Jharkhand High Court
Bhanu Pratap Singh vs The State Of Jharkhand Through The ... on 17 March, 2023
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S). No. 3827 of 2022
Bhanu Pratap Singh .... Petitioner(s)
Versus
1. The State of Jharkhand through the Secretary, School Education and
Literacy Department, Govt. of Jharkhand, Ranchi.
2. The Director, Primary Education, School Education and Literacy
Department, Govt. of Jharkhand, Ranchi.
3. The Deputy Commissioner-cum-Chairman, District Education Establishment
Committee, Bokaro.
4. The District Education Officer, Bokaro.
5. The District Superintendent of Education, Bokaro. .... Respondents.
With
W.P.(S). No. 3081 of 2022
1. Bhuthnath Singh
2. Raju Sahu
3. Manoj Kumar
4. Subhash Nayak
5. Anjali Pandit
6. Ashisan Guriya
7. Arun Kumar Das .... Petitioner(s)
Versus
1. The State of Jharkhand through the Secretary, School Education and
Literacy Department, Govt. of Jharkhand, Ranchi.
2. The Director, Primary Education, School Education and Literacy
Department, Govt. of Jharkhand, Ranchi.
3. The Deputy Commissioner-cum-Chairman, District Education Establishment
Committee, Bokaro.
4. The District Education Officer, Bokaro.
5. The District Superintendent of Education, Bokaro. ...... Respondents
With
W.P.(S). No. 3084 of 2022
1. Rakhi Kumari
2. Bhupen Chandra Nag ..... Petitioner(s)
Versus
1. The State of Jharkhand through the Secretary, School Education and
Literacy Department, Govt. of Jharkhand, Ranchi.
2. The Director, Primary Education, School Education and Literacy
Department, Govt. of Jharkhand, Ranchi.
3. The Deputy Commissioner-cum-Chairman, District Education Establishment
Committee, Bokaro.
4. The District Education Officer, Bokaro.
5. The District Superintendent of Education, Bokaro ..... Respondents.
With
W.P. (S). No. 3206 of 2022
Jayshri Priyadarshini ....Petitioner(s)
Versus
1. The State of Jharkhand
2. The Principal Secretary, Department of School Examination and Literacy,
Project Building, Dhurwa, Ranchi, Jharkhand.
3. The Deputy Commissioner, Deoghar, The District Superintendent of
Education, Deoghar
4. The District Superintendent of Education, Deoghar ..... Respondents.
With
2.
W.P. (S). No. 3257 of 2022
Raj Kishor Ray ..... Petitioner(s)
Versus
1. The State of Jharkhand
2. The Principal Secretary, Department of School Examination and Literacy,
Project Building, Dhurwa, Ranchi, Jharkhand.
3. The Deputy Commissioner, Deoghar.
4. The District Education Officer, Deoghar
5. The District Superintendent of Education, Deoghar ..... Respondents
With
W.P.(S). No. 3982 of 2022
1. Arvind Mishra
2. Devendra Kumar Pandey
3. Yadunandan Mahato
4. Baldeo Ram
5. Dilip Kumar Pandey
6. Md. Israil Ansari
7. Manoj Kumar Mahato ..... Petitioner(s)
Versus
1. The State of Jharkhand through the Secretary, School Education and Literacy
Department, Govt. of Jharkhand, Ranchi.
2. The Director, Primary Education, School Education and Literacy Department,
Govt. of Jharkhand, Ranchi.
3. The Deputy Commissioner-cum-Chairman, District Education Establishment
Committee, Bokaro.
4. The District Education Officer, Bokaro.
5. The District Superintendent of Education, Bokaro ..... Respondents
-------
CORAM : HON'BLE MR. JUSTICE ANANDA SEN.
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For the petitioners: M/s Rahul Kumar, Vijay Kr. Roy
and Apoorva Singh, Advocates
For the State: Mr. Sachin Kumar, AAG
Mr. Indranil Bhaduri, SC-IV.
Mr. Vineet Prakash, AC to SC-IV.
Mr. P.C. Sinha, AC to GA-III
Mr. Ravi Kerketta, SC-VI
Ms. Deepika Jajowar, AC to SC-VI.
-----
C.A.V on: 05.01.2023 Pronounced on: 17/03/2023
Order No.07 In this batch of writ petitions, as common question has been raised
by the counsel for the petitioners, these applications are being disposed by a common order.
2. The brief facts are necessary to mention herein.
In WPS No. 3827 of 2022, the petitioner has prayed for quashing the letters as contained in Memo No. 323 dated 22.2.2022 and Memo No. 1233 dated 9.6.2022, whereby, the transfer of the petitioner having been effected and acted upon in the month of August, 2020 has been cancelled on the ground that the same is in violation of the Government resolution No. 2093 dated 6.8.2019 and the petitioner had been directed to return to his original place of posting from 3 where he had been transferred. Further a prayer has been made to quash the Office Order No. 981 dated 9.7.2022 whereby, the petitioner has been posted at his earlier place of posting and the petitioner had been directed to return to his original place of posting from where he had been transferred.
3. In WPS No. 3081 of 2022, the petitioners have prayed for quashing the letter as contained in Memo No. 1233 dated 9.6.2022 whereby, the transfer of the petitioners having been effected and acted upon with effect from 9.7.2020 has been cancelled on the ground that the same is in violation of the Government resolution No. 2093 dated 6.8.2019 and the petitioners had been directed to return to their original place of posting from where they were transferred.
4. In WPS No. 3084 of 2022, the petitioners have prayed for quashing the letter as contained in Memo No. 1233 dated 09.06.2022 whereby, the transfer of the petitioner having effected and acted upon in the month of July, 2020 has been cancelled on the ground that the same is in violation of the Government resolution No. 2093 dated 06.08.2019 and the petitioners had been directed to return to their original place of posting from where they were transferred.
5. In WPS No. 3206 of 2022, the petitioner has prayed for quashing the letter as contained in Memo No 1089 dated 01.06.2022 whereby, the transfer of the petitioner having effected and acted has been cancelled on the ground that the same is in violation of the Government resolution No. 2093 dated 06.08.2019 and the petitioner had been directed to return to her original place of posting from where she was transferred.
6. In WPS No. 3257 of 2022 the petitioner has prayed for quashing the letter as contained in Memo No. 1079 dated 01.06.2022 whereby, the transfer of the petitioner having effected and acted has been cancelled on the ground that the same is in violation of the Government resolution No. 2093 dated 06.08.2019 and the petitioner had been directed to be returned to his original place of posting from where he was transferred.
7. In WPS No. 3982 of 2022 the petitioners have prayed for quashing the letters as contained in Memo No. 323 dated 22.02.2022 and Memo No. 1233 dated 09.06.2022 whereby, the transfer of the petitioners having effected and acted upon in the month of August, 2020 has been cancelled on the ground that the same is in violation of the Government resolution No. 2093 dated 06.08.2019 and the petitioners had been directed to return to their original place of posting from where they were transferred.
8. In WPS No. 3827 of 2022, the petitioner has been transferred from Government School Satanpur Block, Chas to the Primary School, Dharampur Block-Chas vide Memo No. 1248 dated 23.7.2020 where, he gave his joining after he was relieved. Thereafter suddenly on 9.7.2022, vide Memo No. 981, pursuant 4. to some direction given by the higher authority, the transfer of the petitioner and others were cancelled and they were directed to rejoin on the original place of posting i.e. at Government School Satanpur Block, Chas, Bokaro.
09. In WPS No. 3081 of 2022, the Petitioner no. 1. Namely Bhutnath Singh has been transferred from Primary School, Chainpur, Chas-3 to Utkramit, Middle School, Dhandabra, Chas -3 vide Memo No. 1288 dated 22.07.2020. Petitioner no. 2 namely Raju Sahu has been transferred from Middle School,Penk , Nawadih to Middle School, Satanpur, Chas- 1 vide Memo no 1266 dated 22.07.2020. Petitioner No. 3 namely Manoj Kumar has been transferred from Primary School, Ambadih, Petawar to Primary School, Telidih, Chas- 1 vide Memo no 1311 dated 30.07.2020. Petitioner No. 4 Subhash Nayak has been transferred from Utkramit Middle School, Rohar, Petawar to Utkramit Middle School, Bansimli, Chas-3 vide Memo no 1265 dated 24.07.2020. Petitioner no. 5 Anjali Pandit has been transferred from Middle School, Jaina, Jaridih to Primary School, Tilabani, Chas- 3 vide Memo no 1224 dated 22.07.2020. Petitioner No. 6 namely Ashishan Guriya has been transferred from Middle School Chandankiyari (Balika), Chandankiyari to Utkramit Middle School, Marafari, Bazar No 2, Chas-3 vide Memo no 1268 dated 24.07.2020. Petitioner no. 7 namely Arun Kumar Das has been transferred from Utkramit Middle School. Ranichirka, Chas-1 to Primary School, Chainpur, Chas-3 vide Memo no 1245 dated 23.07.2020, where they gave their joining after they were relived. Thereafter suddenly on 09.06.2022, vide Memo No 1233, pursuant to some direction given by the higher authority, the transfer of the petitioner(s) and others were cancelled and they were directed to rejoin the original place of posting.
10. In WPS No. 3084 of 2022, the Petitioner No. 1 namely Rakhi Kumari has been transferred from Middle School, Hosir, Block-Gomia to the Middle School Bandhdih, Block-Gomia vide Memo No. 1266 dated 24.07.2020 where, she gave her joining after she was relieved and petitioner No. 2, namely Bhupen Chandra Nag (in WPS No. 3084 of 2022) has been transferred from Middle School, Hosir , Block Gomia to Middle School, Satanpur, Block- Chas-1 vide Memo No 1237 dated 22.07.2020 where, he gave his joining after he was relieved. Thereafter suddenly on 09.06.2022, vide Memo No 1233, pursuant to some direction given by the higher authority, the transfer of the petitioner(s) and others were cancelled and they were directed to rejoin the original place of posting i.e. Middle School, Hosir, Gomia.
11. The petitioner (in WPS No. 3206 of 2022) has been transferred from Upgraded Middle School, Andhrigadar, Jasidih to Middle School, Balsara (Mohanpur) vide Memo No. 548 dated 06.06.2020 where, she gave her joining after she was relieved. Thereafter suddenly on 01.06.2022 vide Memo No 1089, 5. pursuant to some direction given by the higher authority, the transfer of the petitioner(s) and others were cancelled and they were directed to rejoin on the original place of posting i.e. Upgraded Middle School, Andhrigadar.
12. The petitioner (in WPS No. 3257 of 2022) has been transferred from Middle School, Nawadih (Margomunda), Deoghar to Middle School, Ghorlas, Jasidh vide Memo No 1541 dated 25.10.2019 where, he gave his joining after he was relieved. Thereafter suddenly on 01.06.2022 vide Memo No 1079, pursuant to some direction given by the higher authority, the transfer of the petitioner(s) and others were cancelled and he was directed to rejoin on the original place of posting i.e. Upgraded Middle School Chihomarni, Jasidih.
13. In WPS No. 3982 of 2022, the petitioner no 1 namely Arvind Mishra has been transferred from Upgraded Middle School, Chhotki, Sidhawara, Gomia, Bokaro to Upgraded Middle School, Sarubera, Nawadih, Bokaro vide Memo No. 1212 dated 21.07.2020. Petitioner No. 2. namely Devendra Kumar Pandey has been transferred from Upgraded Middle School, Sarubera, Nawadihia to Upgraded Middle School, Chhotki, Sidhawara, Gomia vide Memo No 1212 dated 21.07.2020. Petitioner no. 3. namely Yadunandan Mahto has been transferred from Upgraded Middle School, Karikhurd, Gomia to Upgraded Middle School, Khalcho, Chandrapura vide Memo No. 1301 dated 29.07.2020. Petitioner no 4. namely Baldeo Ram has been transferred from Upgraded Middle School, Khalcho, Chandrapura to Upgraded Middle School, Karikhurd, Gomia vide Memo No 1301 dated 29.07.2020. Petitioner No. 5 namely Dilip Kumar Pandey has been transferred from Upgraded Middle School, Banchatra, Gomia to Primary School, Taratand, Nawadih vide Memo No 1347 dated 07.08.2020. Petitioner No. 6 namely Md Israil Ansari has been transferred from Primary School , Taratand, Nawadih to Upgraded Middle School, Banchatra, Gomia vide Memo No.1347 dated 7.8.2020. Petitioner namely No.7 Manoj Kumar Mahato has been transferred from Upgraded Middle School, Nawadih to Upgraded Middle School, Banchtra, Gomia vide Memo no 1300 dated 29.07.2020 where, they have their joining after they were relieved. Thereafter suddenly on 09.07.2022 vide Memo No 982, pursuant to some direction given by the higher authority, the transfer of the petitioner(s) and others were cancelled and they were directed to rejoin on the original place of posting.
14. Counsel for the petitioners submits that the petitioners were transferred by the competent authority and consequent thereupon, they joined their respective places of positing. He further submits that by the impugned orders, the earlier transfer order was recalled and set aside and the petitioners were directed to join their original places of posting. As per them, once the transfer order is given effect to, the same cannot be recalled or cancelled. In support of 6. their contention, the counsel for the petitioners refers the decisions passed by the Hon'ble Patna High Court in the case of Dr. Ramchandra Safi Vs. The State of Bihar and Ors. reported in (2000) 3 PLJR 139 and in the case of Smt. Jyotsna Kumari Vs. State of Bihar and Ors. reported in (2000) 2 PLJR 332.
15. Counsel for the respondents admitted the facts stated above but submitted that as per law, there is no embargo in cancelling an order of transfer. In support of his contention, he referred Section 21 of the General Clauses Act, 1897, which provides that the authority which has a power to issue, has also power to add, amend, vary or rescind notifications, orders, rules or bye-laws. Thus, the authority concerned who is the appropriate authority had admittedly transferred the petitioners and admittedly they had recalled the order of transfer, in which, there is no illegality. In support of his contention, he referred the judgment passed in U.P. Avas Evam Vikas Parishad through Housing Commissioner & Another Vs. Noor Mohammad and Others reported in 2021 SCC Online SC 1266. He further submitted that the transfer, being an incident of service, should not be interfered with by this Court, as the employees have got no right to question the transfer order when there is no illegality in transferring the employees. He lastly submitted that as per the rules, the transfer was to be effected by means of software application, but since the same was not followed, it was decided to recall the transfer order, thus the impugned orders were passed.
16. After hearing the parties, I find that the facts are admitted. The petitioners were transferred to new place of posting, but later on, their transfer orders were recalled. Admittedly, both the orders were passed by the competent authority. The State has taken a plea that since the provision of the rule was not followed, it was decided to recall the order of transfer. As per him, the transfer was to be done with the help of a software application, but the same was not effected by the software application, thus the impugned orders were passed.
17. The issue is not as to whether the software application should have been applied or not, but the issue is once the transfer order is given effect to, whether the competent authority has got any right to recall the same.
18. In normal parlance, in relation to service, transfer means the change of place of employment within the same organization. The transfer is an incident of public service and generally it does not require the consent of the employee. The employer has inherent power to transfer its employee, for which, it is not necessary to have any express provisions or any terms. The Hon'ble Supreme Court in the case of Union of India Vs. Murlidhar Menon, reported in 2009 (9) SCC 304 has held that the transfer is an incident of government servants. Thus, the transfer is an implied condition of service.
19. In the case of State of Rajasthan and Ors vs. Anand Prakash 7. Solanki (2003) 7 SCC 403, the Hon'ble Supreme Court has held that to make an appointment includes the power to transfer unless the same is expressly barred. Thus, there has to be an express condition of barring of transfer. Thus, in view of the aforesaid judgments and the proposition of law, it is clear that the employer has power to transfer its employee.
20. In the case of State of U.P. and Ors vs Ashok Kumar Saxena and Anr reported in (1998) 3 SCC 303, the Hon'ble Supreme Court has held that an order of transfer can be cancelled or withdrawn for justifying reason. Though the matter arose out of a contempt application, but in para 8 the Hon'ble Supreme Court has held as follows:
"8. In this case, the High Court passed an order on 16- 10-1995 dismissing the writ petition filed by the second respondent refusing to interfere with the order of transfer. Thereby the High Court upheld the validity of the order of the Government transferring the second respondent. By doing so the High Court did not and could not have put any fetters on the power of the Government to pass any subsequent order of transfer or recall the order of transfer already made. The High Court had no occasion to restrict such powers of the Government which were in fact recognized and acknowledged by the Court in the very same order of dismissal. It cannot therefore be said by any stretch of imagination that by the said order the High Court put its final seal of approval on the order of transfer dated 7-10-1995 passed by the Government. The High Court had not and could not have taken over the administration of the State by the said order dismissing the writ petition. There was therefore no bar against the Government or the appellant withdrawing, altering or modifying the order of transfer passed on 7-10-1995."
21. Further Section 21 of the General Clauses Act, 1897 gives power to the authority to add, amend, vary or rescind notifications, if that authority has power to issue the same. It is necessary to quote Section 21 of the General Clauses Act, 1897, which runs as under:-
"21. Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye-laws:-
Where, by any Central Act or Regulations a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued."
22. Thus, it is clear that the authority, which is having the power to issue transfer order, has a power to recall the same. Thus the Competent Authority has the power to recall, alter, modify and withdraw an order of transfer. Now the next question which falls for consideration is when there is an existence of power, whether that can be used at any point of time. The existence of power and 8. exercising of power is two different aspects. An authority vested with the power is not always vested with the power to exercise the same at any point of time. Even if the authority has power to transfer and the power to recall the transfer order, the same cannot be exercised beyond a particular stage.
23. In the instant case, the transfer orders were issued, the said orders were given effect to, and the petitioners joined their respective places of posting. Once the employees join their respective places of posting, a particular transfer order dies a natural death and it becomes redundant. An order which becomes redundant, as the order has already been given effect to and parties have changed their position in compliance of the said order, the same cannot be recalled. In para 11 in the case of Dr. Ramchandra Safi (Supra) it has been held that on the other hand, in the matter of transfer, once notification is acted upon, nothing subsists and the notification of transfer becomes redundant for all purposes.
24. Thus, considering what has been discussed above, I hold that the authority issuing the transfer order has rights and power to recall the same, but the said power can be exercised by the authority before implementation of the aforesaid notification. Once the transfer orders have been given effect to and the parties have joined their respective places of posting, pursuant to orders of transfer, even the authority having the power to recall the same, cannot recall/ cancel the order of transfer. In such event, the only option left to the appropriate authority is to pass fresh order of transfer. In an event, after issuance of transfer order but before the same has been given effect to, the same can be recalled by the competent authority.
25. In all these cases, I find that the transfer orders were given effect to and the employees have joined their respective places of posting, thus even though, the authority has a power to recall the same, but the same cannot be exercised after transfer orders were given effect to. Even if, there was some flaws in the earlier transfer order but after execution of the same, the only remedy available to employer is to pass a fresh order of transfer justifying the same by giving the reasons.
26. In view of what has been discussed above, these writ petitions are allowed.
27. The orders, as contained in Memo No. 323 dated 22.2.2022 and Memo No. 1233 dated 9.6.2022 (WPS No. 3827 of 2022), Memo no 1233 dated 09/06/2022 (WPS No 3081 of 2022), Memo no 1233 dated 09/06/2022 (WPS No 3084 of 2022), Memo no 1089 dated 01/06/2022 (WPS No 3206 of 2022), Memo No. 1079 dated 01/06/2022 (WPS No 3257 of 2022), & Memo no 323 dated 22.2.2022 and Memo No. 1233 dated 09/06/2022 (WPS No 3982 of 2022) are quashed and set aside. However, it will be open to the respondents to pass a fresh order of transfer in accordance with law.
Anu/-Cp2. (ANANDA SEN, J.)