Raghunandan Sahu And Anr. vs State Of Bihar And Ors. on 22 August, 2000

Patna High Court
Raghunandan Sahu And Anr. vs State Of Bihar And Ors. on 22 August, 2000
Equivalent citations: 2000 (3) BLJR 2321
Author: M Eqbal
Bench: M Eqbal


JUDGMENT

M.Y. Eqbal, J.

1. In all these writ applications, since common questions of law and fact are involved, the same are disposed of by this common judgment.

2. All the writ petitioners have prayed for quashing the order dated 30.6.2000 issued by the Inspector-General of Registration, Government of Bihar, whereby the petitioners along with others sought to have been transfered from one district to another district of the District Registration Offices.

3. The facts of the matter lie in a narrow compass.

4. The petitioners and others were initially functioning as extra clerks in the registration offices in the districts of State of Bihar and they were subsequently appointed on the post of temporary clerk. The petitioners case is that as per the Bihar Registration Manual, persons working as temporary clerk in a sub-registry offices of a district cannot be transferred, outside the district because such temporary clerks working in the district have separate cadre. It is stated that time to time the respondents-authorities issued instructions and letters to the effect that the appointment and promotion of temporary clerks shall be regulated within the district level. Since there is a district wise cadre of the temporary clerks working in the Registration Department, their transfer from one district to another district is not permissible under the law.

5. I have heard Mr. Tapen Sen and Mr. A.K. Sahani, learned Counsel appearing of the petitioners and learned G. A.

6. Mr. Sen firstly drawn my attention to Annexure 3 to the writ application (C.W.J.C. No. 2580/2000 R), which is a letter dated 27.6.86 issued by the Secretary-cum-Inspector-General of Registration to all the District Registrars asking them to prepare the gradation list of temporary clerks working in the district. Leaned Counsel also drawn my attention to Annexure 4 which is a letter dated 5.9.93 issued by the Assistant Inspector-General of Registration to all the District Registrars and Sub-Registrars directing, inter alia, that in the matter of appointment and promotion of temporary clerks to the plots of permanent clerks was to be done under the recommendation of the District Establishment Committee. Earned Counsel further has drawn my attention to Annexure 5 to the writ application which is a Government letter dated 20.5.95 to all the District Registrars issuing necessary guidelines in relation to preparation of roster within the district level. According to the learned Counsel, from these letters, it appears that the temporary clerks working in the district Registry and Sub-Registry office of a district have their district-wise cadres and, therefore, there cannot be intra-State Transfer. Earned Counsel also referred to the Schedule of Bihar Service Code which, inter alia, provides that there shall be transfer of the clerks only within the district from one registration office to another registration office.

7. On the other hand, learned G.A. submitted that there is no bar for the Government to transfer the temporary clerks who are the Government servant from one district to another district on administrative reasons and also for the interest of public at large. Earned Counsel referred to Annexure 5 to the writ applciation (C.W.J.C. No. 2593/2000 (R), which is a letter issued by the Revenue Department informing the Government decision to prepare a composite seniority list of all the clerks working in the registration offices of different district in the State of Bihar. Earned Counsel further submitted that the power to intro district transfer vested with the Inspector General of Registration and, therefore, impugned order of transfer is neither illegal nor without jurisdiction.

8. Before appreciating the rival contetions of the parties, it would be useful to go through the law laid down by the different Courts on the question of interference in the matter of transfer of the Government servants.

9. In the case of Shanti Kumari v. Regional Deputy Director Health Services, Patna AIR 1981 SC 1577, the order of transfer of an auxiliary nurse, mid wife from one district to another district was challenged on the ground, inter alia, that there could not have been inter district transfer. The High Court declined to interfere with the order and directed the petitioner to file a representation to the State Government. The petitioner dissatisfied with the order moved the Supreme Court in appeal. Dismissing the appeal, their Lordships held that the transfer of government servant may be due to exigency of service or due to administrative reason. The Courts cannot interfere with such matter. It was further held that if the order of transfer was in breach to the Government instruction the authority will look into the matter if such representation is filed by the petitioner.

10. In the case of B. Varadha Rao v. State of Karnataka , their Lordships observed:

We agree with the view expressed by the learned Judges that transfer is always understood and construed as an incident of service. The words or other conditions of service in juxtaposition to the preceding words denies or varies to his disadvantage his pay, allowances, pension in Rule 19(1)(a) must be construed ejsdem generis. Any alteration in the conditions of service must result in prejudice to the Government servant and some disadvantage touching his pay, allowances, pension, seniority, promotion, leave, etc. It is well understood that transfer of a Government servant who is appointed to a particular cadre of transferable posts from one place to another is an ordinary incident of service and therefore does not result in any alteration of any of the conditions of service to his disadvantage. That a Government servant is liable to be transferred to a similar post in the same cadre is a normal feature and incident of Government service and no Government servant can claim to remain in a particular place or in a particular post unless, of course, his appointment itself is to a specified, non-transferable post.

11. In the case of Union of India v. S.L. Abbas , a question arose as to whether the Court should interfere with the order of transfer if such order is passed in violation of the guidelines issued by the Government. It was held:

7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however, does not confer upon the Government employee a, legally enforceable right.

12. In the case of Kameshwar Prasad Thakur v. State of Bihar (1991) 2 PLJR 251, a Full Bench of this Court was considering a question as to whether inter-district transfer of Grade III and Grade IV employees working in the Department of Health, Government of Bihar, is non transferable in view of the administrative instructions issued by the Health Department. In that case an order was issued by the Additional Director, Family Welfare, by which petitioner was transferred from one district to another district. Declining to interfere with the order of transfer their Lordships held that the Court should not interfere with such transfer order unless the transfer order has been made in violation of any mandatory statutory rule or on the ground of mala fide. A question was also canvassed before the Full Bench that since the persons working in the Health Department of a district form, a separate cadre, there cannot be inter-district transfer. Their Lordships held:

7. The second contention sought to be raised is that the persons of a district form a separate cadre and there is a district cader in respect of each district. In our opinion, there is nothing before us to support the same. We are unable to find that such persons in a district form a separate cadre. At one point of time, there might have been some discussions and tentative decisions in the matter, but until now no such separate cader for the district is shown to have been formed. Our attention was also drawn to Annexures 5 and 6. We are of the opinion that that does not help the petitioners in the present case. In this context, we may point out that whatever assurances may have been given either in the from of assurance by any Minister or any statement made in the Assembly, that does not confer any right on the petitioners which is enforceable in a Court of law unless it is made a condition of service, when it can be enforced.

13. Last but not the least, in the case of Mrs. Shilpi Bose and Ors. v. State of Bihar and Ors. AIR 1991 SC 523, their Lordships observed:

In our opinion, the Courts should not interfere with a transfer order 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 another. 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 Departments.

14. In the light of the principles laid down by the various Courts, I shall now examine the materials upon which the petitioners have put heavy reliance. As noticed above, Annexure 3 is a letters issued by the Secretary-cum-Inspector General of Registration to all the District Registrar on 27.6.86 informing them that the decision on the question of seniority of the clerks appointed against 1000 sanctioned posts shall be taken by the Government after their appointment. This letter does not help the petitioners rather by this letter the Government reserved their right to decide the seniority of the clerks appointed in the different districts. Another letter dated 5.9.93 (Annexure 4) was issued by the Assistant Inspector General of Registration to all the District Registrars and Sub registrars directing them that in the matte of appointment and promotion of temporary clerks to the post of permanent clerks was to be done under the recommendation of District Establishment Committee. This letter also does not help the petitioners. However, Counsel for the petitioners put much reliance on the letter dated 20.5.95 (Annexure 5) to show that the Government has decided to prepare and decide the roster district-wise. For better appreciation the relevant portion of the letter is quoted hereinbelow:

SEWA MEY,

SABHI JILA NIBANDHAK

SABHI JILA AWAR NIBANDHAK.

BISAY : NIBANDHAK KARYALAYON KE ANTERGAT ATIRIKT LIPIKON KE RIKT PADON PAR NIYUKTI KE SAMBANDH MEY.

MAHASHAY,

UPROKT BISAY KE SAMBANDH MEY KAHNA HAI KI NIBANDHAN KARYALAYON MEY KARYAT ATIRIKT LIPIKON KO A-ASTHAYI LIPIK KE PAD PAR NIYUKT KE MAMLE MEY YEH PRASHN UTHA KI ARASHAN KA KAUN SA ROSTER LAGU HOGA. GAHAN VICHAR KE BAD SARKAR DWARA YEH NIRNAY LIYA GAYA HAI KI ATIRIKT LIPIK SE A-ASTHAYI LIPIK KE PAD PAR NIYUKTI KE MAMLE MEY JILAWAR NIYUKTI KE LIYE NAYI ARASHAN NITI KE ADHAR PAR MANYA NAYA ROSTER LAGU HOGA. ISKE PURV BIBHINN JILON SE PRAPT NIYUKTI SAMBANDHI SABHI PRASTAV PURANE PRONNATI KE ROSTER PAR ADHARIT HONE KE FALSWARUP INKE ADHAR PAR AB NIYUKTI SAMBANDI KARBAYI SAMBHAV NAHI HAI.

2. A-ASTHAYI LIPIKON KE PAD PAR NIYUKTI HETU ROSTER KI SWIKRITI HARMIK VIBHAG DWARA DIJATI RAHI HAI. PARANTU KARMIK VIBHAG NE YEH PRAMARSH DIYA HAI KI CHUKU YEH PAD JILA ASTAR KE HAI ATYEB JILA ASTAR PAR HI NIRDHARIT PRAKRIYA KE ANUSAR ISKE LIYE ROSTER KI SWIKRITI PRAPT KI JAYE.

15. From perusal of the aforesaid letter, it appears that by this letter the Government asked the District Registrars of the Districts, to prepare district-wise roster and to get its approval before appointment of temporary clerks for the different districts registration offices. This letter does not say that there shall be district-wise cadre of the temporary clerks working in different registry and sub-registry offices.

16. Learned Counsel for the petitioners also drawn my attention to a letter dated (not clear), which is Annexure-5 in C.W.J.C. No. 2593/2000(R), to show that the power of transfer and promotion is vested with the District Registrar. From perusal of this letter, which was issued by the Government to all the District Registrars, it appears that the Government took a decision that appointment of clerks against the vacant post shall be done only after approval and order of the Inspector General of Registration. This letter, however, says that transfer and promotion shall be done by the District Registrar.

17. Lastly the petitioners referred Appendix-I to the Bihar Service Code, which contains the list of delegated powers which may be exercised by other Departments of Government without consulting the Finance Department. So far Registration Department is concerned, the power of transfer of clerks in sub-registry offices from one office to another within the district has been delegated to the District Registrar.

18. From perusal of Annexure A to the counter-affidavit of C.W.J.C. No. 2402/2000(R), it appears that the Government, inter alia, vested certain powers to the District Registrar in the matter of services of clerks working in the Registry offices. No doubt, power to transfer clerks from one office to another office within the district is vested with the district Registrar. But, in the matter of confirmation, promotion, initiation of departmental proceeding and also in the matter of transfer of clerks from one district to another district power has been vested with the Inspector-General of Registration.

19. Having regard to the letters and instructions time to time issued by the Government and the submissions made by the learned Counsel, I come to the following conclusions: (1) The Government’s letters referred to hereinabove do not clearly established that the temporary clerks and permanent clerks working in a particular district forms a district cadre. (2) The power to transfer temporary clerks from, one district to another district in the registry and such-registry offices is vested with the Government and particularly Inspector-General of Registration, Government of Bihar and such inter-district transfer can be and shall be made by the Inspector General of Registration on the ground of some exigencies or administrative reason or for public interest. (3) The District Registrar of the District has been empowered to transfer the temporary clerks from one registration office to another registration office within the district.

20. From perusal of the impugned order, it appears that about 343 temporary clerks working in different districts in the State of Bihar have been transferred and posted from one district to another district. The respondents in their counter-affidavit stated, inter alia, that for a long time the extra clerks, who are subsequently appointed as temporary clerks, have staying in the same district. It is stated that a much longer stay of the clerks has resulted in their inefficiency, undue influence in the working of the offices and thus jeopardising the public interest. Most of the petitioners have so far not completed their required normal standard work. About 1,40,806 documents are still pending for copying in Giridih alone and there are about 6,00,000 documents still pending to be completed through out the State. Keeping in view the above facts and after serving the public interest the Government decided on the ground of administrative exigencies to transfer only those clerks who have been staying in one district for more than 10 years. It is stated that the transfer of the petitioner is quite inconfirmity with the power vested with the respondents in larger public interest and in order to keep the administration of the Department transparent and efficient.

21. The impugned order of transfer also does not appear to be mala fide inasmuch as it is a mass transfer of the permanent and temporary clerks who have been staying in one place for the last ten years.

22. Having regard to the entire facts and circumstances of the case and the discussion made hereinabove, I am of the opinion that the impugned order needs no interference by this Court. However, I must observe that the petitioners shall have a right to make representation to the competent authority against their transfer and such representation shall be considered by the competent authority in accordance with law.

23. Hence without interfering with the impugned order of transfer, I dispose of these writ applications with a direction to the petitioners, if so aggrieved, to file representation before the competent authority, who shall consider and dispose of the representation in accordance with law within a period of one month from the date of filing of the representation.

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