IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.3676 of 2008
Sheonath Singh Gonjhu Petitioner
Versus
The State of Jharkhand & Others Respondents
PRESENT : THE HON'BLE MR. JUSTICE AJIT KUMAR SINHA
For the Petitioner : Sri Anil Kumar Sinha, Sr. Advocate
For the respondents : M/s Pradeep Modi, Sujit Narayan Prasad,
N.K.Pandey & Suhail Anwar
-----------------------
Reserved on 21.10.2008 Pronounced on : 25.11.2008
-------------------
1. The present writ petition has been preferred with a prayer for
issuance of an appropriate writ, order or direction particularly a writ in the nature
of certiorari for quashing the notification No.2687 issued vide memo No.2695
dated 30.6.2008 whereby and whereunder the petitioner has been transferred
from Drinking Water & Sanitation Circle, (hereinafter referred to as D.W. & S.C.)
Tenughat to D.W.& S.C., Chaibasa within a short span of less than six months
from the date of his earlier transfer.
The writ petitioner has also prayed to quash the notification
No.2673 issued vide same memo No.2695 dated 30.6.2008 vide which the
private respondent No.4 was transferred and posted in place of the petitioner
from D.W. & S.C., Patratu to Tenughat.
2. The facts, in brief, are set out as under:-
The petitioner was working as incharge Executive Engineer in D.W.
& S.C., Government of Jharkhand, Ranchi. He was earler transferred from D.W.
& S.C., Gumla to D.W. & S.C., Ramgarh in June, 2004. The petitioner vide
notification No.2592 issued vide memo No.1003 dated 28.6.2007 was transferred
from the post of incharge Executive Engineer D.W. & S.C., Ramgarh to the post
of Incharge, Technical Advosor to the Superintending Engineer in D.W. & S.C. ,
Medini Nagar and the petitioner accordingly joined at his transferred place. The
petitioner was again transferred vide notification No.5960 issued vide memo
No.5964 dated 31.12.2007 from the post of incharge, Technical Advisor to the
Superintending Engineer under D.W. & S.C., Medini Nagar to the post of
Incharge, Executive Engineer, D.W. & S.C., Tenughat. Accordingly the petitioner
joined the transferred place on 16.1.2008. The petitioner, thereafter has been
transferred vide the impugned notification no.2695 dated 30.06.2008 which is
under challenge. This transfer order is part of a chain of several transfers.
3. The main contention raised by the petitioner is that the transfer
was illegal because the name of the petitioner has been included in the
impugned notification under challenge without the recommendation of the
2
Establishment Committee and the same was in violation to the policy decision
and the resolution dated 25.10.80 framed in accordance with the rules of
Executive business which are framed in exercise of power conferred under Article
161 of the Constitution of India. The second contention raised by the petitioner
is that frequent transfer is deemed to be malafide and liable to be declared as
illegal, arbitrary and deserves to be quashed.
4. The petitioner has referred to and relied upon Man Singh Versus
State of Bihar and Others reported in 1982 BBCJ 392 wherein a Division Bench
of Patna High Court ruled that though the guidelines framed by the State is
directory in nature yet the same should be substantially followed. The Division
Bench in paragraph-9 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.
5. It has further been argued that the case of the petitioner is
squarely and fully covered by the order dated 27.2.07 passed in writ petition (S)
No.42 of 2007 as reported in 2007 (2) JLJR Page 267. It has also been argued
that L.P.A. No.114 of 2007 preferred against the Single Bench Order also
affirmed the order of the Writ Court and the same is reported in 2008 (2) JCR
Page 306 (Jhar.). The counsel for the petitioner has further referred to a
judgment in an identical matter dated 7.5.07 passed in L.P.A. No.170/07. The
aforesaid case has been relied upon by the counsel for the petitioner mainly on
the ground that the order of transfer in absence of the recommendation of the
Establishment Committee was illegal and was rightly quashed.
6. The counsel for the petitioner has further referred to and relied upon
1986 (4) SCC page 131 wherein at Paragraph 5 the Hon’ble Supreme Court has
quoted the observation of E.P. Royappa’s case 1974 (4) SCC P.3
“It is an accepted principle that in public service transfer is an
incident of service. It is also an implied condition of service and
appointing authority has a wide discretion in the matter. The
government is the best judge to decide how to distribute and utilize
the services of its employees. However this power must be exercised
honestly, bona fide and reasonable. It should be exercised in public
interest. If the exercise of power is based on extraneous
considerations or for achieving an alien purpose or an oblique motive it
would amount to mala fide and colourable exercise of power. Frequent
transfers, without sufficient reasons to justify such transfers, cannot,
but be held as mala fide. A transfer is mala fide when it is made not for
professed purpose, such as in normal course or in public or
administrative interest or in the exigencies or service but for other
purpose, that is to accommodate another person for undisclosed
reasons. It is the basic principle of rule or law and good
3
administration, that even administrative actions should be just and
fair.”
7. The petitioner has also contended that as per the Resolution dated
25th October, 1980 vide Clause 14-B it is specifically provided that the proposals
for transfer posting has to be routed through the Establishment Committee and
to be finally approved by the Departmental Minister.
8. The main contention raised by the petitioner is that frequent
transfers have been held to be illegal, deemed to be malafide and deserves to be
quashed.
9. On behalf of the State Sri Modi appears and contends that this writ
petition deserves to be dismissed on the ground that no malafide has been
alleged nor the person concerned against whom malafide has been argued is
impleaded which is necessary. It has also referred to and relied upon a Division
Bench Judgment of Patna High Court reported in 1992 (1) PLJR page 209
wherein according to him it has been held that the Minister incharge was duly
empowered and in that case also the name of the transferred candidate was not
included by the Establishment Committee and the Minister included that name
and sent it back and it was upheld being legal and valid by the Hon’ble High
Court. It was also held that the recommendation of the Establishment
Committee is directory and not mandatory and accordingly the transfer orders
were not disturbed by the Hon’ble High Court.
10. The counsel for the State further submits that it is a chain transfer
involving many people and thus there was no question of arbitrariness and or
malafide and he further submits that the guidelines/resolution has been duly
complied with and followed. He has also submitted that the resolution dated 25th
October, 1980 is directory and not mandatory.
11. The counsel for the respondent further submits that at no point of
time the petitioner challenged the first and second transfer which suited to him
and thus no malafide or arbitrariness can be alleged with regard to the allegation
of frequent transfer. It has also been stated that the entire transfer and posting
have been acted upon and even the petitioner handed over the charge of the
post and respondent No.4 who has been transferred and posted in his place
pursuant to the notification dated 30.6.2008 has started discharging his duty.
However, by concealing the material facts on 12.8.2008 the writ petitioner got
an interim order of stay and it was in this background that an application for
vacating the exparte interim stay was filed but since the writ petition itself has
been taken up for final disposal, the same is not being pressed.
12. Learned Senior counsel Sri Suhail Anwar, appearing on behalf of
the Private Respondent No.4 submits that his case is a genuine, bonafide case
and as per the main notification dated 13.6.2008 he was duly transferred and
4
posted in place of the petitioner and he had, accordingly, joined and was
discharging his duty bonafidely. It has further been submitted on behalf of
private respondent No.4 that there is no fault of his and at least his transfer and
posting was in accordance with the rules and regulations since it was fully
endorsed and approved by the Establishment Committee and finally by the
Minister and thus no arbitrariness, error or illegality can be shown as regards the
respondent No.4 case is concerned and thus he is entitled to join on his
transferred post.
13. I have considered the pleadings and the rival contentions raised on
behalf of the petitioner, respondent State and the private respondent. The law
with regard to transfer and posting has been well settled time and again by the
Hon’ble Supreme Court as well as the High Court. In a recent judgment reported
in 2007(8) SCC Page 150 at Paragraph-7 after considering a series of judgments
on transfer the Hon’ble Supreme Court held as under:-
“The scope of judicial review of transfer under Article 226 of the
Constitution of India has been settled by the Supreme Court in
Rajendra Roy v. Union of India, National Hydroelectric Power Corpn.
Ltd. v. Shri Bhagwan, State Bank of India v. Anjan Sanyal. Following
the aforesaid principles laid down by the Supreme Court, the Allahabad
High Court in Vijay Pal Singh v. State of U.P. and Onkar Nath Tiwari v.
Chief Engineer, Minor Irrigation Deptt. has held that the principle of
law laid down in the aforesaid decisions is that an order of transfer is a
part of the service conditions of an employee which should not be
interfered with ordinarily by a court of law in exercise of its
discretionary jurisdiction under Article 226 unless the Court finds that
either the order is malafide or that the service rules prohibit such
transfer, or that the authorities who issued the orders, were not
competent to pass the orders.”
14. In the aforesaid case also it was alleged that the transfer was made
at the instance of M.L.A. and the appellant therein was transferred due to a
pending complaint against him. The Hon’ble Supreme Court after considering
the facts and circumstances and the law held that even if the allegation of the
appellant is agreed that he was transferred on the recommendation of an M.L.A.
that by itself would not vitiate the transfer order. It was also held that if there
was any complaint against official, the State Government was certainly within its
jurisdiction to transfer such an employee. The present case is squarely covered
from the aforesaid judgment referred and the facts stated therein. In the
present case also there were serious charges and complaint against the
petitioner and for such case it has been specifically held that the transfer order
based on complaint was justified and the State Government was empowered to
5
transfer such person. It also held that the recommendation by the M.L.A. for
transfer cannot be a ground to hold it illegal.
15. The respondents in their counter affidavit have specifically
submitted that the name of the petitioner was included for transfer from
Tenughat to Chaibasa since there was serious charges/allegations leveled against
him as he had, without the written approval of competent authority permitted
execution of extra work under the scheme of Ramgarh Cantonement Board and
paid bills to the tune of Rs.7 lakhs and odd. It is also admitted that the said
extra work was never approved by the competent authority and the Government
had to release Rs.7,70,632/- in favour of the contractor for which a show cause
notice has already been issued vide memo No.746 dated 19.2.2008 and inspite
of reminder the petitioner has not filed reply to the show cause.
16. The Hon’ble Supreme Court in AIR 1993 S.C. 2486 (State of Punjab
v. Joginder Singh Dhatt) held as under:-
‘3. We have heard learned counsel for the parties. This
Court has time and again expressed its disapproval of the courts
below interfering with the order of transfer of public servant from
one place to another. It is entirely for the employer to decide
when, where and at what point of time a public servant is
transferred from his present posting. Ordinarily the courts have no
jurisdiction to interfere with the order of transfer. The High Court
grossly erred in quashing the order of transfer of the respondent
from Hoshiarpur to Sangrur. The High Court was not justified in
extending its jurisdiction under Article 226 of the Constitution of
India in a matter where, on the face of it, no injustice was caused.’
‘7. The scope of judicial review of transfer under Article 226
of the Constitution of India has been settled by the Supreme Court
in Rajendra Roy v. Union of India 1993 (1) SCC page 148, National
Hydroelectric Power Corpn. Ltd. v. Shri Bhagwan (2001) 8 SCC
page 574, State of India v. Anjan Sanyal 2001 (5) SCC page 574.
The principle of law as laid down in the aforesaid decisions is that
an order of transfer is a part of the service conditions of an
employee which should not be interfered with ordinarily by a court
of law in exercise of its discretionary jurisdiction under Article 226
unless the court finds that either the order is mala fide or that the
service rules prohibit such transfer, or that the authorities who
issued the orders, were not competent to pass the orders.”
17. The learned counsel for the petitioner has heavily relied on 1986
(4) SCC page 131 and in particular para 5 which is the observation made by the
Hon’ble Supreme Court in E.P. Royappa case, 1974(4) SCC page 73. However,
6
the Hon’ble Supreme Court finally dismissed the Special Leave Petition and
directed the petitioner therein to join the new place of posting.
18. Even under Rule 22 (5) of the Rules of Executive Business the
recommendation of the Departmental Establishment Committee has to be
approved by the Minister incharge and at the time of approval of the
recommendation the Minister is competent to include or exclude the names in
the list recommended by the Establishment Committee and only after the list is
approved by the Minister Incharge it becomes final. Thus, in the instant case the
required procedure was followed and only thereafter the notification for transfer
was issued. It has been time and again reiterated by the Hon’ble Supreme Court
that the transfer from one place to another can always be made on
administrative ground and in exigency of work and even the circular/instructions
referred to and relied upon is directory in nature and not mandatory no where
prohibits it..
19. The counsel for the respondent rightly argued that they have assigned
reasons specifically in the counter affidavit that the transfer order was bonafide
and not arbitrary and it was because of the serious complaint and charges
against the petitioner and thus the Government was fully emplowered to
transfer. Be that as it may, the admitted fact remains that there is no pleading
with regard to malafide nor the petitioner has impleaded the Minister incharge
who had included the name of the petitioner in the transfer list.
20. In a recent decision reported in 2008 (2) SCC Page 119 the Hon’ble
Supreme Court at Paragraph 19 has held that the allegation of malafide cannot
be entertained unless the person against whom malafide is alleged has been
impleaded as a party. It also opined that the Allegation of malafide is very easy
to be levelled and very difficult to substantiate it, specially in the matter of
selection or whoever is involved in the decision making process. People are
prone to make such allegations but the Courts owe its duties to scrutinize the
allegation meticulously because the person who is making the allegation of
animus does something bonafidely or some times malafidely due to his non-
selection. He has a vested interest and unless the allegations are substantiated
beyond doubt the Court cannot draw its conclusion and accordingly reject the
allegation of malafide.
21. Even in 1992 (1) PLJR P.209 the Division Bench of Patna High
Court has held that the Minister incharge was well within its power and
competence to make such alteration and or modification which are necessary in
public interest and in the best interest of administration.
22. In the case of Man Singh v. State of Bihar and others, 1982
B.B.C.J. 392, the Division Bench of the Patna High Court has ruled that though
the guidelines framed by the State is directory in nature yet the same shall be
7
substantially followed. Though, it has been held that the transfer even without
recommendation of the Establishment Committee cannot be said to be invalid in
the circumstances of the said case. Even as per the circular the Establishment
Committee is formed in each department with the approval of the departmental
Minister and they have the power only to recommend transfer/posting.
In the case of State of U.P. and others v. Gobardhan Lal, as
reported in (2004)11 SCC page-402, the Supreme Court has held that the
transfer of employee is not only an incident inherent in the terms of
appointment, but also implicit as an essential condition of service and unless the
order of transfer is shown to be an outcome of a mala fide exercise of power or
violative of any statutory provision or passed by an authority not competent to
do so, an order of transfer cannot lightly be interfered with as a matter of course
or routine for any or every type of grievance sought to be made.
23. It is relevant to point out that both in 2007 (2) J.L.J.R. 267, which
is an order passed by learned Single Judge of this Court, as well as in 2008(2)
J.C.R. 306, which is an order passed by a Division Bench of this Court, which
have been heavily relied upon by the learned counsel for the petitioner, it has
been consistently held that even deviation from circular/instruction can be made
in special circumstances, public interest and for administrative reasons and
exigencies of work for which reasons have to be disclosed. In the instant case
specific reason has been given in detail with regard to serious charges and
complaint against the petitioner, which led to his transfer and the same has not
been denied. It will be evident that there was a complaint for serious charges
against the petitioner herein which has actually been dealt with in detail in the
counter affidavit and a show cause notice was also issued vide memo No.746
dated 19.2.2008 and thus the Minister incharge (Government), the ultimate final
authority, was certainly empowered to transfer the petitioner in the special
circumstance which was undoubtedly in public interest and in the best interest of
administration and exigencies of work.
24. Considering the aforesaid facts and circumstances of the case and
the settled law, this writ petition is devoid of any merit and is accordingly
dismissed without any order as to costs.
(Ajit Kumar Sinha,J.)
Jharkhand High Court, Ranchi
Dated : 25.11.2008
NKC/ A.F.R.