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2011 DIGILAW 944 (JHR)

Ram Sajjan Sharma v. State of Jharkhand

2011-10-12

R.R.PRASAD

body2011
JUDGMENT : An order as contained in memo no. 1200 dated 7.9.2011 by which Deputy Com-missioner, Khunti repatriated the petitioner, an Account Officer deputed at District Rural Development Agency (DRDA), Khunti to his parent department, Rural Development Department, Government of Jharkhand is under challenge. 2. Mr. R.S. Majumdar, learned Senior Counsel appearing for the petitioner submitted that the order of transfer/repatriation is bad on two counts. One being lack of authority on the part of the Deputy Commissioner to pass an order of transfer/repatriation of the persons deputed in District Rural Development Agency. 3. In this regard it was stated that Ministry of Rural Development, Government of India has issued guideline on District Rural Development Department administration which has been adopted by the State of Jharkhand. By referring to clause 5.2 of the said guideline, it was submitted that the Chairman for the Zila Parishad shall be the Chairman of the Governing Body of the District Rural Development Agency. Further, the executive and financial function is to be discharged by the CEO. Zila Parish ad/District Collector who shall be designated as the Chief Executive Officer or the Executive Director and it is the Deputy Development Commissioner who has been designated as CEO of Zila Parishad, Khunti which would be evident from Annexure-10 and under this situation, Deputy Commissioner, Khunti has no authority to pass the impugned order. Second ground on which the impugned order is being assailed is that the order of transfer/repatriation has been effected on putting certain allegations which are punitive in nature and. as such, the order of transfer is quite bad in view of the decision rendered in a case of Somesh Tiwari vs. Union of India and others [ (2009)2 SCC 592 ] holding therein that order of transfer passed in lieu of punishment being wholly illegal is liable to be set aside. 4. As against this, Mr. Rajiv Ranjan, learned Additional Advocate General submitted that though the order does contain certain allegations of not residing in the Headquarters. unnecessary interference in the works of other causing ,adverse effect on the administration of District Rural Development Agency but in effect, the petitioner has been transferred on account of inefficiency and as such, the order of transfer/repatriation cannot be said to be bad. 5. unnecessary interference in the works of other causing ,adverse effect on the administration of District Rural Development Agency but in effect, the petitioner has been transferred on account of inefficiency and as such, the order of transfer/repatriation cannot be said to be bad. 5. Learned counsel in support of his submission has referred to a decision rendered in a case of Union of India and others vs. Janardhan Debanath and Another [ (2004)4 SCC 245 ]. 6. It was further submitted that only two posts of the Account Officer have been sanctioned for District Rural Development Agency, Khunti and as against that two persons have already been posted though on contract basis and as such, continuation of the petitioner on the post of Account Officer would be in excess of the sanctioned strength and this was also the reason for effecting the transfer/repatriation of the petitioner. 7. It was further pointed out that the Parent Department of the petitioner is Bihar State Small Scale Industries Development Corporation, Bihar, Patna. From that department, he had been deputed in the Rural Development Department, Government of Jharkhand. Subsequently, he was deputed in District Rural Development Agency, Khunti but now Rural Development Department, vide its order dated 20.9.2011 has relieved the petitioner for his joining to its Parent Department. That being so, the petitioner on being repatriated to the Parent Department has no right to hold the post at District Rural Development Agency and on account of this development, the impugned order never warrants to be interfered with by this Court. 8. Learned counsel also submitted that on account of inefficiency, one can be transferred in view of the provision. of Rule 56A of the Bihar Service Code which proposition has been laid down by this Court in a case of Arjun Prasad Singh vs. State of Jharkhand and Others [2009(3) JCR 237(Jhr.)] [ : 2009(3) JLJR 6 ] after following the ratio laid down in a case of Union of India and Others vs. Janardhan Debanath and Another (supra). 9. 9. It has been well settled that no Government servant, or employee of a public undertaking has any legal right to be posted forever at anyone particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. 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. 10. The aforesaid proposition has been laid down by the Hon'ble Supreme Court in a case of National Hydroelectric Power Corporation Limited vs. Shri Bhagwan [ (2001)8 SCC 574 ]. 11. In the instant case, according to the petitioner, the Deputy Commissioner, Khunti being not the CEO of the District Rural Development Agency is not competent to effect transfer of the person engaged in District Rural Development Agency. This submission is based on clause 5.2 of the guideline issued by the Ministry of Rural Development for administration of District Rural Development Agency. The said clause reads as follows:- "5.2. The DRDA shall be a registered society registered under a Societies Registration Act or a' distinct cell in the Zilla Parishad having a separate identity. The Chairman of the Zilla Parishad shall be the Chairman of Governing Body of the DRDA. The executive and financial functions shall however lie with CEO, Zilla Parishad/District Collector who shall be designated as the Chief Executive Officer or Executive Director. It shall be his responsibility to ensure that the administration of DRDA and the programmers are conducted in accordance with the guide_ lines. Wherever the Zilla Parishads are not in existence or are not functional, the DRDA as would function under the Collector/District Magistrate/Deputy Commissioner of the District, as the case may be." 12. From its perusal it is evidently clear that the executive and financial function is to be discharged by the CEO, Zilla Parishad/District Collector who shall be designated as the Chief Executive Officer. From its perusal it is evidently clear that the executive and financial function is to be discharged by the CEO, Zilla Parishad/District Collector who shall be designated as the Chief Executive Officer. According to the petitioner, DDC has been notified as CEO, Zilla Parishad which submission is based upon the notification relating to transfer of certain persons wherein in one of the order it has been shown DDC as CEO, Zilla Parishad, Khunti but it never does indicate that CEO, Zilla Parishad has been designated as Chief Executive Officer or Executive Director of the District Rural Development Agency. Moreover, no notification has been brought on the record to show that CEO, Zilla Parishad has been designated a; Chief Executive Officer or the Executive Director of the District .Rural Development Agency. Therefore, in absence of any such notification, it cannot be said that District Collector who happens to be the Chairman of the District Rural Development Agency does not have executive and financial authority in the matter of administration of District Rural Development Agency. 13. Coming to other point, it be stated that the Hon'ble Supreme Court in a case of Somesh Tiwari vs. Union of India and Others (supra) has observed that when an order of transfer is passed in lieu of punishment, the same is liable to be set aside. 14. However, in a case of Union of India and Others vs. Janardhan Debanath and Another (supra) it has been observed that transfers unless they involved any such adverse impact or visit the persons concerned with any penal consequences, are not required to be subjected to same type of scrutiny approach and assessment as In the case of dismissal, discharge reversion or termination and utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration. 15. 15. It has been further held that for the purpose of effecting a transfer the question of holding an enquiry to find out whether there was misbehavior or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirement as submitted by learned counsel for the respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. 16. In that view of the matter, if the authority has passed the order of transfer on account of inefficiency on the part of the petitioner, the said order cannot be said to be bad. For other reason also, the impugned order does not warrant interference as the petitioner has already been repatriated to its Parent Department. 17. However, before parting with the order, it be stated that whatever allegation has been leveled in the impugned order, that being ex parte may not be prejudicial to the petitioner. 18. In that view of the matter, apprehension raised on behalf of the petitioner that the LPC may not be issued to the petitioner seems to be unfounded. 19. Thus, I do not find any merit in this writ application. Hence, this writ application stands dismissed.