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2014 DIGILAW 1073 (JHR)

Manoj Kumar Jha v. State of Jharkhand

2014-11-01

APARESH KUMAR SINGH

body2014
JUDGMENT APARESH KUMAR SINGH, J. 1. Heard counsel for the parties. 2. It is the grievance of the petitioner who is holding the post of Tracer in the office of Executive Engineer, Rural Works Department, Works Division, Ramgarh that after twenty months of issuance of the order of transfer dated 31.12.2012 issued by the Superintending Engineer, Rural Works Department, Works Circle, Hazaribagh (Annexure-3) whereunder he was transferred to Chatra, he has been relieved on 11.09.2014 by another order issued by the Executive Engineer, Rural Works Department, Works Division, Ramgarh. 3. The contention of the petitioner is that after twenty months of the order of transfer, there is no justification to relive him now when earlier his request for relieving him vide annexure-4 dated 16.01.2013 was not acceded to and the Executive Engineer, Rural Works Department, Works Division, Ramgarh himself requested the Superintending Engineer, Hazaribagh to cancel the order of transfer by a communication bearing memo no. 58 dated 04.02.2013 (Annexure-5). It is further submitted that under the relevant provisions of Jharkhand Service Code, specially rules 265 and 255 thereof, if the incumbent does not join at the transferred place of posting within the joining time permissible, he can be proceeded for misconduct which has never been the case against the petitioner. The impugned order of relieving moreover indicates that the same have been issued for administrative reasons i.e. in the nature of punitive order. It is further submitted that the petitioner having remained and adjusted himself at the same place of posting even after issuance of the impugned order of transfer, should not be relieved after twenty long months, as has been done now. Learned counsel for the petitioner submits that ordinarily, such transfer orders of an employee holding the post of Class-III are to be effected upon the decision of the Establishment Committee which does not appear to be the case here. Therefore, the impugned order be quashed. 4. Learned Senior Standing Counsel No. II, appearing on behalf of the respondent State, submits upon averments contained in the counter affidavit filed by the respondent no. 5 The Executive Engineer, Rural Works Department, Works Division, Ramgarh that the appointing authority of the petitioner is the Superintending Engineer, as would appear from the office order at Annexure-1 to the writ petition itself whereunder, the petitioner was appointed by the Superintending Engineer. 5 The Executive Engineer, Rural Works Department, Works Division, Ramgarh that the appointing authority of the petitioner is the Superintending Engineer, as would appear from the office order at Annexure-1 to the writ petition itself whereunder, the petitioner was appointed by the Superintending Engineer. It is submitted that there is no lack of jurisdiction in the office of the Superintending Engineer to issue such an order of transfer from one district to another within his circle. It is further submitted that the petitioner had initially been instructed to handover the files through letter bearing memo no. 37 dated 11.01.2013 issued by the Executive Engineer of the same works division which he failed to do and thereafter he continued at the same place of posting. It is further submitted that there are several works under execution in the district of Chatra where services of the petitioner are better required and for that administrative reasons, he has been relieved to join there by the impugned order. It is further submitted that the Superintending Engineer has acceded to the request of the Executive Engineer to relieve the petitioner pursuant to the original order of transfer dated 31.12.2012. Such letters are annexed as Annexure-B & D to the counter affidavit. Learned Senior counsel further submits that the petitioner after being relieved, has not submitted his joining at the transferred place and has absented himself. It is further argued that there is no such rule which stipulates that if the order of transfer is not implemented within six months, then it looses its force. Therefore, it is submitted that the writ petition does not have any merit and it should be dismissed. 5. I have heard learned counsel for the parties and gone through the relevant materials on record. As would appear from the appointment letter at annexure-1, the Superintending Engineer is appointing authority of the petitioner. The original order of transfer from Ramgarh to Chatra was issued by the Superintending Engineer, Rural Works Division, Hazaribagh within his circle. It further appears that the petitioner has never questioned the jurisdiction of the Superintending Engineer as he himself made a request vide Annexure-4 letter dated 16.01.2013 for being relieved to join the said place of posting at Chatra. The original order of transfer from Ramgarh to Chatra was issued by the Superintending Engineer, Rural Works Division, Hazaribagh within his circle. It further appears that the petitioner has never questioned the jurisdiction of the Superintending Engineer as he himself made a request vide Annexure-4 letter dated 16.01.2013 for being relieved to join the said place of posting at Chatra. It appears further that the Executive Engineer, Rural Works Department, Works Division, Ramgarh made a recommendation to cancel the petitioner's transfer giving reasons of certain pressure of work and absence of any successor of the petitioner at Ramgarh. It does not appear however that the order of transfer was revoked by the Superintending Engineer i.e. the competent authority. It further transpires that subsequently, the Executive Engineer, Ramgarh who perhaps is the successor of the earlier Executive Engineer, made a request to the Superintending Engineer to relive the petitioner pursuant to the order of transfer. 6. The contention of the petitioner that the respondents ought to have proceeded against the petitioner for misconduct, does not seem to cut much ice as it was the then Executive Engineer, Rural Works Department, Works Division, Ramgarh who himself had not relieved the petitioner at the relevant point of time. The said Executive Engineer may be responsible on that account. The provisions contained in the Jharkhand Service Code, as relied upon by the petitioner, permits certain period of joining time upon issuance of the transfer order. However, that joining time can only be reckoned if the incumbent is relieved from the place of posting. In the instant case, as would appear, the then Executive Engineer did not relieve the petitioner for certain reasons and ultimately by the impugned order dated 11.09.2014, he has been relieved to join at Chatra. The authority have shown administrative exigency of work at Chatra which need not be inquired into in exercise of writ jurisdiction of this Court. It is not in dispute that the petitioner is holding a transferable post within the Circle and the competent authority to transfer is the Superintending Engineer, Rural Works Department, Work Circle, Hazaribagh. 7. In such circumstances, this Court is not inclined to exercise its discretionary jurisdiction to interfere in the order of transfer and relieving. It is not in dispute that the petitioner is holding a transferable post within the Circle and the competent authority to transfer is the Superintending Engineer, Rural Works Department, Work Circle, Hazaribagh. 7. In such circumstances, this Court is not inclined to exercise its discretionary jurisdiction to interfere in the order of transfer and relieving. Petitioner should proceed to submit his joining at the transferred place and move an application for consideration of the period when he has remained absent after being relieved by the impugned order dated 11.09.2014. However, before parting, it is to be observed that the respondent department should look into the aspect as to whether action of the then Executive Engineer in not relieving the petitioner pursuant to the order of transfer dated 31.12.2012, was proper in the eye of law? The writ petition is accordingly dismissed.