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2016 DIGILAW 1618 (JHR)

Krishnadeo Prasad Sahu v. State of Jharkhand

2016-11-30

H.C.MISHRA, S.N.PATHAK

body2016
Order : Heard learned counsel appearing for the petitioner, learned A.A.G. assisted by learned G.P.-IV, appearing for the State of Jharkhand, as also learned A.S.G.I., appearing for the Union of India. 2. The petitioner is aggrieved by the order dated 16th March 2016 passed by the Central Administrative Tribunal, Circuit Bench at Ranchi, in OA/051/00055 of 2016, whereby, the said O.A filed by the petitioner has been dismissed. The petitioner had earlier moved the Central Administrative Tribunal in OA/051/00022 of 2016, challenging the order dated 29.12.2015, by which, he had been posted as Divisional Forest Officer, Publicity Division, Ranchi. The said O.A was disposed of by the order dated 23.2.2016, directing the Principal Secretary, Department of Forests, Environment and Climate Change, Government of Jharkhand, to treat the O.A as representation and to consider and dispose of the reliefs as sought for by the petitioner in terms of applicable rules/guidelines, by passing a speaking order. 3. Pursuant to the said order, the respondent No.4, the Principal Secretary, Department of Forests, Environment and Climate Change, Government of Jharkhand, Ranchi has passed a speaking order dated 23.2.2016, rejecting the representation of the petitioner, which was again challenged by the petitioner in OA/051/00055 of 2016, which has been dismissed by the Central Administrative Tribunal by the impugned order dated 16.3.2016 as contained in Annexure-24 to the writ application. It is against this order that the present writ application has been filed by the petitioner. 4. The facts of this case lie in a short compass. The petitioner, a Cadre Officer of Indian Forest Service, is presently working as Divisional Forest Officer, and he was attached to the Kerela Cadre. The petitioner sought deputation to the State of Jharkhand on the ground of illness of his mother, and by notification issued by the Government of India, Ministry of Environment & Forests, dated 16th November, 2012, as contained in Annexure-1 to the writ application, the services of the petitioner were placed with the State of Jharkhand for a period of three years with effect from the date of his joining in the Jharkhand Cadre. The petitioner thereafter joined in the State of Jharkhand on 4.12.2012, but he was kept waiting for his posting till 28.1.2013. He was posted as Director, Social Welfare, Ranchi, on which post he joined on 29.1.2013, where he worked till 26.8.2013. The petitioner thereafter joined in the State of Jharkhand on 4.12.2012, but he was kept waiting for his posting till 28.1.2013. He was posted as Director, Social Welfare, Ranchi, on which post he joined on 29.1.2013, where he worked till 26.8.2013. He was again posted as D.F.O, Garhwa, where he joined on 24.9.2013 and he worked till 22.11.2013. The petitioner was again transferred from the post of D.F.O, Garhwa to the post of D.F.O-cum-Director, Forest Guard Training School, Hazaribagh, where he worked from 30.10.2013 to 15.03.2014. The petitioner was again transferred and posted as Director, Agriculture, Ranchi, where he worked from 25.2.2014 to 10.2.2015 and thereafter, he was transferred as D.F.O, Lohardaga, vide notification dated 10.4.2015. The petitioner was again posted as D.F.O Publicity Division, Ranchi, by notification dated 29.12.2015 as contained in Annexure-13 to the writ application, which was the subject matter of the challenge by the petitioner initially in OA/051/00022 of 2016 and subsequently in OA/051/00055 of 2016, as also in the present writ application, mainly on the ground that two daughters of the petitioner are suffering from Cerebral Palsy and the petitioner, during his stay at Lohardaga, had built up some support systems for the upbringing and rehabilitation of his differently abled children and accordingly, he wanted to continue at Lohardaga. 5. It may be stated that in the meantime, the deputation of the petitioner came to an end and the petitioner again submitted his representation for the extension of his deputation in the State of Jharkhand, which was extended by order dated 7.12.2015 issued by the Government of India, in the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training, whereby the deputation of the petitioner was extended for a further period of two years with effect from 04.12.2015 in Jharkhand Cadre. 6. As stated earlier, pursuant to the order passed by the Central Administrative Tribunal, Circuit Bench, Ranchi in OA/051/00022 of 2016, a speaking order has been passed by the respondent No.4, the Principal Secretary, Department of Forest, Environment and Climate Change, Government of Jharkhand, Ranchi, which is contained in Annexure-19 to the writ application and this order details the circumstances, in which, the petitioner was frequently transferred from one post to another. Though this order gives the reason for the frequent transfers of the petitioner as the acts of omissions and commissions of the petitioner himself, but we do not want to enter into the details thereof. Suffice would be to note from the speaking order passed by the respondent No.4, that two daughters of the petitioner are undergoing treatment for multiple disabling conditions affecting their motor, sensory and cognitive abilities, at J.M. Institute of Speech & hearing at Patna/Muzaffarpur campus. The petitioner, while he was posted as D.F.O., Garhwa, had himself submitted a representation on 3rd September, 2013, before the Principal Secretary, Forest & Environment Department, Government of Jharkhand, to post him either at Ranchi or Dhanbad for the treatment of his daughters. The wife of the petitioner is a registered medical practitioner at Dhanbad. It was on his representation that the petitioner was posted as Director of Agriculture, Ranchi, which fact has been asserted by the respondent No.4 from his personal knowledge, as the respondent No.4 was, at the relevant time, posted in the office of the Chief Minister. 7. While rejecting the representation of the petitioner, the respondent No.4 has stated that the petitioner did not submit any document in support of his claim that his daughters were undergoing treatment at Lohardaga or for that matter, in any medical institute located in Jharkhand. In fact, there is no institute at Lohardaga that is competent to treat the diseases of his daughters, and that the better medical facilities are available at Ranchi and not the small town of Lohardaga. It is further stated in the order that upon enquiry, it was found that the petitioner's daughters were neither undergoing the so called treatment at Lohardaga, nor his family stayed at Lohardaga, rather, the petitioner used to reside at Lohardaga alone, ever since he joined as D.F.O, Lohardaga. It also finds mentioned in the said order that the capital city of Ranchi has far more better medical facilities than the small town of Lohardaga and in case of medical emergency also, Ranchi has better Rail & Air connectivities for other places. It has been asserted that the petitioner was not transferred from Lohardaga, rather he was relieved from Lohardaga on completion of his deputation tenure, that ended on 03.12.2015. Extension granted by the Government of India had not been received till then. It has been asserted that the petitioner was not transferred from Lohardaga, rather he was relieved from Lohardaga on completion of his deputation tenure, that ended on 03.12.2015. Extension granted by the Government of India had not been received till then. He was posted afresh at Ranchi on receipt of the order of extension of the deputation tenure. With these findings, the representation of the petitioner was rejected by the respondent No.4, which has been again unsuccessfully challenged by the petitioner in OA/051/00055 of 2016 in the Central Administrative Tribunal, as the Tribunal came to the conclusive finding that there was nothing wrong in the impugned order and no interference was warranted. 8. Learned counsel for the petitioner has submitted that the impugned order of transfer/ posting is in the teeth of Office Memorandum issued by the Government of India, in the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training, issued on 6.6.2014, which has been brought on record as Annexure-12 to the writ application. This Office Memorandum relates to the Government employees, who have differently abled dependents, according to which, such Government employee, who is also a care giver of a disabled child, is exempted from the routine exercise of transfer and rotational transfer, subject to the administrative constraints. Learned counsel has placed reliance upon the decision of the Delhi High Court in W.P.(C) No.1133 of 2016 & W.P.(C) No.1134 of 2016, decided on July 27, 2016 (Mukesh Kumar & Anil Kumar Vs. Union of India & Ors.), wherein where, the petitioners, who were the officials of Central Para Military Forces posted at Gurgaon, having differently abled child, were transferred to Jammu & Srinagar, and they had challenged their transfer orders. Taking note of the Office Memorandum as aforesaid, the Delhi High Court intervened in their transfer matters and canceled the transfer orders with a direction that for a period of at least one year, both those petitioners would be retained at Group Centre, Gurgaon, and in future also, they were to be posted at a place where they would be entitled to family accommodation so that they can stay with their wife and their differently abled child. 9. 9. Placing reliance on this decision and some decisions of the Apex Court, in which, the transfer orders have been interfered by the Apex Court on the ground of malafide transfer, learned counsel submits that the impugned order dated 29.12.2015 contained in Annexure-13 of the writ application, transferring the petitioner from the post of D.F.O Lohardaga to the post of D.F.O Publicity Division at Ranchi, as also the order dated 23.2.2016 as contained in Annexure-19 to the writ application, whereby the respondent No.4 has rejected the representation of the petitioner, are absolutely illegal, and it is a fit case, in which, the petitioner should be allowed to continue at Lohardaga for taking care of his differently abled children. 10. Learned A.A.G appearing for the State of Jharkhand as also learned A.S.G.I appearing for the Union of India have opposed the prayer and they have submitted that there is no illegality in the posting order. Learned counsel A.A.G has submitted that the petitioner has been transferred from a small town like Lohardaga to the capital town Ranchi, having all sorts of facilities for care, protection & rehabilitation of his differently abled children. Learned A.A.G accordingly, submitted that there is no illegality in the impugned order whereby the petitioner has been posted as D.F.O Publicity at Ranchi. 11. Having heard learned counsels for both the sides and upon going through the record, we find that the only ground on which the petitioner is challenging his posting at Ranchi, is that he wants to continue at Lohardaga, as he has created some support system at Lohardaga for proper care, protection and rehabilitation of his differently abled children, but the fact remains that the petitioner has been transferred from a small township of Lohardaga to the capital town Ranchi, where he shall be getting all better medical facilities for the care, protection and rehabilitation of his children. Ranchi, being connected with other places through rail and air, the petitioner shall be in a better position also in case of any emergency. This apart, it has come on record that the petitioner never resided with his wife and children at Lohardaga, and as such, the claim of the petitioner that he has created some support system at Lohardaga for proper care, protection and rehabilitation of his differently abled children, has no legs to stand. This apart, it has come on record that the petitioner never resided with his wife and children at Lohardaga, and as such, the claim of the petitioner that he has created some support system at Lohardaga for proper care, protection and rehabilitation of his differently abled children, has no legs to stand. Though the finding recorded by the respondent No.4 in his speaking order dated 23.2.2016, that the petitioner never resided with his wife and children at Lohardaga throughout his posting, has been vehemently challenged by the learned counsel for the petitioner, but the fact remains that this is a disputed question of fact, which cannot be entertained by the Writ Court. The contention of learned counsel for the petitioner that the present posting at Ranchi, of the petitioner is in teeth of the Office Memorandum issued by the Government of India, in the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training, issued on 6.6.2014, is absolutely misconceived, in as much as, the sole object of that Office Memorandum is the welfare and proper look after of differently abled children, which purpose can, by all means, be better served at Ranchi than at Lohardaga. Even J.M. Institute of Speech & hearing at Patna/Muzaffarpur, where two daughters of the petitioner are said to be undergoing treatment, can be easily accessed from Ranchi, than from Lohardaga. As such, we find no valid reason for inferring with the posting of the petitioner as D.F.O Publicity Division at Ranchi. 12. Before parting with this order, it may be pointed that by order dated 31.3.2016 passed in this writ application, a conditional ad-interim order of stay was passed in favour of the petitioner, in which, it was stated that in the meanwhile, petitioner shall continue as the Divisional Forest Officer, Lohardaga, if any other officer has not joined there as D.F.O till date. It is an admitted position by the petitioner in his supplementary affidavit filed on 6.5.2016, wherein in paragraph-4, he has stated that on receiving the certified copy of the order dated 31.3.2016, the petitioner reached the Divisional Forest Office, Lohardaga to discharge his duties, where he was informed that some other officer had already been posted on the said post and he had already assumed the charge unilaterally. A counter affidavit has also been filed on behalf of the State of Jharkhand, in which, it is stated that another officer was posted as D.F.O, Lohardaga, on 15.3.2016 itself, and he had also assumed the charge on 16.3.2016. Thus, we find and hold that the other officer was posted as Divisional Forest Officer, Lohardaga, who had already joined prior to the conditional interim order passed in favour of the petitioner and as such, the ad-interim order passed by this Court on 31.3.2016 never came in force. 13. In view of the aforesaid discussions, we do not find any illegality and/or irregularity in the impugned order of posting dated 29.12.2015, as contained in Annexure-13 to the writ application, and the rejection of the representation of the petitioner by the respondent No.4, by his order dated 23.2.2016, as contained in Annexure-19 to the writ application. Consequently, we do not find any illegality even in the impugned order dated 16.3.2016 passed by the Central Administrative Tribunal, Circuit Bench, Ranchi, in OA/051/00055 of 2016, as contained in Annexure-24 to the writ application. 14. There is no merit in this writ application and the same accordingly, stands dismissed.