Shashi Bhushan Puran vs The State of Jharkhand and Others

Ajit Kumar Sinha, J.—The present writ petition has been preferred for the following reliefs:

(i) For issuance of an appropriate writ(s), Order(s) and/or direction(s), particularly a writ in the nature of certiorari for quashing notification No. 4542 and 4541 dated 31.12.2008, so far as it relates to petitioner and respondent No. 4,(Annexure-2) by which the petitioner has been transferred from the post of in-charge Executive Engineer, Drinking Water and Sanitation Division, Deoghar to the post of Technical Advisor to the Superintending Engineer, Drinking Water and Sanitation Circle, Dhanbad and private respondent No. 4 has been posted in place of petitioner, without any recommendation of Establishment Committee nor any reason has been assigned for premature transfer of the petitioner either administrative or else and that too within a short span of six months, only at the instance of Departmental Minister in-charge.

(ii) For issuance of an appropriate writ(s), order(s) and/or direction(s), particularly a writ in the nature of Mandamus commanding the respondents not to give effect to the said notification vide No. 4542 and 4541 dated 31.12.2008 as contained In Annexure-2.

(iii) For a direction upon the respondents to produce before the Hon''ble Court the records of the Establishment for perusal of this Hon''ble Court.

The facts, in brief, are set out as under:

The petitioner was in-charge Executive Engineer in Drinking Water and Sanitation Division, Government of Jharkhand. On 31.12.2007 the petitioner was transferred vide notification No. 5947 from Drinking Water and Sanitation Sub-Division, Chaibasa and posted as in-charge Executive Engineer, Drinking Water and Sanitation Division, Deoghar. The petitioner joined on the transferred post on 12.1.2008 and worked satisfactorily. Within a short span of one year in violation of Government Circular/Resolution dated 25.10.1900 and without any administrative, reason or without any recommendation of the Establishment Committee, the petitioner was transferred and private respondent No. 4 was posted in his place.

The main contention raised by the Counsel for the petitioner is that the order of transfer without recommendation of the Establishment Committee was illegal and arbitrary and unsustainable in the eyes of law. It has also been contended that transfer within a period of one year was against the Circular/Resolution dated 25.10.1980.

The respondents in their counter affidavit and also by the submissions through their learned Counsel have stated that the Government Circular/Resolution dated 25.10.1980 was directory and not mandatory a id in the instant case the transfer order was passed with the approval of the competent authority and the Departmental Minister in-charge. It has also been contended that as per Clause 22(5) of the Rules of Executive Business the Minister in-charge is the final authority to approve the recommendation of the Establishment Committee and the transfer was made admittedly after the approval of the Minister in-charge. It has further been submitted that the petitioner has already been relieved and joined on transferred post and before approaching this Court he should have at least filed a representation before the administrative authority.

In the supplementary counter affidavit filed by the respondent Nos. 2 and 3 it has also been stated that the petitioner was found negligent and recommendations for disciplinary proceedings has been made against him and it was also found that there was no progress in the work with regard to the execution of plan in the Drinking Water and Sanitation Department, Jharkhand.

The learned Counsel for the private respondent No. 4 further submits that vide order No. 10 dated 13.1.2009 respondent No. 4 has already relinquished the charge on 7.1.2009 and assumed the charge on 13.1.2009 on the transferred post and thus, no useful purpose will be served.

I have considered the submissions and also the provisions of law in this regard. The private respondent No. 4 has also referred to and relied upon the Judgments passed by this Court In W.P.(S) No. 3738 of 2008 and W.P.(S) No. 3676 of 2008 to support his contention stating that in an identical case, this Court dismissed the writ petitions while upholding the notification of transfer and in those cases also the transfer was made within a short span of less than six months.

In the aforesaid Judgments this Court while relying upon 2007 (8) SCC pg. 150 held that the principle of law laid down in a series of Judgment clearly confined the scope of judicial review in the matters of transfer under Article 226 of the Constitution of India and held that unless the transfer order was malafide or the service Rules prohibit such transfer, or that the; authorities who issued the order, was not competent to pass the order, the order of transfer should not be interfered in exercise of its discretionary jurisdiction under Article 226 of the Constitution of India.

However, it is true and correct that in the case of Sheonath Singh Ganjhu W.P.(S) No. 3676 of 2008 as referred to and relied upon it will be relevant to clarify that in that case there was serious charges and complaints against the petitioner to justify the order of transfer and even that ratio of the Judgment applies to the present facts since in this case also the petitioner was negligent and failed to execute the plan and disciplinary proceeding has been initiated.

Be that as it may, the fact remains that there is no specific allegation of malafide or violation of any statutory Rules and the fact that the Resolution has been held to be directory and not mandatory and the order of transfer was neither incompetent and or without jurisdiction the same cannot be interfered with under Article 226 of the Constitution. The petitioner has already relinquished the charge and has joined on the transferred post and thus it will be in the interest of justice not to interfere in the matter more so when there is no jurisdictional error as pointed out.

Considering the aforesaid facts and circumstances of the case, I am not inclined to interfere in the matter and this writ petition is accordingly dismissed.