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2018 DIGILAW 1440 (JHR)

Sudhir Kumar Mandal v. State of Jharkhand

2018-07-05

S.N.PATHAK

body2018
ORDER : The order of transfer dated 13.05.2017 is under challenge. After some argument, learned Counsel for the petitioner Mr. Bhanu Kumar assisted by Ms. Bharti Kumar and Ms. Pinkey Tiwari very fairly submits that suffice it would be if a direction is given to the respondents to reconsider the case of transfer of the petitioners in view of the objection raised by the petitioners against the transfer order which is not in accordance with law. 2. Learned Counsel further argues that though the petitioners have joined the transferred post but they are aggrieved by the order of transfer by which they have been posted at far-away places from their native place i.e. Home Block. 3. Mr. Bhanu Kumar draws the attention of the Court towards Rules framed for transfer of the elementary teachers which is at page 50 Annexure-3 dated 16.02.2001. Though 1994 Rules of the Bihar which relates to transfer of teachers was adopted by the State of Jharkhand but with certain amendments. Rule 3 (2) (ii) of the said Rule is deleted and substituted as follows- “posting of teachers, as far as possible except for administrative exigencies, will normally be done in their Home Block”. Argument has been advanced by the learned Counsel that while issuing the order of transfer, the respondent ought to have taken into consideration for posting of the elementary teachers in their respective Home Blocks and if posts or vacant seats are not available in the Home Block then only they could have been posted in other Blocks. However, since the petitioners have joined their transferred post in compliance of the Courts order, the respondent may be directed to reconsider the case of petitioners, if they prefer a fresh representation before the competent authority i.e. D.S.E., Godda. 4. Per contra counter-affidavit has been filed. 5. Mr. Jai Prakash, learned Addl. Advocate General assisted by Mr. Abhay Prakash and Mr. Ravi Kumar vehemently opposes the contention of the learned counsel for the petitioners. However, learned senior counsel very fairly accepts that if a direction is given by this Court to file a fresh representation for reconsideration of the cases of the petitioners in pursuance to 1994 Rules related to transfer of Teachers, the same shall be considered in accordance with law. 6. I have heard arguments advanced by learned counsel for the parties and perused the record. 6. I have heard arguments advanced by learned counsel for the parties and perused the record. It is a settled proposition of law that employee has no legal right to be posted forever at a particular place or a place of his own choice. Since transfer is an incidence of service and as per the service conditions, in public interest and for efficiency in public administration, employees are to be posted from one place to another place. The Hon’ble Apex Court in the 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. Unless an order of transfer is shown to be an outcome of a mala fide 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. Damador 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 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.” 7. Who should be transferred and posted where is a matter for 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.” 7. As a cumulative effect of the aforesaid rules, guidelines, legal propositions of law, this Court is of the considered opinion that no interference is warranted in the instant writ petition. Admittedly, no legal right has accrued to the petitioners to be posted at particular place but simultaneously the transfer order cannot be issued in utter violation of the statutory provisions. The respondents are directed to consider the cases of the petitioners taking into account 1994 rules for transfer of the teachers particularly, Rule 3 (2) (ii) which was deleted and substituted as, “posting of teachers, as far as possible except for administrative exigencies, will normally be done in their Home Block.” 8. Petitioners are directed to file fresh representation within a period of two weeks from the date of receipt of a copy of this order and in turn, the respondents are directed to consider the same in view of the aforesaid rules and pass a speaking order, assigning concrete and valid reasons for consideration/ non-consideration of the cases of the petitioners, in accordance with law, within a period of four weeks from the date of receipt of such representation. 9. With the aforesaid observation and direction, this writ petitions stands disposed of.