Vivekanand Swami vs The State Of Bihar Through The ...
2021 Latest Caselaw 1590 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.727 of 2021
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Vivekanand Swami, aged about 57 years, Male, Son of Chandeshwar Prasad, Resident of Village + P.O. + P.S.-Angra, District- Gaya.

... ... Petitioner/s Versus

1. The State of Bihar through the Chief Secretary, Government of Bihar.

2. The Principal Secretary, Department of Environment, Forest and Climate Change, Government of Bihar, Patna.

3. The Principal Chief Conservator, Department of Environment, Forest and Climate Change, Government of Bihar, Patna.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr.Sanjay Kumar Singh, Advocate For the Respondent/s : Mr.Lalit Kishore (AG) ====================================================== CORAM: HONOURABLE MR. JUSTICE ANJANI KUMAR SHARAN ORAL JUDGMENT Date : 22-03-2021 Heard learned counsel for the petitioner and learned

counsel for the State.

2. On 03.02.2021, this Court has stayed the order

dated 02.09.2020 (Annexure-8 of the writ petition) passed by

Principal Chief Conservator of Forest. For vacating the

aforesaid stay order, respondents have filed an interlocutory

application, bearing I.A. No.1 of 2021 and also filed counter

affidavit. I deem it proper not to pass separate order on I.A., as

with consent of all the parties appearing in this case, this writ

petition has been heard finally for disposal at this stage itself.

3. The present writ petition has been filed for the

following reliefs :-

Patna High Court CWJC No.727 of 2021 dt.22-03-2021

(i) For issuance of an order, direction or writ in the nature of certiorari quashing that part of Memo No.1857 dated 02.09.2020 by which the petitioner has been transferred from the post of Forest Range Officer, Rajauli (Nawada) to Gopalganj in the same capacity.

(ii) For issuance of an order direction or writ in the nature of mandamus, directing the respondent authorities to post the petitioner in anywhere in the State of Bihar except a place where one Sunil Kumar C.F. Siwan is posted and the petitioner will have to work under him.

(iii) Any other relief or reliefs to which the petitioner may be found entitled to in the facts and circumstances of this case.

4. The fact giving rise to the present writ petition in

narrow compass, is that the petitioner was working as a Forest

Range Officer under the Conservator of Forest (in short C.F.),

Siwan Circle. The petitioner was posted under him and both of

them were under Administrative Control of the Conservator of

Forest, Siwan Circle wherein torture of the petitioner was Patna High Court CWJC No.727 of 2021 dt.22-03-2021

started at the behest of the Conservator of Forest, Siwan Circle

and the petitioner was not ready to succumb to the illegal

pressure created by the Conservator of Forest, Siwan.

5. Vide letter no.1619 dated 26.11.2018, the C.F.,

Siwan issued a letter to the said Virendra Kumar Daradh and

one Rafi Ahmad, Forest Guard, Raksaul directing them to

constitute an enquiry committee to look into the work of

afforestation in the area Loria to Jakhara for the year, 2018-19 at

complain had been received. This was done to pressurize the

petitioner to succumb to the petitioner and commit frauds and

legalities. On 27.11.2018, the petitioner while discharging the

duty as Forest Range Officer, Areraj made a representation/

application before the Principal Chief Conservator of Forest,

Bihar making specific allegation against him, the C.F., Siwan

(the said Sunil Kumar) and certain other persons stating therein

that the said C.F., Siwan with the help of the persons named

therein in the application were trying to falsely implicate him in

any case (Annexure-2 to the writ petition). On 03.12.2018, the

petitioner moved the Court of Chief Judicial Magistrate, Patna

(his residence) against the C.F., Siwan, and others intimating the

learned court that there was a serious threat to his job and his

life in the hands of the opposte parties as mentioned in the said Patna High Court CWJC No.727 of 2021 dt.22-03-2021

petition (Annexure-3). On 13.12.2018, the petitioner again

wrote to the respondent no.2 requesting him to provide

protection and security for both his job as well as life

(Annexure-4). Vide Memo No.131 dated 21.12.2018, the

petitioner was transferred from Areraj (East Champaran) to

Rajauli (Nawada) under the orders of respondent no.2 and was

directed to join the transferred post on or before 01.01.2019.

6. On 24.12.2018, the petitioner represented before

the Principal Secretary of the Department requesting him that all

the official works undertaken by him at his present place of

posting (Areraj Range) be done transfer to his new place of

posting at Nawada else the petitioner would be falsely

implicated for not completing works by his superior authorities

(Annexure-5).

7. Pursuant to the transfer of the petitioner from

Areraj to Rajauli Forest Division, Nawada, he joined as the

Forest Range Officer, Rajauli in Nawada Forest Division on

03.01.2019 and started discharging his duties. Petitioner was

entrusted with the task of enquiring into the conduct of one

Birendra Kumar Pathak, Van Pal and one Rishi Kumar, Van

Pakshi with regard to their connivance with the forest mafia for

purposes of deforestation. The petitioner was under in-immense Patna High Court CWJC No.727 of 2021 dt.22-03-2021

pressure to submit a report in favour of the employees against

whom enquiry was entrusted to him.

8. Vide letter no.368 dated 01.09.2020, the petitioner

submitted his report giving a finding that the said Rishi Kumar

was innocent and the Birendra Kumar Pathak was guilty of the

charges so levelled against him. Vide Memo No.1587 dated

02.09.2020 (Annexure-8), the order impugned was issued by

which the petitioner has been transferred from the Rajauli Forest

Range, Nawada to Gopalganj Forest Range (Annexure-8 to the

writ petition).

9. The person at serial no.1 in the said impugned

order (Annexure-8) is working in the Nawada Forest Division

since last about 5 years and he had been transferred from

Nawada Forest Range to Rajauli Forest Range in same Division.

The petitioner is not opposing his transfer order else he may be

misunderstood as opposing his transfer by filing the present writ

petition. But the sequence of the events as narrated above

clearly indicate that he is being penalized for doing his job

righteously which sadness as the petitioner is made to realize

that he will be penalized for being upright. On account of

medical urgency, the petitioner is on leave now and during this

period, on 06.10.2020, the petitioner has made a representation Patna High Court CWJC No.727 of 2021 dt.22-03-2021

before the respondent no.2 to the said effect (Annexure-9 to the

writ petition).

10. After hearing the petitioner, on 03.02.2021, this

Court has granted ex-parte stay to the petitioner regarding this

fact that the petitioner was mentioned in prayer to "issuance of

an order, direction or writ in the nature of mandamus, directing

the respondent authorities to post the petitioner in anywhere in

the State of Bihar except a place where one Sunil Kumar C.F.,

Siwan is posted and the petitioner will have to work under him."

11. Later on, respondents have filed I.A. No.01 of

2021 for vacating ex-parte stay and counter affidavit filed by

them is also on record. In the counter affidavit, respondents

have mentioned that the grounds on the basis of which the said

prayer has been made in paragraph-2 of this writ application, the

petitioner has claimed that there exists difference and animosity

in between the petitioner and Sunil Kumar, Conservator of

Forests, Siwan, Circle. In this regard, the respondents mentioned

in paragraph-7 of the counter affidavit that Sunil Kumar,

Conservator of Forest has superannuated from the service on

31st December, 2020. Now Sudhir Kumar Karn has been posted

as Conservator of Forest, Siwan Circle. In paragraph-10 of the

counter affidavit, the respondents stated that vide letter no.2336 Patna High Court CWJC No.727 of 2021 dt.22-03-2021

dated 17.09.2020 (Annexure-R/4), the Divisional Forest Officer,

Nawada Forest Division has informed that the petitioner has

been relieved on 18.09.2020 to give his joining at Gopalganj

Range. On account of administrative reason, the Divisional

Forest Officer, Nawada Forest Division vide his letter no.1972

dated 17.08.2020 and Conservator of Forests, Gaya Circle vide

his letter no.1394 dated 22.08.2020 recommended for his

transfer to another place. The Regional Chief Conservator of

Forest, Patna vide his letter no.1001 dated 25.08.2020 also

recommended for the transfer of petitioner to some other place

and for posting of a suitable officer in the range (Annexures

R/1, R/2 and R/3 of the counter affidavit). The recommendation

made for transfer of the petitioner were considered and vide

order no.145 dated 02.09.2020, petitioner has been transferred

and posted to Gopalganj Forest Range and Akhileshwar Prasad

has been given additional charge of Rajauli Forest Range. A

copy of the said order has been annexed as Annexure-8 to the

writ petition.

12. The petitioner filed a rejoinder affidavit stating

therein that in view of Annexures R/1, R/2 and R/3 filed on

behalf of respondent nos.2 and 3, he is pressing only the first

relief short for in the present writ petition. Learned counsel for Patna High Court CWJC No.727 of 2021 dt.22-03-2021

the petitioner submits that the authorities acting on the request

of the person who initiated the proposal for the transfer of the

petitioner and who is the deponent of the counter affidavit and

interlocutory application filed on behalf of respondent nos.2 and

3, i.e., the D.F.O., Nawada is himself a man of doubtful

integrity. Learned counsel for the petitioner further submits that

the documents, as annexed as Annexures R/1, R/2 and R/3 to the

counter affidavit filed on behalf of respondent nos.2 and 3, very

categorically depicts that the so-called transfer of the petitioner

on administrative ground is concerned, the same is a misnomer.

He further submits that the order of transfer is punitive in nature

passed on behest of another person.

13. The petitioner has relied upon the judgment

passed in C.W.J.C.12656 of 2006; Vinod Kumar Singh vs. The

State of Bihar & Ors. The relevant paragraphs 6 and 7 of the

said judgment are quoted herein below :

"6. It is well settled in law that an order by the statutory authority without application of mind, but, at the dictates of another, amounts to complete abdication of jurisdiction by the statutory authority. The order, therefore, becomes arbitrary and ultra Patna High Court CWJC No.727 of 2021 dt.22-03-2021

vires.

7. The Apex Court elucidating the legal position has held at paragraph 26 in (2004)2 SCC 65 (Bahadursinh Lakhubhai Gohil vs. Jagdishbhai M. Kamalia & Ors) that : "26. It is also well settled that if any decision is taken by a statutory authority at the behest or on the suggestion of a person who has no statutory role to play, the same would be ultra vires."

14. Learned counsel for the respondents submits that

the petitioner has prayed for his posting at any place except at a

place where Sunil Kumar, Conservator of Forest is posted. Since

Sunil Kumar has superannuated from service on 31.12.2020,

hence this writ application is fit to be dismissed. He further

submits that on 03.02.2021, the Hon'ble Court has granted stay

on the impugned order up to 03.03.2021. The petitioner has

concealed the fact from the Hon'ble Court that he has been

relieved on 18.09.2020 from his posting at Rajauli Range.

Therefore, the order of stay passed on 03.02.2021 by this Court

may be withdrawn and no further order of stay may be passed

during pendency of this writ petition. He further submits that

Akhileshwar Prasad has already assumed charge of Range Patna High Court CWJC No.727 of 2021 dt.22-03-2021

Officer of Forest, Rajauli Range, Nawada. The petitioner has

raised allegations against Sunil Kumar, Conservator of Forest,

Virendra Kumar Daradh and other persons but has not made

them party to this writ application. Sunil Kumar and Virendra

Kumar Daradh both have superannuated from the service and

therefore, claim of the petitioner that he should not be posted

under them are not sustainable in his case. Lastly, learned

counsel for the respondents submits that the petitioner was not

found performing his duties properly and he has been

transferred from Rajauli on administrative grounds only. Hence,

the question of imposing any penalty do not arise.

15. After hearing the parties and on perusal of the

record, it appears that the petitioner has not mentioned this fact

that Sunil Kumar had retired in December itself and he relieved

from Rajauli on 18.09.2020 (Annexure-R/4 of the counter

affidavit). Therefore, this Court has been pleased to grant stay in

favour of the petitioner. Now the petitioner has relied upon the

judgment passed in the case of Vinod Kumar Singh (supra),

which is not applicable to the facts and circumstances of the

present case and is distinguishable on the fact. In paragraphs 2

and 3 of the judgment, the Hon'ble Court has held as follows :

"2. The petitioner is a Statistical Patna High Court CWJC No.727 of 2021 dt.22-03-2021

Supervisor. He was posted in the office of the District Education Officer at Biharsharif in the district of Nalanda. On 09.03.2006 at Annexure-1, a communication was issued by the Deputy Collector Incharge of the Public Grievances Cell addressed to the District Superintendent of Education, Nalanda, that complaints have been received against the petitioner. He should, therefore, be transferred out of the District Headquarters with a compliance report to be submitted. Annexure-2, dated 16.03.2006 then came to be issued by the District Superintendent of Education, Nalanda stating that on direction of the Deputy Collector Incharge dated 09.03.2006, the petitioner was deputed to the office of the Sub-Divisional Education Officer, Hilsa. Thereafter, an order dated 14.07.2006 at Annexure-3 came to be issued from the office of the District Magistrate, Nalanda at Biharsharif by which the services of the petitioner were transferred to the office of the Regional Deputy Director, Patna Division, Patna.

3. Learned counsel for the petitioner submits that the petitioner is an employee of the Education Department. His controlling Patna High Court CWJC No.727 of 2021 dt.22-03-2021

authority is the District Education Officer. The impugned orders at Annexures 1, 2 & 3 are illegal on the face of it as being without jurisdiction. It is apparent from the recitals in Annexure-2 that it has not been passed by his Controlling Officer of his own volition by independent application of mind to his satisfaction, but that it has been passed at the dictates of the Deputy Collector. The controlling authority has, therefore, abdicated his statutory powers and acted on the direction of and behest of an external authority which vitiates the order. For like reason Annexure-3 is completely without jurisdiction inasmuch as the District Magistrate has no power to transfer the petitioner."

16. But in the present case, the petitioner has

transferred by the competent authority, it is apparent from the

recitals in Annexure-8 that it has been passed by his controlling

officer, on the administrative ground and only recommendation

has been made by the concerned authority of the department

(Annexures R/1, R/2 and R/3 of the counter affidavit) that the

petitioner has failed to perform his duty, therefore, Annexure-8

has been issued regarding the transfer of the petitioner. Patna High Court CWJC No.727 of 2021 dt.22-03-2021

17. This Court is of the opinion that it is the

prerogative of the employer to post a particular person at a

particular place. This has been approved long back by the Apex

Court in the case of Vishwanath Sharma vs. The State of Bihar

& Ors reported in 2014(1) PLJR 232. Particularly paragraph-8

of the said judgment would be necessary to be quoted herein

below :

"8. Besides hearing learned counsel for the parties, I have also perused the materials available on record. First of all, order of transfer passed on 30.06.2011, was already given effect during the pendency of the earlier writ petition i.e. C.W.J.C. No.18884 of 2011.

It is true that while disposing of the said writ petition, liberty was granted to the petitioner to file representation with a direction to pass order in accordance with law. Particularly, in view of Government policy, thereafter representation of the petitioner was considered and it was rejected and communicated vide Annexure-'1' to the writ petition. So far as transfer of an employee/officer is concerned, time without number it has been held that transfer is the incident of service. The Patna High Court CWJC No.727 of 2021 dt.22-03-2021

Court is of the opinion that it is the prerogative of the employer to post a particular person at a particular place. This has been approved long back by the Hon'ble Apex Court in a case reported in 1991(1) PLJR (SC)61 [Mrs.

Shilpi Bose & Ors. Vs. State of Bihr & Ors.]. Particularly, paragraph-4 of the judgment would be necessary to be quoted which is quoted herein below :-

"4. In our opinion, the courts should not interfere with transfer orders which are 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 Patna High Court CWJC No.727 of 2021 dt.22-03-2021

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 those aspects in interfering with the transfer orders."

18. In the context of transfer of a Government

servant, I refer to the decision of Apex Court in N.K. Singh vs.

Union of India reported in [AIR 1995 SC 423] where this Court

observed in para 22 as follows :

"22...... Transfer of a government servant in a transferable service is a necessary incident of the service career. Assessment of the quality of men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration.

Several imponderables requiring formation of a subjective opinion in that sphere may be involved, at times. The only realistic approach is to leave it to the wisdom of the hierarchical superiors to make the decision. Unless the decision is vitiated by mala fides or Patna High Court CWJC No.727 of 2021 dt.22-03-2021

infraction of any professed norm of principle governing the transfer, which alone can be scrutinized judicially, there are no judicially manageable standards for scrutinizing all transfers and the courts lack the necessary expertise for personnel management of all Government Departments. This must be left, in public interest, to the departmental heads subject to the limited judicial scrutiny ....... indicated."

19. In the case of Dr. Baleshwar Pd. Chaurasiya &

Ors vs. The State of Bihar & Ors reported in 2008(1) PLJR 440,

in paragraphs 5 and 6 of the said judgment, the Hon'ble Court

has been pleased to held as follows :

"5. An order of transfer is an administrative matter not to be interfered with by a Court unless there be any statutory violation or if the transfer be mala fide. Issuance of any instructions by the Government with regard to the transfer and posting only create a right in a Government servant to file a representation. The petitioners have availed the same. Their representations are stated to be pending.

6. The Supreme Court in the case of Patna High Court CWJC No.727 of 2021 dt.22-03-2021

State of U.P. & Ors. Vs. Gobardhan Lal (AIR 2004 Supreme Court 2165) has held at paragraph 8 as follows :

"8..............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."

20. In the case of Indu Kumari vs. The State of Bihar Patna High Court CWJC No.727 of 2021 dt.22-03-2021

& Ors reported in 2010(2) PLJR 433, in the said judgment,

paragraphs 5 and 7 are quoted herein below :

"5. Transfer is a normal incidence of service and the Courts refrain from interference unless there be manifest arbitrariness, violation of statutory rules and procedure or palpable mala fide in the transfer. If an order of transfer has been passed for an administrative reason and when it is challenged the administrator discloses the reason, all that the Court is required to see is whether the reasons are germane to the issue or not. A germane issue can also be an environment conducive to administrative efficiency. The enforcement of administrative discipline by transfer may not necessarily require initiation of proceedings followed by a punitive transfer.

7. In (2004)4 SCC 245 (Union of India & Others vs. Janardhan Debanath and Another) considering a challenge to an order of transfer alleged to be punitive in nature when no disciplinary proceedings were held Patna High Court CWJC No.727 of 2021 dt.22-03-2021

but transfer was made only for reason of administrative discipline combined with exigency of administration, the Supreme Court declined to interfere with the order of transfer observing as follows at para 14 :-

" 14. The allegations made against the respondents are of serious nature, and the conduct attributed is certainly unbecoming. Whether there was any misbehaviour is a question which can be gone into in a departmental proceeding. For the purposes of effecting a transfer, the question of holding an enquiry to find out whether there was misbehaviour or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirement, as submitted by learned Counsel for the respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigency of administration to enforce decorum and ensure Patna High Court CWJC No.727 of 2021 dt.22-03-2021

probity would get frustrated. The question whether the respondents could be transferred to a different division is a matter for the employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration. It is not for this Court to direct one way or the other. The judgment of the High Court is clearly indefensible and is set aside. The writ petitions filed before the High Court deserve to be dismissed which we direct. The appeals are allowed with no order as to costs."

21. In (1989)2 SCC 602, Gujarat Electricity Board

and another vs. Atmaram Sungomal Poshani, Apex Court has

held that a public servant must comply with an order of transfer

and if he had any genuine difficulty in proceeding on transfer it

is open to the employee to make a representation to the

competent authority for its stay, modification or cancellation of

the present order. If the order of transfer is not stayed,

modifying or cancelled then the employee has to carry out the

order. The Apex Court further held that an employee cannot

avoid or evade the transfer merely on ground of having made a Patna High Court CWJC No.727 of 2021 dt.22-03-2021

representation.

22. It is important to mention here, the State

Government, being the employer, is the pay master and,

therefore, the employee cannot question the term of transfer and

posting. If that is permitted to question then functioning of the

State would become very difficult. This observations could not

be taken to mean that I am supporting the arbitrary action in the

present case. I do not find any arbitrary action on the part of the

authority.

23. In the facts and circumstances of the case and the

discussion made in the foregoing paragraphs, in my view,

petitioner was not found performing his duties properly and he

has been transferred from Rajauli on administrative ground only,

the question of imposing any penalty do not arise.

24. Accordingly, the writ petition is dismissed. The

order of stay granted vide order dated 03.02.2021 is vacated.

I.A. No.1 of 2021 also stands disposed of.

(Anjani Kumar Sharan, J) Nasimul/-

AFR/NAFR                NAFR
CAV DATE                12-03.2021
Uploading Date          23-03.2021
Transmission Date       N/A