Rekha Kumari v. The State Of Bihar

Patna High Court CWJC No.6423 of 2013 (2) dt.05-04-2013 2 would also amount to overreaching the direction of this Court in the order dated 14.9.2012 in C.W.J.C.No. 15847/2012. In this regard he has also submitted that the petitioner after being placed under suspension was subjected to a departmental proceeding and therefore, till the departmental proceeding was concluded she should not have been removed from the district where such departmental proceeding was to be held. In this regard he has emphasized that since the charge against the petitioner is of East Champaran district the transfer of the petitioner to Lakhisarai district by the impugned order would cause not only harassment to the petitioner but would also lead to delay in disposal of the departmental proceeding. An emphasis has also been given that in the case of other persons who alike the petitioner were placed under suspension they have been allowed to continue in the district in which they were suspended and are facing departmental proceeding.

4. Learned counsel for the State, on the other hand, has submitted that the order dated 14.9.2012 of this Court in the earlier writ petition of the petitioner, C.W.J.C.No. 15847/2012, was only to the effect that if the departmental proceeding was not concluded within a period of two months her order of suspension dated

2.8.2012 shall stand revoked. In this regard he has invited Patna High Court CWJC No.6423 of 2013 (2) dt.05-04-2013 3 attention to the order of the Special Secretary dated 7.12.2012 showing that the order of suspension of the petitioner has already been revoked. He has accordingly submitted that there would be no bar in transferring the petitioner to Lakhisarai district, especially when the petitioner has failed to explain as to whether the departmental proceeding against the petitioner has commenced in East Champaran district.

5. In the considered opinion of this Court an order of transfer can be interfered by this Court only on two grounds, namely, either it is without jurisdiction or is malafide. There would be no question of the order being without jurisdiction, inasmuch as the same has been passed by the State Government and has been communicated by the Special Secretary to the Social Welfare Department. The pleas of the petitioner that after revocation of her suspension the Collector of the District dated

13.12.2012 had directed for acceptance of joining of the petitioner on the post of Child Development Project Officer, Turkaulia in the district of East Champaran will be of no avail, inasmuch as an order of the Collector of East Champaran district merely allowing the petitioner to rejoin her post would not have in any way caused fetters on the power of the State Government to transfer the petitioner. Patna High Court CWJC No.6423 of 2013 (2) dt.05-04-2013 4

6. There is infact also no allegation of malafide against any person in the writ petition and therefore, the order of transfer also cannot be said to be bad on that score.

7. The rest of the plea of the petitioner that in the earlier order of this Court dated 14.9.2012 there has been a direction of this Court for holding the departmental proceeding in the district headquarter of East Champaran i.e. Motihari has to be also only noted for its being rejected. The relevant portion of the aforesaid order of this Court relied heavily by the petitioner in fact reads as follows: “Petitioner has been placed under suspension vide order dated 2.8.2012 as contained in Annexure 1. No charge- sheet has been framed so far. No enquiry officer has been appointed. Petitioner has also been transferred from East Champaran to Gaya which is at a distance of 500 km. If the departmental enquiry has to take place, it can be held only at the district headquarter of East Champaran. In these circumstances, order of transfer of the petitioner is hereby stayed. She shall be paid salary from the office of the District Officer of the ICDS at East Champaran. A charge-sheet shall be served within 15 days, enquiry shall be completed within a month, and thereafter within 15 days decision shall be taken on the enquiry report. If the final decision is not taken within the aforesaid two months, suspension order shall stand revoked. Patna High Court CWJC No.6423 of 2013 (2) dt.05-04-2013 5 Writ petition is disposed of."

8. From the reading of the aforementioned order of this Court as a whole it would be clear that till 14.9.2012 the date on which the petitioner had assailed her suspension order she had not been served with any charge sheet nor any Enquiry Officer was appointed. It appears that the petitioner’s headquarter during the period of suspension was only fixed at Gaya which was assailed by her before this Court by describing it to be her transfer order from East Champaran. Infact the moment the petitioner herself accepts that she was placed under suspension on 2.8.2012, there would be no question of her being transferred from East Champaran to Gaya during the period of her suspension. The same also becomes clear from her order of revocation of suspension order dated 7.12.2012 which was passed by the Special Secretary to the Government under the orders of the State Government on account of departmental proceeding having been not completed in the period of two months as directed by this Court.

9. As a matter of fact there is nothing on record to show as to the present stage of the departmental proceeding against the petitioner. The petitioner herself has not even stated in this writ petition that the memo of charge in the departmental proceeding has been framed and served on her or the Enquiry Officer has been Patna High Court CWJC No.6423 of 2013 (2) dt.05-04-2013 6 appointed. There is also nothing on record to show as to whether the departmental proceeding of the petitioner had already commenced at Motihari and therefore, the plea of the departmental proceeding at Motihari cannot be over emphasized by the petitioner much less made her shield for her continuation at Motihari.

10. The impugned order of transfer has been issued by the State Government and it is in relation to three of such persons including the petitioner. This Court does not find anything from such chain order of transfer order so as to be also held as selective and thus arbitrary.

11. In such a situation if the petitioner has any grievance against the order of transfer dated 14.2.2013, as contained in Annexure 1, it was/is always open to her to represent her case before the authority who had issued the order of transfer a recourse as has been laid down by the Apex Court in the case of Shanti Kumari v. Regional Deputy Director, Health Services & ors., reported in AIR 1981 SC 1577. This Court, in exercise of power under Article 226 of the Constitution of India, will not sit in appeal on a chain order of transfer which is well within the domain of the executive more so when the same can neither be held to be without jurisdiction nor malafide. Patna High Court CWJC No.6423 of 2013 (2) dt.05-04-2013 7

12. In that view of the matter this Court would find no merit in this application and the same is accordingly dismissed.

13. The dismissal of the writ application, however, will not come in the way of the petitioner in representing her case before the Special Secretary of Rural Development Department. If and when such representation is filed by the petitioner the Special Secretary to the Department he will place the matter before the competent authority who will consider the grievance of the petitioner as with regard to possibility of impediment created in the pending departmental proceeding against the petitioner on account of impugned order of transfer and pass an appropriate order in accordance with law by taking into account the stage of the departmental proceeding.

14. Subject to the aforementioned liberty, observation and direction, this application is dismissed. (Mihir Kumar Jha, J) surendra/-