Jagdeo Ram v. The State Of Bihar

Patna High Court LPA No.1466 of 2012 (5) dt.08-02-2013 2 the employer to decide and not for the Courts to substitute its views. Casual interference by Court in orders of transfer may create more administrative turmoil than the Court may attempt to solve. Unless a transfer order suffers from statutory infirmities or is vitiated by arbitrariness, malafides or is punitive, the Court shall refrains from interference. If any administrative instructions are violated, it would not vest a cause of action in a Court of law but shall only provide an opportunity to the government servant concerned to represent. If administrative instructions laying down general guidelines for transfer and posting cannot vest a cause of action in a Court of law in the aggrieved, simultaneously the instructions cannot be interpreted by the authorities in a casual and perfunctory manner defeating the very purpose of the instructions. Euphemistically stating such instructions shall be a double edged sword. The administrative instruction that a government servant may be considered for a posting of his choice in the last year of his service, is not an absolute principle but has to be read and understood in its applicability, to the extent possible, as is also contemplated in the instruction. Clause 2 of the instruction dated 3.6.2009 states that such requests may be considered ‘sympathetically’. It has to be read and understood reasonably subject to availability of a vacancy or transfer of another whose tenure had matured in routine course and was eligible for transfer under government rules. Clause 2 cannot be interpreted in a unilateral manner permitting sympathetic consideration violating another aspect government instruction with regard to the other government servant. Learned Counsel for the appellant submitted that transfer within six months of the joining was wholly unjustified. The impugned order does not reflect any administrative exigency or public interest. On the contrary, it explicitly states that he was being transferred to accommodate respondent no. 3 on the request of the latter. Respondent no. 3 had remained posted at Patna High Court LPA No.1466 of 2012 (5) dt.08-02-2013 3 Bhagalpur in the same capacity from 2004 till June 2007. Counsel for the State submitted that transfer and postings were prerogative of the State Government. The Court may not interfere with transfer orders and even if any government instructions had been violated the remedy lay in representing before the authorities relying on 1991 (Suppl) 2 SCC 659 (Shilpi Bose {Mrs} v. The State of Bihar). An effort was made to persuade us that the order of transfer originated in dissatisfaction of discharge of duties by the appellant as noticed in the file noting dated

24.6.2012. If administrative reasons are disclosed in the file, justification to sustain the impugned order. Reliance was also placed on the administrative circular dated 3.6.2009 that reasons were only required to be recorded in the file. Learned Counsel for Respondent No. 3 essentially adopted the submissions on behalf of the State and buttressed it that the right was provided under the circular to represent in the last year of service. It was submitted that he is due for superannuation in April 2012 and had made the representation in question in May 2012. An order passed by the State authorities would be tested on basis of the recitals contained in the order. The recitation is evidence of what passed the mind of the authorities in issuing the order. The deliberation that may have transpired culminates in the order. If any part of the deliberation does not form part of the order, the order cannot be improved upon by counter affidavit or any file notings. If that were to be permitted, an order initially bad may be justified on completely extraneous grounds by the time it comes to Court and is challenged. File nothings cannot be pressed into defence or be made a cause of action. They are but a part of the decision making process. There may have been materials against the appellant in the file as was suggested. The authorities had with them the request by Respondent no. 3. But the impugned order was not Patna High Court LPA No.1466 of 2012 (5) dt.08-02-2013 4 passed on the former but latter ground. The order does not state that it was being done in public interest. On the contrary, it leaves the Court satisfied that it was done for personal interest. We have no hesitation in holding that the power given to the authorities for ‘sympathetic’ consideration of a government servant in the last year of his service has been applied in an arbitrary and irrational manner lending credence that it suffers from the malice in law. The reliance on Shilpi Bose (supra) by the State is of no avail to them. The distinguishing factor lies in the fact that the person concerned had remained posted at their respective places for last several years and transfer order had been passed in a peculiar situation to accommodate hardship of lady employees. In the present case, we have already noticed that the petitioner had remained posted only for six months. We are therefore left with no option but to strike down the order dated 25.6.2012 and set aside the order under appeal. Nothing precludes a fresh request by Respondent no. 3 if so advised. But it has to be considered strictly in accordance with law, the guidelines of the State Government and the observations with regard to the manner for exercise of the same as discussed presently. The appeal is allowed. Snkumar/- (Navin Sinha, J) (Shivaji Pandey, J)