Jharkhand High Court

Dr. Arun Kumar Baranwal vs The State Of Jharkhand Through ... on 3 October, 2023

           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        W.P.(S) No. 4234 of 2023
                                     -------

         Dr. Arun Kumar Baranwal                     ... Petitioner
                                     Versus

1. The State of Jharkhand through Principal Secretary, Department of Health, Medical Education & Family Welfare, Government of Jharkhand, Ranchi.

2. The Additional Chief Secretary, Department of Health, Medical Education & Family Welfare, Government of Jharkhand, Ranchi.

3. Under Secretary, Department of Health, Medical Education & Family Welfare, Government of Jharkhand, Ranchi.

4. Dr. Anil Kumar. ... ... Respondents

CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY

-------

For the Petitioner : Mr. Indrajit Sinha, Adv.

Mr. Ankit Vishal, Adv.

Ms. Sonal Jaiswal, Adv.

For the Respondents : Mrs. Amrita Banerjee Singh, AC to GP-I

-------

08/03.10.2023 Heard Mr. Indrajit Sinha, learned counsel for the petitioner and Mrs. Amrita Banerjee Singh, learned AC to GP-I.

2. In this writ application the petitioner has prayed for quashing of notification No.391(9) dated 31.07.2023 as contained in memo no.09/Chi.Maha.-07-07/2019 (Khand)-394(9) issued under the signature of respondent no.3 whereby and whereunder the petitioner who was working as Associate Professor, Surgery Department-cum-Superintendent, Shahid Nirmal Mahto Medical College and Hospital, Dhanbad has been transferred to Phullo Jhano Medical College and Hospital, Dumka. The petitioner has further prayed for quashing of notification No.390(9) dated 31.07.2023 as contained in memo no.09/Chi.Maha.-07-07/2019 (Khand)-394(9) issued under the signature of respondent no.3 by which the respondent no.4 working as Associate Professor, Surgery Department, Shahid Nirmal Mahto Medical College and Hospital, Dhanbad has been given the additional charge of Superintendent, Shahid Nirmal Mahto Medical College and Hospital, Dhanbad till further orders.

3. It has been submitted by Mr. Indrajit Sinha, learned counsel for the petitioner that in the minutes of the establishment committee the name of the petitioner does not

figure and in fact on the basis of the recommendation of the Departmental Minister the petitioner has been transferred.

4. Mr. Sinha, while replying to the supplementary counter affidavit filed on behalf of the respondents submits that an averment has been made that the Departmental Minister has exercised his privilege and administrative power for smooth running of the hospital but nothing has been stated as to how such power has been exercised. It has been submitted that contention of the petitioner that in the minutes of the establishment committee recommending transfer the name of the petitioner does not figure, has not been denied by the respondents in their reply. Learned counsel in support of his contention has referred to the case of Uttam Kujur & Ors. Vs. State of Jharkhand & Ors. reported in 2008(2) JCR 306 (Jhr).

5. Mrs. Amrita Banerjee Singh, learned A.C. to G.P.-I has reiterated the statements made in the supplementary counter affidavit filed by the respondents while submitting that the Minister has the power to exercise his privilege and in the present case such privilege was exercised and in the interest of better running of the hospital the petitioner has been transferred from Shahid Nirmal Mahto Medical College and Hospital, Dhanbad to Phullo Jhano Medical College and Hospital, Dumka.

6. The factual aspects of the case reveal that the petitioner was appointed as a Medical Officer vide notification no.83(2) dated 09.02.1988 issued by the Department of Health, Government of Bihar, Patna consequent to which the petitioner had joined at Primary Health Centre, Karpi, Jahanabad, Bihar on 15.03.1988. The petitioner in course of time was promoted to the post of Assistant Professor w.e.f. 07.09.2004. Due to bifurcation of the State the service of the petitioner was allocated to the State of Jharkhand where he joined on the post of Assistant Professor at P.M.C.H., Dhanbad, now known as Shahid Nirmal Mahto Medical College and Hospital, Dhanbad. Petitioner was promoted to the post of Associate Professor (Surgery) w.e.f. 07.09.2009 vide notification no.172(9) dated 18.04.2018 issued by the Principal

Secretary, Department of Health, Medical Education and Family Welfare, Government of Jharkhand. The petitioner vide notification no.230(9) dated 31.07.2021 was posted as Superintendent, Shahid Nirmal Mahto Medical College and Hospital, Dhanbad till further orders. However, vide notification no.391(9) as contained in memo no.394(9) dated 31.07.2023 the petitioner was transferred from the post of Associate Professor- cum-Superintendent, Shahid Nirmal Mahto Medical College and Hospital, Dhanbad to the post of Associate Professor, Phullo Jhano Medical College & Hospital, Dumka and a notification no. 390(9) was also issued on 31.07.2023 wherein the respondent no.4 was given the additional charge of Superintendent, Shahid Nirmal Mahto Medical College and Hospital, Dhanbad. The petitioner is to superannuate on 31.01.2024 and in view of the impending superannuation he had requested the concerned respondent to cancel the order of transfer.

7. It is the specific case of the petitioner that at the fag end of the service career he has been transferred at the behest of the Departmental Minister without there being any recommendation made by the Establishment Committee. In view of the said submission, vide order dated 16.09.2023 the respondent was directed to take instruction and it appears that a supplementary counter affidavit has been filed which though has not disputed the contention of the petitioner that there was no recommendation of the Establishment Committee for transfer of the petitioner, but at the same time it has been averred that in exercise of privileges and administrative power for smooth running of the hospital the Departmental Minister has transferred the petitioner to Phullo Jhano Medical College and Hospital, Dumka.

8. Learned A.C. to G.P.-I has also failed to submit as to under what provision of law such privilege has been exercised by the Departmental Minister. The transfer has to be on the basis of recommendation of the Establishment Committee and the interference of the Departmental Minister inserting the name of the petitioner in the list of persons who are to be transferred, appears to be beyond his purview and only in order

to legitimize such transfer recourse has been taken to the privilege and administrative power being exercised by the Departmental Minister.

9. In the case of Uttam Kujur & Ors. Vs. State of Jharkhand & Ors. (Supra) it has been held as follows :-

10. It goes without saying that the admitted factual position is that the transfer of appellant Uttam Kujur and respondent Binod Kumar is without consultation/ recommendation of the Establishment Committee and is at the instance of the Minister-in-charge. It is also admitted position that the transfer of respondent Binod Kumar is premature and has been made just after six months and none of the circumstances, indicated in Clause (a) of the resolution dated 25th October, 1980 i.e. death, illness or vacancy, exists. What is the administrative exigency for such a transfer is also not disclosed. If this be the position, the question arises whether non-observance of the procedure and other conditions prescribed in the resolution justifies the interference by the writ Court in exercise of its writ jurisdiction under Article 226 of the Constitution in the matter of transfer of Government servants, which is otherwise an incident of service. The Apex Court in the case of State of U.P. v. Gobardhan Lal (supra) has laid down some of the parameters for interference in the matter of transfer. A similar resolution and its enforceability came for consideration before a Division Bench of Patna High Court in the case of Man Singh v. State of Bihar reported in 1982 BBCJ 392. In this case also the executive instructions like in the present case were issued by the then State of Bihar, providing for transfer and postings on the recommendation of the Establishment Committee. The Division Bench in paragraph No. 9 of the aforesaid judgment held that though these instructions are not rules under Article 309 of the Constitution of India, the State Government can issue executive instructions to supplement the rules. It is only where the executive instructions attempt to supplement the statutory rules that it can have no legal force and the executive instructions were found not in conflict with the statutory rules framed under Article 309 of the Constitution and were held to govern the policy and procedure for the transfer of Government employees. In another Division Bench judgment of Patna High Court reported in 1995 (1) PLJR 69 (Shyam Kumar Prasad v. State of Bihar and Ors.), the question of transfer at the instance of M.L.A. was found to be not sustainable. A transfer order, issued without placing the matter before the Establishment Committee, was quashed and held to be not sustainable. Though the executive instructions providing procedure for transfers

through the Establishment Committee is held to be directory in nature, it was observed that it must be complied with substantially. In the case of Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey, the Apex Court while considering the validity of transfer and scope of interference in writ jurisdiction observed thus:

4. ...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....

11. The natural corollary of the above observation is that where operative guidelines or rules are in place and the transfer is made in violation of any such operative guidelines or rules, interference in exercise of writ jurisdiction is warranted. Though the Apex Court has used the terminology "guidelines", the same has been placed at par with the rules. In the case of State of Gujarat v. Akhilesh C. Bhargav , it has been held that the executive instructions issued to fill up the gap in the rules and where these are not in contravention of the statutory rules are valid. The Apex Court, thus, observed as under:

7. It is well settled that within the limit of executive powers under the constitutional scheme, it is open to the appropriate Government to issue instructions to cover the gap where there be any vacuum or lacuna. Such instructions do not run counter to the rules in existence, the validity of the instructions cannot be disputed.

12. In the case of Sarvesh Kumar Awasthi v. U.P. Jal Nigam , the Apex Court observed as under:

3. In our view, transfer of, officers is required to be effected on the basis of set norms or guidelines. The power of transferring an officer cannot be wielded arbitrary, mala fide or an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned. For better administration the officers concerned must have freedom from fear of being harassed by repeated transfers or transfers ordered at the instance of someone who has nothing to do with the business of administration.

13. 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 we find that 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. This very Division Bench in the case of M/s. Ranisati Pipe Industries, Jamshedpur, Singhbhum East v. State of Jharkhand and Ors., while considering the validity of the Government's Industrial Policy and its violation by the executive authorities observed thus:

16. ...A subordinate authority has no right or jurisdiction to overthrow a well thought State's Policy by its subordinate executive action....

10. In view of the aforesaid facts therefore, the order of transfer at the behest of a Departmental Minister is an illegality in the eyes of law and considering the said fact notification no.391(9) as contained in memo no.394(9) dated 31.07.2023 issued under the signature of respondent no.3 by which the petitioner has been transferred from the post of Associate Professor-cum-Superintendent, Shahid Nirmal Mahto Medical College and Hospital, Dhanbad to the post of Associate Professor, Phullo Jhano Medical College & Hospital, Dumka as also the consequent notification no. 390(9) dated 31.07.2013 as contained in memo no. memo no.09/Chi.Maha.-07-07/2019 (Khand)-394(9) by which the respondent no.4 has been given the additional charge of Superintendent, Shahid Nirmal Mahto Medical College and Hospital, Dhanbad are hereby quashed and set aside.