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2014 DIGILAW 1037 (JHR)

Sanjeev Sharan v. State of Jharkhand

2014-10-14

APARESH KUMAR SINGH

body2014
Order Heard learned counsel for the parties. 2. In the instant writ petition, petitioner is aggrieved by the notification dated 25.8.2014 (Annexure-2) issued by the department of Personnel Administrative Reforms and Rajbhasha where under the private respondent no.4, Nesar Ahmad has been posted as Deputy Development Commissioner, Pakur in place of the petitioner, who was earlier transferred to the said place as Deputy Development Commissioner vide notification dated 17.5.2013 bearing memo no. 4272. By the impugned notification dated 25.8.2014 petitioner has been directed to join in the department of Personnel Administrative Reforms and Rajbhasha, Government of Jharkhand. The challenge to the impugned notification dated 25.8.2014 has been made by learned senior counsel for the petitioner on the following grounds:- (i) that there is no corresponding notification of transfer of the petitioner and he has been directed to report joining in the department of Personnel Administrative Reforms and Rajbhasha, Government of Jharkhand. (ii) that petitioner is due to retire on 31.1.2015 i.e. within 5 months from the date of impugned notification and therefore, the same is in teeth of the circular dated 25.10.1980, laying down the policy and guidelines in the matter of transfer and posting of the State Government employees where posting of an employee who is going to retire and is in the last year of his service be considered as per his choice. (iii) that the impugned notification was in respect of the cadre of Deputy Secretary or Officer in the rank of Sub Divisional Officer or A.D.M, while the petitioner was in the cadre of Joint Secretary, having came to the said cadre on 3.6.2013. (iv) that the post of Deputy Development Commissioner is meant for a person belonging to the Cadre of Joint Secretary in the Personnel Department, which the respondent no. 4 does not belong. 4. Learned senior counsel appearing on behalf of the petitioner, by way of I.A. No. 4767 of 2014 has further sought to assail the subsequent notification issued on 28.8.2014 where under petitioner has been posted as Joint Secretary in the Water Resources Department. It is submitted by learned senior counsel in support of the aforesaid grounds of challenge that the respondent no. 4 is in the rank of Deputy Secretary and could not have been posted as Deputy Development Commissioner. Respondent-State in their counter affidavit has made a evasive reply to the aforesaid assertion. It is submitted by learned senior counsel in support of the aforesaid grounds of challenge that the respondent no. 4 is in the rank of Deputy Secretary and could not have been posted as Deputy Development Commissioner. Respondent-State in their counter affidavit has made a evasive reply to the aforesaid assertion. It is also submitted that petitioner came to the cadre of Joint Secretary on 3.6.2013 only 17 days after he was transferred as Deputy Development Commissioner, Pakur vide notification dated 17.5.2013, though at the time of transfer petitioner was holding the post of Deputy Secretary. It is further submitted that in terms of the policy resolution of 25.10.1980, petitioner should have been considered for choice posting and he should not have been displaced at the fag end of his service. Learned senior counsel appearing on behalf of the petitioner has further argued that there is no suppression of fact on the part of the petitioner as the writ petition was filed on 29.8.2014 after issuance of the impugned notification dated 25.8.2014 and the subsequent notification dated 28.8.2014 was challenged through I.A. No. 4767 of 2014, which was affidavited on 3.9.2014 and filed on 09.9.2014 i.e. without any delay. It is further submitted that the question of choice of posting could only be raised, if the petitioner has been displaced just before his retirement and he cannot contemplate to file any representation without any occasion. 5. Learned counsel for the respondent-State has submitted that petitioner had not brought to the notice of the Court that he has been posted by the subsequent notification dated 28.8.2014 issued by the same department on the equivalent post of Joint Secretary in the Water Resources Department. It is further submitted that since the petitioner was posted as Joint Secretary, Water Resource Department immediately after the impugned notification of transfer, he would not suffer on any count while getting the post retirement benefit. This fact was suppressed by the petitioner to obtain the interim order. It is submitted that impugned notification of transfer has been issued after due approval of the Chief Minister. Learned counsel for the State has also submitted that impugned notification of transfer does not suffer from lack of competence or jurisdiction and petitioner has never made any representation for choice of transfer before the respondents in terms of the circular dated 25.10.1980. 6. Learned counsel for the State has also submitted that impugned notification of transfer does not suffer from lack of competence or jurisdiction and petitioner has never made any representation for choice of transfer before the respondents in terms of the circular dated 25.10.1980. 6. Learned counsel for the respondent no.4 has also reiterated the submissions of learned counsel for the respondent-State and further submitted that by the impugned notification not only the respondent no.4 has been transferred in place of petitioner but similarly situated persons as that of the respondent no.4 namely Anjani Kumar, Mr. Debar Joko and Mr. Arun Kumar Ratan, who were also holding the post of Deputy Secretary were posted as Deputy Development Commissioner in various other districts. It is further submitted that argument of the petitioner that respondent no. 4 could not have been posted as Deputy Development Commissioner as he was not belonging to the cadre of Joint Secretary is wholly unsustainable as the petitioner himself was transferred as Deputy Development Commissioner, Pakur while he was in the cadre of Deputy Secretary. The State in the exigency of service has chosen to effect the transfer of several persons and given charge of Deputy Development Commissioner in different Districts. He has reiterated the submission made by learned counsel for the State that the private respondent no.4 would only be drawing the salary in the scale of an employee in the rank of A.D.M and not in the rank of Joint Secretary, though holding the post of Deputy Development Commissioner. It is further submitted that petitioner has suppressed the impugned notification dated 28.8.2014 while obtaining an interim order on 1.9.2014. Respondent no.4 who had been relieved from the last place of posting at Chaibasa as District Land Acquisition Officer has submitted his joining as Deputy Development Commissioner, Pakur immediately after the issuance of the impugned notification. Therefore the interim order may be vacated and the writ petition may be dismissed. 7. Having heard counsel for the parties and in the facts and circumstances of the case, it appears that the order of transfer on the face of it does not suffer from lack of competence or jurisdiction as it appear from the statement made on behalf of the respondents that the same has been issued after the approval of the Chief Minister in terms of the provision of circular dated 25.10.1980. It further appears that the petitioner himself was transferred as Deputy Development Commissioner, Pakur on 17.5.2013 when he was in the cadre of Deputy Secretary, though he has been promoted to the rank of Joint Secretary later on vide notification dated 3.6.2014. The contention of the petitioner that the impugned notification of posting was in relation to the Officers of the rank of Deputy Secretary not eligible to the post of Deputy Development Commissioner which is equivalent to the Joint Secretary, therefore, is not tenable in facts as well as law. It is otherwise also not tenable as the order of transfer relates to several such persons who were also posted as Deputy Development Commissioner in other districts after the approval of the Chief Minister. Petitioner may have been in the last year of his service but that alone may not be a reason for interfering with the impugned notification of transfer which otherwise appears to be issued by the competent authority and does not suffer from malafide or violation of statutory rules. Petitioner also has been posted 3 days after the impugned notification to the rank of Joint Secretary in the Water Resources Department and in that sense also petitioner does not suffer from any prejudice as was alleged that he was not been given any post and directed to report joining in the department of Personnel Administrative Reforms and Rajbhasha, Government of Jharkhand. 8. In totality of the aforesaid facts and circumstances and the reasons stated herein above, the impugned notification does not suffer from any illegality or lack of jurisdiction and no ground for interference is made out. However, petitioner after submitting his joining may have liberty to represent before the respondent authorities on the ground that he is in the last year of his service. 9. The writ petition is dismissed and the interim order dated 1.9.2014 stands vacated. Accordingly, all the pending interlocutory applications are closed. Petition dismissed.