{"id":35337,"date":"2009-03-20T00:00:00","date_gmt":"2009-03-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/arjun-prasad-singh-vs-state-of-jharkhand-ors-on-20-march-2009"},"modified":"2018-01-29T21:36:10","modified_gmt":"2018-01-29T16:06:10","slug":"arjun-prasad-singh-vs-state-of-jharkhand-ors-on-20-march-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/arjun-prasad-singh-vs-state-of-jharkhand-ors-on-20-march-2009","title":{"rendered":"Arjun Prasad Singh vs State Of Jharkhand & Ors. on 20 March, 2009"},"content":{"rendered":"
Jharkhand High Court<\/div>\n
Arjun Prasad Singh vs State Of Jharkhand & Ors. on 20 March, 2009<\/div>\n<\/p>\n
<\/pre>\n
              IN THE HIGH COURT OF JHARKHAND AT RANCHI<\/p>\n
                           W.P (S) No. 112 of 2009
\nArjun Prasad Singh                   ….                    Petitioner<\/p>\n
                                   Versus
\n State of Jharkhand and others               …             Respondents<\/p>\n
Coram :              HON’BLE MR. JUSTICE D.G.R. PATNAIK.<\/p>\n
For the petitioner : Mr. D.K. Dubey
\nFor the respondents : Mr. Rajiv Ranjan\/ Prabhat Kr Sinha<\/p>\n
CAV on 05.03.2009                                    Pronounced on 20.3. 2009<\/p>\n
20. 03.2009          Petitioner in this writ application has prayed for<\/p>\n
quashing the notification dated 29.12.2008 ( annexure 3) under memo no.<\/p>\n
1653 issued by the respondents whereby the petitioner has been<\/p>\n
transferred from Jamshedpur to Headquarters Ranchi, and also for<\/p>\n
quashing the notification no. 1652 dated 29.12.2008 (annexure 4) issued by<\/p>\n
the respondents whereby the respondent no. 5 has been posted in place of<\/p>\n
the petitioner. Challenge to the notification of his transfer has been made<\/p>\n
by the petitioner on the ground that he is on the verge of his retirement<\/p>\n
and would superannuate on 31st July, 2009. Departmental resolution no.<\/p>\n
3918 dated 25.10.1980 and another resolution no. 913 dated 18.2.2000, both<\/p>\n
of which guide the transfer policy of the State Government employees<\/p>\n
provide for choice posting of a Government employee who           is to retire<\/p>\n
within one year. The grievance of the petitioner is that though pursuant to<\/p>\n
the aforesaid Departmental resolution, he had submitted his application<\/p>\n
before the concerned authorities of the respondent dated 30.2.2008 for<\/p>\n
allowing him to continue at Jamshedpur till his retirement, the respondent<\/p>\n
in stead of considering the same had issued the impugned notification of<\/p>\n
his transfer from his present place of posting in violation of the resolutions
\n                                       2<\/span><\/p>\n
issued by the Department and also for causing extreme inconvenience and<\/p>\n
harassment.\n<\/p>\n
2.            The petitioner who was initially appointed as Excise Inspector<\/p>\n
in the year 1983 rose to the senior rank of Excise Superintendent and was<\/p>\n
entrusted with the duty of in charge Assistant Commissioner of Excise at<\/p>\n
Jamshedpur in the district of Singhbhum, where he joined on 22.11.2006<\/p>\n
pursuant to the notification of his transfer. While, on the one hand, by the<\/p>\n
impugned notification, the petitioner was transferred from Jamshepdur,<\/p>\n
by the other impugned notification the respondent no.5 was transferred<\/p>\n
and posted in place of the petitioner at Jamshedpur.<\/p>\n
3.            Counter affidavit has been filed on behalf of the respondents.<\/p>\n
4.            Heard the counsel for the petitioner and the State as well as<\/p>\n
private respondent no. 5.\n<\/p>\n
5             Sri D.K. Dubey, learned counsel appearing on behalf of the<\/p>\n
petitioner argues that the Departmental resolution which guides the<\/p>\n
procedures for transfer of Government employees even though not<\/p>\n
mandatory in effect and is obligatory, yet, the        concerned authorities<\/p>\n
cannot possibly ignore the same to cause detriment and harassment to a<\/p>\n
Government servant since such resolution has been adopted by way of a<\/p>\n
beneficial measure to accommodate the Government servants who are at<\/p>\n
the verge of retirement and this benefit constitutes part of condition of<\/p>\n
service.\n<\/p>\n
6             Referring to the statements contained in the counter affidavit<\/p>\n
of the respondent State, learned counsel submits that though in the<\/p>\n
transfer order, no ground has been stated for transfer of the petitioner<\/p>\n
from Jamshedpur, but        as it appears from the counter affidavit, some<\/p>\n
complaints were received against the petitioner in respect of his
\n                                         3<\/span><\/p>\n
performance of work . The complaint was enquired into by a 3-member<\/p>\n
Committee,     which found the petitioner inefficient in his work and this<\/p>\n
was the ground prompting the petitioner’s transfer. Learned counsel<\/p>\n
submits that if it was so, then certainly, it amounts to an order of transfer<\/p>\n
attaching stigma to the petitioner and without affording an opportunity of<\/p>\n
being heard in respect of the purported allegations, the respondents could<\/p>\n
not have passed the order of his transfer. Referring to the judgment of this<\/p>\n
Court in the case of Dhrub Prasad Vs. State of Jharkhand [ WP(S) No. 725 of<\/p>\n
2002), learned counsel for the petitioner submits that Rule 56(a) of the<\/p>\n
Bihar Service Code as adopted by the State of Jharkhand, does not permit<\/p>\n
transfer of any Government servant on the allegation of inefficiency in<\/p>\n
discharge of duties. Learned counsel adds further that even if transfer is<\/p>\n
an incidence of service, it cannot be made arbitrarily and any deviation<\/p>\n
from the Government policy and guidelines without justification, as in the<\/p>\n
instant case , is discriminatory.\n<\/p>\n
7             The respondent State has contested the petitioner’s claim by<\/p>\n
filing its   counter affidavit denying and disputing the entire grounds<\/p>\n
raised by the petitioner. The contention of the respondents     as explained<\/p>\n
by Sri Rajiv Ranjan, learned counsel for the Respondent State, is that on<\/p>\n
receipt of the complaint against the petitioner, a preliminary fact finding<\/p>\n
enquiry was held by an Enquiry Committee consisting of the Deputy<\/p>\n
Commissioner of Excise, Santhal Pargana Division,          & HQ and the<\/p>\n
Assistant Commissioner Excise, Dhanbad. The Committee submitted its<\/p>\n
report on 17.12.2008 disclosing certain irregularities regarding evasion of<\/p>\n
excise duty and fees during the financial year 2008-09. The Departmental<\/p>\n
Establishment Committee held its meeting on 26.12.2008 and 27.12.2008<\/p>\n
presided over         by the        Secretary, Excise Department, and the
\n                                       4<\/span><\/p>\n
Commissioner of Excise and a nominee representative of SC\/ST of the<\/p>\n
rank of Deputy Secretary, Directorate of Panchayati Raj Government. It<\/p>\n
was pursuant to their recommendation that the decision to transfer the<\/p>\n
petitioner was taken and accordingly the impugned notification of his<\/p>\n
transfer was issued.\n<\/p>\n
             Learned counsel would explain that even though the<\/p>\n
Departmental Resolution      stating the policy in the matter of transfer of<\/p>\n
Government servants provides        for choice posting of a Government<\/p>\n
servant who is on the verge of retirement, but such benefit would be<\/p>\n
available to such officers only who have       maintained an unblemished<\/p>\n
record of service and not to those who are facing enquiry proceedings of<\/p>\n
serious allegations. Learned counsel explains further that in the light of the<\/p>\n
allegations and the preliminary findings of the enquiry committee, the<\/p>\n
Departmental Establishment committee had rightly decided that it would<\/p>\n
not be proper to allow the petitioner to continue at his present place of<\/p>\n
posting.\n<\/p>\n
             Learned counsel adds further that even otherwise, the<\/p>\n
petitioner has already completed more than two years’ of his posting at<\/p>\n
Jamshedpur in the district of Singhbhum and therefore he has no right to<\/p>\n
continue on the same place of posting. Learned counsel informs that<\/p>\n
pursuant to the notification no. 1652 dated 29.12.2008, the respondent 5<\/p>\n
has been       given posting as Assistant Commissioner of Excise<\/p>\n
(Headquarters). The transfer of petitioner has been made in accordance<\/p>\n
with the resolution specified by the Excise Department vide resolutions<\/p>\n
dated 11.2.1972 and 18.2.2000. Posting the Government         servant at his<\/p>\n
place of choice can be considered only in exceptional circumstances in the<\/p>\n
nature of domestic and family calamities. Otherwise, the transfer in
\n                                      5<\/span><\/p>\n
general,   shall take place after every two years of posting. No such<\/p>\n
exceptional circumstance appears in the case of the petitioner to allow<\/p>\n
him the benefit of choice posting.\n<\/p>\n
            Learned counsel adds further that even otherwise, the<\/p>\n
notification of transfer of the petitioner does not indicate in any manner<\/p>\n
that the transfer was on account of any allegation and therefore no stigma<\/p>\n
is attached to the petitioner by virtue of impugned transfer notification.<\/p>\n
The order of transfer being simpliciter in nature cannot be termed as<\/p>\n
perverse. Since the petitioner has completed more than two years service<\/p>\n
at a particular place, the order of transfer cannot be challenged. Learned<\/p>\n
counsel explains further that the petitioner is not the only person who has<\/p>\n
been transferred. Rather, his transfer has been effected along with several<\/p>\n
other officers in the Excise Department by way of general transfer and the<\/p>\n
procedure as laid down under the rules of the State government has been<\/p>\n
duly adopted .\n<\/p>\n
            As regards interpretation of Rule 56(a) of the Service Code,<\/p>\n
learned counsel submits that a similar rule under Rule FR 154 applicable to<\/p>\n
the Central Government servants in which the language of Rule 56(a) of<\/p>\n
the State Service Code is the same. The Rule was         considered by the<\/p>\n
Supreme Court in the case of Union of India Vs. Janardan Debnath ( 2004<\/p>\n
(4) SCC 245]. The interpretation of the Rule has been given by the apex<\/p>\n
Court, would clearly indicate that in case of inefficiency and misconduct<\/p>\n
of a Government servant, the rule does not lay down any inhibition for<\/p>\n
transfer of the government servant. As claimed by the respondents, the<\/p>\n
transfer notification does not indicate in any manner that the decision of<\/p>\n
transfer was taken on the basis of the allegations against the petitioner. In
\n                                        6<\/span><\/p>\n
this view of the matter, the transfer has to be considered as transfer<\/p>\n
simpliciter.\n<\/p>\n
8.             Admittedly, the petitioner has completed more than two years<\/p>\n
of posting at the present place of posting and as such, even otherwise, as<\/p>\n
per rules, he was liable for     transfer. It also appears that the case of the<\/p>\n
petitioner along with several others was placed before the DPC and it was<\/p>\n
on the recommendation of the Committee that the petitioner’s transfer<\/p>\n
along with several others was effected by way of chain transfer. To this<\/p>\n
extent. it appears that the rule of procedure as laid won by the State<\/p>\n
Government in the matter of policy of transfer of government servants<\/p>\n
has been duly adopted and applied in the case of the petitioner. The<\/p>\n
contention of the petitioner that even though the transfer notification does<\/p>\n
not specifically indicate reasons for transfer as indicated in the counter<\/p>\n
affidavit of the respondents, it does indicate that it was made on the<\/p>\n
ground of some allegations against the petitioner. As such, the petitioner<\/p>\n
ought to have been given an opportunity of         being heard before taking<\/p>\n
any decision on the allegation and subjecting the petitioner to an abrupt<\/p>\n
transfer. It is in this context that the learned counsel invites attention to<\/p>\n
56(a) of the Jharkhand Service Code and would claim support from the<\/p>\n
judgment in CWJC no. 725 of 2002 ( Dhrub Pd Vs. State of Jharkhand ).<\/p>\n
9              It needs to be noted at the outset that even though the counter<\/p>\n
affidavit mentions that pursuant to receipt of some complaints against the<\/p>\n
petitioner, a fact finding enquiry was conducted and the preliminary<\/p>\n
report was received from the Committee. It appears that regular<\/p>\n
departmental proceeding against the petitioner was not initiated as yet,<\/p>\n
though contemplated by the respondent authorities. The petitioner would<\/p>\n
certainly have the benefit of being heard in the departmental proceedings
\n                                           7<\/span><\/p>\n
if initiated upon the charges based on preliminary report submitted by the<\/p>\n
Enquiry Committee. Even considering the fact that certain allegations<\/p>\n
were received against the petitioner and the respondents were prompted<\/p>\n
to act upon the report of the Enquiry Committee, which had suggested<\/p>\n
that the petitioner was inefficient in discharging his duty,             in such a<\/p>\n
situation, there was reasonable ground for the authorities concerned to<\/p>\n
take administrative decision regarding transfer of the petitioner. In my<\/p>\n
opinion, the provision of Rule 56(a) of the Code does not impose any bar<\/p>\n
against the respondents for taking an administrative decision to transfer<\/p>\n
the petitioner, if there is prima facie material to suggest that he has been<\/p>\n
inefficient in discharge of his duties.\n<\/p>\n
10            Rule 56(a) of the       Bihar Service Code as adopted by the<\/p>\n
Jharkhand Service Code which deals with the general conditions of service<\/p>\n
reads as follows :\n<\/p>\n
                      “56(a) The State Government may transfer a Government
\nservant from one post to another; provided that, except-\n<\/p>\n
                      (1)    on account of inefficiency or misbehaviour, or
\n                      (2)    on his written request.<\/p><\/blockquote>\n
               a Government servant shall not be transferred substantively to, or
\nexcept in a case covered by rule 103 appointed to officiate in a post carrying less
\npay than the pay of the permanent post on which he holds a lien, or would hold a
\nlien, had his lien not been suspended under rule 70.\n<\/p>\n
                      (b) Nothing contained in clause (a) of this rule or in rule 21,
\nshall operate to prevent the re-transfer of a Government servant to the post on
\nwhich he would hold a lien, had it not been suspended in accordance with the
\nprovisions of clause (a) of rule 70. ”\n<\/p>\n
11.           In the case of Union of India Vs. Janardhan Debanath (supra),<\/p>\n
the Supreme Court had occasion to consider a similar rule FR 15 of the<\/p>\n
Fundamental Rules relating to the conditions of service of Central<\/p>\n
Government servants and the said rule is quoted as under :<\/p>\n
              8. FR 15 reads as follows :\n<\/p>\n
              “15(a) The President may transfer a government servant from one
\npost to another; provided that except-\n<\/p>\n
                                          8<\/span><\/p>\n
                     “(1) on account of inefficiency or misbehaviour, or
\n                      (2) on his written request,
\n               a government servant shall not be transferred to, or except in a case
\ncovered by Rule 49, appointed to officiate in a post carrying less pay than the pay
\nof the post on which he holds as lien.”\n<\/p><\/blockquote>\n
12.           It is apparent that the language of Rule FR 15 of the<\/p>\n
Fundamental Rules and that of Rule 56(a) of the Bihar Service Code is<\/p>\n
identical.\n<\/p>\n
              The Supreme Court in the above case has observed that the<\/p>\n
view that there cannot be any transfer in terms of FR 15 on account of<\/p>\n
inefficiency or misbehaviour is clearly contrary to the pronounced<\/p>\n
intention of FR 15. The same ratio would apply to the facts of the present<\/p>\n
case also when the interpretation of the provisions of Rule 56(a) of the<\/p>\n
Bihar Service Code is called upon to be made.\n<\/p>\n
13            Further more,        the petitioner has been relieved from the<\/p>\n
place of posting at Jamshedpur and he has taken over charge of his office<\/p>\n
at the transferred place pursuant to the impugned notification. Likewise,<\/p>\n
pursuant to the other impugned notification, respondent no. 5 has also<\/p>\n
assumed charge of office in place of the petitioner at Jashedpur. The claim<\/p>\n
of the petitioner that the benefit of continuing him at his place of posting at<\/p>\n
the last lap of his service ought to have been given to him in the light of the<\/p>\n
Government transfer policy, cannot be tenable. The Resolutions dated<\/p>\n
11.2.1972 and 18.2.2000 which apply to the government servants of the<\/p>\n
Excise Department, does not apply to the case of the petitioner in absence<\/p>\n
of any exceptional circumstances shown by him, for his retention at the<\/p>\n
same place.\n<\/p>\n
              In the light of the above discussion, I do not find any merit in<\/p>\n
this writ petition, which is dismissed accordingly at the stage of admission.
\n                                     9<\/span><\/p>\n
             The respondents shall treat the period of one month during<\/p>\n
which the petitioner could not join his transferred place of posting on<\/p>\n
account of the order of stay granted by this Court in this case, as period<\/p>\n
on duty.\n<\/p>\n
Ambastha\/-                                       (D.G.R. Patnaik, J )\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Jharkhand High Court Arjun Prasad Singh vs State Of Jharkhand & Ors. on 20 March, 2009 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,18],"tags":[],"class_list":["post-35337","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jharkhand-high-court"],"yoast_head":"\nArjun Prasad Singh vs State Of Jharkhand & Ors. on 20 March, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/arjun-prasad-singh-vs-state-of-jharkhand-ors-on-20-march-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Arjun Prasad Singh vs State Of Jharkhand & Ors. on 20 March, 2009 - 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