M.Y.EQBAL, J. - (1.) THE petitioner, who is a lady teacher and belongs to Scheduled Tribe community, was posted in the Scheduled Caste Residential Girls High School, Kamre, in the District of Ranchi. Considering her seniority and the fact that she is a tribal lady, the Welfare Department, Government of Jharkhand issued a notification dated 29.6.2005 whereby she was transferred as Head Mistress (Incharge) against the vacant sanctioned post in Schedule Caste Residential Girls High School, Kundi, Khunti. By the said notification, .respondent No. 6 who is posted in Scheduled Caste Residential Girls High School, Kundi, Khunti as Head Master (Incharge) was transferred to Schedule Caste Residential Girls High School, Nakti Kathikund, Dumka: The said notification was issued by the Establishment Committee in accordance with rules and all those teaches transferred by the said notification were directed to assume their charges within 15 days from the date of receipt of the letter. Consequently, the petitioner was relieved on 25.7.2005 to enable her to join new place of posting as Head Mistress (Incharge) in the Scheduled Caste Residential Girls High School, Kundi, Khunti. The petitioner accordingly joined the new place of posting on 26.7.2005 which was duly communicated to the respondent No. 5 - the Deputy Director Welfare, South Chhotanagpur Division, Ranchi The petitioner also communicated the fact of her joining in the new place of posting to the Deputy Secretary, Welfare Department, Government of Jharkhand, Ranchi on 26.7.2005 which was duly received by the Deputy Secretary, Welfare Department, Government of Jharkhand, Ranchi. The respondent No. 5, namely the Deputy Director Welfare, South Chhotanagpur Division, Ranchi, also issued an officer order on 9.8.2005 confirming the joining of the petitioner at Kundi, Khunti, Ranchi. By the said order, respondent No. 6 was directed to immediately hand over charge to the petitioner and give his joining in his transferred place of posting at Dumka. The petitioner 'scase is that a highly arbitrary manner, respondent No. 6 managed to get a modification of the transfer order at the behest of concerned Minister and managed to remain in the same School at Kundi, Khunti. At the instance of the Minister, a modified order was issued on 10.8.2005 whereby respondent No. 6 was retained in the same school at Kundi, Khunti wherein the petitioner had already submitted her joining, whereas the petitioner has been transferred to Dumka. This modified order is impugned in this writ petition.
(2.) IT is well settled that a transfer which is an incident of service not to be interfered with by the Courts unless it is shown to be clearly arbitrary or vitiated by mala fide or infraction of any professed norms or principle governing the transfer. When this writ petition was first taken up for hearing at the admission stage, the respondent - State did not file counter affidavit in spite of sufficient time allowed by the Court. On 26.9.2005 this Court, therefore, directed the Secretary -cum -Commissioner, Welfare Department, Government of Jharkhand to appear and file show cause as to why a proceedings for contempt be not initiated against him for non -compliance of the order of the Court. It was only thereafter a counter affidavit was filed on behalf of respondent No. 4 by Joint Secretary, Welfare Department, Government of Jharkhand. The said respondent admitted that the petitioner is a graduate trained teacher and was authorized to work in the capacity of Head Mistress on the recommendation of the Departmental Establishment Committee, but her transfer order was modified at the instance of Hon ble Minister, Department of Welfare on administrative ground. For better appreciation, paragraph 7 of the counter affidavit of the Joint Secretary is reproduced herein below : - "That it is stated that it is fact that subsequently this transfer order was modified partially and she was posted afresh to the ST Residential High School, Nakti, Kathikund (Dumka) as an acting Headmistress through the department of Welfare 'sorder Memo No. 4/snastha -25/2005 -ka -1712, dated 10.8.2005. It is, however, submitted that the modification in the original order was made by the Hon ble Minister Department of welfare on administrative grounds and in compliance of the decision the impugned order was issued under the signature of the under Secretary of the Department of Welfare. It must be mentioned here that it is the privilege of the Government to transfer and post a public servant anywhere in the interest of work and hence no public servant can claim choice or priority in this regards."
(3.) THIS Court heard the learned Advocate General on 5.10.2005 and passed the following orders : - "Heard the learned counsels for the parties. There is no dispute with regard to the legal proposition advanced by the learned Advocate General that transfer is an incidence of service and it cannot be challenged even if it is done on administrative exigencies. I also do not dispute with regard to the law laid down by the Supreme Court in the cases reported in (1979) 2 SLR 58 and (2004) 4 SCC 750, but, in my opinion, in a case where it is found that the respondent - State, either the authority of the State of the concerned department or a Minister, in order to accommodate a person in the same place modify the order of transfer, that too after the concerned employee was relieved and joined in the transferred post then this Court has full authority and jurisdiction to review such decision of the Government. In the instant case, it appears that the petitioner is a lady teacher posted at Ranchi. District Establishment Committee took a decision for transfer of headmasters including the petitioner and in terms of the said decision the petitioner has been transferred from Scheduled Caste Residential High School, Ranchi to Scheduled Caste Residential Girls High School, Kundi, Khunti, Ranchi in place of respondent No. 6. Notification to that effect was issued by the Welfare Department on 29.6.2005 and in the said order it was categorically mentioned that all the Headmasters, Headmistress shall join their respective transferred place within 15 days. Pursuant to the aforesaid notification the petitioner was relieved on 26.7.2005. Her joining was duly informed to the Deputy Director of the concerned Department; when respondent No. 6 did not hand over charge to the petitioner then a letter to that effect was sent to the Department concern on 5.8.2005. It was only thereafter the impugned office order was issued under the signature of the Deputy Director of the concerned Department modifying the order of transfer dated 29.6.2005 by which the petitioner has been sent to Dumka and the person who was posted at Dumka was allowed to continue there. This order shocked the conscious of this Court and, therefore, respondent -State was directed to seek instructions and file counter -affidavit. In the counter -affidavit, it is stated in para 7 that transfer order was modified at the instance and direction of the Minister, Department of Welfare on administrative grounds and in compliance of the decision, the impugned order was issued. Although statements made in para 7 of the counter -affidavit is true to the information of the Joint Secretary, Welfare Department derived from the record but curiously enough the record in which the Minister has modified the order has not been annexed. Prima facie, I am not at all satisfied with the action by which respondent No. 6 was allowed to continue at Dumka and the petitioner who is a lady has been transferred to Dumka in his place when she was relieved and join her duty and submitted joining in the transferred place. In the aforesaid circumstances, I direct the concerned Minister, department ' of Welfare to swear affidavit disclosing what compelled him to modify the order of transfer which was given effect to. The concerned file where the Minister has changed the decision of the Establishment Committee shall also be produced before this Court. Put up this case on 18th October, 2005. The Secretary shall produce the record and shall appear in person. Mr. Rajiv Ranjan, learned counsel appearing for respondent No. 6 shall file counter -affidavit in advance just on the re -opening day of the court after Puja Vacation.;