Suresh Thakur v. … …
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W. P. (S) No. 5107 of 2023 Suresh Thakur ----- Versus … …. Petitioner 1. Jharkhand Police Housing Corporation Limited, through its Chairman-cum- Managing Director, Ranchi 2. Manager (Personnel), Jharkhand Police Housing Corporation Limited, Ranchi … …. Respondents -----
Legal Reasoning
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Petitioner For the Respondents ----- : M/s Ritu Kumar & Navin Kumar, Advocates : M/s Krishna Murari & Jyesh Kumar, Advocates ----- C.A.V. ON 07.11.2023 PRONOUNCED ON 06 .12.2023 1. The instant writ petition has been filed under Article 226 of the Constitution of India for quashing the order as contained in Letter No. 313/CMD dated 05.09.2023 issued by the Chairman-cum-Managing Director, Jharkhand Police Housing Corporation Limited, Ranchi, whereby the petitioner has been transferred from the post of Executive Engineer (Civil) Ranchi Region (Additional Charge of Superintending Engineer) to Executive Engineer (Civil), Palamau Division. 2. The order of transfer is challenged on the ground that the petitioner had retired from service on 31.01.2021 and had been given contractual appointment to the post of Executive Engineer by the Jharkhand Police Housing Corporation Ltd. for a period of one year. He was appointed on contractual basis on 03.02.2021 and the provision for extending the service is for a maximum period of three years. 3. The petitioner has already been granted extension for two years and his term of engagement will be complete on 03.02.2024. 4. In pursuance of the direction of the Hon’ble Apex Court in Special Leave to Appeal (Crl.) No. 3543 of 2020 in Paramvir Singh Saini Vs. Baljit Singh and others vide order dated 02.03.2021 directions were issued to different States for installation of CCTV cameras in the police station. The petitioner was appointed as Chairman of Special Internal Committee for the said installation in all the police stations in the State of Jharkhand vide letter dated 11.05.2023. Appreciating the work of the petitioner, he was also given additional charge of Superintending Engineer (Civil), Head Quarters Ranchi. 5. Jharkhand Police Housing Corporation Ltd. does not have any independent Rule or Policy for transfer and the Policy of transfer is based on the Government of 2 Jharkhand. 6. The Policy regarding transfer in place has been adopted which was in practice. The General Policy dated 25.10.1980 under which normal transfer of a public servant is to be made is in the month of May, June or November and December. Subsequently, the Government of Jharkhand has also formulated the transfer policy vide notification dated 14.07.2015 which adopts the Bihar Policy, which was further amended by notification no. 1519 dated 08.12.2017 which provides transfer only in the month of June and July. 7. In the light of above notification, it is contended that the petitioner has been transferred in the month of September which is contrary to the transfer policy. Second ground for challenging the transfer is on the ground of mala fide of the respondents to harass the petitioner. 8. Considering the grounds taken, the Co-ordinate Bench of this Court vide order dated 13.09.2023 passed the order staying the Letter No. 313/CMD dated 05.09.2023 by which the petitioner had been transferred. 9. Subsequent thereto, the petitioner was served show cause as to why he had moved this Court against the said transfer. Vide Annexure-R-3 dated 16.09.2023 after receipt of this letter, the petitioner moved this Court for initiating contempt proceeding, consequently, the show cause letter dated 16.09.2023 was recalled. 10. It is submitted that the transfer order has been made out of turn against the transfer policy only to accommodate the incumbent post to Sri Shushil Kumar Hansda. The transfer has been made at the behest of one J.P.Singh, Chief Engineer of the Corporation, on extraneous consideration as detailed in paras 13 and 14 of the rejoinder to the counter affidavit. Reliance is placed on W.P.(S) No. 1134 of 2019 (Manoj Kumar Vs. State of Jharkhand and others) wherein it has been held that where the State has laid down a transfer policy and prescribed procedure, unexplained deviation from it will render the transfer invalid and arbitrary. 11. Learned counsel for the respondents submits that it was not open for the petitioner to move this Court in the writ jurisdiction challenging the transfer order without first obeying the transfer order and reporting to the place of posting. 12. Second limb of argument is that the order of transfer can be challenged on the
Decision
ground of mala fide. In the writ petition malafide has not been imputed and at a belated stage such plea has been taken but without any supporting material. 13. It is further submitted that the petitioner had himself applied on contractual post 3 vide letter dated 21.09.2020 which after due consideration, the petitioner was offered contractual appointment which has been accepted by the petitioner by adhering to terms and conditions as provided under Jharkhand Police Housing Corporation Ltd. which is part of Annexure-A Series to the counter affidavit. Paragraph 5 of the terms provides for transfer to those appointed on contractual post. It is further submitted that the employees joining on contractual basis will be governed by terms of contract as laid down by the Hon’ble Apex Court in (2013) 11 SCC 357. 14. Facts of the case are not in dispute. Petitioner after superannuating from service as an Executive Engineer from Jharkhand Police Housing Corporation Ltd. was engaged to the same post on contractual basis for a period of one year vide agreement signed on 03.02.2021. He was posted as In-charge Chief Engineer of Jharkhand Housing Corporation Ltd for the period 17.08.2021 to 11.05.2023. His service was further extended up to 03.02.2024. 15. Question of law that has been raised in the instant petition is whether a contractual employee can be subjected to transfer by the respondents-authorities? 16. This Court is of the view that there is merit in the argument on behalf of the Respondent that employees joining on contractual basis will be governed by terms of contract. Clause-5 to the term of contract specifically provided that those appointed on contract shall be liable to be transferred. Therefore, being on a contractual post in the present case, does not grant immunity from transfer. 17. Plea of malafide has not been taken in the main writ petition although the same has been pleaded in the rejoinder to the counter affidavit. In Airports Authority of India v. Rajeev Ratan Pandey, (2009) 8 SCC 337 Hon’ble Supreme Court held that where plea of malafide has not been taken in the main writ petition, raising it in the supplementary affidavit by way of afterthought will be not of much avail. The Court observed, 7. In State of U.P. v. Gobardhan Lal [(2004) 11 SCC 402 : 2005 SCC (L&S) 55], while dealing with a matter of transfer, this Court observed that allegations of mala fides must inspire confidence of the Court and ought not to be entertained on the mere asking of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference would ordinarily be made with an order of transfer. That the burden of proving mala fides is on a person levelling such allegations and the burden is heavy, admits of no legal ambiguity. Mere assertion or bald statement is not enough to discharge the heavy burden that the law imposes upon the person levelling allegations of mala fides; it must be supported by requisite materials. In case of transfer of an employee, scope of judicial interference is a limited one. Unless malafide is pleaded and proved it shall not be proper to exercise 4 extraordinary writ jurisdiction of the Court to interfere with the order of transfer by the employer. It has been held in S.C. Saxena v. Union of India, (2006) 9 SCC 583 In the first place, a government servant cannot disobey a transfer order by not reporting at the place of posting and then go to a court to ventilate his grievances. It is his duty to first report for work where he is transferred and make a representation as to what may be his personal problems. This tendency of not reporting at the place of posting and indulging in litigation needs to be curbed. Union of India v. Deepak Niranjan Nath Pandit, (2020) 3 SCC 404 The High Court could not have dictated to the employer as to where the respondent should be posted during the period of suspension. Individual hardships are matters for the Union of India, as an employer, to take a dispassionate view. Under the aforesaid facts and circumstance of the case, this Court is of the view that materials on record do not justify any interference with the order of transfer. Writ Petition accordingly stands dismissed. I.A. No. 9742 of 2023 stands disposed of. (Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated the 6th December, 2023 AFR / AKT