Jharkhand High Court
Dinesh Kumar Manjhi vs State Of Jharkhand & Ors on 12 January, 2009
Author: D.G.R. Patnaik
Bench: D.G.R. Patnaik
IN THE HIGH COURT OF JHARKHAND AT RANCHI.
W.P. (S) No. 1171 of 2008
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Dinesh Kumar Manjhi ... ... Petitioner
-V e r s u s-
State of Jharkhand & Others ... Respondents.
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CORAM: - HON'BLE MR. JUSTICE D.G.R. PATNAIK.
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For the Petitioner : - Mrs. Ritu Kumar, Advocate.
For the Respondent-State : - Mr. Md. Shamim Akhtar.
For the Respondent No. 4 : - Mr. Indrajeet Sinha, Advocate.
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C.A.V. On: - 06/01/2009 Delivered On: - 12/01/2009
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9/ 12 .01.2009 Challenge in this writ application is to the Notification No. 384
dated 12.02.2008, whereby the order of the petitioner's transfer, issued earlier
vide Notification No. 3082 dated 24.12.2007 to Chatra was cancelled and he has
been transferred to Giridih in the capacity of the Sub-divisional Agriculture
Officer (General). While praying for quashing the aforesaid Notification, the
petitioner has also prayed for quashing the Notification No. 382 dated 18.02.2008
by which the Respondent No. 4 has been directed to continue as Sub-divisional
Agriculture Officer at Chatra in addition to his substantive post at Koderma in the
same capacity.
2. The petitioner and the Respondent No. 4 are members of the
Jharkhand Agriculture Service Class- II in Category 1 (Agronomy). The petitioner
was deputed to work for some time in the Department of Rural Development from
where he was later repatriated to his Parent Department, namely, the Agriculture
and Cane Development Department where he joined on 04.12.2007.
On the petitioner's joining his Parent Department, his case
for transfer and posting was considered and the same was placed before the
Departmental Establishment Committee. Pursuant to the recommendations of the
Departmental Establishment Committee, the petitioner was ordered to be posted
at Chatra in the capacity of the Sub-divisional Agriculture Officer (General) vide
Notification No. 3082 dated 24.12.2007.
The contention of the petitioner is that in compliance to the
directions as contained in the aforesaid Transfer Notification, he submitted his
joining at Chatra on 27.12.2007, and had requested the Respondent No. 4, who
was posted there as a Sub-Divisional Agriculture Officer, to hand over charge of
office.
When the Respondent No. 4 did not promptly hand over
charge of office, the petitioner self assumed charge of office at Chatra on
31.12.2007. Such assuming of charge of office by the petitioner, was acknowledged by his "Controlling Authority" who appended his counter signature over the charge Report dated 31.12.2007. The charge Report was thereafter forwarded to the Principal Secretary (Respondent No. 2) on 11.01.2008 and on the basis of the same the Department of Finance, Government of Jharkhand, [2] [W.P. (C) No. 1171 of 2008] issued pay slip in favour of the petitioner on 24.01.2008. The petitioner claims that ever since he had assumed charge of office on 31.12.2007, he has been continuously working at Chatra as the Sub-Divisional Agriculture Officer.
3. The grievance of the petitioner is that while he had virtually settled at Chatra, discharging his duties as the Sub-Divisional Agriculture Officer at Chatra, the Respondents had issued the impugned Notification dated 18.02.2008 refusing to acknowledge the petitioner's joining of Office at Chatra and conveying a further direction that the Respondent No. 4 shall continue on the post of the Sub-Divisional Agriculture Office at Chatra in addition to his charge of his substantive post of Sub-Divisional Agriculture Officer, Koderma. By the same impugned Notification, the earlier order of the petitioner's transfer to Chatra vide Notification No. 3082 dated 24.12.2007, was cancelled and the petitioner was transferred in the same capacity to Giridih.
The petitioner has assailed the aforesaid impugned Notification on the ground of its being illegal, arbitrary and void.
4. Counter affidavit has been filed on behalf of the Respondent Nos. 2 and 3, namely the Secretary and the Additional Secretary respectively of the Agricultural and Cane Development Department, Government of Jharkhand, Ranchi. A separate counter affidavit has also been filed on behalf of the private Respondent No. 4.
5. Heard the learned counsel for the petitioner, learned counsel for the Respondent-State as also the learned counsel for the Respondent No. 4.
6. Mrs. Ritu Kumar, learned counsel for the petitioner would submit that in the light of the fact that pursuant to the Notification of transfer dated 24.12.2007, the petitioner had joined his office in the capacity of the Sub- Divisional Agriculture Officer at Chatra and such joining was accepted by his controlling authority and moreover, on such acceptance of his joining, the Department of Finance of the State Government had also issued a salary slip of the petitioner at the aforesaid station, the petitioner's transfer could not be abruptly cancelled and he could not be subjected to any retransfer from Chatra. Learned counsel argues that it is the settled principle of law that where a Government servant has taken charge of office pursuant to the order of his transfer at his transferred place of posting, such order of transfer cannot be abruptly cancelled except in accordance with the rules of procedure.
7. Learned counsel argues that in issuing the impugned order of cancellation of the earlier order of the petitioner's transfer and issuing a fresh directive transferring him to Giridih from Chatra, the concerned authorities of the Respondents have apparently acted arbitrarily and with mala fides and with the sole purpose of accommodating and extending extraordinary favour to the Respondent No. 4. Learned counsel attempts to explain that the Respondent No. 4 has been holding the post of the Sub-Divisional Agriculture Officer at Chatra, [3] [W.P. (C) No. 1171 of 2008] ever since the year 2002 and instead of considering his transfer from the Station, the Respondents-authorities have arbitrarily allowed him to continue in the post at the same station.
8. In their counter affidavit, the Respondent nos. 2 and 3 have denied and refuted the entire claim of the petitioner and have sought to counter the grounds advanced by the petitioner as being misconceived and misleading both on facts and also on the points of law.
The stand taken by the Respondent nos. 2 and 3, is that vide Notification No. 3082 dated 24.12.2007, the petitioner was posted as the Sub- Divisional Agriculture Officer (General) at Chatra. Pursuant to the above Notification, the petitioner wrote a letter to the Respondent No. 4, who was then holding the charge of office at Chatra to hand over charge to him. The Respondent No. 4 sought for some time, since he had to complete some documental process. Instead of waiting for the charge to be handed over by the Respondent No. 4, the petitioner proceeded to assume charge of office unilaterally on 31.12.2007. Learned counsel for the Respondents would explain that in cases where the Government servant unilaterally assumes charge of office, the same cannot be accepted, unless confirmed at the Government level in accordance with the Rules of procedure as laid down under Rule 59 of the Jharkhand Service Code. In the meantime, due to imposition of the model code of conduct on 04.01.2008 by the Election Commission of India on the eve of the bye-elections to be held at Semaria all transfers of Government servants were banned under the model code of conduct.
Considering the enforcement of the model code of conduct, the petitioner's letter dated 11.01.2008 (Annexure-5), requesting for accepting his joining in office, on his assuming charge on 31.12.2007, was referred to the Departmental Establishment Committee alongwith the letter of the Respondent No. 4 and on considering the issues raised in both the letters and regard being had to the prohibitions under the imposed model code of conduct, the Departmental Establishment Committee at its meeting held on 22.01.2008, decided to maintain the status quo and not to confirm the unilateral taking over of charge by the petitioner and recommended his posting as the Sub-divisional Agriculture Officer at Giridih while allowing the Respondent No. 4 to hold the additional charge of office of the Sub-divisional Agriculture Officer at Chatra. Learned counsel would further explain that the petitioner's transfer to Giridih was made on the basis of the administrative exigencies and the cancellation of the earlier order of his transfer to Chatra, had to be made on account of the fact that the earlier transfer order was not considered by the concerned authorities of the Department to have been acted upon by the petitioner, since his unilateral assuming of charge in office, was not accepted. Learned counsel explains further that the request letter of the petitioner for accepting his unilateral assumption of the charge of office, [4] [W.P. (C) No. 1171 of 2008] which was sent by him on 08.01.2008¸was received in the Departmental Headquarters after 08.01.2008 at a time when the model code of conduct was enforced. It is further explained that the petitioner has tried to mislead by claiming that his unilateral assumption of office was acknowledged by the counter signature made on the charge Report by his controlling authority, as because the person who had purportedly counter signed on the charge Report, was neither the controlling authority of the petitioner at the station nor was he competent to acknowledge and accept such charge report.
Learned counsel argues further that the pay slip issued by the Finance Department of the State Government was also cancelled vide the departmental letter No. 2598 dated 18.06.2008.
As regards, the petitioner's contention in respect of the Respondent No. 4, learned counsel would explain that as a matter of fact, the Respondent No. 4 has also been transferred to Koderma as the Sub-Divisional Agriculture Officer and he has only been given additional charge of office at Chatra under the impugned Notification.
9. In his counter affidavit, the Respondent No. 4 has denied and disputed the allegations levelled against him by the petitioner and has sought to explain that on receiving the petitioner's letter of request to hand over charge of office to him pursuant to the transfer Notification dated 24.12.2007, the Respondent No. 4, being in need of some more time for completing the documental process, had replied making a counter request to allow a week's time for handing over of charge of office. In the meantime, the Election Commission of India had imposed the model code of conduct on and from 04.01.2008 imposing a total ban on transfer of officers connected with the conduct of election duty. Thereupon the Respondent No. 4 addressed a letter to the Principal Secretary on 09.01.2008, seeking guidance in the matter of handing over of charge to the petitioner.
The stand taken by the Respondent No. 4 is that the petitioner never took charge of office from him prior to 04.01.2008 and thus unilateral assumptions of office by the petitioner was not accepted and ratified by the concerned authorities of the Department and as such, the transfer Notification dated 24.12.2007, was not given effect to either by the petitioner or by the Respondent No. 4.
10. From the rival submissions, the facts which emerge are that pursuant to the transfer Notification dated 24.12.2007, the petitioner had wanted to submit his joining at Chatra and had requested the Respondent No. 4 who was the then incumbent to the post, to hand over of charge of office to the petitioner. On the Respondent No. 4 seeking time to hand over charge of office, the petitioner proceeded instead to assume charge of office, on his own.
[5][W.P. (C) No. 1171 of 2008]
11. Admittedly, in cases where a Government officer assumes charge of office unilaterally, the same cannot be ipso facto acknowledged unless accepted and ratified by the concerned authorities of the Department as per the procedure under Rule 59 of the Jharkhand Service Code. Being aware of this Rule, the petitioner sent a Request letter signed on 08.01.2008, enclosing therewith the purported charge report, after obtaining the signature of the co- worker for acceptance. Although, the petitioner has claimed that the person who had signed on the petitioner's unilateral charge report, was his controlling authority but such claim has been emphatically denied and disputed by the Respondent Nos. 2 and 3 by declaring that the said person was a fellow worker of the same capacity as the petitioner and was not competent at all to accept and acknowledge the petitioner's unilateral assumption of charge of office. It also transpires that the petitioner's request, put to the concerned authorities for acceptance of his unilateral assumption of office, was rejected by the Departmental Establishment Committee in view of the ban imposed by the model code of conduct.
The above facts clearly indicate that the unilateral assumption of office as claimed to have been made by the petitioner, having not been accepted and acknowledged by the concerned authorities of the Department, it was deemed that the earlier Notification of the petitioner's transfer to Chatra was deemed as never acted upon. Considering the entire matter, in the light of the attending circumstances, the Departmental Establishment Committee had decided to cancel the earlier Notification of the petitioner's transfer and to recommend for the petitioner's posting at Giridih in the same capacity and on the same scale of pay. It also appears that the Respondent No. 4 was also transferred to Koderma in the same capacity though by the impugned Notification, he was asked to hold the dual charge of the office at Chatra.
Learned counsel for the petitioner has though wanted to impress that in issuing the impugned Notification, the concerned Respondents- authorities were impelled by mala fide motives, the petitioner has not been able to demonstrate such mala fides on the part of the Respondents-authorities. The decision of the Departmental Standing Committee therefore cannot be questioned since apparently such decision was taken on account of administrative exigencies.
12. In the light of the above discussions, I do not find any merit in this writ application. This writ application is, accordingly dismissed.
(D.G.R. Patnaik, J.) APK