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Jharkhand High Court · body

2018 DIGILAW 1287 (JHR)

Sushil Kumar v. State of Jharkhand

2018-06-21

S.N.PATHAK

body2018
ORDER : 1. Heard learned counsel for the parties. 2. Petitioner has challenged the order of transfer on the ground that he has been illegally transferred to a junior post i.e. District Cooperative Officer, Palamau even when he was promoted to the post of Deputy Registrar. 3. The facts of the case lies in narrow compass. Petitioner was initially appointed to the post of Assistant Registrar, Cooperative Societies, Chas Anchal, Chas vide Memo No. 2817, dated 22.10.1990 and accordingly he joined the said post and was sent for training. After completion of his training, petitioner was deputed on the post of Assistant Registrar, Chas Anchal, Chas in the Cooperative Societies. During his posting, petitioner performed his duties with best of his abilities and to the satisfaction of respondent authorities and was transferred to different places on regular basis. He was also given additional charge of Managing Director in several districts. Thereafter, petitioner was promoted to the post of Deputy Registrar on account of regular post promotion and had been posted on the vacant post of Deputy Registrar, Cooperative Societies vide Memo No. 2514, Ranchi dated 30.08.2012. Thereafter, petitioner was posted at Deoghar on the post of District Cooperative Officer and was given additional charge of Managing Director at Deoghar Jamtara Central Cooperative Bank, Deoghar. 4. It is case of the petitioner that he was out of Deoghar on 28.06.2016 for filing supplementary affidavit in the Court and as such, he could not appear for video conferencing in relation to Pradhan Mantri Fasal Bima Yojna. However, due to such absence, petitioner’s one day’s salary was withheld and vide notification no. 1545, dated 29.06.2016, he was transferred from the post of District Cooperative Officer, Deoghar to the post of District Cooperative Officer, Palamau even when he had already been promoted to the post of Deputy Registrar. Aggrieved by such punitive order of transfer, petitioner filed detailed representation before the Secretary, Cooperative, Government of Jharkhand stating categorically that the said transferred post is not equivalent to the post on which petitioner has been promoted i.e. the post of Deputy Registrar. Aggrieved by such punitive order of transfer, petitioner filed detailed representation before the Secretary, Cooperative, Government of Jharkhand stating categorically that the said transferred post is not equivalent to the post on which petitioner has been promoted i.e. the post of Deputy Registrar. Further, it was also pointed out in the representation that the transfer order is premature as the same has been issued before three years of continuous service and that too without assigning any reasons and as no orders were passed on pending representation of the petitioner, he has been constrained to move before this Court. 5. Mr. Sunil Kumar Mahato, learned counsel appearing on behalf of the petitioner argues that transfer order is punitive in nature and further petitioner has been transferred to a post lower than what he was holding and as such the same is not tenable in the eyes of law and is fit to be quashed and set aside. 6. Per contra, counter affidavit has been filed. Ms. Chaitali C. Sinha, AC to learned AAG appearing for the State submits that on 14.05.2018, a direction was given by this Court to consider case of the petitioner as to whether he was transferred to the post which is lower in rank than what he was holding earlier. In pursuance to the said direction, the file was sent to the concerned department and the concerned department took cognizance of the matter and has passed an order for reconsideration of case of the petitioner and in light thereof, already steps have been taken for redressal of grievance of the petitioner. Learned counsel further submits that concerned file has been received yesterday and therefore the same could not be brought on record by way of affidavit. The file has also been placed before this Court for perusal. 7. I have heard arguments advanced by counsel for the parties and perused the record. The Hon’ble Apex Court in the case of Union of India V. Janardhan Debanath reported in (2004) 4 SCC 245 , has held as under. “No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since posts from one place to another is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. “No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since posts from one place to another is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of a malafide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/ management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by the Hon’ble Supreme Court in National Hydroelectric Power Corpn. Ltd. V. Shri Bhagwan reported in (2001) 8 SCC 574 . While dealing with similar case in Kendriya Vidyalaya Sangathan Vs. Damodar Prasad Pandey and others reported in (2004) 12 SCC 299 , the Hon’ble Court held in para-4 as under. “4. Transfer which is an incidence of service is not to be interfered with by courts unless it is shown to be clearly arbitrary or visited by mala fide or infraction of any prescribed norms of principles governing the transfer. Unless the order of transfer is visited by mala fide or is made in violation of operative guidelines, the court cannot interfere with it. Who should be transferred and posted where is a matter for the administrative authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any operative guidelines or rules, the courts should not ordinarily interfere with it.” Thus, an employee has no right to stay and continue at a particular place of his choice for an indefinite period. However, on the other hand, State has not been given license to act arbitrarily and harass an employee as per their wish and even post an employee to a lower post other than what he was holding at the relevant time. In the case at hand, there is apparent malafide on the part of the respondents as the petitioner has been posted to a lower grade of post than what he was holding earlier. In the case at hand, there is apparent malafide on the part of the respondents as the petitioner has been posted to a lower grade of post than what he was holding earlier. This Court sitting under Article 226 of the Constitution of India cannot shut its eyes where there is apparent malafide on the part of respondents. Even though transfer is an incidence of service but here is the case where act of the respondents clearly speaks of arbitrariness and visited by mala fide and infraction of prescribed norms of principles governing the transfer. Had it been a normal transfer, the petitioner would have no case. But petitioner has been able to make out a case where he has been transferred but posted to a lower grade of post than what he was holding. 8. Be that as it may, in view of facts and circumstances and the development which has been brought to the knowledge of this Court, it seems that respondents have already considered case of the petitioner and order to that effect has already been passed and steps are being taken for redressal of grievance of the petitioner, this writ petition is being disposed of with a direction to the respondents to pass a reasoned order in light of their own decision. Let entire exercise be completed within a period of six weeks from the date of receipt/production of a copy of this order. Resultantly, the order of transfer dated 29.06.2016 is hereby quashed and set aside as far as petitioner is concerned. Let the respondents issue fresh transfer order taking into account the post of the petitioner which he was holding earlier prior to issuance of impugned order of transfer. 9. The writ petition stands disposed of with aforesaid observations and directions.