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2009 DIGILAW 383 (JHR)

Arbind Kumar Jaiswal v. State of Jharkhand

2009-03-18

AJIT KUMAR SINHA

body2009
Order The present writ petition has been preferred for the following reliefs:- (i) For issuance of an appropriate writ(s), Order(s) and/or direction(s), particularly a writ in the nature of certiorari for quashing notification Nos. 4539 and 4540 dated 31.12.200B, so far as it relates to petitioner and respondent No.4, (Annexure-2) by which the petitioner has been transferred from the post of In-charge Executive Engineer, Drinking Water and Sanitation Division, Ramgarh to the post of Technical Advisor to the Superintending Engineer, Drinking Water and Sanitation Circle, Ranchi and private respondent No.4 has been posted in place of petitioner, without any recommendation of Establishment Committee nor any result has been assigned for premature transfer of the petitioner either administrative or else and that too within a short span of six months, only at the instance of Departmental Minister In-charge. (ii) For issuance of an appropriate writ(s), order(s) and/or direction(s), particularly a writ in the nature of Mandamus commanding the respondents not to give effect to the said notifications vide Nos. 4539 and 4540 dated 31.12.2008 as contained in Annexure-2. (iii) For a direction upon the respondents to produce before the Hon'ble Court the records of the Establishment for perusal of this Hon'ble Court. 2. The facts, in brief, are set out as under:- The petitioner was In-charge Executive Engineer in Drinking Water and Sanitation Division, Government of Jharkhand. On 30.6.2008 the petitioner was transferred vide notification no. 2676 from Drinking Water and Sanitation Sub-Division, Gonda, Ranchi and posted as In-charge Executive Engineer, Drinking Water and Sanitation Division, Ramgarh. The petitioner joined on the transferred post on 28.7.2008 and worked satisfactorily. Within a short span of six months in violaticm of Government Circular/Resolution dated 25.10.1980 and without any administrative reason or without any recommendation of the Establishment Committee, the petitioner was transferred and private respondent no. 4 was posted in his place. 3. The main contention raised by the counsel for the petitioner is that the premature transfer within a period of six months was illegal and arbitrary. It has also been contended that transfer was not recommended by the Establishment Committee constituted for the purpose and in fact the same was in violation of Circular/ Resolution dated 25.10.1980. 4. 3. The main contention raised by the counsel for the petitioner is that the premature transfer within a period of six months was illegal and arbitrary. It has also been contended that transfer was not recommended by the Establishment Committee constituted for the purpose and in fact the same was in violation of Circular/ Resolution dated 25.10.1980. 4. The respondents in their counter affidavit and also by the submissions through their learned counsel have stated that the transfer was made after the approval of the competent authority and the Circular/Resolution dated 25.10.1980 was directory and not mandatory. It has also been contended that as per Clause 22(5) of the Rules of Executive Business the Minister In-charge is the final authority to approve the recommendation of the Establishment Committee and the transfer was made admittedly after the approval of the Minister In-charge. 5. The learned counsel of the private respondent no. 4 has further stated that the petitioner has already relinquished the charge of his erstwhile post vide order dated 13.1.2009 and has assumed the charge in compliance to the notification dated 31.12.2008. It has also been stated that he was also transferred within six months. The private respondent no. 4 has also filed an additional counter affidavit referring to and relying upon the judgments passed by this court in W.P.(S) No. 3738 of 2008 and W.P.(S) No. 3676 of 2008 to support his contention stating that in an identical case, this court dismissed the writ petitions while upholding the notification of transfer and in those cases also the transfer was made within a short span of less than six months. 6. In the aforesaid judgments this court while relying upon (2007)8 SCC pg. 150 held that the principle of law laid down in a series of judgment clearly confined the scope of judicial review in the matters of transfer under Article 226 of the Constitution of India and held that unless the transfer order was mala fide or the service rules prohibit such transfer, or that the authorities who issued the order, was not competent to pass the order, the order of transfer should not be interfered in exercise of its discretionary jurisdiction under Article 226 of the Constitution of India. However, in the case of Sheonath Singh Ganjhu, [W.P.(S) No. 3676 of 2008] as referred to and relied upon it will be relevant to clarify that in that case there was serious charges and complaints against the petitioner to justify the order of transfer and thus, the ratio of that judgment is clearly distinguishable from the facts of the present case where no such allegation has been made. 7. Be that as it may, the fact remains that there is no specific allegation of mala fide or violation of any statutory rules and the fact that the Resolution has been held to be directory and not mandatory and the order of transfer was neither incompetent and or without jurisdiction the same cannot be interfered with under Article 226 of the Constitution. The petitioner has already relinquished the charge and has joined on the transferred post and thus it will be in the interest of justice not to interfere in the matter more so when there is no jurisdictional error as pointed out. 8. Considering the aforesaid facts and circumstances of the case, I am not inclined to interfere in the matter and this writ petition is accordingly dismissed.