Judgment:
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P (S) No. 4370 of 2016 Ranjeet Lohra ...… Petitioner Versus 1. The State of Jharkhand.
2. The Secretary, Department of Revenue, Registration & Land Reforms, Govt. of Jharkhand, Ranchi.
3. The Joint Secretary, Department of Revenue, Registration & Land Reforms, Govt. of Jharkhand, Ranchi.
4. The Dy. Commissioner, Ranchi. ...… Respondents -------- CORAM : THE HON’BLE MR. JUSTICE H. C. MISHRA ------ For the Petitioner : Mr. Rajeev Ranjan, Sr. Advocate Mr. Mukesh Kumar Sinha, Advocate Mr. Pankaj Kumar, Advocate. For the Respondents : Mr. Vijay Kant Dubey, Advocate Ms. Sunita Kumari, J.C to S.C ( L & C) ------ 4/24.8.2016 Heard the learned counsel for the petitioner and the learned counsel for the respondent State.
2. The petitioner has challenged the notification issued by the State Government bearing No. 4387 dated 4.8.2016, issued by the respondent No.3, as contained in Annexure-4 to the writ application, whereby, the petitioner has been transferred from the post of Circle Officer, Nagri, Ranchi, to the post of Circle Officer, Itkhori, in the district of Chatra. In Annexure-4, the impugned notification appears at Sl. No. 24.
3. The stand of the petitioner is that the petitioner had been posted as Circle Officer, Nagri, Ranchi, vide notification No. 1865 dated 4.5.2016, upon his transfer from the post of Circle Officer, Bishnugarh, Hazaribagh, and pursuant thereto, the petitioner has joined only in the month of May, 2016, whereas in a short period of about three months, the petitioner has again been transferred from the post of Circle Officer, Nagri, Ranchi, to the post of Circle officer, Itkhori, in the district of Chatra.
4. Learned counsel for the petitioner has submitted that the impugned order of transfer of the petitioner is absolutely illegal and is against the policy and guidelines of the State Government with regard to the transfer and posting of the Officers, as notified on 25.10.1980, which has been brought on record as Annexure-6 to the writ application. It is submitted that according to the guidelines issued by the State Government, the transfer and posting of an Officer is to be made generally twice in a year, i.e., in the month of May-June and November-December, provided that in special circumstances, i.e., death, illness, vacancy or other administrative reasons, the transfer could be made -2- any time, subject to the conditions as laid down in the said guidelines. It is also provided in the said guidelines that duration of posting at a particular place shall generally be for a period of three years. It is also submitted by the learned counsel for the petitioner that the State Government has also framed the Rules, namely, 'Jharkhand Administrative Service Rules, 2015' wherein also, Rule 24 provides for posting of an Administrative Officer for a period of three years at one place, providing that normally, an Officer would not be transferred prior to the period of three years, unless the State Government is of the view that such transfers are necessary in the interest of the State and in case of cadre promotion.
5. Learned counsel has also submitted that the guidelines notified by the State Government on 25.10.1980 has also been considered by a Division Bench of this Court, in Uttam Kujur Vs. State of Jharkhand and Ors., reported in 2008 (2) J.C.R306(Jhr.), wherein the law has been laid down as follows :-
"0. ------------------. 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 BBCJ392 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) PLJR69(Shyam Kumar Prasad V. State of Bihar and others), the question of transfer at the instance of M.L.A was found to be not sustainable. -3- 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, reported in (2004) 12 SCC299 the Apex Court while considering the validity of transfer and scope of interference in writ jurisdiction observed thus : “4.......... Unless 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....................” *** *** *** 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 others, 2007 (3) JCR345(Jhr), while considering the validity of the Government's Industrial Policy and its violation by the executive authorities observed thus : (JCR page 352). “16..........A subordinate authority has no right or jurisdiction to overthrow a well thought State's Policy by its subordinate executive action................”.
6. It is submitted by the learned counsel for the petitioner that at the time of decision in the aforesaid case, there was no statutory rules framed under the proviso to Article 309 of the Constitution of India, regulating the transfer and posting of Government servants in the State of Jharkhand, but subsequently, the statutory rules have also been framed by the State Government, under Article 309 of the Constitution of India, i.e., Jharkhand Administrative Service Rules 2015, and the said Rules also provide that normally, the posting of a Government servant at a place shall be for a period of three years and normally, such Government servants shall not be transferred prior to the period of three years unless the State Government is satisfied that the transfer is necessary in the interest of the State or in the matter of cadre promotion.
7. Learned counsel for the petitioner accordingly, submitted that the impugned notification dated 4.8.2016, as contained in Annexure-4 to the writ -4- application, so far as it relates to the petitioner, cannot be sustained in the eyes of law, inasmuch as, in the notification, it is not at all indicated that the transfer of the petitioner has been made in the interest of State. Learned counsel accordingly, submitted that it is a fit case, in which, the notification of transfer of the petitioner from the post of Circle Officer, Nagri, Ranchi, to the post of Circle Officer, Itkhori, Chatra, be quashed.
8. Learned counsel for the State, on the other hand, has opposed the prayer and has pointed out from the counter affidavit filed on behalf of the State, in which, it is stated that after issuance of the notification dated 4.5.2016, whereby the petitioner was posted as Circle Officer, Nagri, Ranchi, it came to the notice of the State Government that two officers, including the petitioner, had been posted in their home districts. This fact was placed before the Establishment Committee in its meeting dated 24.6.2016 and the Establishment Committee recommended for the transfer of both the Officers on the ground of their posting in the home district. The recommendation of the Establishment Committee was placed before the competent authority which also approved the transfer of the petitioner and accordingly, fresh notification has been issued, transferring the petitioner to the post of Circle Officer at Itkhori, in the district of Chatra.
9. Learned counsel for the State accordingly, submitted that by the impugned notification, the petitioner has been transferred from his home district, due to the administrative reasons and in the interest of the State, in view of the fact that the petitioner was required to work as Circle Officer, in his home district and which may not be advisable in the interest of the State. Learned counsel accordingly, submitted that even the rules framed under Article 309 of the Constitution of India, i.e., Jharkhand Administrative Service Rules, 2015, clearly provides that in such administrative exigencies, an Officer may be transferred even prior to the period of three years. Learned counsel accordingly, submitted that there is no illegality in the impugned notification dated 4.8.2016.
10. Having heard the learned counsels for both sides and upon going through the record, I find that it is a well settled principle of law that the transfer and posting of a Government servant are the normal incidents of service, which should not be ordinarily interfered with by the Courts in exercise of the writ jurisdiction, unless the order of transfer is vitiated by mala fides, or is made in violation of any operative guidelines or the Rules. In the present case, it is apparent that though there is statutory provision that normally a Government servant should not be transferred prior to three years of his posting at a particular place, but in the same Rule, it is provided that a -5- Government servant may be so transferred even prior to the expiry of three years, in the interest of State and in case of cadre promotion. In the present case, it was also found that the petitioner who was working as Circle Officer, had been posted in his home district vide notification dated 4.5.2016 as contained in Annexure-3 to the writ application and when this matter came to the notice of the State Government, the matter was placed before the Establishment Committee and the Establishment Committee recommended for transfer of the petitioner on the same ground. The matter was also approved by the competent authority, whereupon the impugned notification dated 4.8.2016 has been issued, transferring the petitioner from his home district and posting him as Circle Officer, Itkhori, in the district of Chatra.
11. In the facts and circumstances of the case, I find that though the petitioner has been transferred only in about three months of his posting, but the fact remains that he has been transferred due to the fact that he was posted in his home district. Taking into consideration the nature of work of the petitioner, i.e., dealing with the land records of the district, I am of the considered view that the posting of an Officer dealing with the land records in his own home district may not be appropriate and in the interest of State. Accordingly, I find that the present transfer of the petitioner is covered by Rule 24 of the Jharkhand Administrative Service Rules, 2015, which provides for such out of turn transfers in the interest of the State. Even the guidelines of the State Government with regard to the transfer and posting of the Officers, as notified on 25.10.1980, provides for such out of turn transfers for administrative reasons.
12. In view of the aforementioned discussions, I do not find any illegality in the impugned notification No. 4387 dated 4.8.2016, transferring the petitioner from his home district and posting him as Circle Officer, Itkhori, in the district of Chatra.
13. There is no merit in this application and the same is accordingly, dismissed. ( H. C. Mishra, J.) BS/