JENAMANI PRAFULLA KUMAR RAY Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner serves as a Sub-Assistant Engineer under the State Government. He was transferred on 2-7- 1980 from the Central Circle, R. & B., Bhubaneswar to Southern Circle, R. & B., Berhampur by the Chief Engineer, R. & B., Orissa (opposite party No. 2). Opposite party No. 3, the Superintending Engineer, Southern Circle, R. & B., then posted the petitioner to Charichhaka Section. Opposite party No. 4 was in that post at Charichhaka to which the petitioner was transferred. The petitioner gave his joining report on 25-7-1980, but opposite party No. 4 was unwilling to hand over charge to the petitioner. Therefore, petitioner sent intimation in this respect to opposite party No. 3. A telegram was also sent to opposite party No. 4 to hand over charge to the petitioner, but opposite party No. 4 handed over only partial charge to the petitioner and not the complete charge. Thereafter, orders were passed on 10-10-1980 transferring the petitioner to the Central Circle, R. & B., Bhubaneswar. This transfer is challenged by the petitioner on the ground that opposite party No. 4 has taken recourse to political pressure and opposite party No. 2 has passed the order of transfer under political pressure. It is further contended that there were two circulars of the State Government (Annexures 7 and 8) to the effect that there should be no transfer of officers in any grade during the period the Annexure-6 was issued by opposite party No. 2 transferring the petitioner from Charichhaka to the Central Circle. R. & B., Bhubaneswar and therefore the order in Annexure-6 is against the direction of Government and is mala fide.

(2.) In the counter filed by opposite parties 1 and 2, it is stated that the assertion of the petitioner that he has an unblemished career is not true. A departmental proceeding had been started against him. He was in fact transferred from Central Circle to the Southern Circle and was also posted to Charichhaka. Opposite party No. 4 was to hand over charge to the petitioner, but he applied for leave and could not hand over charge to the petitioner. There was no political pressure for transferring the petitioner to the Central Circle as per Annexure-6. During the second week of September, 1980 there was heavy flood in Boudh Sub-division and lots of damages were reported on the roads and bridges within Charichhaka section. Repairs to the damages were to be taken up immediately and, therefore, it was found necessary to get the works done through good and efficient hands and on this ground it was considered necessary to retain opposite party No. 4 at Charichhaka and send back the petitioner to the Central Circle. The concerned Chief Engineer held discussions with the Secretary about this and the Secretary being satisfied agreed to the transfer of the petitioner and retention of opposite party No. 4 at Charichhaka. There has been no misuse of powers or mala fides in the order of transfer of the petitioner.

(3.) Undisputedly, the petitioner was transferred from the Central Circle to the Southern Circle on 2-7-1980 and on 25-7- 1980 he gave his joining report. The petitioner complained on 4-8-1980 that opposite party No. 4 was not available to hand over charge vide Annexure-4. A telegram was sent to opposite party No. 4 to hand over charge (vide Annexure-5). Thereafter, on 10-10-1980 orders have been passed transferring the petitioner to the Central Circle. Petitioner's contention is that by Annexure-7 the Chief Secretary to Government had given direction to all the Secretaries and the Heads of Departments on 23rd August, 1980 that except in cases arising out of promotions, retirements, suspensions and on grounds of extreme administrative exigencies, there would be no transfer of officers in any grade from 1-9-1980. The normal transfers and postings, however, would be placed during the months of April and May in accordance with the instructions contained in the earlier circulars. On 23rd of September, 1980, a direction was issued by the Chief Secretary to Government that due to large scale relief operations in the State in the wake of floods, transfers of officers working in flood affected areas would be kept in abeyance until further orders and there would be no fresh transfer of officers working in the flood affected areas during that period. It is stated that the order of transfer of the petitioner is in violation of this direction by the Chief Secretary. It is stated on behalf of the opposite parties that Annexures 7 and 8 were interdepartmental communications for guidance of the officers and those do not confer any right on the petitioner. Further, it has been clearly stated in the affidavit filed on behalf of Government that while there was emergent need of doing repair works and restoration of communication, the persons who had gained experience were to be retained, so that the work could be finished quickly and efficiently. Admittedly, opposite party No. 4 was working for about twenty months at Charichhak which area was affected by the floods and admittedly he had not handed over complete charge to the petitioner. The petitioner had given his joining report only one and half months before the floods. This would show that opposite party No. 4 was an experienced hand in that locality and the petitioner was a new hand. There is no question that opposite party No. 4 was considered to be a better hand than the petitioner. It was only as per Annexure-8, existing persons were not to be transferred. Opposite party No. 4 had not handed over charge and was on leave. The Chief Engineer had discussions with the Secretary and after such discussions it was considered necessary that opposite party No. 4 should be retained at Charichhak. Accordingly, the petitioner had to be transferred from Charichhak and the order of transfer Annexure-6 was issued.