Jharkhand High Court

Rudra Pratap Sahu vs The State Of Jharkhand on 27 September, 2021

IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S). No. 2427 of 2021

Rudra Pratap Sahu ... ... ... Petitioner

Versus
1. The State of Jharkhand
2. The Additional Chief Secretary, Revenue, Registration and Land Reforms
Department, Project Bhawan, Post Dhurwa, Police Station Dhurwa, District
Ranchi;
3. The Joint Secretary, Revenue Registration and Land Reforms Department,
Project Bhawan, Post Dhurwa, Police Station Dhurwa, District Ranchi;
4. Sri Srawan Kumar Jha son of not known to petitioner, presently posted as
Circle Inspector, Sonahatu, Post and Police Station Sonahatu, District-Ranchi;
... ... .... Respondents
With
W.P.(S) No.2214 of 2021
Firoz Akhtar .... ..... ..... Petitioner
Versus
1. The State of Jharkhand
2. The Secretary, Land Revenue Office, Ranchi, having its office at Project
Building, P.O.-Dhurwa, P.S.-Jagannathpur, District-Ranchi;
3. The Joint Secretary, Land Revenue Office, Ranchi, having its office at Project
Building, P.O.-Dhurwa, P.S.-Jagannathpur, District-Ranchi;
4. District Land Acquisition Officer, Ranchi, having its office at Collectorate
Building, Kutchery Road, Block B, P.O.- G.P.O., P.S.-Kotwali, District-Ranchi.
..... .... ..... Respondents
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      CORAM:             THE HON'BLE MR. JUSTICE DR. S.N.PATHAK
                         (Through: Video Conferencing)
                                           ------
      For Petitioners          : Mr. Anil Kumar Sinha, Sr. Advocate
                               : Mr. R.S. Mazumdar, Sr. Advocate
                               : Mr. Rohan Mazumdar, Advocate
                               : Mr. Ravi Kumar Singh, Advocate
      For the Resp.-State     : Mr. P.A.S. Pati, G.A.II
                               : Ms. Shilpi, A.C. to S.C. (Mines)-II
                               : Mr. Subham Mishra, AC to SC (Mines)
      For Resp. No.4           : Mrs. Ritu Kumar, Advocate
                                  ( in W.P.(S) No.2427 of 2021)
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07/ 27.09.2021       Since similar issues are involved in both the cases, these are heard
      together and being disposed of by this common order.


                  Heard the parties.
                  Prayer in W.P.(S) No.2427 of 2021

Petitioner has knocked the door of this Court assailing the order of transfer dated 05.07.2021 at Annexure-6 contained in memo no.2236.

Factual matrix in W.P.(S.) No.2427 of 2021 Petitioner was appointed in the year 1990 on the post of Revenue Clerk and was further promoted to the post of Circle Inspector-cum-Kanoongo, and thereafter posted at Namkum, Circle, Ranchi. Respondent No.4 was posted at Sadar Ranchi. In a routine transfer, Respondent No.4 was transferred to Bargain Circle Ranchi, thereafter on 16.06.2021 i.e. just after two days, he was again transferred to Sonahatu Ranchi from Bargain Ranchi and the petitioner on 05.07.2021 again transferred to Special Office Land Acquisition, Ranchi and in his place respondent No.4 was adjusted. Aggrieved by the frequent transfer and posting of respondent No.4 the petitioner has assailed the order of transfer in his place by way of this writ petition.

This case was taken up on 24.08.2021 and after hearing the counsel for the parties, respondents were directed to file counter affidavit and in the meanwhile status quo as on date was ordered to be maintained. The records of the transfer order has also been received as per the order of this Court and after issuance of notice the respondent No.4 has also appeared.

Prayer in W.P.(S) No.2214 of 2021 Petitioner has approached this Court for quashing the order of transfer dated 16.06.2021 issued vide Memo No.55/2016/1951 (3) /Ra and to allow the petitioner to join in the office of District Land Acquisition Office, Ranchi as Circle Inspector-cum-Kanoongah.

Factual Matrix in W.P.(S.) No.2214 of 2021 Petitioner is aggrieved by the order of transfer dated 16.06.2021 at Annexure-2. Petitioner was posted at Circle Inspector-cum-Kanoongoh and has been transferred from District Land Acquisition Office, Ranchi to Special Land Acquisition Office, Ranchi on 16.06.2021. Petitioner was appointed as a Kanoongoh on 17.09.1990 in the Survey Office, Daltonganj. In the year 2021 i.e., 14.06.2021 petitioner was transferred to District Land Acquisition Office, Ranchi as Circle Inspector-cum-Kanoongoh thereafter on 16.06.2021 he was directed to join Special Land Acquisition Office, Ranchi.

Argument advanced by learned Senior counsel for the petitioners.

1. Mr. Anil Kumar Sinha, learned Senior Counsel appearing on behalf of the petitioner in W.P.(S) No.2427 of 2021, studiously argues that admittedly the

transfer is an instance of service but while issuing the order of transfer the respondent-authorities should consider the relevant guideline, circular and statute. Learned counsel argues that the transfer of an employee is to be made in consonance with the Circular dated 10.05.1999 which is order issued by the State and guidelines to be given therein is to be followed while issuance of transfer order. The Learned Senior counsel submits that transfer order passed is in complete violation of the provisions of the order dated 10.05.1999 and is not tenable in the eyes of law. The reasoned assigned by the State in impugned order is also not sustainable. It is not clear that on what administrative ground, the petitioner has been transferred. Learned Senior Counsel alleging mala fide submits that without cancelling the earlier order of transfer, the petitioner has been transferred again.

To buttress his argument learned counsel places heavy reliance in the cases of (i) Rajendra Roy Vs. Union of India, reported in 1993 (1) SCC

148., (ii) Uttam Kujur Vs. State of Jharkhand & Ors., reported in 2008 (2) J.C.R., (iii) Man Singh Vs. State of Bihar reported in 1982 BBCJ 392, (iv) Jay Nandan Kumar Singh Vs. Jharkhand Bijli Vitran Nigam Limited, Dhurwa, Ranchi & Ors., reported in 2017 (4) JBCJ 280.,

2. Mr. R. S. Mazumdar, learned Senior Counsel for the petitioner in W.P.(S) No.2214 of 2021 submits that transferring the petitioner only after two days is arbitrary in nature and shows the mala fide intention of the respondents. Learned Senior Counsel to buttress his argument places heavy reliance on the judgment of Hon'ble Apex Court, in the case of National Hydroelectric Power Corporation Ltd. Vs. Shri Bhagwan & Anr., reported in (2001) 8 SCC 574.

Argument advanced by learned counsel for the respondents.

3. Per contra counter affidavits have been filed. Mrs. Ritu Kumar, learned counsel for the respondent No.4 in W.P.(S) No.2427 of 2021 vehemently opposed the contention of learned Senior Counsel Mr. Anil Kumar Sinha and justifying the impugned order argues that there is no any illegality or infirmity in the order of transfer. After considering the representation of the Respondent No.4, the competent authority has issued the order of transfer which is fully justified however he is not being allowed to join the transfer post and also salary is being not paid to him. Learned counsel submits that within a span of a few months he has been transferred to several places now on representation which was considered by the District Establishment Committee he has been

transferred to Ranchi but the same has not been given effect to and the respondent No.4 is harassed and as such the writ petition of the petitioner is devoid of any merit and fit to be dismissed in limine. Respondent No.4 as an obedient employee, has obeyed the order of transfer but is not being allowed to take over the charges.

4. Mr. P. A. S. Pati, learned counsel for the State vehemently opposes the contention of learned Senior Counsel Mr. Anil Kumar Sinha and supports the contention of respondent No.4. Learned counsel for the State submits that it is a routine transfer and there is no illegality in the order of transfer. Learned counsel submits that resolution dated 10.05.1999 cannot said to be order of the State. It is merely an office order issued in the year 1999 which is not applicable in this instant case, rather petitioner has violated the order of the State dated 12.11.2013 issued by the Principal Secretary of the State of Jharkhand. It was clearly mentioned that the concerned employees shall join the transfer post and thereafter file representation if any. The act of the petitioner is not praiseworthy and the same is in violation of the guidelines, rules of the State. Petitioner has come with wrong and misleading statements and even the letter dated 10.05.1999 speaks about six years in a particular district. The petitioner has been transferred from Namkum Anchal to the office of Special Land Acquisition, Ranchi. This transfer has allowed him to stay in Ranchi city and has not been transferred out side and it has not adversely affected the petitioner in any manner. No ground is made for interference by this Court and writ petition is devoid any merit and fit to be dismissed.

5. Learned counsel for the State appearing in W.P.(S) No.2214 of 2021, justifying the order of transfer dated 16.06.2021 submits that petitioner has only been adjusted from District Land Acquisition Office, Ranchi by the District Establishment Committee on the administrative ground as District Land Acquisition Office, Ranchi is very important office from where acquisitions of lands for various important projects are being done and as such it would not be preferable to post the petitioner in this office in view of the pending C.B.I. Case No.RC-04 (S) 2014 (R) and C.B.I Case No.04 (A) / 2010-AHD-R. Findings of the Court.

6. Be that as it may having gone through the rival submissions of the parties across the bar, this Court is of the considered view that no interference is warranted in the order of transfer.

From perusal of the documents brought on record and the relevant

documents called by this Court it appears that petitioners have been transferred in a routine manner on administrative ground, the respondents cannot be faulted for issuance of the transfer orders. None of the petitioners have been posted outside the District and there is no question of any harassment or infringement of any right or violation of the guidelines or statute. The transfer orders can be interfered only when shown to be an outcome of mala fide exercise of power or violation of any statutory provisions. Neither it has been shown by the learned counsels that it is violation of any statute or guidelines nor the order is mala fide or punitive in nature. The Hon'ble Supreme Court in the case of National Hydroelectric Power Corporation Ltd. Vs. Shri Bhagwan, reported in (2001) 8 SCC at Para-5 has observed as under;

5..... "No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other 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 mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals 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 management, as against such orders passed in the interest of administrative exigencies of the service concerned".

The Hon'ble Apex Court in the case of State of Gujrat Vs. Akhilesh C.

Bhargav, reported in (1987) 4 SCC 482 has observed that, it is now well established that the appropriate government had got power under the Constitutional Scheme within the limitation of its executive power to issue instruction to cover a gap when there is any vacuum or lacunae. If such guidelines/instructions are not contrary to the statutory rules, the same are valid and required to be followed. The Hon'ble Supreme Court in the case of Suresh Kumar Awasthi v. U.P. Jal Nigam, reported in (2003) 11 SCC 740, clearly held that the transfer of officers is required to be effected on the basis of set norms or guidelines and the power of transferring the officer cannot be wielded arbitrarily and maliciously with oblique motive. In the case of Union of India v. S.L. Abbas reported in 1994 (1) PLJR (SC) 1, it has been held by the Apex Court that Court's power of interference in the matter of transfer is extremely limited and normally the Court can interfere only when such transfer is vitiated by non- compliance with the mandatory statutory provisions or where the exercise of power can be described as malafide. Further the Hon'ble Apex Court in the case of State of U.P. v. Gobardhan Lal, 2004 (11) SCC 402, at para-7 which reads thus:-

7.... " The transfer of employee is not only an incident inherent in the terms of appointment, but also implicit as an essential condition of service and unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course of routine for any of every type of grievance sought to be made".

Admittedly, there are no statutory rules framed under proviso to Article 309 regulating the transfer and posting of Government servants in the State of Jharkhand. On consideration of the resolution dated 25th October, 1980 the State Government has laid down a transfer policy and also prescribed the procedure. In absence of statutory rules these guidelines regulate the transfer and posting of Government servants. The procedure prescribed and the policy seems to be fair and rational. Once the Government has laid down norms and policy, there must be valid reasons to deviate from that. Suprprisingly neither the petitioner nor the respondents have placed the resolution dated 25th October, 1980. The petitioner has relied on a letter of the State Government dated 11.05.1999 which talks of transfer from one District to another District after a period of six years and as such it does not hold good for the petitioner rather the letter dated 12.11.2013 placed by the respondents finds force as there was specific direction to join the transfer post and non-joining of the transfer post amounts to misconduct and attracts disciplinary proceedings. The reliance of learned senior counsel in case of Uttam Kujur v. State of Jharkhand & Ors., reported in 2008 (2) J.C.R., 306 is also no help to him as their cases has been considered and recommended by the Establishment Committee and cannot be faulted with. Nothing has been brought on record to show that the transfer orders are biased in law and is in contravention of laid down norms. The Hon'ble Supreme Court in the case of Somesh Tiwari v. Union of India & Ors., reported in (2009) 2 SCC 592, at para-16 held as under:-

16.... "Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds-one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e., on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal".

Plea of learned Senior Counsel, Mr. R. S. Mazumdar is also not accepted

to this court regarding punitive transfer of the petitioner. The petitioner has not been posted outside the city rather he is posted in the same city. He has been adjusted on the administrative ground which is fully justified and cannot be faulted with.

Respondents are directed to accept the joining of both the petitioners as well as of that of respondent No.4, at their respective place of posting after transfer within a period of one week from the date of receipt of the copy of the order. Status quo granted earlier is hereby vacated.