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Jharkhand High Court · body

2007 DIGILAW 911 (JHR)

Suraj Deo Ram v. State Of Jharkhand

2007-12-07

AMARESHWAR SAHAY

body2007
ORDER Amareshwar Sahay, J. 1. Heard Mr. A.K. Sinha, learned senior counsel for the petitioner and the counsel for the respondents. 2. In this writ application the petitioner has challenged the notification dated 29/05/2007, contained in Annexure-5 to the writ application, issued by the Government of Jharkhand, Department of Personnel, Administrative Reforms and Rajbhasa, Ranchi, whereby the petitioner, an Under Secretary, posted in Transport Department of the Government of Jharkhand, has been transferred as Under Secretary to the Department of Art, Culture, Sports & Youth Affairs, Government of Jharkhand. By the same notification respondent No. 4, Nepal Prasad Singh, who was posted as Under Secretary in the Forest & Environment Department has been transferred in place of the petitioner, i.e. in the Department of Transport. 3. The main grounds for challenge of the impugned order of transfer are three folds; Firstly, that the said order of transfer has been issued without recommendation of the Establishment Committee constituted for the said purpose: Secondly, that the impugned order of transfer has been passed in contravention of the policy decision of the Government where the norms for transfer have been laid down and; Thirdly, that there is nothing on the record to show that the said impugned order of transfer was passed on any administrative exigency. 4. On behalf of respondent Nos. 2 and 3 a counter affidavit has been filed. In paragraphs 8 and 9 of their counter affidavit, it has been stated that the appointing authority has paramount power to decide the transfer and posting of an employee from one department to another and that under administrative rule, the competent authority is fully empowered to make transfer and posting of an employee on the basis of the need and urgency of work and, therefore, under the special circumstances and administrative exigency transfer can be done at any time by the authority. It has further stated in the said paragraphs that the post of Under Secretary, Art, Culture and Youth Affairs fell vacant due to superannuation on 31/05/2007 and, hence, a requisition for posting of Under Secretary was received in the Department of Personnel, Administrative Reforms & Rajbhasa, Jharkhand. Ranchi and looking at the exigency of posting of an Under Secretary in the said Department, the name of the petitioner was considered fit by the competent authority, hence the petitioner has been transferred and posted in the said Department. Ranchi and looking at the exigency of posting of an Under Secretary in the said Department, the name of the petitioner was considered fit by the competent authority, hence the petitioner has been transferred and posted in the said Department. 4.1 Respondent No. 4 has appeared through his counsel and filed a separate counter affidavit. He has also taken the same stand as has been taken by Respondent Nos. 2 and 3. He has further stated that pursuant to the order of transfer and posting he has already assumed charge of his transferred place as Under Secretary, Transport Department, Ranchi on 25/06/2007 itself and he has relinquished the charge of the Forest and Environment Department. 4.2 The learned senior counsel appearing for the petitioner has placed reliance on the decisions of Division Bench of this Court delivered on 03/05/2007 in L.P.A. Nos. 74/2007 with 114/2007, contained in Annexure-12 and also an order of the learned Single Judge passed on 27/02/2007 in WPS No. 42/2007, contained in Annexure-11 as well as the order dated 07/05/2007 passed in L.P.A. No. 170/2007, contained in Annexure-13 to the rejoinder to the counter affidavit. 5. From perusal of the aforesaid three judgments/orders of this Court, it is clear that the consistent view of this Court is that though transfer is an incident/condition of service and the employee has power to transfer the employees, but when the employer himself has framed a policy decision for the same, some justification must be there on record for not following the same in a particular case. According to the policy decision of the Government itself, the transfer has to be made by the competent authority after following the prescribed procedure, which requires the recommendation of the Establishment Committee and approval of the Minister Incharge. 6. In the present case, it has not been disputed by the respondent State that in the present case there was no recommendation of the Establishment Committee prior to issuance of impugned order of transfer therefore, on this ground alone the impugned order cannot be sustained being violating of the policy decision of the State Government. 6. In the present case, it has not been disputed by the respondent State that in the present case there was no recommendation of the Establishment Committee prior to issuance of impugned order of transfer therefore, on this ground alone the impugned order cannot be sustained being violating of the policy decision of the State Government. The Division Bench of this Court in L.P.A. No. 74/2007 with L.P.A. No. 114/2007 (Annexure-12) has also held that joining of a person at a transferred place during the pendency of the writ petition will not validate an illegal action/order The plea of the respondents that the impugned order of transfer has a ready taken its effect and Respondent No. 4 has already assumed change, is of no consequence since the said illegal order cannot by validated only on account that it has already been implemented. 7. The present case is fully covered by the aforesaid decisions of this Court and, therefore, the impugned order as contained in Annexure-5 to the writ application is liable to be quashed. From Annexure-9 to the supplementary affidavit, i.e. the documents supplied to the petitioner under Right to Information Act also it does not appear that on any administrative exigency such order of transfer was passed. Accordingly, this writ application is allowed and the impugned order of transfer as contained in Annexure- 5 is hereby quashed.