{"id":95758,"date":"2008-11-25T00:00:00","date_gmt":"2008-11-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sheonath-singh-gonjhu-vs-state-of-jharkhand-ors-on-25-november-2008"},"modified":"2015-07-15T22:31:52","modified_gmt":"2015-07-15T17:01:52","slug":"sheonath-singh-gonjhu-vs-state-of-jharkhand-ors-on-25-november-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sheonath-singh-gonjhu-vs-state-of-jharkhand-ors-on-25-november-2008","title":{"rendered":"Sheonath Singh Gonjhu vs State Of Jharkhand & Ors on 25 November, 2008"},"content":{"rendered":"
Jharkhand High Court<\/div>\n
Sheonath Singh Gonjhu vs State Of Jharkhand & Ors on 25 November, 2008<\/div>\n
        IN THE HIGH COURT OF JHARKHAND AT RANCHI\n                     W.P.(S) No.3676 of 2008\n     Sheonath Singh Gonjhu                              Petitioner\n                            Versus\n     The State of Jharkhand & Others                    Respondents\nPRESENT : THE HON'BLE MR. JUSTICE AJIT KUMAR SINHA\n     For the Petitioner     :        Sri Anil Kumar Sinha, Sr. Advocate\n     For the respondents    :        M\/s Pradeep Modi, Sujit Narayan Prasad,\n                                     N.K.Pandey & Suhail Anwar\n                                     -----------------------\n<\/pre>\n
 Reserved on 21.10.2008                    Pronounced on :            25.11.2008\n                          -------------------\n<\/pre>\n
1.            The present writ petition has been preferred with a prayer for
\nissuance of an appropriate writ, order or direction particularly a writ in the nature
\nof certiorari for quashing the notification No.2687 issued vide memo No.2695
\ndated 30.6.2008 whereby and whereunder the petitioner has been transferred
\nfrom Drinking Water & Sanitation Circle, (hereinafter referred to as D.W. & S.C.)
\nTenughat to D.W.& S.C., Chaibasa within a short span of less than six months
\nfrom the date of his earlier transfer.\n<\/p>\n
              The writ petitioner has also prayed to quash the notification
\nNo.2673 issued vide same memo No.2695 dated 30.6.2008 vide which the
\nprivate respondent No.4 was transferred and posted in place of the petitioner
\nfrom D.W. & S.C., Patratu to Tenughat.\n<\/p>\n
2.            The facts, in brief, are set out as under:-\n<\/p>\n
              The petitioner was working as incharge Executive Engineer in D.W.
\n& S.C., Government of Jharkhand, Ranchi. He was earler transferred from D.W.
\n& S.C., Gumla to D.W. & S.C., Ramgarh in June, 2004.            The petitioner vide
\nnotification No.2592 issued vide memo No.1003 dated 28.6.2007 was transferred
\nfrom the post of incharge Executive Engineer D.W. & S.C., Ramgarh to the post
\nof Incharge, Technical Advosor to the Superintending Engineer in D.W. & S.C. ,
\nMedini Nagar and the petitioner accordingly joined at his transferred place. The
\npetitioner was again transferred vide notification No.5960 issued vide memo
\nNo.5964 dated 31.12.2007 from the post of incharge, Technical Advisor to the
\nSuperintending Engineer under D.W. & S.C., Medini Nagar to the post of
\nIncharge, Executive Engineer, D.W. & S.C., Tenughat. Accordingly the petitioner
\njoined the transferred place on 16.1.2008. The petitioner, thereafter has been
\ntransferred vide the impugned notification no.2695 dated 30.06.2008 which is
\nunder challenge. This transfer order is part of a chain of several transfers.\n<\/p>\n
3.            The main contention raised by the petitioner is that the transfer
\nwas illegal because the name of the petitioner has been included in the
\nimpugned notification under challenge without the recommendation of the
\n                                           2<\/span><\/p>\n
Establishment Committee and the same was in violation to the policy decision
\nand the resolution dated 25.10.80 framed in accordance with the rules of
\nExecutive business which are framed in exercise of power conferred under Article
\n161 of the Constitution of India. The second contention raised by the petitioner
\nis that frequent transfer is deemed to be malafide and liable to be declared as
\nillegal, arbitrary and deserves to be quashed.\n<\/p>\n
4.           The petitioner has referred to and relied upon Man Singh Versus
\nState of Bihar and Others reported in 1982 BBCJ 392 wherein a Division Bench
\nof Patna High Court ruled that though the guidelines framed by the State is
\ndirectory in nature yet the same should be substantially followed. The Division
\nBench in paragraph-9 held that though these instructions are not rules under
\nArticle 309 of the Constitution of India, the State Government can issue
\nexecutive instructions to supplement the rules.\n<\/p>\n
5.            It has further been argued that the case of the petitioner is
\nsquarely and fully covered by the order dated 27.2.07 passed in writ petition (S)
\nNo.42 of 2007 as reported in 2007 (2) JLJR Page 267. It has also been argued
\nthat L.P.A. No.114 of 2007 preferred against the Single Bench Order also
\naffirmed the order of the Writ Court and the same is reported in 2008 (2) JCR
\nPage 306 (Jhar.).    The counsel for the petitioner has further referred to a
\njudgment in an identical matter dated 7.5.07 passed in L.P.A. No.170\/07. The
\naforesaid case has been relied upon by the counsel for the petitioner mainly on
\nthe ground that the order of transfer in absence of the recommendation of the
\nEstablishment Committee was illegal and was rightly quashed.\n<\/p>\n
6.         The counsel for the petitioner has further referred to and relied upon
\n1986 (4) SCC page 131 wherein at Paragraph 5 the Hon’ble Supreme Court has
\nquoted the observation of E.P. Royappa’s case 1974 (4) SCC P.3
\n                    “It is an accepted principle that in public service transfer is   an
\n             incident of service.   It is also an implied condition of service and
\n             appointing authority has a wide discretion in the matter.                The
\n             government is the best judge to decide how to distribute and utilize
\n             the services of its employees. However this power must be exercised
\n             honestly, bona fide and reasonable. It should be exercised in public
\n             interest.   If   the   exercise   of   power   is   based   on   extraneous
\n             considerations or for achieving an alien purpose or an oblique motive it
\n             would amount to mala fide and colourable exercise of power. Frequent
\n             transfers, without sufficient reasons to justify such transfers, cannot,
\n             but be held as mala fide. A transfer is mala fide when it is made not for
\n             professed purpose, such as in normal course or in public or
\n             administrative interest or in the exigencies or service but for other
\n             purpose, that is to accommodate another person for undisclosed
\n             reasons.    It is the basic principle of rule or law and good
\n                                          3<\/span><\/p>\n
              administration, that even administrative actions should be just and
\n              fair.”\n<\/p>\n
7.            The petitioner has also contended that as per the Resolution dated
\n25th October, 1980 vide Clause 14-B it is specifically provided that the proposals
\nfor transfer posting has to be routed through the Establishment Committee and
\nto be finally approved by the Departmental Minister.\n<\/p>\n
8.            The main contention raised by the petitioner is that frequent
\ntransfers have been held to be illegal, deemed to be malafide and deserves to be
\nquashed.\n<\/p>\n
9.            On behalf of the State Sri Modi appears and contends that this writ
\npetition deserves to be dismissed on the ground that no malafide has been
\nalleged nor the person concerned against whom malafide has been argued is
\nimpleaded which is necessary. It has also referred to and relied upon a Division
\nBench Judgment of Patna High Court reported in 1992 (1) PLJR page 209
\nwherein according to him it has been held that the Minister incharge was duly
\nempowered and in that case also the name of the transferred candidate was not
\nincluded by the Establishment Committee and the Minister included that name
\nand sent it back and it was upheld being legal and valid by the Hon’ble High
\nCourt.     It was also held that the recommendation of the Establishment
\nCommittee is directory and not mandatory and accordingly the transfer orders
\nwere not disturbed by the Hon’ble High Court.\n<\/p>\n
10.           The counsel for the State further submits that it is a chain transfer
\ninvolving many people and thus there was no question of arbitrariness and or
\nmalafide and he further submits that the guidelines\/resolution has been duly
\ncomplied with and followed. He has also submitted that the resolution dated 25th
\nOctober, 1980 is directory and not mandatory.\n<\/p>\n
11.           The counsel for the respondent further submits that at no point of
\ntime the petitioner challenged the first and second transfer which suited to him
\nand thus no malafide or arbitrariness can be alleged with regard to the allegation
\nof frequent transfer. It has also been stated that the entire transfer and posting
\nhave been acted upon and even the petitioner handed over the charge of the
\npost and respondent No.4 who has been transferred and posted in his place
\npursuant to the notification dated 30.6.2008 has started discharging his duty.
\nHowever, by concealing the material facts on 12.8.2008 the writ petitioner got
\nan interim order of stay and it was in this background that an application for
\nvacating the exparte interim stay was filed but since the writ petition itself has
\nbeen taken up for final disposal, the same is not being pressed.\n<\/p>\n
12.           Learned Senior counsel Sri Suhail Anwar, appearing on behalf of
\nthe Private Respondent No.4 submits that his case is a genuine, bonafide case
\nand as per the main notification dated 13.6.2008 he was duly transferred and
\n                                          4<\/span><\/p>\n
posted in place of the petitioner and he had, accordingly, joined and was
\ndischarging his duty bonafidely.    It has further been submitted on behalf of
\nprivate respondent No.4 that there is no fault of his and at least his transfer and
\nposting was in accordance with the rules and regulations since it was fully
\nendorsed and approved by the Establishment Committee and finally by the
\nMinister and thus no arbitrariness, error or illegality can be shown as regards the
\nrespondent No.4 case is concerned and thus he is entitled to join on his
\ntransferred post.\n<\/p>\n
13.          I have considered the pleadings and the rival contentions raised on
\nbehalf of the petitioner, respondent State and the private respondent. The law
\nwith regard to transfer and posting has been well settled time and again by the
\nHon’ble Supreme Court as well as the High Court. In a recent judgment reported
\nin 2007(8) SCC Page 150 at Paragraph-7 after considering a series of judgments
\non transfer the Hon’ble Supreme Court held as under:-\n<\/p>\n
                    “The scope of judicial review of transfer under Article 226 of the
\n             Constitution of India has been settled by the Supreme Court in
\n             Rajendra Roy v. Union of India, National Hydroelectric Power Corpn.
\n             Ltd. v. Shri Bhagwan, State Bank of India v. Anjan Sanyal. Following
\n             the<\/a> aforesaid principles laid down by the Supreme Court, the Allahabad
\n             High Court in Vijay Pal Singh v. State of U.P. and Onkar Nath Tiwari v.
\n             Chief Engineer, Minor Irrigation Deptt. has held that the principle of
\n             law laid down in the aforesaid decisions is that an order of transfer is a
\n             part of the service conditions of an employee which should not be
\n             interfered with ordinarily by a court of law in exercise of its
\n             discretionary jurisdiction under Article 226 unless the Court finds that
\n             either the order is malafide or that the service rules prohibit such
\n             transfer, or that the authorities who issued the orders, were not
\n             competent to pass the orders.”\n<\/p><\/blockquote>\n
14.          In the aforesaid case also it was alleged that the transfer was made
\nat the instance of M.L.A. and the appellant therein was transferred due to a
\npending complaint against him. The Hon’ble Supreme Court after considering
\nthe facts and circumstances and the law held that even if the allegation of the
\nappellant is agreed that he was transferred on the recommendation of an M.L.A.
\nthat by itself would not vitiate the transfer order. It was also held that if there
\nwas any complaint against official, the State Government was certainly within its
\njurisdiction to transfer such an employee. The present case is squarely covered
\nfrom the aforesaid judgment referred and the facts stated therein.             In the
\npresent case also there were serious charges and complaint against the
\npetitioner and for such case it has been specifically held that the transfer order
\nbased on complaint was justified and the State Government was empowered to
\n                                           5<\/span><\/p>\n
transfer such person. It also held that the recommendation by the M.L.A. for
\ntransfer cannot be a ground to hold it illegal.\n<\/p>\n
15.           The respondents in their counter affidavit have specifically
\nsubmitted that the name of the petitioner was included for transfer from
\nTenughat to Chaibasa since there was serious charges\/allegations leveled against
\nhim as he had, without the written approval of competent authority permitted
\nexecution of extra work under the scheme of Ramgarh Cantonement Board and
\npaid bills to the tune of Rs.7 lakhs and odd. It is also admitted that the said
\nextra work was never approved by the competent authority and the Government
\nhad to release Rs.7,70,632\/- in favour of the contractor for which a show cause
\nnotice has already been issued vide memo No.746 dated 19.2.2008 and inspite
\nof reminder the petitioner has not filed reply to the show cause.\n<\/p>\n
16.           The Hon’ble Supreme Court in AIR 1993 S.C. 2486 (State of Punjab
\nv. Joginder Singh Dhatt)<\/a> held as under:-\n<\/p>\n
                      ‘3. We have heard learned counsel for the parties.       This
\n              Court has time and again expressed its disapproval of the courts
\n              below interfering with the order of transfer of public servant from
\n              one place to another.     It is entirely for the employer to decide
\n              when, where and at what point of time a public servant is
\n              transferred from his present posting. Ordinarily the courts have no
\n              jurisdiction to interfere with the order of transfer. The High Court
\n              grossly erred in quashing the order of transfer of the respondent
\n              from Hoshiarpur to Sangrur. The High Court was not justified in
\n              extending its jurisdiction under Article 226 of the Constitution of
\n              India in a matter where, on the face of it, no injustice was caused.’
\n                      ‘7. The scope of judicial review of transfer under Article 226
\n              of the Constitution of India has been settled by the Supreme Court
\n              in Rajendra Roy v. Union of India 1993 (1) SCC page 148, National
\n              Hydroelectric Power Corpn. Ltd. v. Shri Bhagwan<\/a> (2001) 8 SCC
\n              page 574, State of India v. Anjan Sanyal<\/a> 2001 (5) SCC page 574.
\n              The principle of law as laid down in the aforesaid decisions is that
\n              an order of transfer is a part of the service conditions of an
\n              employee which should not be interfered with ordinarily by a court
\n              of law in exercise of its discretionary jurisdiction under Article 226
\n              unless the court finds that either the order is mala fide or that the
\n              service rules prohibit such transfer, or that the authorities who
\n              issued the orders, were not competent to pass the orders.”\n<\/p>\n
17.           The learned counsel for the petitioner has heavily relied on 1986
\n(4) SCC page 131 and in particular para 5 which is the observation made by the
\nHon’ble Supreme Court in E.P. Royappa case, 1974(4) SCC page 73. However,
\n                                           6<\/span><\/p>\n
the Hon’ble Supreme Court finally dismissed the Special Leave Petition and
\ndirected the petitioner therein to join the new place of posting.\n<\/p>\n
18.              Even under Rule 22 (5) of the Rules of Executive Business the
\nrecommendation of the Departmental Establishment Committee has to be
\napproved by the Minister incharge and at the time of approval of the
\nrecommendation the Minister is competent to include or exclude the names in
\nthe list recommended by the Establishment Committee and only after the list is
\napproved by the Minister Incharge it becomes final. Thus, in the instant case the
\nrequired procedure was followed and only thereafter the notification for transfer
\nwas issued. It has been time and again reiterated by the Hon’ble Supreme Court
\nthat the transfer from one place to another can always be made on
\nadministrative ground and in exigency of work and even the circular\/instructions
\nreferred to and relied upon is directory in nature and not mandatory no where
\nprohibits it..\n<\/p>\n
19.    The counsel for the respondent rightly argued that they have assigned
\nreasons specifically in the counter affidavit that the transfer order was bonafide
\nand not arbitrary and it was because of the serious complaint and charges
\nagainst the petitioner and thus the Government was fully emplowered to
\ntransfer. Be that as it may, the admitted fact remains that there is no pleading
\nwith regard to malafide nor the petitioner has impleaded the Minister incharge
\nwho had included the name of the petitioner in the transfer list.\n<\/p>\n
20.              In a recent decision reported in 2008 (2) SCC Page 119 the Hon’ble
\nSupreme Court at Paragraph 19 has held that the allegation of malafide cannot
\nbe entertained unless the person against whom malafide is alleged has been
\nimpleaded as a party. It also opined that the Allegation of malafide is very easy
\nto be levelled     and very difficult to substantiate it, specially in the matter of
\nselection or whoever is involved in the decision making process.        People are
\nprone to make such allegations but the Courts owe its duties to scrutinize the
\nallegation meticulously because the person who is making the allegation of
\nanimus does something bonafidely or some times malafidely due to his non-
\nselection. He has a vested interest and unless the allegations are substantiated
\nbeyond doubt the Court cannot draw its conclusion and accordingly reject the
\nallegation of malafide.\n<\/p>\n
21.              Even in 1992 (1) PLJR P.209 the Division Bench of Patna High
\nCourt has held that the Minister incharge was well within its power and
\ncompetence to make such alteration and or modification which are necessary in
\npublic interest and in the best interest of administration.\n<\/p>\n
22.              In the case of Man Singh v. State of Bihar and others, 1982
\nB.B.C.J. 392, the Division Bench of the Patna High Court has ruled that though
\nthe guidelines framed by the State is directory in nature yet the same shall be
\n                                           7<\/span><\/p>\n
substantially followed. Though, it has been held that the transfer even without
\nrecommendation of the Establishment Committee cannot be said to be invalid in
\nthe circumstances of the said case. Even as per the circular the Establishment
\nCommittee is formed in each department with the approval of the departmental
\nMinister and they have the power only to recommend transfer\/posting.\n<\/p>\n
               In the case of State of U.P. and others v. Gobardhan Lal,<\/a> as
\nreported in (2004)11 SCC page-402, the Supreme Court has held that the
\ntransfer of employee is not only an incident inherent in the terms of
\nappointment, but also implicit as an essential condition of service and unless the
\norder of transfer is shown to be an outcome of a mala fide exercise of power or
\nviolative of any statutory provision or passed by an authority not competent to
\ndo so, an order of transfer cannot lightly be interfered with as a matter of course
\nor routine for any or every type of grievance sought to be made.\n<\/p>\n
23.            It is relevant to point out that both in 2007 (2) J.L.J.R. 267, which
\nis an order passed by learned Single Judge of this Court, as well as in 2008(2)
\nJ.C.R. 306, which is an order passed by a Division Bench of this Court, which
\nhave been heavily relied upon by the learned counsel for the petitioner, it has
\nbeen consistently held that even deviation from circular\/instruction can be made
\nin special circumstances, public interest and for administrative reasons and
\nexigencies of work for which reasons have to be disclosed. In the instant case
\nspecific reason has been given in detail with regard to serious charges and
\ncomplaint against the petitioner, which led to his transfer and the same has not
\nbeen denied. It will be evident that there was a complaint for serious charges
\nagainst the petitioner herein which has actually been dealt with in detail in the
\ncounter affidavit and a show cause notice was also issued vide memo No.746
\ndated 19.2.2008 and thus the Minister incharge (Government), the ultimate final
\nauthority, was certainly empowered to transfer the petitioner in the special
\ncircumstance which was undoubtedly in public interest and in the best interest of
\nadministration and exigencies of work.\n<\/p>\n
24.            Considering the aforesaid facts and circumstances of the case and
\nthe settled law, this writ petition is devoid of any merit and is accordingly
\ndismissed without any order as to costs.<\/p>\n
\n\n\n\n\n                                                        (Ajit Kumar Sinha,J.)\n\n\nJharkhand High Court, Ranchi\nDated : 25.11.2008\nNKC\/      A.F.R.\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Jharkhand High Court Sheonath Singh Gonjhu vs State Of Jharkhand & Ors on 25 November, 2008 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 […]<\/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-95758","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jharkhand-high-court"],"yoast_head":"\nSheonath Singh Gonjhu vs State Of Jharkhand & Ors on 25 November, 2008 - 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\/sheonath-singh-gonjhu-vs-state-of-jharkhand-ors-on-25-november-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sheonath Singh Gonjhu vs State Of Jharkhand & Ors on 25 November, 2008 - 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