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2010 DIGILAW 1051 (JHR)

Rathindra Nath Mahanty v. State of Jharkhand

2010-12-01

R.A.PRASAD

body2010
Order This writ application has been filed for quashing the notification no. 6301 dated 21.10.2010 whereby the petitioner, who had been deputed on the post of Managing Director, Adityapur Industrial Area Development Authority (AIADA), has been directed to join in his Parent Department, i.e. Personnel and Administrative Reforms Department, Government of Jharkhand, Ranchi. 2. Mr. P.K. Prasad, learned Senior Counsel appearing for the petitioner submitted that by virtue of an order of transfer to the post of Managing Director, AIADA the petitioner did join the post but just after 40 days of his joining, the impugned order has been passed which is quite bad on two counts. 3. Learned counsel in this respect submitted that the petitioner after joining the post when did find that in spite of allotment of land for setting industry, it has not been done since long, steps were being taken for identifying those lands, so that allotment be cancelled and the land be settled to other persons, who can set up industry and this action of the petitioner made the petitioner an eyesore to scrupulous industrialist, who politically influenced the high ups to get the petitioner transferred from that post and succeeded in their efforts and as such, when the order of transfer is tainted with mala fide and the case appears to be of victimization, the same is fit to be set aside. 4. Learned counsel in this respect has referred to a decision rendered in a case of Navin Kumar Singh vs. Jharkhand State Electricity Board through its Chairman [ 2005(3) JLJR 97 ]. 5. The other ground which has been taken for assailing the order of transfer is that the order of transfer has never been passed on the recommendation of the Establishment Committee whereas under the policy of the transfer" as notified by the Government on 25.10.1980, one can be transferred under the order of Establishment Committee subject to its approval by the Cabinet and if the order of transfer is not in accordance with the said rule, it is bad. 6. Learned counsel in this respect has referred to a decision rendered in a case of Uttam Kujur vs. State of Jharkhand and Others [ 2008(2) JCR 306 (Jhr.)]. 7. 6. Learned counsel in this respect has referred to a decision rendered in a case of Uttam Kujur vs. State of Jharkhand and Others [ 2008(2) JCR 306 (Jhr.)]. 7. As against this, learned Advocate General submitted that the post of Managing Director of Adityapur Industrial Area Development Authority (AIADA) is not a cadre post which post is being manned by an officer of the Indian Administrative Service right from the beginning of the inception of the said organization and the petitioner, a member of the Bihar Administrative Service has been posted there on his representation without there being any recommendation of the Parent Department or the Cabinet, rather the proposal was made on the representation of the petitioner to post him as Settlement Officer, East Singhbhum, Jamshedpur but the order was passed to post him as Managing Director, Adityapur Industrial Area Development Authority (AIADA) until further order, though the petitioner being in the rank of Joint Secretary cannot be posted as Managing Director and, therefore, when this mistake came to the notice of the Department, an order has been passed by way of impugned order directing the petitioner to give his joining in the Parent Department and as such, it was case of deputation and not a case of transfer and therefore, if the deputationist has been asked to give his joining in the Parent Department, no illegality has been committed by the authority. 8. Learned Advocate General in this respect has referred to a decision rendered in a case of Kunal Nanda vs. Union of India and Another [ (2000)5 SCC 362 ]. 9. Learned Advocate General further submitted that it has been well settled rule that the Government servant holding a transferable post has no vested right to remain posted at any place or other and as such, the Hon'ble Supreme Court has time without number has held that the Court should not interfere with the transfer made in public interest and/or for administrative reason unless transfer order is in violation of any mandatory, statutory rule or on the ground of mala fide and that in a case of Mrs. Shilpi Bose and Others vs. State of Bihar and Others [1991 (1) PLJR (SC)61], the Hon'ble Supreme Court has gone to the extent to hold that even if the transfer order is passed in violation of its executive instruction or orders, it should not be interfered by the Court, rather the affected party should be relegated to approach higher authorities in the Department concerned. Thus, it was submitted that the impugned order never warrants to be interfered with by this Court. 10. Having heard learned counsel appearing for the parties and on perusal of the record, it does appear that the post of Managing Director, Adityapur Industrial Area Development Authority (AIADA) created under an Act is not a cadre post which post, according to the learned Advocate General, is being manned right from the inception of the organization by the members of the Administrative Service, though by virtue of notification dated 8.9.2010, the petitioner has been transferred to that post but, in fact, he can be said to be deputed on the post of Managing Director and order of deputation was until further order and now by virtue of an order as contained in Annexure-4, he has been directed to give his joining in the Parent Department which cannot be said to be bad as the services of deputationist can be repatriated to the Parent Department at any point of time. 11. In this respect the Hon'ble Supreme Court in a case of Kunal Nanda vs. Union of India and Another (supra) has observed that the basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his Parent Department to serve in his substantive position therein at the instance of either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation. 12. In this view of the matter, the submission advanced on behalf of the petitioner regarding non-adherence of a circular which does not have effect of any rule looses its relevance. 12. In this view of the matter, the submission advanced on behalf of the petitioner regarding non-adherence of a circular which does not have effect of any rule looses its relevance. At the same time, other ground of mala fide taken for assailing the order is also devoid of merit as the allegation of mala fide seems to be quite vague, as the petitioner has not come forward with the name of any person at whose instance, the impugned order has been passed. 13. It be stated that mere assertion or bald statement is not enough to prove the factum of mala fide. In a .case of State of Uttar Pradesh vs. Gobardhan Lal [ (2004)11 SCC 402 ], the Honoble Supreme Court while dealing with the matter of transfer did observe that allegations of mala fide must inspire confidence of the Court and ought not to be entertained on the mere asking of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference would ordinarily be made with an order of transfer. 14. It has been further held that the burden of proving mala fides is on a person leveling such allegations and the burden is heavy admits of no legal ambiguity. Mere assertion or bald statement is not enough to discharge the heavy burden that the law imposes upon the person leveling allegations of mala fides; it must be supported by requisite materials. 15. In the instant case, the petitioner except bald statement has failed to produce any material or evidence to make a case of mala fide. Accordingly, the ground of mala fide for assailing the order of transfer is not tenable. 16. Under the circumstances as stated above, I do not find any• merit in this writ application and hence, it is dismissed.