal by which the policy was sought to be changed by recommending that the person who was posted at the place later would be transferred, was not effective in the eye of law as it was merely a proposal and the Joint Establishment Committee which is the only competent body to change its earlier policy had not taken any such policy decision due to which no transfer could have been legally made on its basis. Hence, the learned counsel for the petitioner submits that the order of cancellation of transfer of the petitioner and respondent No. 5 was not only malafide but also against the specific policy decision by the Joint Establishment Committee. 8. Hence, the learned counsel for the petitioner submits that the order of cancellation of transfer of the petitioner and respondent No. 5 was not only malafide but also against the specific policy decision by the Joint Establishment Committee. 8. On the other hand, the learned counsel for the State relies upon the resolution of the Establishment Committee of Revenue and Land Reforms Department dated 25.5.2005 (Annexure-B) by which he claimed that the earlier Government policy of transferring the earlier posted Deputy Collector out of the two at one Block/Anchal was changed and another policy decision was taken that a Deputy Collector who was posted at the place later than the other would be transferred allowing the earlier one to complete three years. He submits that the said new policy decision was approved by the Governor also. Hence, he submits that it has the force of law and transfer should have been made in accordance thereto and in that circumstance the authorities were justified in cancelling the transfers of the petitioner and respondent No. 5 and posting them at proper places in accordance with said policy decision. He also avers that the aforesaid criteria was the only ground for passing the impugned order and it had no concern with the allegation of irregularities and misappropriations against respondent No. 5 which has to be considered in the departmental proceeding which has not yet started, thus, there is no question of any malafide. The learned counsel for the State further relies upon a decision of the Hon ble Apex Court in case of State of U.R and Ors. V/s. Gobardhan Lal, reported in -, in which it was stated that no order of transfer can be legally interfered with except in case of malafide and non- appreciation of Government policy. He submits that both the aforesaid situations being non-existent in the instant case, there is no occasion for interference and the writ petition is fit to be dismissed. 9. Learned counsel for the respondent No. 5 submits that no charge is pending against respondent No. 5 before the Government as is clear from the letter of the Collector, Darbhanga, sent to the Controller of Accounts dated 17.4.2000 on the basis of which the Commissioner-cum-Secretary has issued a letter dated 15.7.2005. 9. Learned counsel for the respondent No. 5 submits that no charge is pending against respondent No. 5 before the Government as is clear from the letter of the Collector, Darbhanga, sent to the Controller of Accounts dated 17.4.2000 on the basis of which the Commissioner-cum-Secretary has issued a letter dated 15.7.2005. He further submits that since Government is the custodian of records and it says that no matter is pending before it, the matter ends there and no scope of interference by the High Court remains specially when transfer is incidence of, service. He further submits that out of fifteen years of his total service, respondent No. 5 has remained in the district of Darbhanga for six years only at various intervals. Hence, he submits that the entire claim of the writ petitioner is false, frivolous and misconceived. 10. After hearing the learned counsel for the parties and after perusing the materials on record, it is quite apparent that respondent No. 5. had earlier filed CWJC No. 5474 of 2005 against the order of his transfer dated 29.3.2005 on the basis that he had been transferred, although he has remained there for two years and the said writ petition was disposed of by this Court on 7.5.2005 with a liberty given to him to file a representation before the authorities concerned. It appears that the said representation was filed by him and after considering the same an order was passed on 10.6.2005 (Annexure-1) allowing the said petition on the basis of which the said order of transfer was cancelled and respondent No. 5 was directed to remain at Bahadurpur, Darbhanga, by order dated 17.6.2005 (Annexure-9). 11. It, therefore, transpire that the impugned order dated 10.6.2005 (Annexure-1) is not in derogation of this Courts order passed in the earlier writ case and I do not think it fit and proper in the facts and circumstances of the case to interfere more so when the petitioner has now been transferred to Haya ghat Block which is not very far from Darbhanga town whereas Bahadurpur is adjacent to Darbhanga Sadar Block. 12. 12. So far the question of the new Government policy is concerned, it is not in dispute that the earlier policy decision was taken by the Joint Establishment Committee of Rural Development Department and Revenue and Land Reforms Department on 17.3.2005 whereas the recent proposal dated 25.5.2005 was only that of the Establishment Committee of Revenue and Land Reforms Department which, although claimed to have been approved by the Governor, has not yet been finally considered by the Joint Establishment Committee of both the departments. Hence, in the aforesaid circumstances, it is incumbent upon the respondent-authorities to place the said proposal before the Joint Establishment Committee if they want to bring out a new transfer policy changing the earlier one and until then the earlier policy decision of the Joint Establishment Committee has to hold good. 13. With respect to the allegations levelled against respondent No. 5, it is quite apparent that on 15.9.2004 the Regional Development Officer, Darbhanga, on the orders of the Divisional Commissioner has asked respondent No. 5 to file his show-cause with respect to the allegation of irregularities and misappropriations by him within a time from failing which a departmental proceeding was to be initiated. It is not on record whether respondent No. 5 had filed any show-cause in compliance of the said order, but one thing is clear that no order has been passed in the said matter till date, although, in the meantime, the Collector, Darbhanga, in his letter to the Commissioner-cum-Secretary of the Department informed him that during the enquiry of the Cash Book, the District Accounts Officer found several irregularities in the accounts of the Book which shows that heavy amounts had been embezzled. In the said circumstances, the authorities should have passed a specific order as to whether the case was to be dropped if the show-cause filed by respondent No. 5 was found satisfactory or a Departmental proceedings was to be initiated against him. The silence of the authorities concerned in this matter even if it is not creating any disturbances in the functioning of the Block, but definitely reflects upon the attitude of the authorities and the employees of the Department. 14. In the said circumstances, respondents-authorities are directed to take a final, decision in the matter of respondent No. 5 in accordance with law within one month from today. 14. In the said circumstances, respondents-authorities are directed to take a final, decision in the matter of respondent No. 5 in accordance with law within one month from today. However, the petitioner will be at liberty to file a representation before the authorities concerned with respect to her grievances which will be considered by the authorities concerned in accordance with law within a fortnight from the date of her filing such representation, if any. 15. With the aforesaid directions, this writ petition is disposed of.