IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P (S) No. 112 of 2009
Arjun Prasad Singh …. Petitioner
Versus
State of Jharkhand and others … Respondents
Coram : HON’BLE MR. JUSTICE D.G.R. PATNAIK.
For the petitioner : Mr. D.K. Dubey
For the respondents : Mr. Rajiv Ranjan/ Prabhat Kr Sinha
CAV on 05.03.2009 Pronounced on 20.3. 2009
20. 03.2009 Petitioner in this writ application has prayed for
quashing the notification dated 29.12.2008 ( annexure 3) under memo no.
1653 issued by the respondents whereby the petitioner has been
transferred from Jamshedpur to Headquarters Ranchi, and also for
quashing the notification no. 1652 dated 29.12.2008 (annexure 4) issued by
the respondents whereby the respondent no. 5 has been posted in place of
the petitioner. Challenge to the notification of his transfer has been made
by the petitioner on the ground that he is on the verge of his retirement
and would superannuate on 31st July, 2009. Departmental resolution no.
3918 dated 25.10.1980 and another resolution no. 913 dated 18.2.2000, both
of which guide the transfer policy of the State Government employees
provide for choice posting of a Government employee who is to retire
within one year. The grievance of the petitioner is that though pursuant to
the aforesaid Departmental resolution, he had submitted his application
before the concerned authorities of the respondent dated 30.2.2008 for
allowing him to continue at Jamshedpur till his retirement, the respondent
in stead of considering the same had issued the impugned notification of
his transfer from his present place of posting in violation of the resolutions
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issued by the Department and also for causing extreme inconvenience and
harassment.
2. The petitioner who was initially appointed as Excise Inspector
in the year 1983 rose to the senior rank of Excise Superintendent and was
entrusted with the duty of in charge Assistant Commissioner of Excise at
Jamshedpur in the district of Singhbhum, where he joined on 22.11.2006
pursuant to the notification of his transfer. While, on the one hand, by the
impugned notification, the petitioner was transferred from Jamshepdur,
by the other impugned notification the respondent no.5 was transferred
and posted in place of the petitioner at Jamshedpur.
3. Counter affidavit has been filed on behalf of the respondents.
4. Heard the counsel for the petitioner and the State as well as
private respondent no. 5.
5 Sri D.K. Dubey, learned counsel appearing on behalf of the
petitioner argues that the Departmental resolution which guides the
procedures for transfer of Government employees even though not
mandatory in effect and is obligatory, yet, the concerned authorities
cannot possibly ignore the same to cause detriment and harassment to a
Government servant since such resolution has been adopted by way of a
beneficial measure to accommodate the Government servants who are at
the verge of retirement and this benefit constitutes part of condition of
service.
6 Referring to the statements contained in the counter affidavit
of the respondent State, learned counsel submits that though in the
transfer order, no ground has been stated for transfer of the petitioner
from Jamshedpur, but as it appears from the counter affidavit, some
complaints were received against the petitioner in respect of his
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performance of work . The complaint was enquired into by a 3-member
Committee, which found the petitioner inefficient in his work and this
was the ground prompting the petitioner’s transfer. Learned counsel
submits that if it was so, then certainly, it amounts to an order of transfer
attaching stigma to the petitioner and without affording an opportunity of
being heard in respect of the purported allegations, the respondents could
not have passed the order of his transfer. Referring to the judgment of this
Court in the case of Dhrub Prasad Vs. State of Jharkhand [ WP(S) No. 725 of
2002), learned counsel for the petitioner submits that Rule 56(a) of the
Bihar Service Code as adopted by the State of Jharkhand, does not permit
transfer of any Government servant on the allegation of inefficiency in
discharge of duties. Learned counsel adds further that even if transfer is
an incidence of service, it cannot be made arbitrarily and any deviation
from the Government policy and guidelines without justification, as in the
instant case , is discriminatory.
7 The respondent State has contested the petitioner’s claim by
filing its counter affidavit denying and disputing the entire grounds
raised by the petitioner. The contention of the respondents as explained
by Sri Rajiv Ranjan, learned counsel for the Respondent State, is that on
receipt of the complaint against the petitioner, a preliminary fact finding
enquiry was held by an Enquiry Committee consisting of the Deputy
Commissioner of Excise, Santhal Pargana Division, & HQ and the
Assistant Commissioner Excise, Dhanbad. The Committee submitted its
report on 17.12.2008 disclosing certain irregularities regarding evasion of
excise duty and fees during the financial year 2008-09. The Departmental
Establishment Committee held its meeting on 26.12.2008 and 27.12.2008
presided over by the Secretary, Excise Department, and the
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Commissioner of Excise and a nominee representative of SC/ST of the
rank of Deputy Secretary, Directorate of Panchayati Raj Government. It
was pursuant to their recommendation that the decision to transfer the
petitioner was taken and accordingly the impugned notification of his
transfer was issued.
Learned counsel would explain that even though the
Departmental Resolution stating the policy in the matter of transfer of
Government servants provides for choice posting of a Government
servant who is on the verge of retirement, but such benefit would be
available to such officers only who have maintained an unblemished
record of service and not to those who are facing enquiry proceedings of
serious allegations. Learned counsel explains further that in the light of the
allegations and the preliminary findings of the enquiry committee, the
Departmental Establishment committee had rightly decided that it would
not be proper to allow the petitioner to continue at his present place of
posting.
Learned counsel adds further that even otherwise, the
petitioner has already completed more than two years’ of his posting at
Jamshedpur in the district of Singhbhum and therefore he has no right to
continue on the same place of posting. Learned counsel informs that
pursuant to the notification no. 1652 dated 29.12.2008, the respondent 5
has been given posting as Assistant Commissioner of Excise
(Headquarters). The transfer of petitioner has been made in accordance
with the resolution specified by the Excise Department vide resolutions
dated 11.2.1972 and 18.2.2000. Posting the Government servant at his
place of choice can be considered only in exceptional circumstances in the
nature of domestic and family calamities. Otherwise, the transfer in
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general, shall take place after every two years of posting. No such
exceptional circumstance appears in the case of the petitioner to allow
him the benefit of choice posting.
Learned counsel adds further that even otherwise, the
notification of transfer of the petitioner does not indicate in any manner
that the transfer was on account of any allegation and therefore no stigma
is attached to the petitioner by virtue of impugned transfer notification.
The order of transfer being simpliciter in nature cannot be termed as
perverse. Since the petitioner has completed more than two years service
at a particular place, the order of transfer cannot be challenged. Learned
counsel explains further that the petitioner is not the only person who has
been transferred. Rather, his transfer has been effected along with several
other officers in the Excise Department by way of general transfer and the
procedure as laid down under the rules of the State government has been
duly adopted .
As regards interpretation of Rule 56(a) of the Service Code,
learned counsel submits that a similar rule under Rule FR 154 applicable to
the Central Government servants in which the language of Rule 56(a) of
the State Service Code is the same. The Rule was considered by the
Supreme Court in the case of Union of India Vs. Janardan Debnath ( 2004
(4) SCC 245]. The interpretation of the Rule has been given by the apex
Court, would clearly indicate that in case of inefficiency and misconduct
of a Government servant, the rule does not lay down any inhibition for
transfer of the government servant. As claimed by the respondents, the
transfer notification does not indicate in any manner that the decision of
transfer was taken on the basis of the allegations against the petitioner. In
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this view of the matter, the transfer has to be considered as transfer
simpliciter.
8. Admittedly, the petitioner has completed more than two years
of posting at the present place of posting and as such, even otherwise, as
per rules, he was liable for transfer. It also appears that the case of the
petitioner along with several others was placed before the DPC and it was
on the recommendation of the Committee that the petitioner’s transfer
along with several others was effected by way of chain transfer. To this
extent. it appears that the rule of procedure as laid won by the State
Government in the matter of policy of transfer of government servants
has been duly adopted and applied in the case of the petitioner. The
contention of the petitioner that even though the transfer notification does
not specifically indicate reasons for transfer as indicated in the counter
affidavit of the respondents, it does indicate that it was made on the
ground of some allegations against the petitioner. As such, the petitioner
ought to have been given an opportunity of being heard before taking
any decision on the allegation and subjecting the petitioner to an abrupt
transfer. It is in this context that the learned counsel invites attention to
56(a) of the Jharkhand Service Code and would claim support from the
judgment in CWJC no. 725 of 2002 ( Dhrub Pd Vs. State of Jharkhand ).
9 It needs to be noted at the outset that even though the counter
affidavit mentions that pursuant to receipt of some complaints against the
petitioner, a fact finding enquiry was conducted and the preliminary
report was received from the Committee. It appears that regular
departmental proceeding against the petitioner was not initiated as yet,
though contemplated by the respondent authorities. The petitioner would
certainly have the benefit of being heard in the departmental proceedings
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if initiated upon the charges based on preliminary report submitted by the
Enquiry Committee. Even considering the fact that certain allegations
were received against the petitioner and the respondents were prompted
to act upon the report of the Enquiry Committee, which had suggested
that the petitioner was inefficient in discharging his duty, in such a
situation, there was reasonable ground for the authorities concerned to
take administrative decision regarding transfer of the petitioner. In my
opinion, the provision of Rule 56(a) of the Code does not impose any bar
against the respondents for taking an administrative decision to transfer
the petitioner, if there is prima facie material to suggest that he has been
inefficient in discharge of his duties.
10 Rule 56(a) of the Bihar Service Code as adopted by the
Jharkhand Service Code which deals with the general conditions of service
reads as follows :
“56(a) The State Government may transfer a Government
servant from one post to another; provided that, except-
(1) on account of inefficiency or misbehaviour, or
(2) on his written request.
a Government servant shall not be transferred substantively to, or
except in a case covered by rule 103 appointed to officiate in a post carrying less
pay than the pay of the permanent post on which he holds a lien, or would hold a
lien, had his lien not been suspended under rule 70.
(b) Nothing contained in clause (a) of this rule or in rule 21,
shall operate to prevent the re-transfer of a Government servant to the post on
which he would hold a lien, had it not been suspended in accordance with the
provisions of clause (a) of rule 70. ”
11. In the case of Union of India Vs. Janardhan Debanath (supra),
the Supreme Court had occasion to consider a similar rule FR 15 of the
Fundamental Rules relating to the conditions of service of Central
Government servants and the said rule is quoted as under :
8. FR 15 reads as follows :
“15(a) The President may transfer a government servant from one
post to another; provided that except-
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“(1) on account of inefficiency or misbehaviour, or
(2) on his written request,
a government servant shall not be transferred to, or except in a case
covered by Rule 49, appointed to officiate in a post carrying less pay than the pay
of the post on which he holds as lien.”
12. It is apparent that the language of Rule FR 15 of the
Fundamental Rules and that of Rule 56(a) of the Bihar Service Code is
identical.
The Supreme Court in the above case has observed that the
view that there cannot be any transfer in terms of FR 15 on account of
inefficiency or misbehaviour is clearly contrary to the pronounced
intention of FR 15. The same ratio would apply to the facts of the present
case also when the interpretation of the provisions of Rule 56(a) of the
Bihar Service Code is called upon to be made.
13 Further more, the petitioner has been relieved from the
place of posting at Jamshedpur and he has taken over charge of his office
at the transferred place pursuant to the impugned notification. Likewise,
pursuant to the other impugned notification, respondent no. 5 has also
assumed charge of office in place of the petitioner at Jashedpur. The claim
of the petitioner that the benefit of continuing him at his place of posting at
the last lap of his service ought to have been given to him in the light of the
Government transfer policy, cannot be tenable. The Resolutions dated
11.2.1972 and 18.2.2000 which apply to the government servants of the
Excise Department, does not apply to the case of the petitioner in absence
of any exceptional circumstances shown by him, for his retention at the
same place.
In the light of the above discussion, I do not find any merit in
this writ petition, which is dismissed accordingly at the stage of admission.
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The respondents shall treat the period of one month during
which the petitioner could not join his transferred place of posting on
account of the order of stay granted by this Court in this case, as period
on duty.
Ambastha/- (D.G.R. Patnaik, J )