JUDGMENT
Bisheshwar Prasad Singh, J.
1. These three matters have been heard together and are therefore, being disposal of by common order. C.W.J.C. No. 10357 of 1994 has been filed by Ram Sevak Singh (hereinafter referred to as ‘the petitioner’ challenging the order of transfer dated 15th November, 1994 (Annexure-12), whereby the petitioner has been transferred from the post of Block Supply Officer, Chapra, to the post of Block Supply Officer, Siwan Sadar Circle.
M.J.C. No. 1608 of 1994 has been filed by Vidya Singh and Ors. for initiating proceedings under the Contempt of Courts Act against the State of Bihar and its authorities for passing the order dated 1-10-1994, whereby the order transferring the petitioner from Chapra had been recalled. The aforesaid application proceeds on the basis that the opposite parties therein had misled the court into disposing of the writ petition filed by the applicants by informing the Court that the petitioner had been transferred, and thereafter within a few days of the disposal of the writ petition, the transfer order was cancelled and the petitioner was reported at his old station.
Civil Review No. 160 of 1994 has been filed by the petitioner seeking review of the order of this Court dated 17-8-1994 disposing of C.W.J.C. No. 1404 of 1994 alleging that the petitioners of that writ petition persuaded this Court to pass the aforesaid order on wrong and incorrect facts, and the order was passed without notice to the petitioner, who was respondent No.4 in that writ petition.
2. It is necessary to refer to the factual background in which the impugned order of transfer (Annexure-12) was passed, which has been challenged in the writ petition by the petitioner. It is not in dispute, and it appears from the averment contained in Paragraph No. 29 of the writ petition itself, that the petitioner was posted as Supply Inspector in the district of Saran from 8th August, 1972 to 17th May, 1978. After he had remained at Saran for almost six years he was transferred to Dhanbad. The petitioner was then the District Secretary of the Non-Gazetted Employees Federation. The Federation represented against his transfer, and pursuant thereto within about eight months the petitioner was re-transferred to his old post. He joined at Saran as Supply Inspector on 16-1-1979. He held that post till 5th December, 1986 i.e., for about eight years, and thereafter he was appointed as Block Supply Officer, Chapra with effect from 6-12-1986. Chapra is the head-quarters of the district of Saran, Siwan which was originally the sub-division of the district of Saran has now become a full-fledged district.
3. It will thus appear from the admitted facts that for almost twenty two years the petitioner has remained at Saran or its head-quarter at Chapra. A writ petition was filed before this Court in public interest by Vidya Singh and Ors. being C.W.J.C. No, 1404 of 1994, in which serious allegations were made against the petitioner, and it was stated that the petitioner being an influential person had managed to stay at the same station for a long period, and whenever he was sought to be transferred, he managed to get the order of transfer cancelled. Serious allegations were made against the petitioner as to the manner in which he was functioning, and it was alleged that his continuance in the district of Saran was against public interest and further action should be taken against the petitioner for his misdeeds. The petitioner was also temporarily incharge of the Block Supply Office at Masrak. Vidya Singh and Ors. had prayed in that writ petition that an enquiry should be conducted into the acts of omission and commission of the petitioner, and that he should be transferred. Other reliefs were asked for, which, it is not necessary to refer. The aforesaid writ petition was filed on 4th February, 1994. When the matter came up for admission on 17th August, 1994, the Learned Additional Advocate General III informed the Court that the petitioner had been transferred. In view of the statement made at the Bar, which satisfied the petitioners the Court did not consider it necessary to go into the questions urged, which were raised in the aforesaid writ petition. It is not denied that by order dated 20th July, 1994 the petitioner bad in fact, been transferred from Chapra to the head-quarters at Patna. The aforesaid order of transfer has been annexed as Annexure-6 to the writ petition. The transfer order mentions that the same was being passed in view of the assurance given in the legislative assembly on a call attention motion as also for administrative reasons and in special circumstances. It appears that the local M.L.A. had raised the issue on the floor of the assembly, but it was stated at one stage that it was not possible to transfer the petitioner since he happened to be an office bearer of the Union of Government servants.
While disposing of the aforesaid writ petition this Court noticed the allegations made against the petitioner, and observed that if what was stated in the writ petition was true, it reflected a sorry state of affairs, and certainly a matter which must arouse conscience of the Government which may take appropriate action against such officers who may be found guilty of dereliction of duty and work in collusion with unscrupulous traders. However, in view of the statement made by the Additional Advocate General III that the petitioner had been transferred, the Court was not inclined to examine the issues raised in the writ petition. The petitioners in that writ petition insisted that the Court must examine what action should be taken against the petitioner. this Court observed that that was a matter which must be considered by the Government at the appropriate level, and that the Court had no doubt that having regard to the reports as contained in Annexures 17 and 18 of that writ petition, the Government will consider the matter objectively and take appropriate decision in the matter. It will thus appear that this Court did not examine the allegations made against the petitioner nor did it record any finding against the petitioner. In view of the order of transfer, the Court was not prepared to go into those questions and left it to the Government to consider those matters appropriately without expressing any opinion on the merit of the allegations made. It is, therefore, patent that no adverse order against the petitioner was passed by this Court. There was not even a direction from the Court to the Government to institute an enquiry, and the matter was left entirely to the discretion of the Government which was expected to act objectively.
4. After the disposal of the writ petition on 17-8-1994 it appear that the order of transfer was cancelled on 1-10-1994; and the petitioner was again posted at Chapra as Block Supply Officer. This led the petitioners of C.W.J.C. No. 1404 of 1994 (Vidya Singh and others) to move this Court for initiating action against the authorities of the State, who, according to the applicants had deceived this Court by issuing an order of transfer and thereafter withdrawing it after the writ petition was disposed of. In the aforesaid contempt matter the learned Advocate General appeared at the request of the Court and prayed for ten days time to seek instruction. The impugned order of transfer dated 15-11-1994 transferring the petitioner from the post of Block Supply Officer, ‘ Chapra to the post of Block Supply Officer, Siwan Sadar Circle was notified on 10-11-1994. It is this order which has been impugned in C.W.J.C. No. 10357 of 1994.
5. Counsel for the petitioner submitted that the order of transfer has been passed on extraneous consideration. He secondly submitted that having regard to the Government Circulars from time to time office bearers of Government Servants’ Union should not be transferred as a matter of policy. The impugned order of transfer was against those Circulars and the avowed policy of the Government.
6. The first submission proceeds on the basis that on the advice of the Advocate General the impugned order was passed. It is surprising that the petitioner has annexed to his writ petition the letter written by the Advocate General to the Department of Commerce and Civil Supplies on 7th November, 1994. The communication is certainly a privilege communication entitled to confidentiality. It is the advice of the Advocate General to the State. The fact that such communications can go the hands of the litigants in regard to whose cases advice is tendered, represents a sad state of affairs and reflects upon the efficiency of the Government Departments. Counsel for the petitioner fairly stated that such confidential communications have been produced before this Court in large number of writ petitions, and their contents are public knowledge. What the learned Counsel states is true, we can no more express our shock at the state of affairs as they exist in Government Departments.
7. Be that as it may, the Advocate General brought to the notice of the Government that a contempt application had been filed, and that he had taken ten days time so that notification regarding re-transfer may be amended. He referred to his earlier letter advising that a fresh notification should be issued modifying the notification issued on 1-10-1994 re-transferring the petitioner to Chapra. He impressed upon the Commissioner that this was a serious matter, and that if the notification dated 1-10-1994 was not amended, the Court may take a serious view and may award punishment, Counsel for the petitioner submitted that it was really under the pressure of the letter of the Advocate General that the Government was compelled to issue the impugned order of transfer.
8. I am not persuaded to hold that the impugned order of transfer has been passed on extraneous consideration. It is a fact that pending the writ petition filed by Vidya Singh and others the State informed the Court that the officer had since been transferred. On such statement being made, the Court did not pursue the matter any further, and disposed of the writ petition with certain observations. Soon thereafter an order was passed on 1-10-1994 modifying the transfer order dated 20th April, 1994. It really amounted to cancellation or recalling of the earlier order after the writ petition was disposed of by this Court. The learned Advocate General had reasons to advice the State Government that this was a serious matter. He was entitled as a Law Officer of the State Government to advice the State as to what action it should take. He, therefore, in the performance of his duties honestly advised the State Government in the manner he thought proper and it does not lie in the mouth of the petitioner to say that he should not have given that advice to the Government. The order of transfer (Annexure-12) slates that in special circumstances and for administrative reasons the order was being passed. The petitioner has been transferred only to the adjoining district which was till recently a sub-division of the district of Saran where the petitioner had remained posted from August 1972 till July 1994, for a period of twenty two years with a short gap of eight months. Having regard to these circumstances, I am of the view that the first submission urged on behalf of the petitioner must be rejected.
9. It was then submitted that the Government has itself reached on understanding with the Unions of Government servants to the effect that office bearers shall not be transferred during the tenure of their office as such office bearers. It is true that such understandings have been reached in the post and the Government has, with a view to buy peace relented on several occasions, particularly when Unions have resorted to strikes etc. The Unions representing the employees of the State Government resort to strikes very frequently in this State. It is almost an annual feature, and is encouraged by the fact that the State has never stopped payment of pay and allowances for the period during which the employees are on strike. Such strikes have lasted over a month at times. It is in these circumstances the Government is compelled to accept such terms and condition of settlement; otherwise there appears to be no reason why employees of the State Government should not be transferred merely because they happen to be the office bearers of the Union. The interest of the administration must got primacy over the trade union activities, if semblance of discipline has to be restored in the Government Departments. Moreover, such Circulars as have been issued from time to time, do not have the force of law. The petitioner has not brought to our notice any law or rule having the force of law which prohibits transfer of an office bearer of the Union. The Circulars at best represent the understanding reached between the Unions and the State Government. They do not create a right in the office bearers to remain posted at the same station indefinitely as long they continue to be office bears of the Union, Since such Circulars confer no right upon them, the same cannot be enforced by a court in exercise of writ jurisdiction. On the contrary, Rule 56 of the Bihar Service Code provides that the State Government may transfer a Government servant from one post to another, subject to the exceptions mentioned therein, which do not exclude the transfer of office bearers of the Union. In Shilpi Bose v. State of Bihar the Supreme Court declared :
4. 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 malafide, 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 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 conductive to public interest.
Similarly in Union of India and Ors. v. S.L Abbas (1993) 4 Supreme Court 357] the Court held that an order of transfer is an incident of Government service. Executive instructions issued by the Government in regard to transfer etc. are in the nature of guidelines which do not have be statutory force. Their Lordships observed:
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.
10. A similar view was taken by the Supreme Court in Bank of India v. Jagjit Singh Mehta . Their Lordships in that case also hold that even if the guidelines require that two spouses be posted at one place as far as practicable, that does not enable any spouse to claim such a posting as of right if the governmental authorities do not consider it feasible. .
11. There is one further reason which does not persuade me to exercise my writ jurisdiction having regard to the special facts and circumstances of this case. Admittedly, the petitioner remained at Saran since 8-8-1972 till the first order of transfer was passed on 20th July, 1994. There was only a break of about eight months during which period the petitioner joined at Dhanbad, but was again transferred to the same post at Saran. It is, therefore, apparent that the petitioner has remained at Saran for almost twenty-two years. The petitioner cannot make grievance if he is being transferred after such a long stay at the same station. Other Government servants are usually transferred after a term of three years at any particular station. The petitioner has been lucky enough to remain at the same station for almost twenty-two years on the pretext that he is an office bearer of the Union. This only demonstrates the extent to which such Circulars can be misused. Since the petitioner has been transferred after almost twenty-two years from Saran, I am not persuaded to exercise my writ jurisdiction to quash such an order of transfer on a technical ground.
12. I have, therefore, no doubt that the writ petition lacks merit and must be dismissed. It is, accordingly, dismissed.
13. M.J.C. No. 1608 of 1994 was filed at the time when the order of transfer had been recalled. Now that the offending order has been recalled, I find no reason to proceed further in the contempt matter. Notice in the contempt matter is, therefore, discharged.
14. Civil Review No.160 of 1994 has been filed for reviewing our order dated 17-8-1994 in C.W.J.C. No. 1404 of 1994.1 have already observed earlier that though various allegations were made against the petitioner in the aforesaid writ petition, this Court did not investigate those allegations nor did it direct the Government to initiate an enquiry. It only observed that it was for the Government to consider the matter objectively and take appropriate steps. Since the Court was informed that the petitioner had been transferred and that to a great extent satisfied the petitioners of that writ petition, the Court disposed of the writ petition at that stage without pronouncing its opinion on the merit of the writ petition. this Court, therefore, did not pass any order adverse to the interest of the petitioner and, therefore, it was not necessary to hear the petitioner in that matter, when this Court was not examining the truthfulness or otherwise of the allegations and charges made against the petitioner. The Review Petition has, therefore, no merit and must be dismissed.
15. Accordingly, C.WJ.C. No. 10357/94, M.J.C. No. 1608/94 and Civil Review No. 160/94 are dismissed. There will be no order as to costs.
K. Venkataswami, C.J.
16. I agree.