Research › Search › Judgment

Jharkhand High Court · body

2006 DIGILAW 1401 (JHR)

Madan Mohan Roy v. State Of Jharkhand

2006-12-08

PERMOD KOHLI

body2006
ORDER Permod Kohli, J. 1. Petitioner is aggrieved of order No. 327 dated 11 th September, 2006, repatriating him to his parent department i.e. Water Resources Department, Jharkhand, Ranchi. Petitioner, who is an Executive Engineer, was deputed to Panchayat Raj & National Rural Employment Programme (Special Division) Department (NREP) vide Notification No. 8976 dated 1 st December, 2003 till further orders. He has been repatriated vide the impugned order to his parent department under the orders of the Joint Secretary to the Government, Panchayat Raj & National Rural Employment Programme (Special Division) Department and vide Memo No. 7841 dated 11 th September, 2006 he has been asked to hand over the charge to one Surajman Sharma, Technical Advisor, Rural Development (Special Division), Dumka. 2. This order has been assailed on the ground that the same has not been issued with the approval of the Departmental Minister or the Chief Minister, It is also stated that normally the transfer of officers is effected only during the months of May, June, November and December on the recommendation of the Establishment Committee after the approval of the Departmental Minister and in other months with the approval of the Chief Minister. Order is also challenged on the ground of malafide, violation of statutory provisions and incompetency on the part of the issuing authority. 3. On 20 th September, 2006 when this matter was taken up, respondents were directed to file an affidavit and to show that the order impugned has been approved by the competent authority. It is stated that the petitioner was repatriated by the Principe Secretary, National Rural Employment Programme Department, purely on administrative reasons and post facto approval of the Departmental Minister was obtained on 9 th November, 2006. It is further" mentioned that it is not a case of transfer but a case of sending back the employee to the parent department, Respondents have also tried to explain the reasons for delay in obtaining the approval which, inter alia, includes the political turmoil in the State during the month of September. 2006. It is also mentioned that there has been no violation of the statutory provisions nor the order is the result of any malafide. Respondents have also placed on record the official notings, which indicate that the repatriation of the petitioner was approved by the Minister concerned on 9 th November, 2006. 4. 2006. It is also mentioned that there has been no violation of the statutory provisions nor the order is the result of any malafide. Respondents have also placed on record the official notings, which indicate that the repatriation of the petitioner was approved by the Minister concerned on 9 th November, 2006. 4. I have heard learned Counsel for the parties. It has been vehemently argued on behalf of the petitioner that post factor approval does not rectify the illegality, so committed, It is also argued that similarly situated officers have been allowed to continue in the N.R.E.P. Department whereas the petitioner has been chosen to be repatriated. 5. From perusal of the deputation order of the petitioner it appears that the deputation of the petitioner to N.R.E.P. Department was till further orders. It was not a fixed term deputation. Respondents were, thus, entitled to repatriate the petitioner at any time. No right vests with a deputee to continue on deputation without the consent of the department, who is receiving the services of the deputee. Other contention of the petitioner is that the order was not approved by the concerned Minister and, thus, renders illegal. It is admitted case of the parties that when the order impugned was passed, it had no approval of the concerned Minister and the approval of the Minister was obtained on 9 th November, 2006. Assuming at the time of passing of the order it had no approval of the competent authority, however, the approval having been granted by the Minister, challenge to the order on account of incompetency ceased to exist, Even if it is assumed that repatriation also amounts to transfer, it is settled law that transfer can be interfered in" exercise of writ jurisdiction only on the ground of incompetency, malafide and violation of the rules. As far the competency of the authority passing the order is concerned, J have already held that with the grant of approval of the concerned Minister, order acquires sustainability. There is absolutely no allegation of malafide nor any such person has been named as a party by name. Learned Counsel for the petitioner has not been able to show any violation of the rules, except that the order has bee; passed in contravention of the norms prescribed under the Business Rules of the Government. There is absolutely no allegation of malafide nor any such person has been named as a party by name. Learned Counsel for the petitioner has not been able to show any violation of the rules, except that the order has bee; passed in contravention of the norms prescribed under the Business Rules of the Government. As regards Business Rules of the Government are concerned, these rules are framed by the Governor in terms of Article 166 of the Constitution of India for the purposes of distribution of governmental work amongst the Council of Ministers. These Business Rules can nor be enforced by an employee nor can be said to he mandatory in nature, so as to invite any interference by the Court. I, therefore, do not find any valid reason to interfere with the impugned order dated 11 th September, 2006. The writ petition is, accordingly, dismissed.