ARJUN PRASAD SINGH Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) .Petitioner in this writ application has prayed for quashing the notification dated 9.12.2008 ( annexure 3) under memo no. 1653 issued by the respondents whereby the petitioner has been transferred from Jamshedpur to Headquarters Ranchi, and also for quashing the notification no. 1652 dated 29.12.2008 (annexure 4) issued by the respondents whereby the respondent no. 5 has been posted in place of the petitioner. Challenge to the notification of his transfer has been made by the petitioner on the ground that he is on the verge of his retirement and would superannuate on 31st July, 2009. Departmental resolution no. 3918 dated 25.10.1980 and another resolution no. 913 dated 18.2.2000, both of which guide the transfer policy of the State Government employees provide for choice posting of a Government employee who is to retire within one year. The grievance of the petitioner is that though pursuant to the aforesaid Departmental resolution, he had submitted his application before the concerned authorities of the respondent dated 30.2.2008 for allowing him to continue at Jamshedpur till his retirement, the respondent in stead of considering the same had issued the impugned notification of his transfer from his present place of posting in violation of the resolutions issued by the Department and also for causing extreme inconvenience and harassment.

(2.) THE petitioner who was initially appointed as Excise Inspector in the year 1983 rose to the senior rank of Excise Superintendent and was entrusted with the duty of in charge Assistant Commissioner of Excise at Jamshedpur in the district of Singhbhum, where he joined on 22.11.2006 pursuant to the notification of his transfer. While, on the one hand, by the impugned notification, the petitioner was transferred from Jamshepdur, by the other impugned notification the respondent no.5 was transferred and posted in place of the petitioner at Jamshedpur.

(3.) HEARD the counsel for the petitioner and the State as well as private respondent no. 5. 5 Sri D.K. Dubey, learned counsel appearing on behalf of the petitioner argues that the Departmental resolution which guides the procedures for transfer of Government employees even though not mandatory in effect and is obligatory, yet, the concerned authorities cannot possibly ignore the same to cause detriment and harassment to a Government servant since such resolution has been adopted by way of a beneficial measure to accommodate the Government servants who are at the verge of retirement and this benefit constitutes part of condition of service. 6 Referring to the statements contained in the counter affidavit of the respondent State, learned counsel submits that though in the transfer order, no ground has been stated for transfer of the petitioner from Jamshedpur, but as it appears from the counter affidavit, some complaints were received against the petitioner in respect of his performance of work . The complaint was enquired into by a 3 -member Committee, which found the petitioner inefficient in his work and this was the ground prompting the petitioners transfer. Learned counsel submits that if it was so, then certainly, it amounts to an order of transfer attaching stigma to the petitioner and without affording an opportunity of being heard in respect of the purported allegations, the respondents could not have passed the order of his transfer. Referring to the judgment of this Court in the case of Dhrub Prasad Vs. State of Jharkhand [ WP(S) No. 725 of 2002), learned counsel for the petitioner submits that Rule 56(a) of the Bihar Service Code as adopted by the State of Jharkhand, does not permit transfer of any Government servant on the allegation of inefficiency in discharge of duties. Learned counsel adds further that even if transfer is an incidence of service, it cannot be made arbitrarily and any deviation from the Government policy and guidelines without justification, as in the instant case , is discriminatory.