Research › Search › Judgment

Jharkhand High Court · body

2020 DIGILAW 920 (JHR)

Dilip Kumar Poddar v. State of Jharkhand

2020-09-23

SANJAY KUMAR DWIVEDI

body2020
JUDGMENT : Heard Mr. Piyush Chitresh, learned counsel for the petitioners, Mr. Binit Chandra and Mr. Sanjay Sahil, learned counsel for the respondents-State. 2. These writ petitions have been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard. 3. In both these writ petitions, common question of law is involved and as such both the writ petitions have been heard together. 4. The petitioners have preferred this writ petition for quashing of order dated 28.08.2019 whereby the transfer of the petitioners have been cancelled. Pursuant to Advertisement No.74 of 2011 for appointment of Post Graduate Trained Teachers for 10+2 Schools, the petitioners are working in their initial place of joining from the date of the appointment and have not been transferred since their initial joining. The petitioners made individual applications to the respondents for their transfer from their existing school to different schools for various individual reasons. The District Education Officer of respective Districts recommended the applications in favour of the petitioners for their transfer from the present place of posting to the desired place of posting. Thereafter, the meeting of Establishment Committee was commenced on 29.07.2019 and the petitioners were transferred to difference places. Pursuant to that, the petitioners in W.P.(S) No.4958 of 2019 were relieved and jointed their new places of posting. On 02.08.2019, after joining of new places of posting, Annexure-12 has been issued whereby the transfer order was stayed on next day. Further communication from the concerned Minister and by order dated 28.08.2019 the transfer orders were cancelled by the Director (Secondary Education) School Education and Literacy Department. Aggrieved with this, the petitioners have challenged this writ petition. 5. Mr. Piyush Chitresh, learned counsel appearing for the petitioners submits that in view of rule made for transfer, only the Establishment Committee is competent to take a decision for transfer under Rule 20 Clause 3 and 4. He submits that transfer order has been cancelled by the Director (Secondary Education) School Education and Literacy Department whereas the Establishment Committee is competent to take a decision with regard to the transfer of the petitioners. He submits that transfer order has been cancelled by the Director (Secondary Education) School Education and Literacy Department whereas the Establishment Committee is competent to take a decision with regard to the transfer of the petitioners. He further submits that the Director acted at the instance of Minister and without adhering to the said rule, cancelled the transfer order. He further submits that once the rule is there, it needs to be adhered to and without following that, the impugned order is not sustainable in the eye of law. He further submits that in absence of transfer by the competent authority, the impugned order is liable to be quashed. To substantiate his argument, he relied on the judgment in the case of Air Line Pilots’ Assn. of India Versus DG of Civil Aviation reported in (2011) 5 SCC particularly Para 27 and 28 which is quoted hereinbelow:- 27. Similar view has been reiterated by this Court in Commr. of Police v. Gordhandas Bhanji, Bahadursinh Lakhubhai Gohil v. Jagdishbhai M. Kamalia and Pancham Chand v. State of H.P. observing that an authority vested with the power to act under the statute alone should exercise its discretion following the procedure prescribed therein and interference on the part of any authority upon whom the statute does not confer any jurisdiction, is wholly unwarranted in law. It violates the constitutional scheme. 28. In view of the above, the legal position emerges that the authority who has been vested with the power to exercise its discretion alone can pass the order. Even a senior official cannot provide for any guideline or direction to the authority under the statute to act in a particular manner. 6. He further assailed the impugned order on the ground that once the transfer acted, the same cannot be revoked without following the procedure. To substantiate this argument, he relied in the case of Mahmood Azam Siddique & Another Versus State Of Bihar reported in (2000) 3 PLJR 139 particularly Para 11 - 14 which is quoted hereinbelow:- 11. It is a settled law that in the matter of appointment, on joining, the same stands accepted by the incumbents, but the appointment letters subsists till the employee retained in service and gets benefit out of such orders of appointment. It is a settled law that in the matter of appointment, on joining, the same stands accepted by the incumbents, but the appointment letters subsists till the employee retained in service and gets benefit out of such orders of appointment. On the other hand, in the matter of transfer, once Notification is acted upon, nothing subsists and the notification of transfer becomes redundant for all purposes. 12. In the aforesaid background, the order of transfer having become redundant, the question of rescinding such order does not arise. Similar view was taken by this Court in the case of Shyam Chandra Jha V/s. State of Bihar and Ors. (unreported) in C.W.J.C. No. 8282 of 1998, disposed of on 9th December, 1998. Therein, this Court held that the notification of transfer having taken effect, the incumbent having joined in pursuance of order of transfer, the notification spent up its force and there was nothing substantive which could be recalled or rescinded. 13. In view of aforesaid decision and the fact that the earlier Notification dated 17th August, 1999 was acted upon by the petitioners, wherein after the same become ineffective, I hold that the State of Bihar had no jurisdiction to rescind/recall such notification of transfer. 14. For the reasons aforesaid, I set aside the common Notification dated 1st November, 1999 so far as it relates to the petitioners. They will be treated to be continuing against the posts where they have been transferred and joined in pursuance of Notification dated 17th August. 1999. 7. He further submits that the transfer order is not passed in accordance with rules, regulations and guidelines and in that view of the matter, he relied in the case of Mohd. Masood Ahmad Versus State of U.P. reported in (2007) 8 SCC 150 particularly Para 4 - 7 which is quoted hereinbelow:- 4. The petitioner-appellant, who was an Executive Officer, Nagar Palika Parishad, Muzaffarnagar, had in his writ petition challenged his transfer by the State Government by order dated 21-6-2005 as Executive Officer, Nagar Palika Parishad, Mawana, District Meerut. Since the petitioner was on a transferable post, in our opinion, the High Court has rightly dismissed the writ petition since transfer is an exigency of service and is an administrative decision. Interference by the courts with transfer orders should only be in very rare cases. Since the petitioner was on a transferable post, in our opinion, the High Court has rightly dismissed the writ petition since transfer is an exigency of service and is an administrative decision. Interference by the courts with transfer orders should only be in very rare cases. As repeatedly held in several decisions, transfer is an exigency of service vide B. Varadha Rao v. State of Karnataka, Shilpi Bose v. State of Bihar, Union of India v. N.P. Thomas, Union of India v. S.L. Abbas. 5. In State of Punjab v. Joginder Singh Dhatt this Court observed (vide p. 2486, para 3 of the said AIR): “3. We have heard learned counsel for the parties. This Court has time and again expressed its disapproval of the courts below interfering with the order of transfer of public servant from one place to another. It is entirely for the employer to decide when, where and at what point of time a public servant is transferred from his present posting. Ordinarily the courts have no jurisdiction to interfere with the order of transfer. The High Court grossly erred in quashing the order of transfer of the respondent from Hoshiarpur to Sangrur. The High Court was not justified in extending its jurisdiction under Article 226 of the Constitution of India in a matter where, on the face of it, no injustice was caused.” 6. In Abani Kanta Ray v. State of Orissa this Court observed (vide SCC p. 174, para 10): “10. It is settled law that a transfer which is an incident of service is not to be interfered with by the courts unless it is shown to be clearly arbitrary or vitiated by mala fides or infraction of any professed norm or principle governing the transfer. (See N.K. Singh v. Union of India)” 7. The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in Rajendra Roy v. Union of India, National Hydroelectric Power Corpn. Ltd. v. Shri Bhagwan, State Bank of India v. Anjan Sanyal. Following the aforesaid principles laid down by the Supreme Court, the Allahabad High Court in Vijay Pal Singh v. State of U.P. and Onkar Nath Tiwari v. Chief Engineer, Minor Irrigation Deptt. Ltd. v. Shri Bhagwan, State Bank of India v. Anjan Sanyal. Following the aforesaid principles laid down by the Supreme Court, the Allahabad High Court in Vijay Pal Singh v. State of U.P. and Onkar Nath Tiwari v. Chief Engineer, Minor Irrigation Deptt. has held that the principle of law laid down in the aforesaid decisions is that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a court of law in exercise of its discretionary jurisdiction under Article 226 unless the court finds that either the order is mala fide or that the service rules prohibit such transfer, or that the authorities who issued the orders, were not competent to pass the orders. 8. Per contra, learned counsel appearing for the respondents-State submits that there is no illegality in the impugned order. The same has been issued in view of lesser number of students where the petitioners were posted and discovering this discrepancy, the impugned orders were passed. 9. In reply, to learned counsel for the petitioners addressed to the rejoinder whereby the Annexure-1 is annexed showing that the petitioner no.7 has been send to a place by the impugned order where there is no student. He submits that by the transfer which has been cancelled, the petitioners have been placed to the school where numbers of students are there. He submits that in view of this example, stand of the State is not sustainable in the eye of law. 10. Perused the Rule 20 of transfer which suggest that the District Level Establishment Committee and State Level Establishment Committee are competent to transfer. The transfer order was cancelled at the instance of Minister whereas the rule suggest otherwise. The stand taken by the State with regard to staying of transfer order cannot sustain in view of the fact that the material on record suggest that the petitioners were relieved. Meaning thereby, the stay order has not been communicated to the concerned authority for not relieving the petitioners. The transfer order already taken effect and competent authority is the Establishment Committee. The transfer order passed earlier was by the Establishment Committee, was in accordance with rule whereas cancellation order is dehors rule and in view of judgment relied by learned counsel appearing for the petitioners in the cases of Air Line Pilots’ Assn. The transfer order already taken effect and competent authority is the Establishment Committee. The transfer order passed earlier was by the Establishment Committee, was in accordance with rule whereas cancellation order is dehors rule and in view of judgment relied by learned counsel appearing for the petitioners in the cases of Air Line Pilots’ Assn. of India Versus DG of Civil Aviation, Mahmood Azam Siddique & Another Versus State Of Bihar and Mohd. Masood Ahmad Versus State of U.P. (supra), the impugned order cannot sustain in the eye of law. The matter is remitted back to the State to take decision afresh in accordance with law. 11. In view of cumulative effect of the above discussions, the impugned order dated 28.08.2019 is quashed so far petitioners are concerned. 12. The writ petition stands allowed and disposed of.