S.N. Hussain, J.
1. Heard learned counsel for the petitioner, learned counsel for the State and learned counsel for the private respondent No. 6.
2. An intervention petition bearing I.A. No. 2909 of 2005 has been filed in this case on behalf of Bihar Rajya Beej Parikchan Karamchari Sangh, Mithapur Agriculture Parichatra, Patna and seven other employees of the department for being impleaded as party respondents for contesting the writ case. Their plea for being impleaded is contested by the petitioner and is supported by the private respondent. According to the learned counsel for the interveners the matter is of importance for the general employees, hence the Karamchari Sangh is a necessary party and further since allegation have been levelled against five persons in paragraph 13 of the writ petition including applicants No. 2, 4 and 8, the intervenors are also necessary parties for the disposal of this case. However, from paragraph 13 of the writ petition it is quite apparent that merely a statement with regard to an occurrence was made therein, while explaining the facts of the case on the basis of which neither any relief was claimed, nor any action is sought against them, nor even the interest or general employees of the department is in any manner connected with this case. Hence the entire claim of the intervenors is baseless and frivolous and is a mischievous attempt to politicalise this case, specially when the record shows involvement of Ex-Minister and Ex-MLA in the transfer matter. Accordingly, the aforesaid intervention petition bearing I.A. No. 2909 of 2005 is rejected.
3. This writ petitioner is a Deputy Director (Class II) in the Department of Agriculture, Government Bihar and is aggrieved by Government Notification No. 2881 dated 30.6.2004 issued vide Memo No. 2885 dated 30.6.2005 (Annexure 1) issued by the Under Secretary of the Department (respondent No. 5), by which the petitioner was sought to be transferred from the post of Deputy Director of Agriculture (Seed Analysis), Bihar, Patna to the post of Deputy Director of Agriculture (General), Saran at Chhapra and is also aggrieved by Government Notification No. 2858 dated 30.6.2004 (Annexure 1), by which respondent No. 6 was sought to be posted at Patna in place of the petitioner. The petitioner is also aggrieved by order vide Memo No. 112 dated 1.2.2005 (Annexure 2) issued by the Under Secretary of the Department (respondent No. 5) informing the petitioner that his representation against his transfer had been rejected and he was directed to immediately join the post to which he had been transferred by Notification dated 30.6.2004.
4. The learned counsel for the petitioner challenged the said notifications and orders on the grounds that they were violative of the Government instruction and also of the established principles of law and that the order of his transfer (Annexure 1) was mala fide, and his representation against his transfer was rejected (Annexure 2) cursorily without giving any reason at all, whereas the special circumstances of this case required serious application of mind and consideration.
5. The contention of the learned counsel for the petitioner is that he was appointed on 11.2.1988, whereafter he was transferred to several places, where he served with full sincerity and honesty with impeccable record to the satisfaction of the authorities concerned and finally vide Notification No. 1795 dated 29.6.2002 he was posted as Deputy Director of Agriculture (Seed Analysis), Bihar, Patna, where he joined on 1.7.2002 and since then he is working there. It was also contended that in the year 2004 when the Departmental Establishment Committee considered the matter of chain transfer of the employees of the department it did not recommend transfer of petitioner from Patna nor it even considered the name of respondent No. 6 for transfer, but without recommendation of the District Establishment Committee the name of respondent No. 6 was inserted at the level of the then Minister of the Department, whereafter the impugned notifications dated 30.6.2004 (Annexure 1) were issued transferring petitioner to Chhapra and also transferring respondent No. 6 to the post at Patna on which the petitioner was working.
6. With respect to the question of mala fide, the learned counsel for the petitioner has submitted that being Member-cum-Convenor of the Enquiry Committee the petitioner has highlighted several irregularities besides illegal appointments/ promotions/postings in different Class III and Class IV posts at the instance of the high-ups, as a result of which the petitioner was abused and misbehaved with, which he brought to the notice of the Agriculture Production Commissioner and Director Agriculture. Thereafter when the Enquiry Report regarding the said illegalities and irregularities was published, the Treasury objected to the salary bills of that office and ordered that certificate of valid appointment should accompany the salary bills and to get it also countersigned. Due to this objection a meeting was convened on 30.4.2004 in the office chamber of the Agriculture Director, but the said meeting was disturbed by a few employees alongwith an M.L.A who broke into the office and started threatening and abusing the petitioner in presence of the Director due to the submission of the Enquiry Report. Hence the learned counsel for the petitioner has submitted that the said Ex-Minister had become biased against the petitioner and ordered for his transfer which is a clear case of mala fide on political considerations.
7. Thus according to the learned counsel for the petitioner the impugned order of his transfer (Annexure 1) from Patna is bad and illegal on both the aforesaid two counts, namely, violative of the settled principles of law and mala fide. He has further submitted that in the aforesaid circumstances rejection of petitioner's representation by an absolutely non-speaking and cryptic order (Annexure 2) without appreciating and even considering such vital issues, which are so important for the proper functioning of the governmental machinery, is also illegal and bad and hence he claimed that both the impugned orders are fit to be quashed.
8. On the other hand, learned counsel for respondent No. 6 has claimed that the petitioner has produced no document to show that the Departmental Establishment Committee had not recommended the names of the petitioner and respondent No. 6 for transfer, hence the fundamental ingredient of petitioner's claim is baseless. The learned counsel for respondent No. 6 has also submitted that the Government order dated 30.6.2001 (Annexure A) shows that he was transferred to Bhagalpur in the year 2001 and after completion of three years he was transferred from Bhagalpur by the impugned order dated 30.6.2004 (Annexure 1), hence no illegality can be or has been shown against his transfer. It is also stated on his behalf that no enquiry is pending against respondent No. 6 and his earlier punishment has been quashed by this Court and there is no material on record to show that he ever approached or made 'Pairvi before the Ex-Minister for his transfer.
9. The learned counsellor respondent No. 6 further claimed that paragraph 12 of the case law cited by the petitioner 1994 (2) PLJR 315 clearly showed that this Court in the case of Man Singh v. The State of Bihar and Ors. reported in 1982 BBCJ 392 held that the strict compliance of the procedure laid down in the Government circular including that relating to the recommendation of the Establishment Committee cannot render the order of transfer as invalid. Hence he has stated that according to the said principle laid down by this Court the impugned order of transfer cannot be said to be illegal or invalid.
10. Although the State has got a very weak case, but it may be stated here that Mr. A.K. Mishra, the learned junior counsel to Standing Counsel No. VI argued so dogmatically and emphatically that I wonder whether the Government counsel could have placed it better. He submitted that the incident which took place in the office of the Director of Agriculture as well as the charges of irregularities and illegalities in the appointments/promotions/postings of the employees and also the allegation of some of the employees against the petitioner are under investigation. He further claimed that the impugned order is an order of chain transfer and interference in transfer of one transferee would disturb the entire chain that too after one year and also would clearly affect the functioning of the department adversely; Hence he claimed that the said order of transfer was in public interest and no case of mala fide has been shown or proved by the petitioner. In this connection he relied upon a decision of the Hon'ble Apex Court in the case of State of U.P. and Ors. v. Siya Ram and Anr., reported in 2004 AIR SCW 4548.
11. After hearing the learned counsel for the parties and after perusing the materials on record as well as the provisions of law, it is quite apparent that Government instructions and circulars specifically provide that transfers can be made only on the basis of recommendation of the District Establishment Committee and without its recommendations no transfer can be legally and validly made. In this connection the two decisions of this Court, cited by the learned counsel for the petitioner, in the case of Krishna Mohan Choudhary v. The State of Bihar and Ors., reported in 1994 (2) PLJR 315 and in the case of Baldeo Choudhary v. The State of Bihar and Ors., reported in 2000 (1) PLJR 914 are relevant.
12. It is the specific case of the petitioner that there was no recommendation of the District Establishment Committee for the transfer of the petitioner and respondent No. 6, but the said claim is not denied by the respondents-authorities nor they have produced any piece of paper to show that the Establishment Committee had made any such recommendation. Hence this stand of the petitioner stands practically admitted. Furthermore on the date the impugned order was issued the petitioner had remained on his post only for two years. The doctrine of fairness is applicable even in administrative actions of the authorities as has been well settled by the Courts of law and if the test of fairness is applied such orders of transfer must be justified by some grounds in the interest of administration and in absence thereof such action can be held to be arbitrary, perverse and unfair and also violative of Articles 14 and 16 of the Constitution of India (In short 'the Constitution'), from which the requirement of fairness emerges which is inverse to mala fide and arbitrariness which are basically two sides of the same coin.
13. In the case of Baldeo Choudhary (supra) this Court clearly held that transfer made on the recommendation of the Minister but without the recommendation of the Establishment Committee was illegal and that even where the Minister of the Department is competent to alter or modify the recommendation of the Establishment Committee, where there is no such recommendation of the Establishment Committee, order of transfer on the recommendation of Minister is not valid. In the instant case also the impugned order of transfer of the petitioner and respondent No. 6 was passed at the instance of the Minister, although no recommendation for their transfer was made by the Establishment Committee.
14. In the case of Krishna Mohan Choudhary (supra) it was specifically held by a Division Bench of this Court that the principle of law which emerges from various case-laws in matters of transfers and postings of Government servant is that the authorities must act reasonably and in good faith and upon proper grounds in case of deviation from the recommendations of the Establishment Committee, which must be discernible from the records. If the action of Minister is challenged on the grounds of mala fide the issue becomes justiciable and it becomes incumbent upon the authorities to justify its action by placing on record the reason which prevailed upon necessitating modification/alteration in the recommendations of the statutory Establishment Committee. It is then only that it can be adjudged whether such grounds were good or. germane to the exercise of power keeping in view the requirement of fairness embodied under Articles 14 and 16 of the Constitution.
15. So far the reliance of the learned counsel for respondent No. 6 upon paragraph 12 of the decision in the case of Krishna Mohan Choudhary is concerned, it may be made clear that in that paragraph this Court had only referred to the case of Man Singh v. The State of Bihar and Ors., reported in 1982 BBCJ 392 in which referring to the Government Resolution dated 1.11.1982 the Court took the view that strict compliance of the procedure laid down in the Government Circular regarding recommendation of the Establishment Committee cannot render the order of transfer invalid. However in paragraph 13 of the decision in the case of Krishna Mohan Choudhary (supra), the Division Bench of this Court has made it clear that admittedly in Man Singh's case (supra), the attention of this Court was not drawn to Rule 22(3) of the Rules of Executive Business and therefore the Court had no occasion to consider the import of the said Rule which does not pertain to the public duties but relates to the power of transacting a particular governmental business, namely, transfer of its servants. As such the provision has to be taken as mandatory and any order passed by the Minister-in-charge in absence of recommendation of the Establishment Committee regarding transfer/posting and deputation of Officers has to be held as invalid in law. Accordingly, the contrary view taken in Man Singh's case was declared as in-percuriam.
16. No special case for transfer without recommendation of the Establishment Committee has been made out either in the impugned order or in the assertions of the respondents, although both the issues raised by the petitioner that the said transfer was violative of Government instruction and of establishment principle of law and that the order of transfer was mala fide. This aspect of the matter should have been considered by the authority concerned which rejected the representation of the petitioner cursorily without any speaking order and without giving any reason at all, whereas the special circumstances of the case required serious application of mind before coming to any conclusion.
17. Furthermore, if the impugned order is set aside it would only affect one or two changes and in any view of the matter it is not going to affect the entire chain of transfers made by the impugned order dated 30.6.2004 (Annexure 1). Moreover, this Court had already passed an interim order in this case earlier restraining the authorities from taking any coercive action against the petitioner regarding transfer till the disposal of this case. Thus lapse of time is clearly not going to affect this case.
18. So far the decision of the Hon'ble Apex Court in the case of State of UP. and Ors. (supra), relied upon by the learned State Counsel, is concerned, it is with respect to only those cases in which transfer was made purely on administrative grounds and in public interest and was also made after following due process of law without any mala fide. But here in the instant case the matter is completely different due to clear mala fide and non-compliance of the legal requirements and hence the said decision is not applicable to the facts and circumstances of this case, in which justice requires interference by this Court in the impugned order of transfer.
19. Hence, I find that in the facts and circumstances of this case and also in view of the principles of law settled by this Court it is necessary in the interest of justice that the entire matter with respect to the transfer of petitioner and respondent No. 6 be considered afresh legally and properly. Accordingly, the impugned order of the Government Authority communicated vide Memo No. 112 dated 1.2.2005 (Annexure 2) issued by the Under Secretary of the Department (respondent No. 5) is hereby quashed and the authority concerned is directed to reconsider the entire matter afresh in view 'of the observations/directions made above and in accordance with the provisions of law and the case laws relevant to the facts and circumstances of this case. The concerned authority is directed to pass the aforesaid order within one month from the date of receipt/production of a copy of this order and till then the impugned Notification dated 30.6.2004 (Annexure 1) shall remain stayed so far it concern the petitioner and respondent No. 6.
20. With the aforesaid directions this writ petition is disposed of.
21. Let a copy of this order be handed over to Sri Ashok Kumar Mishra No. 2, learned counsel for the State for compliance.