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2014 DIGILAW 1018 (JHR)

Raj Kumar Rajesh v. State of Jharkhand

2014-10-08

APARESH KUMAR SINGH

body2014
Order Heard learned counsel for the parties. 2. By the impugned notification dated 03.09.2014, Annexure-2 issued by the Road Construction Department, Government of Jharkhand, the petitioner has been transferred from the post of Assistant Engineer, Road Sub-division-2, Deoghar, Road Division, Deoghar to the post of Assistant Engineer, Ring Road Sub-Division No. 3, Ranchi, Ring Road Division, Ranchi. 3. Learned Senior counsel for the petitioner has assailed the said impugned order of transfer on the ground that he has been shifted within a period of ten months after the last order of transfer dated 01.11.2013. It is further submitted that within a period of three years starting from 07.10.2011, the petitioner has been transferred thrice in the nature of successive transfer, which has seriously affected the petitioner because of frequent displacement. It is submitted by learned Senior counsel for the petitioner that the policy relating to transfer and posting under the respondent-State vide Circular dated 25.10.1980 stipulates the tenure of three years of such employee, which is not being followed. He has relied upon a judgment rendered by the Hon'ble Supreme Court in the case of Sarvesh Kumar Awasthi Vs. U.P. Jal Nigam and Ors. reported in 2003(11) SCC 740 to advance his submission that such transfers are to be effected on the basis of settled norms or guidelines. Reliance has also been placed upon a judgment rendered by the Hon'ble Supreme Court in the case of Director of School Education, Madrasand Ors. Vs. O. Karuppa Thevanand Anr. reported in 1996(1)SLR 225 where the Hon'ble Court has also expressed its view that in effecting transfer, the fact that children of an employee, who are studying, may also be affected because of mid session transfer, are to be given due weight, if the exigencies of service are not urgent. Reliance has also been placed upon a judgment rendered by the Hon'ble Supreme Court in the case of B. Varadha Rao Vs. State of Karnataka and Ors. reported in 1986(4) SCC 131 , para-5 and 6 in support of the aforesaid submission that such frequent, unscheduled transfer is not justified in the eyes of law and has caused prejudice to the petitioner as well. Therefore, the impugned order of transfer may be set aside. 4. Learned Senior counsel for the petitioner has submitted that the respondent-State has failed to give sufficient justification of such a frequent transfer of the petitioner. Therefore, the impugned order of transfer may be set aside. 4. Learned Senior counsel for the petitioner has submitted that the respondent-State has failed to give sufficient justification of such a frequent transfer of the petitioner. He submits that the private respondent in extreme urgency without handing over the charge at his place of posting at Godda where no one else was transferred, proceeded to submit his joining immediately on the next date of impugned transfer order i.e. on 04.09.2014 itself. This is being enquired into by the Superintending Engineer. It is submitted that the impugned transfer appears to have been effected to accommodate the private respondent. 5. Learned counsel for the State submits that the petitioner has been transferred by a general transfer order along with 57 such persons of the respondent-Road Construction Department, which has been issued by the competent authority. It is further submitted that the petitioner has remained at the same place at Deoghar earlier for two years where after he was transferred on 07.10.2011 to Sahibganj and thereafter again has remained at Deoghar after transfer under notification dated 01.11.2013 till the issuance of the impugned notification. It is submitted that the circular of 1980 is only guideline and not mandatory in nature. Even otherwise the petitioner has remained there for slightly less than three years and there is no illegality and infirmity in the impugned order of transfer. 6. Learned counsel for the private respondent no. 5 has also reiterated the submission of the learned counsel for the State and submitted that the petitioner has managed to stay at Deoghar for sufficient period of time for about three years counted on two different occasions. It is submitted that earlier also the petitioner was posted at Ranchi and this time again he has been transferred to Ranchi. It is further submitted that joining of the petitioner at the transferred place may not be of much consequence, so far as challenge to the order of transfer is concerned. The ground taken by the petitioner to challenge the impugned transfer is not tenable. It is therefore submitted that the impugned order is legal and valid and the private respondent no. 5 has also joined on the transferred place on 10.09.2014, which has been accepted by the Executive Engineer of the concerned Road Construction Division. 7. The ground taken by the petitioner to challenge the impugned transfer is not tenable. It is therefore submitted that the impugned order is legal and valid and the private respondent no. 5 has also joined on the transferred place on 10.09.2014, which has been accepted by the Executive Engineer of the concerned Road Construction Division. 7. I have heard learned counsel for the parties and have gone through the relevant materials on records including the impugned order and the judgment relied upon by the learned Senior counsel for the petitioner. From perusal of the relevant materials on record, it appears that the order of transfer is a general transfer in respect of 57 persons issued by the respondent department. The issuance of transfer order does not appear to suffer from lack of competence or jurisdiction of the authority issuing the same. It further appears that the petitioner has remained at the same place from 08.09.2009 to 06.10.2011 and thereafter from 01.11.2013 till issuance of impugned notification on 03.09.2014. In the interregnum the petitioner had been transferred to Sahibganj for brief period thereafter to Ranchi. The petitioner again has been posted at Ranchi. The circular of 25.10.1980 prescribes that ordinarily tenure of such employee should be of three years. However, it also prescribes conditions where transfer can be effected at any other time subject to fulfillment of such conditions as laid down therein such as in case of death, illness, vacancy or other administrative reasons. The petitioner has failed to make out a case that the impugned order of transfer has been issued by an authority without jurisdiction or it is malafide or that there are no administrative reasons for the same. 8. Having considered the aforesaid aspect of the matter and also principle laid down in the judgment relied upon by the learned Senior counsel for the petitioner, it appears that no ground for judicial review of the impugned order of transfer is made out by the petitioner. In such circumstances, this Court is not inclined to interfere in the impugned order of transfer. 9. However, it appears that the private respondent no. In such circumstances, this Court is not inclined to interfere in the impugned order of transfer. 9. However, it appears that the private respondent no. 5 seems to have proceeded to submit his joining without handing over of charge at the previous place of posting at NREP, Godda in respect of which Superintending Engineer, Road Construction Division, Road Circle, Dumka has also written to the Executive Engineer, Road Construction Department, Road Circle, Deoghar. 10. The private respondent no. 5 has annexed the report of his joining on 04.09.2014 itself as Annexure-R-5/A though unilateral charge has been assumed on 10.09.2014 also endorsed by the Executive Engineer, Road Construction Department, Deoghar. The Superintending Engineer concerned should also look into that aspect of the matter so as to ascertain whether the procedure adopted by the private respondent no 5 is irregular or impermissible in law and take a decision thereupon. 11. However, on the facts and reasons discussed hereinabove, this Court is not inclined to exercise its discretionary jurisdiction to interfere in the impugned order of transfer. Accordingly, the writ petition is dismissed.