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2009 DIGILAW 1206 (JHR)

Vijay Kumar Sinha v. State of Jharkhand

2009-08-28

D.G.R.PATNAIK

body2009
JUDGMENT Heard Sri Sujit Narayan Prasad, learned counsel for the petitioner and J.C. to G.P.-II for the respondent State. 2. Petitioner in this writ application has prayed for an order for quashing the office order No. 28 dated 27.06.2007 (Annexure-3) issued under the signature of the Respondent No. 3 whereby the petitioner has been transferred from the Soil Conservation Office, Daltonganj to the office of Soil Conservation, Garhwa. A further prayer has been made for directing the respondents to permit the petitioner to discharge his duties in the office of Soil Conservation, Daltonganj on the ground that the criminal case instituted against the petitioner is presently pending in the district of Garhwa. 3. Facts of the petitioner case in brief is as follows : The petitioner was employed as a Clerk in the office of Soil Conservation, Daltonganj and during his posting there, a criminal case was instituted against him for alleged misappropriation of Government money and the same is pending in the Civil Court in the district of Garhwa. On the same ground, the petitioner was placed under suspension in contemplation of a departmental proceeding. However, pursuant to an order passed by this Court in an earlier writ application filed by the petitioner, his suspension was revoked whereafter he was posted as Clerk in the office of Soil Conservation Research and Training Centre, Demo Tar, Hazaribagh. On the ground that the criminal case instituted against him is pending in the Civil court at Garhwa and it was highly inconvenient for him to appear in the case in Garhwa, he filed a representation before the Respondent No. 3 on 07.03.2005 praying for his transfer. His representation was duly considered by the Establishment Committee and upon the recommendation of the Establishment Committee, the petitioner’s prayer for his transfer was allowed and he was transferred to the office of Soil Conservation, Daltonganj vide order dated 29.06.2005. While the petitioner was discharging his duties in his transferred post at Daltonganj, the impugned order was issued under the signature of Respondent No. 3 whereby he was transferred to Sahebganj in the Soil Conservation Department, purportedly on administrative grounds. 4. The petitioner being aggrieved by the impugned order, has stated that the impugned order is highly arbitrary and illegal and has been passed only to accommodate one Basant Kumar Singh who is also posted in the office of Soil Conservation, Daltonganj. 4. The petitioner being aggrieved by the impugned order, has stated that the impugned order is highly arbitrary and illegal and has been passed only to accommodate one Basant Kumar Singh who is also posted in the office of Soil Conservation, Daltonganj. Adverting to Annexure-4 to the writ application, learned counsel for the petitioner would submit that by the order passed in W.P.(C) No. 3535 of 2006, in the case of Anil Kumar Bhagat, the respondent had earlier issued a notification for the transfer of Basant Kumar Singh from Daltonganj to Chatra but he was not relieved from office. Later, by partly amending the earlier transfer order by a subsequent order dated 15.12.2006, the said Basant Kumar Singh was allowed to be reposted in the office of Soil Conservation in the district of Lohardaga. Despite such amended order of transfer, the said Basant Kumar Singh did not hand over his charge of office at Daltonganj nor did he join his posting at Lohardaga. It was on the presumption that the petitioner had submitted complaints against the non-handing over of charge by Basant Kumar Singh, that the impugned notification of the petitioner’s transfer has been issued and the petitioner has been released from his post at Daltonganj. 5. A further ground has been advanced by the petitioner challenging the very authority of the respondent No. 3 for issuing the order of the petitioner’s transfer. Learned counsel for the petitioner would explain that the impugned order of transfer has been issued by the Director, Agriculture, Jharkhand, Ranchi although he is not the controlling officer of the petitioner as because the petitioner is an employee of the Soil Conservation Department headed by the Director, Soil Conservation. The Respondent No. 3 being the Director, Agriculture, has no jurisdiction or authority whatsoever to issue the impugned order of the petitioner’s transfer. Referring in this context to the judgement of the Supreme Court in the case of Md. Masood Ahmad Vs. State of U.P. and Others, 2007(8) SCC 150 , learned counsel submits that an order of transfer passed by a person who has no authority, cannot bind the employee. Learned counsel explains that the earlier order of the petitioner’s transfer from Hazaribagh to Daltonganj was passed by the Director, Soil Conservation and not by the Respondent No. 3. 6. State of U.P. and Others, 2007(8) SCC 150 , learned counsel submits that an order of transfer passed by a person who has no authority, cannot bind the employee. Learned counsel explains that the earlier order of the petitioner’s transfer from Hazaribagh to Daltonganj was passed by the Director, Soil Conservation and not by the Respondent No. 3. 6. A counter affidavit has been filed on behalf of the respondents denying and disputing the entire claim of the petitioner. Learned counsel for the respondents submits that the present writ application has become infructuous in view of the fact that petitioner, after being relieved from the office of Soil Conservation, Daltonganj, has taken charge at his transferred post at Sahebganj. It is further explained that the department of Soil Conservation is a cell under the Agriculture Department and works under the Agriculture Directorate and therefore the impugned order passed under the signature of the Respondent No. 3 who is the Director, Agriculture, cannot be assailed as incompetent. 7. Controverting the above statement of the respondents, learned counsel for the petitioner, while inviting attention to a Notification dated 16.12.1968 issued by the Government of Bihar, Department of Agriculture and Animal Husbandry (Annexure-13), would explain that the notification declares that the Director of Soil Conservation will be the Head of the Department of Soil Conservation and will exercise power as such. The department of Agriculture and Animal Husbandry will be the administrative department of the Government for the Directorate of Soil Conservation. The Director of Soil Conservation will be the controlling officer of the employees of Soil Conservation and Land Development Department to be excluded by the new Directorate. Learned counsel adds further that Annexure-1 to the notification (Annexure-13), gives a complete hierarchy of the Department of Agriculture and Animal Husbandry under which the Secretary is the Head of the Directorate of Soil Conservation. After the bifurcation of the erstwhile State of Bihar, the State of Jharkhand has also issued a circular on 17.04.2007 (Annexure-14) in which the Director, Soil Conservation has been made as the Head of the Department. After the bifurcation of the erstwhile State of Bihar, the State of Jharkhand has also issued a circular on 17.04.2007 (Annexure-14) in which the Director, Soil Conservation has been made as the Head of the Department. Learned counsel adds further that the transfer of the petitioner to Sahebganj has apparently been made to harass him which would be evident from the fact that he has been posted against a non-vacant post and the same is still occupied by another incumbent namely Shyama Nand Das although said Shyama Nand Das, even after his transfer from Sahebganj to Bundu, by order dated 30.12.2006, the said order of his transfer has been stayed by a subsequent order dated 14.09.2007 (Annexure-9). The petitioner, even after his being relieved from his post at Daltonganj, has been forced to remain out of service and has not been paid his salary and for which he has filed an Interlocutory Application No. 505 of 2008 praying for a direction to the respondents to release his salary which is due from 01.08.2007. 8. The above statements of the learned counsel for the petitioner by reference to the Government Notification (Annexures-9, 13 & 14), have not been denied or controverted by the counsel for the respondents. The Notifications declare categorically that the Director of Soil Conservation is the Head of the Department of the Soil Conservation and will exercise power as such and the Department of Agriculture and Animal Husbandry is the administrative department of the Government for the Directorate of the Soil Conservation. The Director of Soil Conservation is the controlling officer of the employees of the Soil Conservation. In the light of the above Government Notification, the contention of the respondents that the Soil Conservation is a cell under the Directorate of Agriculture is incorrect. The Government Notification indicates that the Department of Agriculture and Animal Husbandry is headed by Secretary and the same is bifurcated into two directorates one under the Director, Agriculture and the other, under the Director Soil Conservation. 9. In the light of the above position, since the petitioner is an employee under the Soil Conservation Department, and since his controlling authority is the Director of Soil Conservation, the respondent No. 3 who is the Director of Agriculture, has no authority to issue any order of the petitioner’s transfer. 10. As has been held by the Supreme Court in the case of Md. 10. As has been held by the Supreme Court in the case of Md. Masood Ahmad (Supra) though an order of transfer is a part of the service conditions of the employee and the same should not be interfered with ordinarily by a Court in exercise of its jurisdiction under Article 226 of the Constitution of India, but such interference is permissible where it is brought to the knowledge of the Court that the authority who had issued the order of transfer was not competent to pass the order. 11. In the light of the above facts and circumstances, the impugned order of the petitioner’s transfer is illegal and is therefore, hereby quashed. Since it appears that though the petitioner has been relieved from the office at Daltonganj to join his post at Sahebganj, but admittedly, such transfer was made against the non-vacant post, the petitioner has not been able to join his duties and has been compelled to remain out of service. It needs to be observed that by an earlier order, this Court had directed the respondents, on the basis of the submissions made by the petitioner’s counsel, to inform as to whether the two posts of Clerks in the office of the Soil Conservation Department at Sahebganj continues to remain by Bibi Raheena Khatoon and Shyama Nand Das, no reply has been given by the respondents controverting the above statements of the petitioner. The inference therefore is that no post of Clerk is vacant at Sahebganj and the petitioner cannot possibly assume any charge of office at Sahebganj pursuant to the order of his transfer. 12. Under the circumstances, the impugned order of transfer having been quashed, respondents shall allow the petitioner to assume office and render his duties at his original post at Daltonganj. Furthermore, the respondents shall pay the entire arrears of salary which has not been paid to the petitioner since 01.08.2007. Such payments to be made within one month from the date of receipt/production of a copy of this order. With these observations, this writ application is disposed of. Let a copy of this order be given to the learned counsel for the respondent State.