JUDGMENT
Chandramauli Kumar Prasad, J.
1. This application has been filed for quashing a portion of the notification dated 29.6.2004 (Annexure-1) whereby the petitioner, who happens to be a Medical Officer, has been transferred from Primary Health Centre, Ghanshyampur in the district of Darbhanga to Referral Hospital at Nabinagar in the district of Aurangabad.
2. Short facts giving rise to the present application are that the petitioner is a Medical Officer posted at Ghanshyampur Block in the district of Darbhanga and working there since 2.12.1999. A Division Bench of this Court by its order dated 21.3.2002 passed in C.W.J.C. No. 4036 of 1999 impressed upon the Government of Bihar in the Department of Health to effect transfer of such Medical Officers who had completed three years of posting, at a particular place. Taking note of the same, the State Government by its notification dated 29th of June, 2004 (Annexure-1) transferred the petitioner as also a large number of Medical Officers. However, notification indicated that as the petitioner has been transferred on his own request he shall not be allowed the travelling allowance.
3. It is the stand of the petitioner that he never made request for his transfer and, as such the transfer made on the ground that it was on his representation is unfounded on fact and denial of travelling allowance is also illegal. According to the petitioner he has been transferred on the recommendation of the Member of the Legislative Assembly which would be evident from the proceedings of the Establishment Committee (Annexure-B) in which in the remarks column reference of the letter of Members of Legislative Assembly and minute of the Health Minister has been made.
4. In the counter affidavit filed on behalf of respondent Nos. 2 and 3, it has been stated that the petitioner has been transferred in the light of the observation of a Division Bench of this Court in its order dated 21.3.2002 passed in C.W.J.C, No. 4036 of 1999. In the counter affidavit it has been further stated that the Member of the Legislative Assembly wrote a letter to the Minister dated 31.5.2004 and requested for his transfer from the said block and on that Minister directed for placing the said letter before the Establishment Committee. It has been further stated that considering all the materials the Establishment Committee resolved to transfer the petitioner to Referral Hospital Nabinagar in the district of Aurangabad and accordingly by the impugned order he has been transferred to the said place.
5. Mr. Tara Kant Jha, Senior Advocate appearing on behalf of the petitioner contends that the foundation of the impugned order is the purported request by the petitioner and that being unfounded on fact, the order of transfer is bad on this ground alone. JC to SC II however, contends that the petitioner has been transferred as he had completed more than three years of service at his previous place of posting in view of the observation of the Court and an inadvertant error has crept in the impugned order. He points out that the petitioner shall be entitled for the traveling allowance for joining at the transferred place and notification to that effect has already been issued on 15.7.2004.
6. Having appreciated the rival submission, I do not find any substance in the submission of Mr. Jha. A Division Bench of this Court had observed for transfer of such Medical Officers who were posted at one place for more than three years. Undisputedly the period of stay at the place from where the petitioner has been transferred is more than three years. It seems that an inadvertant error has crept in the notification which has been corrected later on, and on that ground the order of transfer cannot be said to be bad. Petitioner has not been transferred at this own request but in view of the observation of this Court and I would have appreciated, had the petitioner prayed payment of travelling allowance. Instead he is using this as ploy to challenge the order of transfer, which deserves to be rejected outright.
7. Mr. Jha, then contends that the petitioner has been transferred at the instance of the Member of the Legislative Assembly which is punitive in nature and that also vitiates the impugned order. JC to SC II however contends that the letter of the Member of Legislative Assembly was placed before the Establishment Committee and taking note of all the attending circumstance, it had resolved to transfer the petitioner and hence his transfer cannot be said to be illegal.
8. Having considered the rival submission, I do not find any substance in this submission of Mr. Jha also. Members of the Legislative Assembly or for that matter any public representative have the right to bring to the notice of the State Government the acts of omission and commission of a public servant. If the State Government takes decision considering the same, the transfer cannot be said to be bad on that count. However, in a case in which a public servant is transferred only at the instance of the representative of people, without applying mind, same may render the order bad in law. Here in the present case the Member of the Legislative Assembly has requested for transfer of the petitioner. Petitioner had already completed more than three years. Minister directed for placing the letter of the Member of the Legislative Assembly before the Establishment Committee. The Establishment Committee considered the minute of the Minister, the letter of the Member of the Legislative Assembly and all other attending circumstances including the observation of this Court to transfer such Medical Officers who had remained at one place for more than three years and then decided to transfer the petitioner. I do not find any error in the same.
9. I do not find any merit in his application and it is accordingly dismissed but without any order as to cost.
