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2008 DIGILAW 767 (JHR)

Jagarnath Prasad v. State of Jharkhand

2008-07-21

R.K.MERATHIA

body2008
Order Heard the parties at length. 2. Petitioner has challenged Notification No. 3811 (Bha) dated 31.12.2007 (Annexure-2) by which he has been transferred. He has also challenged the second part of Notification No. 3841 (Bha) dated 31.12.2007 (Annexure-3) by which respondent no. 5 (for short "R-5") has been posted to work as Incharge in place of petitioner till further order. 3. Mr. B.B. Pandey, learned senior counsel appearing for the petitioner, submitted that meeting of the Establishment Committee was held on 28.12.2007 but it did not recommend the petitioner's transfer but even then he was transferred within ten months from his last transfer. He further submitted that if any enquiry was going on against the petitioner in September/October/November, 2007 which necessitated the transfer of petitioner, the Establishment Committee could have recommended the petitioner's case of transfer. He further submitted that by counter affidavit, the State cannot explain the reasons which were not in the order of transfer. For this, he relied on the judgment of Supreme Court in Mohinder Singh Gill and Another vs. The Chief Election Commissioner, New Delhi and Others (AIR 1978 Supreme Court 851). He further submitted that the respondents are required to follow the policy of transfer dated 25th October, 1980. He further submitted that the seniority of R-5 is under clouds but even then he was made Incharge in place of the petitioner, and after the order of interim stay was passed in this writ petition, he has been made Incharge Executive Engineer at Bokaro. For this purpose, he referred to the representation dated 8.10.2004 (Annexure-21) given to the Commissioner-Gum-Secretary, Road Construction Department, Jharkhand by the Jharkhand Engineering Service Association. 4. Mr. Sumit Gadodia, J.C. to Advocate General, appearing for the State of Jharkhand, submitted that the petitioner's performance at Dhanbad was not found satisfactory and numbers of complaints were received against him from the Deputy Commissioner, Dhanbad. He further submitted that the observance of the said transfer policy is directory and not mandatory as has been held in the Division Bench judgment of the Patna High Court in Man Singh vs. The State of Bihar and Others [1982 PUR 368J. He further submitted that the observance of the said transfer policy is directory and not mandatory as has been held in the Division Bench judgment of the Patna High Court in Man Singh vs. The State of Bihar and Others [1982 PUR 368J. Referring to another Division Bench judgment of Kailash Bihari Prasad and Another vs. The State of Bihar and Others [1992 (1) PUR 2091], he submitted that Minister-in-charge is competent to alter/modify the recommendations and pass such transfer order as are necessary in public interest and in best interest of administration. He further submitted that no mala fide has been alleged by the petitioner against anyone. 5. Mr. Anil Kumar Sinha, learned senior counsel appearing for R-5, submitted that he has annexed the seniority list to show that ~le was the seniormost Assistant Engineer and, therefore, he was given the post of Incharge Executive Engineer at Dhanbad and then Bokaro. 6. Counsel for the respondents referred to the following observations from the judgment in State of U.P. and Others vs. Siva Ram and Another [ 2004(5) Supreme 750 ]:- "Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned." 7. The following portion of the judgment in Mohd. Masood Ahmad vs. State of U.P. and Others, (2007)8 Supreme Court Cases 150 was also referred:- "Even if the allegation of the appellant is correct that he was transferred on the recommendation of an MLA, that by itself would not vitiate the transfer order. It is the duty of the representatives of the people in the legislature to express the grievances of the people and if there is any complaint against an official, the State Government is certainly within its jurisdiction to transfer such an employee. There can be no hard-and-fast rule that every transfer at the instance of an MP or MLA would be vitiated. It ali depends on the facts and circumstances of an individual case. In the present case, there is no infirmity in the impugned transfer order." 8. There can be no hard-and-fast rule that every transfer at the instance of an MP or MLA would be vitiated. It ali depends on the facts and circumstances of an individual case. In the present case, there is no infirmity in the impugned transfer order." 8. In my opinion, the case of Mohinder Singh Gill (supra) relied by Mr. Pandey is applicable to a case when a statutory functionary makes an order based on certain grounds. In that circumstance, its validity must be judged by reasons mentioned in the order, which cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. In the present case, there is chain transfer on administrative exigency. Therefore, detailed reasons were not required to be mentioned in such order of chain transfer. 9. It is true that the allegation/enquiry relates to the period prior to the meeting of the Establishment Committee held on 28.12.2007. But as per the said judgments of Man Singh (supra) and Kailash Bihari Prasad (supra), the executive instructions contained in the said transfer policy are directory and the Minister Incharge is competent to make alteration/modification in the public interest and in the best interest of administration. Moreover as per the judgments in the cases of State of U.P. and Md. Masood Ahmad (supra), order of transfer should not ordinarily be interfered with by this. Court in writ jurisdiction. There appears to be some indication about unsatisfactory performance of work by the petitioner at Dhanbad, though enquiry is said to be going on in that regard. There is no allegation of mala fide against any person. Further about one and half years have passed after the last transfer of petitioner at Dhanbad. 10. In this case, I am not inclined to enter into the question whether R-5 was entitled to be given the post of Incharge Executive Engineer, which has to be seen by the department first. 11. Taking into consideration the totality of the circumstances, I am not inclined to interfere with the order of transfer passed against the petitioner. In the result, this writ petition is dismissed. However, no costs.