Uttam Kujur v. State of Jharkhand & Ors
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 6869 of 2013 ............ Umesh Kumar ….. Petitioner Versus 1. The State of Jharkhand 2. Principal Secretary, Road Construction Department, Ranchi. 3. Deputy Secretary, Road Construction Department, Ranchi. 4. Superintending Engineer, Road Construction Department, Road Circle, Dumka 5. Executive Engineer, Road Construction Department, Road Construction Division, Deoghar 6. Raj Kumar Rajesh, Assistant Engineer, Quality Control Directorate, Road Construction Department, Ranchi. ..... Respondents -----------
Legal Reasoning
The learned Senior counsel has relied on a decision of this Court in 2 “Uttam Kujur v. State of Jharkhand & Ors.”, reported in 2008 (2) JCR 306, the relevant paragraphs of which are extracted below : 11. “The natural corollary of the above observation is that where operative guidelines or rules are in place and the transfer is made in violation of any such operative guidelines or rules, interference in exercise of writ jurisdiction is warranted. Though the Apex Court has used the terminology “guidelines”, the same has been placed at par with the rules. In the case of State of Gujarat v. Akhilesh C. Bhargav, reported in (1987) 4 SCC 482, it has been held that the executive instructions issued to fill up the gap in the rules and where these are not in contravention of the statutory rules are valid. The Apex Court, thus, observed as under “ “7. It is well settled that within the limit the executive powers under of constitutional scheme, it is open to the appropriate Government issue instructions to cover the gap where there be any vacuum or lacuna. Such instructions do not run counter to the rules in existence, the validity of the instructions cannot be disputed.” to 12. In the case of Sarvesh Kumar Awasthi v. U.P. Jal Nigam, reported in (2003) 11 SCC 740, the Apex Court observed as under : “3. In our view, transfer of officers is required to be effected on the basis of set norms or guidelines. The power of transferring an officer cannot be wielded arbitrary, malafide or an exercise against efficient and independent officer or at the instance of politicians whose work is not 3 done by the officer concerned. For better administration the officers concerned must have freedom from fear of being harassed by repeated transfers or transfers ordered at the instance of someone who has nothing to do with the business of administration.” 4. On a pointed quarry from the Court, how the petitioner can maintain the present writ petition as, the order dated 01.11.2013 which has been assailed in the present proceeding is an order of transfer of respondent no. 6, the learned Senior counsel for the petitioner submits that since respondent no. 6 has been transferred to the place where the petitioner was posted, he has the locus-standi to challenge the order of transfer of respondent no. 6. 5. I am unable to accept the submission of the learned Senior counsel appearing for the petitioner. The order under challenge is the order of transfer of respondent no. 6. It appears that since the petitioner has not been transferred to any other place, a grievance has been raised by the petitioner which is reflected in paragraph no. 16
Arguments
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR ............. For the Petitioner For the Respondent-State : Mr. Abhay Prakash, J.C. to G.A. For the Respondent no.6 : Mr. A.K.Sinha, Senior Advocate : Mr. Sohail Anwar, Senior Advocate ............ 02/26.11.2013 The petitioner has approached this Court challenging order dated 01.11.2013 whereby the respondent no. 6 has been transferred. 2. Heard learned counsel appearing for the parties and perused the documents on record. 3. Mr. Sohail Anwar, learned Senior counsel appearing for the petitioner has submitted that although there is no statutory rules framed however, the guidelines issued on 25.10.1980 provides that normally an employee would not be transferred before three years.
Decision
of the writ petition which is as under : 16. “That it is stated that vide aforesaid notification respondent no. 6 has been transferred and posted on the place of petitioner but no specific order regarding transfer of petitioner has been issued, simply a general instruction has been given that those who are affected by the aforesaid posting will 4 give joining in the Head Quarter.” 6. Since an employee has no right to seek posting at a particular post, I am of the view that the order of transfer of respondent no. 6 cannot be challenged by the petitioner even if it has resulted in relieving the petitioner from his post. 7. Adverting to the contention raised by the learned Senior counsel appearing for the petitioner that, the guidelines dated 25.10.1980 specifically provides that an employee should not be transferred before 3 years and the said guidelines has been considered by this Court in “Uttam Kujur v. State of Jharkhand & Ors” (supra) and this Court affirmed that the State should follow its own guidelines, I am of the opinion that this Court has only reiterated the time tested principles by which order of transfer has to be tested before interfering with an order of transfer. It has been held by the Hon'ble Supreme Court that since there is no right vested in the employee for retaining a post, an order of transfer is not interfered with by the Court unless, it is contrary to the statutory rules or it is actuated with malafide. 8. In “Union of India and Other v. S.L. Abbas, reported in (1993) 4 SCC 357, the Hon'ble Supreme Court has held : 7. “Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the court cannot interfere with it. 5 While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon legally the Government enforceable right.” employee a 9. In “National Hydroelectric Power Corpn. Ltd. v. Shri Bhagwan and another”, reported in (2001) 8 SCC 574, the Hon'ble Supreme Court has held : 5. “On a careful consideration of the submissions of the learned counsel on either side and the relevant Rules to which our attention has been invited to, we are of the view that the High Court was not justified in interfering with the impugned orders of transfer. It is by now well settled and often reiterated by this Court that no government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory provisions prohibiting 6 any such transfer, the courts or the tribunals cannot interfere with such orders as a matter of routine, as though they are the appellate authorities substituting their own decision for that of the management, as against such orders passed in the interest of administrative exigencies of the service concerned.” 10. The guidelines dated 25.10.1980 as the name itself would indicate, is only guidelines and it has no statutory force. 11. In view of the aforesaid this writ petition lacks merit and accordingly, it is dismissed. Tanuj/N.A.F.R. (Shree Chandrashekhar, J.)