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2014 DIGILAW 711 (JHR)

Shweta Ved v. State of Jharkhand

2014-07-08

APARESH KUMAR SINGH

body2014
ORDER 1. Heard learned counsel for the Petitioner, State and Respondent No.7. 2. The petitioner is seeking quashing of the notification no. 1617 dated 4.3.2014 issued by the Rural Development Department, Government of Jharkhand where under the respondent no. 7 is said to have been posted as Block Development Officer(B.D.O) Bharno, on the grounds inter-alia that the petitioner had been posted on the same place by the earlier notification dated 31.12.2013 and she had assumed charge on 4.3.2014 from her predecessor as per Annexure-3 in terms of the provision of Rule 59 of the Jharkhand Service Code. It has also been pointed by referring to letter dated 9.3.2014 of the Deputy Commissioner, Gumla which is annexed to the counter affidavit of the State that she had submitted her joining in the District Head Quarter on 13.1.2014. Petitioner has also challenged the notification no. 1960 dated 12.3.2014(Annexure-8) where under she has been transferred as B.D.O Basia under District Gumla treating her to be waiting for posting. In addition she is also aggrieved by the notification no. 1335 dated 9.4.2014(Annexure-9) by which she was given additional charge of Circle Officer(C.O.), Basia treating her to be posted as B.D.O., Basia. Petitioner has therefore sought direction that she may not be disturbed from the post as B.D.O. Bharno. 3. The chronology of events as has unfolded from the pleadings on record and the submissions of the parties are as follows:-By Annexure-1 to the writ petition dated 31.12.2013 petitioner was transferred from her place of posting as B.D.O, Hazaribag Sadar to B.D.O, Bharno, District Gumla. Petitioner is said to have been releived by the Deputy Commissioner, Hazaribag on 27.2.2014 vide Annexure-2 which contains the list of 7 officers including the petitioner who were transferred by the notification dated 31.12.2013 and also the subsequent notifications. Reasons given in the said order indicate that the successor of these officers had not submitted their joining. The petitioner, after being relieved is said to have assumed charge from her predecessor as B.D.O., Bharno as per Annexure-3 dated 4.3.2014 in the forenoon. On 4.3.2014 itself the impugned notification of transfer was issued by the Rural Development Department in respect of 5 Officers and the respondent no.7 being one of them, was shown notified as B.D.O. Churchu at Hazaribag and was being transferred as B.D.O., Bharno, Gumla till further orders. 4. On 4.3.2014 itself the impugned notification of transfer was issued by the Rural Development Department in respect of 5 Officers and the respondent no.7 being one of them, was shown notified as B.D.O. Churchu at Hazaribag and was being transferred as B.D.O., Bharno, Gumla till further orders. 4. Learned counsel for the State at this stage pointed out that as per Clause 2, those Officers who were not being posted by the said notification were required to submit their joining in the Head Quarter of the department at Ranchi. On 5.3.2014 the Parliamentary Election was notified by the Election Commission and model code of conduct came into force. Respondent no.7 submitted his joining unilaterally on 7.3.2014 as B.D.O Bharno. On 9.3.2014 the Deputy Commissioner Gumla reported the matter to the Department indicating that the petitioner had assumed charge on 4.3.2014 after having submitted her joining earlier at the District Headquarter, Gumla on 13.1.2014. He also indicated that pursuant to the notification dated 4.3.2014 the respondent no. 7 had also assumed unilateral charge on 7.3.2014 as B.D.O., Bharno. He also indicated that the District Office was not aware of the assumption of charge by the petitioner on 4.3.2014. Therefore, he sought guidelines from the Chief Election Officer, Jharkhand on the aforesaid issue with copy to the Rural Development Department, Ranchi. On 12.3.2014 vide Annexure-8, petitioner being treated as waiting for posting was transferred as B.D.O, Basia till further orders. On 13.3.2014 vide Annexure-7 the Chief Election Officer, Jharkhand communicated to the Secretary of the Rural Development Department about the revocation of the permission granted for joining of the respondent no.7 on issuance of notification dated 4.3.2014 (Annexure-3). The said letter indicates that the petitioner had also represented before the State Election Office that she had already assumed charge as B.D.O., Bharno on 4.3.2014 but the same was not brought to the notice of the State Election Officer and in absence of correct fact such permission was granted for Respondent No. 7 to join as B.D.O., Bharno. The petitioner, thereafter was given additional charge of C.O, Basia on 9.4.2014 vide Annexure-9. Petitioner, however was not relieved on account of ensuing Parliamentary Election despite issuance of notifications dated 12.3.2014(Annexure-8) and 9.4.2014(Annexure-9). She approached this Court, thereafter with the aforesaid grievances apprehending that she might be relieved consequent to the said notifications after the elections are over. The petitioner, thereafter was given additional charge of C.O, Basia on 9.4.2014 vide Annexure-9. Petitioner, however was not relieved on account of ensuing Parliamentary Election despite issuance of notifications dated 12.3.2014(Annexure-8) and 9.4.2014(Annexure-9). She approached this Court, thereafter with the aforesaid grievances apprehending that she might be relieved consequent to the said notifications after the elections are over. In these circumstances, the petitioner has preferred the writ petition challenging the impugned order of notification dated 4.3.2014, 12.3.2014 as also 9.4.2014 . 5. Learned senior counsel appearing on behalf of the petitioner has submitted that only on being relieved by the Deputy Commissioner, Hazaribag on 27.2.2014 she assumed charge as B.D.O., Bharno in the manner provided under Rule 59 of the Jharkhand Service Code from her predecessor. It is submitted that once the order of transfer has taken effect, it spent its force and therefore, without transferring her from the said place, the impugned notification of 4.3.2014 has placed the respondent no. 7 on her place of posting as B.D.O., Bharno. It is further submitted that the consent of the Election Commission was taken by the State authorities by not placing correct fact which was rightly revoked on 13.3.2014 by the Commission. Further it is submitted that even after having come to know of assumption of charge by the petitioner as B.D.O Bharno, on 12.3.2014 treating her to be waiting for posting, she has been transferred as B.D.O, Basia, Gumla. Further notification of 9.4.2014 giving additional charge as C.O, Basia is therefore also bad in law. Learned counsel for the petitioner has submitted that chronology of facts would only indicate that all attempts were made to accommodate the respondent-7 at the same place. He has also pointed out that after passing of the interim order by this Court on 12.5.2014 the respondent no.7 has been posted as B.D.O. Bansjora, Simdega, however with a rider that the notification of his transfer would be dependent upon the outcome of the present writ petition which is wholly unheard of in any matter of transfer. Learned counsel for the petitioner has relied on judgments rendered by the learned Single Bench of this Court and Patna High Court in the case of Deena Nath Singh Vrs. State of Jharkhand & others reported in 2007(4) JCR 407 (Jhr) ; in the case of Ram Prasad Mahto & Ors. Vrs. Learned counsel for the petitioner has relied on judgments rendered by the learned Single Bench of this Court and Patna High Court in the case of Deena Nath Singh Vrs. State of Jharkhand & others reported in 2007(4) JCR 407 (Jhr) ; in the case of Ram Prasad Mahto & Ors. Vrs. The State of Jharkhand & Ors reported in 2003(1) JLJR 427 and in the case of Ramanek Choudhary Vrs. State of Bihar and others reported 1975(2) S.L.R. 67 in support of his aforesaid submission. He has therefore submitted that impugned notifications be set aside and the petitioner may be allowed to continue at the present place of posting till her normal tenure unless for administrative reasons the transfer may be required or in the public interest. 6. Learned counsel for the State has submitted that petitioner pursuant to the notification dated 31.12.2013 did not submit her joining for more than 2 months. In such circumstances, the Deputy Commissioner, Gumla had written to the Government bringing to notice that the post of B.D.O Bharno had remained vacant for quite sometime which is affecting the work. It is submitted that assumption of charge by the petitioner on 4.3.2014 was not reported to the Deputy Commissioner, Gumla nor reported to the State Government. In the meantime the notification transferring respondent no. 7 has been issued on 4.3.2014 itself. Therefore the instant notification has to take effect. Learned counsel for the State has also questioned the propriety of the State Election Officer to revoke the permission granted earlier permitting respondent no.7 to join without even hearing the side of the State authorities. It has been submitted that the petitioner has straightway communicated to the State Election Officer which is not proper. Learned counsel for the State therefore submits that it is only because of the act of the petitioner that the aforesaid state of affairs had been created and there are no infirmity in the notifications of transfer. 7. Learned counsel for the respondent no.7 submitted that on issuance of the notification dated 4.3.2014, it would have the effect of supersession of the earlier notification dated 31.12.2013 by which the petitioner was transferred as B.D.O, Bharno. 7. Learned counsel for the respondent no.7 submitted that on issuance of the notification dated 4.3.2014, it would have the effect of supersession of the earlier notification dated 31.12.2013 by which the petitioner was transferred as B.D.O, Bharno. He also submitted that it is the petitioner alone who is responsible for the aforesaid state of circumstances and by failing to join at her transferred place of posting for more than 2 months, she has committed an act of misconduct also. Learned counsel for the respondent no. 7 has submitted that for these reasons the respondent no. 7 is continuing without salary since March, 2014 . The impugned notifications have been issued under the powers of the State authorities which otherwise does not suffer from any illegality or lack of jurisdiction. Therefore no interference is required. 8. I have heard counsel for the parties at some length and also gone through relevant materials on record including the impugned notifications. The entire chronology of facts as have been indicated earlier do point out that the instant state of affairs has resulted, may be, because of some gap in communication between the respective authorities of the State. While on the one hand the case of the petitioner is that she was relieved to submit her joining at transferred place of posting by the Deputy Commissioner, Hazaribag only on 27.2.2014, on the other hand it also appears that respondent no. 7 who was also notified to be posted as B.D.O, Churchu, Hazaribag had also not submitted his joining nor assumed charge at the said place, in the interregnum, till the notification on 4.3.2014 has been issued. As appear from the submission of learned counsel for the respondent no. 7, he was posted as B.D.O Lohardaga at the time when notification was issued on 4.3.2014 and had not submitted his joining at Churchu, Hazaribag. On this count the petitioner and the respondent no. 7 appear to be sailing on the same boat. On 4.3.2014, while on the one hand the petitioner had assumed charge in the manner indicated under Rule 59 of the Jharkhand Service Code from her predecessor in the forenoon, on the other hand the notification of transfer of respondent no.7 was issued on the same date, however without referring at all to the earlier notification of transfer of petitioner as B.D.O, Bharno i.e. notification dated 31.12.2013. The notification at Annexure-4 dated 4.3.2014 also indicates that the respondent no.7 was earlier notified as B.D.O, Churchu, Hazaribag and was being posted as B.D.O, Bharno, Gumla till further orders. If the State was aware that the petitioner had not submitted her joining at the transferred place or assumed charge on the said date in the ordinary scheme of things either she would have been transferred from the same place like respondent no.7 to any other place or at least the notification would have referred to such previous notification of 31.12.2013 whereby the petitioner was transferred as B.D.O, Bharno, Gumla. The notification dated 4.3.2014 is silent on these aspects. 9. Be that as it may, on account of assumption of charge by the petitioner on 4.3.2014, in the aforesaid circumstances, the earlier notification of 31.12.2013 had taken effect and have not specifically been superceded by the subsequent notification of 4.3.2014. At the same time the permission of the State Election Officer was sought for allowing the joining of respondent no.7 at Bharno, which he did unilaterally on 7.3.2014 though the petitioner had already assumed charge before the said date i.e. on 4.3.2014. These facts were reported to the State Government by the Deputy Commissioner, Gumla on 9.3.2014 itself. However, neither these facts have been brought to the notice of State Election Commission by the State Government nor the petitioner was treated as having assumed charge as B.D.O, Bharno when she was transferred vide notification dated 12.3.2014 (Annexure-8) as B.D.O, Basia at Gumla. In fact she was treated as waiting for posting on the said date. The Election Commission was appraised of the aforesaid state of fact through representation made by the petitioner. When the Election notification is in force, it cannot be said that Election Commission should ignore representation containing distinct facts, more so relating to a permission granted earlier for joining of an Officer at a particular place. Such representation was made on behalf of the State Government that the said post was lying vacant and permission needs to be granted for joining of the said Officer i.e. respondent no.7. Such representation was made on behalf of the State Government that the said post was lying vacant and permission needs to be granted for joining of the said Officer i.e. respondent no.7. When the Election Commission had the power to grant permission on coming into force of model code of conduct as per letter dated 5.3.2014 issued by the Cabinet Secretary, Government of India to all the Chief Secretaries of the State vide Annexure-5 , it also had the authority to revoke such permission, if it came to its notice that such permission was granted in absence of entire correct facts being placed before it. 10. In such circumstances, the act of Election Commission by issuing letter dated 13.3.2014 cannot be said to be improper in the eye of law either. Petitioner, was thereafter given additional charge as C.O, Basia on 9.4.2014 assuming her to be posted as B.D.O, Basia and not B.D.O, Bharno. The facts and circumstances and the reasons indicated herein above, therefore do made out a case that the impugned notification dated 4.3.2014 (Annexure-3) and notification dated 12.3.2014 (Annexure-8) have been issued without application of mind and are not proper in the eye of law, so far they relate to the petitioner and respondent no. 7. In such circumstances, the assumption of charge of the petitioner on 4.3.2014 as B.D.O, Bharno pursuant to the notification dated 31.12.2013 would mean that the said notification has been acted upon and petitioner had rightly assumed her charge on the said post. The notification dated 4.3.2014, so far it relates to the respondent no. 7 and subsequent notifications dated 12.3.2014 (Annexure-8) and 9.4.2014 (Annexure-9), so far as it relates to the petitioner therefore cannot survive in the eye of law as well as on facts. Accordingly, the said notifications are quashed, so far it relates to the respondent no. 7 and the petitioner. 11. The writ petition is allowed in the manner indicated herein above.