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2024 DIGILAW 690 (JHR)

Shashi Bhushan Singh v. State of Jharkhand

2024-07-12

S.N.PATHAK

body2024
JUDGMENT : S. N. Pathak, J. Heard the parties. 2. Petitioner has approached this Court with a prayer for quashing the Notification dated 15.03.2024, issued under the signature of Deputy Secretary, Department of Revenue, Registration and Land Reforms, Government of Jharkhand, Dhurwa, Ranchi. 3. From the order dated 21.03.2024, it appears that status quo as on date was directed to be maintained in view of the fact that petitioner was not relieved from the post and was still working and the notification dated 15.03.2024 was not given effect in view of Code of Conduct issued by the Election Commission. 4. As per factual matrix, petitioner was appointed on the post of Revenue Clerk in the year 1990 and later on promoted to the post of Circle Inspector – cum – Kanoongo and thereafter to the post of Circle Officer. After his promotion as a Circle Officer, petitioner was initially posted as Circle Officer, Churchu (Hazaribagh) vide Notification NO. 02, dated 25.02.2021, issued from the Department of Revenue, Registration and Land Reforms, Government of Jharkhand. After two years of his initial posting, he was transferred to Hazaribagh Sadar vide notification dated 26.10.2023. Within a span of three month of posting as a Circle Officer, Hazaribagh Sadar, he was again transferred to Govindpur (Dhanbad) vide notification dated 31.01.2024. Again, pursuant to the notification dated 15.03.2024, the respondent no. 7 has been transferred to the post of Circle Officer, Govindpur, Dhanbad and petitioner has been asked to give his joining in the Department. Being aggrieved by frequent transfer without any valid reason, petitioner has knocked door of this Court. 5. Mr. Ajit Kumar, learned Sr. Advocate assisted by Mr. Ravi Kumar Singh, Aparajita Bhardwaj and Tanya Singh argues that petitioner has been disturbed in terms of his posting third time in a short span of about five months and present one in a span of one month and seven days only and the respondent no. 7 has been posted on the post occupied by him recently i.e. Circle Officer, Govindpur, Dhanbad and petitioner has been asked to give his joining in the Department (waiting for posting). Learned Sr. Counsel submits that petitioner has acted very bonafidely and abided by the directions of the department. However, in the instant case, it is apparent that the impugned notification dated 15.03.2024 has been issued just to accommodate the respondent no. Learned Sr. Counsel submits that petitioner has acted very bonafidely and abided by the directions of the department. However, in the instant case, it is apparent that the impugned notification dated 15.03.2024 has been issued just to accommodate the respondent no. 7 without following any rules and procedures. Learned Sr. Counsel further argues that as per the rules of business, no transfer can generally take place other than on administrative grounds except in the month of June – July of a year which earlier used to occur only in the month of June and December with the recommendation of the Establishment Committee. The State respondents have chosen to flout all the norms and procedures and giving go-bye to the procedures, have issued the impugned order just to accommodate the respondent no. 7. Learned Sr. Counsel further argues that the Election Commission of India announced the Schedule of Elections to be held in entire country on 16.03.2024 and as such in order to save the skin from technicalities, the impugned order though was released and circulated on 16.03.2024, but it was dated 15.03.2024. Learned Sr. Counsel further argues that pursuant to Annexure-5, the Election Commission of India issued direction to all the Departments on 16.03.2024 not to make any exercise of handing/taking over charge of any office consequent to any pre-existing order after announcement of schedule of election. Petitioner was surprised that the respondent no. 7, without even being relieved from Simariya, Chatra, arrived at the office of Circle Officer, Govindpur, Dhanbad though the petitioner, worked in the Circle Office of Govindpur, Dhanbad till 5:00 in the evening on 16.03.2024 and had no information of any such notification dated 15.03.2024. Learned Sr. Advocate further argues that neither the petitioner was allowed to handover charge of Govindpur, Dhanbad Circle Office to the respondent no. 7 nor the respondent no. 7 could have pressed for taking charge in view of Code of Conduct issued by the Election Commission. No administrative ground has been mentioned for such transfer. Learned Sr. Advocate submits that he has come to know that without any relieving order, the respondent no. 7 had reached to the office of the petitioner to take over the charge of said office. No administrative ground has been mentioned for such transfer. Learned Sr. Advocate submits that he has come to know that without any relieving order, the respondent no. 7 had reached to the office of the petitioner to take over the charge of said office. Drawing attention towards para-18 of the rejoinder, learned counsel argues that so far raid conducted by the Enforcement Directorate is concerned, the raid was conducted at the office and residence of various officers but they have not been frequently transferred rather some of them have already been promoted. Petitioner has not been made accused by the Enforcement Directorate. Learned Sr. Advocate argues that the action of the respondents is violative of the provisions of articles 14 and 21 of the Constitution of India and as such the impugned order is fit to be quashed and set aside. 6. To buttress his arguments, learned Sr. Counsel places heavy reliance upon the Judgments quoted hereunder: (i) Dr. Nagorao Shivaji Chavan Vs. Dr. Sunil Purushottam Bhamre and others reported in (2019) 13 SCC 788 ; (ii) B. Vardha Rao Vs. State of Karnataka reported in (1986) 4 SCC 131 (iii) Mohinder Singh Gill Vs. Chief Election Commissioner reported in (1978) 1 SCC 405 ; (iv) Election Commission of India Vs. All India Anna Dravida Muneratra Kazhagam reported in 1994 Supp (2) SCC 689; (v) Rajesh Henry Vs. State of Madhya Pradesh and others passed in Writ Petition No. 29674 of 2024; (vi) R.K. Mittal Vs. State of U.P. reported in 2004 SCC OnLine All 1772; (vii) Manoj Kumar Arya Vs. State of U.P. passed in Writ – A No. 2666 of 2024; (viii) Kanhaiya Prasad Sinha Vs. Union of India passed in Civil Writ Jurisdiction Case No. 436 of 1990; 7. On the other hand, Mr. Rajiv Ranjan, learned Advocate General assisted by Mr. Jayant Franklin Toppo, GA-V argues that pursuant to the notification no. 303, dated 31.01.2024, petitioner had been transferred to Govindpur, Dhanbad from the Hazaribagh district in light of the point 3(ii) of the letter issued by Election Commission of India, dated 21.12.2023. The respondent no. 7 was transferred to Govindpur, Dhanbad and petitioner has been asked to join department due to some administrative reasons. Learned Advocate General further argues that there was raid conducted by the Enforcement Directorate at the residence of the petitioner on 12.03.2024 which had tarnished image of the government. The respondent no. 7 was transferred to Govindpur, Dhanbad and petitioner has been asked to join department due to some administrative reasons. Learned Advocate General further argues that there was raid conducted by the Enforcement Directorate at the residence of the petitioner on 12.03.2024 which had tarnished image of the government. The notification dated 15.03.2024 had been sent to the Election Commission of India for their assent/ approval and vide letter no. 437/ES-1/JKD-HP/24, dated 03.04.2024, the Election Commission of India approved the transfer/posting of only four officers mentioned at S. No. 01 to 04 in the notification dated 15.03.2024. In light of letter no. 437/ES-1/JKD-HP/24, dated 03.04.2024 of the Election Commission of India, the Department of Revenue, Registration and Land Reforms had issued letter no. 1256, dated 12.04.2024, directing all the concerned Deputy Commissioners to comply the directions issued by the Election Commission of India. There is no malafide and petitioner has been transferred as per direction of the Election Commission. The administrative reasons are neither required to be disclosed to the incumbent nor required to be reflected in transfer order. The allegation of frequent transfer is not sustainable rather it was done due to administrative exigencies and ensuing Lok Sabha Election. There is no merits and the writ petition is fit to be dismissed. 8. Before delving deep into the matter, it would be apposite to consider as to under what circumstances, the Court can interfere into the matter of transfer. 9. It is settled proposition of law that transfer is an incidence of service. No government servant can claim to remain in a particular place or in a particular post unless his appointment itself is to specify non-transferable post. Therefore, transfer order per se made in the exigencies of service does not result in alteration of any of the condition of service, expressed or implied, to the disadvantage of the concerned government servant. However, a transfer order which is mala fide and not made in public interest but made for collateral purposes, with oblique motives and in colourable exercise of power is vitiated by abuse of power and is open to challenge before court being wholly illegal and void. 10. From the facts narrated above and the arguments advanced on behalf of the petitioner, it has to be examined: (i) Whether the impugned order has been issued in violation of the statutory provision? 10. From the facts narrated above and the arguments advanced on behalf of the petitioner, it has to be examined: (i) Whether the impugned order has been issued in violation of the statutory provision? (ii) Whether the impugned order is punitive in nature? (iii) Whether the impugned transfer order has been issued without jurisdiction and in teeth of Model Code of Conduct in view of ensuing Lok Sabha Elections, 2024? (iv) Whether the impugned order has been issued with malafide intention? (v) Whether the respondents are not bound to disclose the administrative reasons, if any? 11. From the impugned order it appears that the same has been issued on the ground of administrative exigencies. Justifying the impugned order, learned Advocate General argues that the same has been issued in view of Guidelines issued by the Election Commission and on administrative exigencies which need not to be disclosed. The same has been opposed by learned Sr. Counsel appearing on behalf of the petitioner. Mr. Ajit Kumar, learned Sr. Counsel appearing on behalf of the petitioner argues that the impugned order of transfer is not at all based on any administrative exigencies. Even if it is accepted, no reasons have been assigned as to what was the administrative exigency to transfer the petitioner so frequently. Learned Sr. Counsel Mr. Ajit Kumar has given emphasis that nothing has been brought on record to show as to what was the administrative exigency. However, nothing has been brought on record on behalf of the petitioner to show that the power has been exercised based on extraneous consideration. Learned Sr. Counsel though argued that impugned order has been issued just to accommodate one person of their choice but has not been able to justify his submission. 12. The issue fell for consideration before the Hon’ble Apex Court in the case of B. Vardha Rao Vs. State of Karnataka and others reported in (1986) 4 SCC 131 wherein in para-5 of the Judgment, the Court has quoted the observations made by the Court in the case of E.P. Royappa Vs. State of T.N. reported in (1974) 4 SCC 3 , which reads as under: “5. … … … It is an accepted principle that in public service transfer is an incident of service. It is also an implied condition of service and appointing authority has a wide discretion in the matter. State of T.N. reported in (1974) 4 SCC 3 , which reads as under: “5. … … … It is an accepted principle that in public service transfer is an incident of service. It is also an implied condition of service and appointing authority has a wide discretion in the matter. The government is the best judge to decide how to distribute and utilize the services of its employees. However, this power must be exercised honestly, bona fide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique moti9ve it would amount to mala fide and colourable exercise of power. Frequent transfers, without sufficient reasons to justify such transfers, cannot, but be held as mala fide. A transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose, that is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration, that even administrative actious should be just and fair.” 13. Further, the Hon’ble Apex Court in the case of Shilpi Bose (Mrs.) Vs. State of Bihar reported in 1991 Supp (2) SCC 659 has held in para-4 as under: “4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day-to-day transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. If the courts continue to interfere with day-to-day transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders.” Further, in the case of R.K. Mittal Vs. state of U.P. and another reported in 2004 SCC OnLine All 1772, the Allahabad High Court has held at para-4 as under: “4. It is settled law that writ Court does not ordinarily interfere against the transfer order unless it is found to be in contravention of the statutory Rules or the transfer order is found to have been passed on malafides. Even for personal grievance, the Court does not interfere as it is the exclusive domain of the employer to consider the personal grievances of the employee. It is the ultimate decision of the employer as where and for what period the services of an employee are required. The employee does not have a right to choose his place of posting. Transfer is an incidence of service and no interference is generally required. Transfer policy does not create any legal right in favour of the employee and, thus, the terms thereof cannot be enforced through writ jurisdiction.” 14. In the instant case it is nowhere stated as to which statutory provision has been violated and nobody has been arrayed as a party – respondent to allege against him that with malafide intention the order has been passed. In absence of the same, the allegations being concocted, cannot be considered in the writ jurisdiction. 15. Further, the Hon’ble Court in the case of State of U.P. v. Gobardhan Lal reported in (2004) 11 SCC 402 it has been held at para-7 as under: “7. It is too late in the day for any government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision.” 16. From the observations made hereinabove, it is apparent that transfer is prerogative of the authorities concerned and the Court should not normally interfere with except when i. Transfer order shown to be vested by malafide; or ii. In violation of any statutory provision or punitive; or iii. Having been passed by an authority not competent to pass such order. The allegations of malafide must be based on concrete material and must inspire confidence of the Court. In the writ petition, challenging order of transfer, disputed question of fact has been raised and the petitioner has not been able to satisfy this Court as to how he is prejudiced from such transfer. Nothing has been brought on record that what are the concrete materials which inspire confidence of the Court. Merely allegation of malafide does not warrant interference, the same required to be proved. Nothing has been brought on record that what are the concrete materials which inspire confidence of the Court. Merely allegation of malafide does not warrant interference, the same required to be proved. The disputed question of fact raised by the petitioner cannot be interfered. 17. The jurisdiction of the transferring authority is not under challenge and rightly it has been said that it is the exclusive domain of the State to transfer an employee. More so, if the order of transfer has been issued on the ground of administrative exigency, the same cannot be interfered with by the Court. Nothing has been brought on record to impress upon this Court that the order of transfer was punitive in nature or passed in violation of the statutory provisions or the same has been issued with malafide intention. Petitioner has not been able to establish any case of malafide. The Government machineries cannot function smoothly, if the Government servant insists that once appointed or posted in a particular place or position, he/she should continue in such place or position as per his/her sweet will. It is exigency of service which determines whether and where an employee should be placed. In the instant case, petitioner has been transferred on the ground of administrative exigency and as such order of transfer cannot be kept in abeyance for long period of time. The parties concern should join their respective place of posting as per order of transfer in the interest of administration without any delay, as has been held in catena of Judgments. 18. As a sequitur to the aforesaid rules, guidelines and judicial pronouncements, I find no merits in this writ petition. The impugned order does not require any interference. 19. Consequently, the writ petition stands dismissed. The interim order stands vacated. The parties are directed to comply the order of transfer forthwith. 20. Pending Interlocutory Application, if any, also stands disposed of.