Jharkhand High Court
Uttam Kujur vs State Of Jharkhand And Ors. on 3 May, 2007
Equivalent citations: [2008(2)JCR306(JHR)]
Author: Permod Kohli
Bench: M. Karpaga Vinayagam, Permod Kohli
ORDER Permod Kohli, J.
1. Assailing the judgment dated 27th February. 2007, passed by the learned single Judge in W.P.(S) No. 42 of 2007, quashing the transfer order of Binod Kumar. respondent No. 5 in L.P.A. No. 74 of 2007 and respondent No. 1 in L.P.A. No. 114 of 2007, the State as also the appellant. Uttam Kujur, have preferred these two appeals. The issue involved in both the appeals being similar, they have been heard together and are being disposed of by this common order.
2. Circumstances leading to filing of the writ petition may be summarized as under. Respondent Binod Kumar and the appellant Uttam Kujur both are working as Assistant Engineers (Civil) in the State of Jharkhand. Respondent Binod Kumar was posted as Assistant Engineer, Medical Building Sub-Division No. 1, Bariyatu, Ranchi vide Memo No. 1547 (Bh) dated 16th June, 2006. He joined the place of posting on 19th September, 2006. Vide Notification No. 3885(Bh) dated 30th December, 2006 as many as fifteen Assistant Engineers of Building Construction Department have been transferred. Respondent Binod Kumar, who joined the Medical Building Sub-Division No. 1, Bariyatu. Ranchi, on 19th September, 2006. also came to be transferred vide this order from Medical Building Sub-Division No. 1, Bariyatu, Ranchi to Building Sub-Division, Chas (Bokaro) and the appellant Uttam Kujur, who was earlier posted at Building Sub-Division No. 3, Daltonganj, has been transferred in place of Binod Kumar at Medical Sub-Division No. 1, Bariyatu, Ranchi. Binod Kumar challenged this transfer order in W.P.(S) No. 42 of 2007 on the following grounds: (i) his name has been included in the impugned notification at the instance of the Minister Incharge without recommendation and/or consideration by the Establishment Committee, constituted for the purpose; (ii) the transfer is in contravention of the policy decision of the Government notified vide resolution dated 25th October. 1980, whereby, norms for transfer have been laid down and (iii) transfer of the petitioner is premature having been made just after six months, in violation of the laid down norms.
3. Giving details of the first ground, it is stated that the petitioner has been recently transferred to Ranchi only in the month of June, 2006 after keeping him waiting for one year without posting and he has been performing his duties to the satisfaction of the department. It is stated that the transfer of the 'Assistant Engineers is considered by the Establishment Committee and it is only on the recommendation of the Establishment Committee the Government approves/makes the transfers. Constitution of Establishment Committee for the purposes of consideration of transfers has been laid down under resolution dated 25th October, 1980, In the present case the Establishment Committee recommended only ten transfers. Neither the case of the writ petitioner nor that of Uttam Kujur, present appellant, was considered by the Establishment Committee nor any recommendation made for their transfer. However, the Minister-in-charge with a view to accommodate Uttam Kujur, the appellant, inserted his name and also that of the writ petitioner in the transfer list and on account of bias the writ petitioner has been transferred from Ranch just after six months and Uttam Kujur has been transferred at his place. The writ petitioner has made specific averments in paragraph Nos. 14, 15 and 18 of the writ application, alleging bias, stating that the Establishment Committee did not recommend either the name of Binod Kumar or Uttam Kujur and it is only the Minister concerned, who inserted their names with a view to accommodate Uttam Kujur, the appellant herein.
4. As regards the violation of resolution dated 25th October, 1980 is concerned, a copy of the same has been placed on record as Annexure-5 to the writ petition. Vide this resolution, duly published in the Extra-ordinary Gazette of the State of Bihar, comprehensive transfer and posting policy for the Government servants was notified by the then State of Bihar. It is relevant to notice some of the important features of this resolution:
The 25th October, 1980 Subject--Policy and procedure regarding transfer and posting of Government servants.
The policy and procedure regarding transfer and posting of Government servants has been laid down by the State Government, from time to time. The policy and procedure as laid down in the Personnel and Administrative Reforms Departments Resolution No. 14747, dated the 6th September, 1979 and No. 16609, dated the 18th October, 1979 which is enforced at present has failed to fulfill the desired objective. The matter has, therefore, been reconsidered by the State Government and with a view to further streamlining the policy and procedure of transfer and postings, the State Government have been pleased to take the following decisions in supersession of all previous orders:
(A) General policy regarding transfer and posting.--(1) Transfer and postings will generally be done twice, i.e., in May-June and November-December of each year:
Provided that in special circumstances, e.g., death, illness, vacancy or other administrative reasons transfer and posting could be made at any other time subject to the following conditions
(i) In respect of officers whose transfer/posting is done with the approval of Minister or by Council of Ministers, specific prior approval of the Chief Minister has to be obtained; and
(ii) In respect of such officers and Government employees whose transfer and posting is done by subordinate officers under delegated power of transfer, specific prior approval of the immediate superior officers is obtained.
(2) The duration of posting on any post and at any particular place will generally be for a period of 3 years. For some posts of places, the period of posting may. however be kept for 2 years which should be specified by the departments by Standing Orders.
xxx xxx xxx (B) Procedure for transfer and posting.--(1) xxx xxx xxx
(2) Proposals regarding transfer, posting and deputation of such officers whose maximum pay in the pay scale exceeds Rs. 810 but dose not exceed Rs. 1,200 should be placed before the Minister-in-charge for orders after the recommendation of the Establishment Committee. Proposals regarding transfer, posting and deputation of such officer whose maximum pay in the pay scales exceeds Rs. 1,200 shall be placed before the Cabinet after obtaining the recommendation of the Establishment Committee and approval of the Minister-in-charge.
xxx xxx xxx (C) Formation of Establishment Committee.--(1) An Establishment Committee should be formed for each Department with the approval of the Departmental Minister for recommending transfer/posting of such officers whose transfer and posting is made by Government. The Committee will consist of the following officers:
(i) Commissioner and Secretary,
(ii) Seniormost head of Department,
(iii) One Special Secretary/Additional Secretary,
(iv) Suitable senior most officer of the Scheduled Caste/Scheduled Tribe.
xxx xxx xxx A plain reading of the preamble of this resolution clearly indicates that the State Government has laid down norms for transfer and posting of State Government servants. Under these norms normally the transfer should take place twice in a year i.e. in May-June and November-December. The normal tenure of posting of a Government servant at one place is prescribed as three years but it can be reduced to two years. Clause (B) of the resolution prescribes the procedure for transfer and posting. In all cases where the transfer and posting is to be ordered by the Cabinet or the Minister-in-charge under the Business Rules, formulated by the State Government for transacting business in accordance with the constitutional provisions, the recommendations of the Establishment Committee have to be obtained. Under Clause (C) where the transfers are to be made by the Government, the Establishment Committee has been constituted comprising of Senior Government Officials. This policy decision has been duly notified in the extra-ordinary Government Gazette on 29th October, 1980 and has been in operation since then. It is not in dispute that even after creation of the State of Jharkhand, this resolution has been duly adopted and applied in this State.
5. The contention of respondent Binod Kumar is two fold : Firstly the Establishment Committee constituted for the purposes of affecting transfers/postings has not considered the case of the writ petitioner as also the present appellant as their transfers were not under consideration at all. Only the name of ten officials were recommended for transfer and neither the appellant Uttam Kujur nor the writ petitioner Binod Kumar were amongst the recommendees for transfer. It is alleged that the Minister-in-charge has inserted their names with a view to accommodate the present appellant at Ranchi. Accordingly, bias has been alleged against the Minister-in-charge. Secondly, the transfer is premature and in contravention of the period prescribed under the aforesaid resolution. It is argued that deviation from the fixed period is permissible only in exceptional circumstances as provided under Clause (a) i.e. death, illness, vacancy or other administrative reasons.
6. Both the sides have argued with vehemence. Mr. Manoj Tandon, learned Counsel appearing for the appellant Uttam Kujur, has argued that the transfer is an incident of service and no public servant has a right to continue at a particular place or post and it is the sole prerogative of the State Government Le. the employer to transfer a Government servant. He has relied upon a judgment of the Apex Court, rendered in the case of State of U.P. v. Gobardhan Lal , which reads thus:
7. ...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 male 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 of routine for any of every type of grievance sought to be made....
7. The second contention of Mr. Tandon as also Mr. Mehta, learned Counsel appearing on behalf of the State-appellant, is that the transfer order stands implemented and, thus, the writ petition had been rendered infructuous. But the learned single Judge ignored this important aspect of the mater. It has been mentioned that pursuant to the transfer, the appellant Uttam Kujur submitted his joining on 4th January, 2007. He assumed charge on 8th January, 2007 and his joining was formally accepted on 9th January, 2007 whereas respondent Binod Kumar also joined his place of posting at Bokaro on 10th January, 2007 and the Assistant Engineer, who has been replaced by respondent Binod Kumar, has also joined his place of posting at Ranchi. The transfers having been implemented, there was no occasion for the writ Court to have quashed the same. As far in the resolution dated 25th October, 1980 is concerned, it is argued that the resolution, being in the nature of executive instructions is not enforceable. It is also stated that the Minister-in-charge being the competent authority, has had the authority to make insertions in the transfer list, irrespective of any recommendation by the Establishment Committee.
8. Refuting the contentions, raised by Mr. Tandon and Mr. Mehta, it has been argued on behalf of respondent Binod Kumar that though the transfer is an incident of service but where it is actuated by a bias in law and is in contravention of laid down norms, it is open to the writ Court to interfere and the learned single Judge has rightly interfered with the same.
9. It is admitted case of the parties that the names of the appellant Uttam Kujur and the writ petitioner Binod Kumar were not considered or recommended by the Establishment Committee for their transfer. It is also not in dispute that their names were inserted by the Minister-in-charge. Mr. Mehta, learned Counsel appearing on behalf of the State, has stated that the Minister-in-charge has not only inserted the names of these two officers but three more names were also inserted by him and that is why fifteen officers have been transferred vide the impugned order whereas the Establishment Committee had recommended ten transfers. The transfer of the writ petitioner and the present appellant, made at the instance of Minister-in-charge, is admitted. Learned single Judge has quashed the transfer order of respondent Binod Kumar and that of the appellant Uttam Kujur on two counts : (i) neither the transfer has been made on the recommendation or even consultation of the Establishment Committee nor any exceptional circumstances have been shown for justifying the deviation from the prescribed procedure and (ii) the transfer is premature and no reason has been given for premature transfer after a short period of six months as far the writ petitioner is concerned. His transfer, accordingly, has been held to be arbitrary and not sustainable.
10. It goes without saying that the admitted factual position is that the transfer of appellant Uttam Kujur and respondent Binod Kumar is without consultation/recommendation of the Establishment Committee and is at the instance of the Minister-in-charge. It is also admitted position that the transfer of respondent Binod Kumar is premature and has been made just after six months and none of the circumstances, indicated in Clause (a) of the resolution dated 25th October, 1980 i.e. death, illness or vacancy, exists. What is the administrative exigency for such a transfer is also not disclosed. If this be the position, the question arises whether non-observance of the procedure and other conditions prescribed in the resolution justifies the interference by the writ Court in exercise of its writ jurisdiction under Article 226 of the Constitution in the matter of transfer of Government servants, which is otherwise an incident of service. The Apex Court in the case of State of U.P. v. Gobardhan Lal (supra) has laid down some of the parameters for interference in the matter of transfer. A similar resolution and its enforceability came for consideration before a Division Bench of Patna High Court in the case of Man Singh v. State of Bihar reported in 1982 BBCJ 392. In this case also the executive instructions like in the present case were issued by the then State of Bihar, providing for transfer and postings on the recommendation of the Establishment Committee. The Division Bench in paragraph No. 9 of the aforesaid judgment 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. It is only where the executive instructions attempt to supplement the statutory rules that it can have no legal force and the executive instructions were found not in conflict with the statutory rules framed under Article 309 of the Constitution and were held to govern the policy and procedure for the transfer of Government employees. In another Division Bench judgment of Patna High Court reported in 1995 (1) PLJR 69 (Shyam Kumar Prasad v. State of Bihar and Ors.), the question of transfer at the instance of M.L.A. was found to be not sustainable. A transfer order, issued without placing the matter before the Establishment Committee, was quashed and held to be not sustainable. Though the executive instructions providing procedure for transfers through the Establishment Committee is held to be directory in nature, it was observed that it must be complied with substantially. In the case of Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey , the Apex Court while considering the validity of transfer and scope of interference in writ jurisdiction observed thus:
4. ...Unles the order of transfer is vitiated by mala fides or is made in violation of any operative guidelines or rules the Courts should not ordinarily interfere with it....
11. The natural corollary of the above observation is that where operative guidelines or rules are in place and the transfer is made in violation of any such operative guidelines or rules, interference in exercise of writ jurisdiction is warranted. Though the Apex Court has used the terminology "guidelines", the same has been placed at par with the rules. In the case of State of Gujarat v. Akhilesh C. Bhargav , it has been held that the executive instructions issued to fill up the gap in the rules and where these are not in contravention of the statutory rules are valid. The Apex Court, thus, observed as under:
7. It is well settled that within the limit of executive powers under the constitutional scheme, it is open to the appropriate Government to issue instructions to cover the gap where there be any vacuum or lacuna. Such instructions do not run counter to the rules in existence, the validity of the instructions cannot be disputed.
12. In the case of Sarvesh Kumar Awasthi v. U.P. Jal Nigam , the Apex Court observed as under:
3. In our view, transfer of, officers is required to be effected on the basis of set norms or guidelines. The power of transferring an officer cannot be wielded arbitrary, mala fide or an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned. For better administration the officers concerned must have freedom from fear of being harassed by repeated transfers or transfers ordered at the instance of someone who has nothing to do with the business of administration.
13. Admittedly, there are no statutory rules framed under proviso to Article 309 regulating the transfer and posting of Government servants in the State of Jharkhand. On consideration of the resolution dated 25th October, 1980 we find that the State Government has laid down a transfer policy and also prescribed the procedure. In absence of statutory rules these guidelines regulate the transfer and posting of Government servants. The procedure prescribed and the policy seems to be fair and rational. Once the Government has laid down norms and policy, there must be valid reasons to deviate from that. This very Division Bench in the case of M/s. Ranisati Pipe Industries, Jamshedpur, Singhbhum East v. State of Jharkhand and Ors. , while considering the validity of the Government's Industrial Policy and its violation by the executive authorities observed thus:
16. ...A subordinate authority has no right or jurisdiction to overthrow a well thought State's Policy by its subordinate executive action....
14. It is lastly contended on behalf of the appellant that the transfer order having been implemented, the writ itself rendered infructuous and, thus, the impugned judgment of the learned single Judge is liable to be quashed. We are unable to subscribe to this view. If a State action is held to be illegal, invalid being arbitrary, it does not change its status merely because the person has been forced or is compelled to follow it to avoid any penal action. A Government servant has had no choice to join a place of posting when transferred unless stayed by the Court, otherwise he will be deemed to be absent from duty and will be held liable for disciplinary action. Apart from that when this writ petition was taken up for consideration on 9th January, 2007, the writ Court passed the following interlocutory order:
Issue notice to respondent No. 4 under registered cover with A/D, for which requisites etc. must be filed in Court by day after tomorrow Le. 11th January, 2007, failing which the writ application, as against the concerned respondent shall stand rejected without further reference to a Bench.
Learned Counsel appearing for the respondents prays for and is allowed two weeks' time to seek instructions and file counter-affidavit.
Put up this case on 14th January, 2007.
Till then the petitioner shall not be relieved, if he is not already relieved.
15. It has been stated that respondent Binod Kumar joined at Bokaro on 10th January, 2007. He had no option as the appellant Uttam Kujur had already assumed charge of his post at Ranchi. It is nobody's case that respondent Binod Kumar was relieved from the post and handing and taking over of charge had taken place. Therefore, the joining of the appellant Uttam Kujur at the place of respondent Binod Kumar and the joining of respondent Binod Kumar at his place of posting at Bokaro while the writ petition was pending does not validate an illegal action, which was otherwise under challenge and under the scrutiny of Court.
16. Under similar circumstances the Apex Court in the case of Dr. Damodar Mishra v. State of Orissa reported in 1994 Supp. (2) SCC 51, observed as under:
3. We are afraid the impugned order of the tribunal cannot be sustained. The facts clearly reveal that against the order of transfer the appellant herein had obtained ad-interim stay from the tribunal. While that stay was in operation, he came to be relieved from his post on October 4, 1991, which was clearly contrary to the letter and spirit of the tribunal's order. It is, therefore, difficult to understand how the tribunal could in such circumstances say that the petition had become infructuous. In fact the appellant can have a grievance that the respondent had committed contempt by not obeying the interim order of the tribunal. We are not suggesting that any contempt action be taken but surely the tribunal could not have dismissed the petition of the appellant merely because he was relieved with effect from October 4, 1991. We, therefore, allow this appeal, set aside the order of the tribunal and remit the matter to the tribunal to decide it in accordance with law. There will be no order as to costs.
17. In view of the above, we are in agreement with the conclusion of the learned single Judge and dismiss both the appeals. However, there shall be no order as to costs.
M. Karpaga Vinayagam, C.J.
18. I agree.