PERMOD KOHLI, J. - (1.) ASSAILING the judgment dated 27th February. 2007, passed by the learned single Judge in W.P. (S) No. 42 of 2007, quashing the transfer order of Binod Kumar, respondent No. 5 in L.P.A. No. 74 of 2007 and respondent No. 1 in L.P.A. No. 114 of 2007, the State as also the appellant. Uttam Kujur, have preferred these two appeals. The issue involved in both the appeals being similar, they have been heard together and are being disposed of by this common order.
(2.) CIRCUMSTANCES leading to filing of the writ petition may be summarized as under. Respondent Binod Kumar and the appellant Uttam Kujur both are working as Assistant Engineers (Civil) in the State of Jharkhand. Respondent Binod Kumar was posted as Assistant Engineer, Medical Building Sub -Division No. 1, Bariyatu, Ranchi vide Memo No. 1547 (Bh) dated 16th June. 2006. He joined the place of posting on 19th September, 2006. Vide Notification No. 3885(Bh) dated 30th December, 2006 as many as fifteen Assistant Engineers of Building Construction Department have been transferred. Respondent Binod Kumar, who joined the Medical Building Sub -Division No. 1, Bariyatu. Ranchi, on 19th September, 2006, also came to be transferred vide this order from Medical Building Sub -Division No. 1, Bariyatu, Ranchi to Building Sub -Division, Chas (Bokaro) and the appellant Uttam Kujur, who was earlier posted at Building Sub -Division No. 3. Daltonganj, has been transferred in place of Binod Kumar at Medical Sub -Division No. 1, Bariyatu. Ranchi. Binod Kumar challenged this transfer order in W.P.(S) No. 42 of 2007 on the following grounds : (i) his name has been included in the impugned notification at the instance of the Minister Incharge without recommendation and/or consideration by the Establishment Committee, constituted for the purpose; (ii) the transfer is in contravention of the policy decision of the Government notified vide resolution dated 25th October, 1980, whereby, norms for transfer have been laid down and (iii) transfer of the petitioner is premature having been made just after six months, in violation of the laid down norms. Giving details of the first ground, it is stated that the petitioner has been recently transferred to Ranchi only in the month of June, 2006 after keeping him waiting for one year without posting and he has been performing his duties to the satisfaction of the department. It is stated that the transfer of the Assistant Engineers is considered by the Establishment Committee and it is only on the recommendation of the Establishment Committee the Government approves/makes the transfers. Constitution of Establishment Committee for the purposes of consideration of transfers has been laid down under resolution dated 25th October, 1980. In the present case the Establishment Committee recommended only ten transfers. Neither the case of the writ petitioner nor that of Uttam Kujur, present appellant, was considered by the Establishment Committee nor any recommendation made for their transfer. However, the Minister -in -charge with a view to accommodate Uttam Kujur, the appellant, inserted his name and also that of the writ petitioner in the transfer list and on account of bias the writ petitioner has been transferred from Ranchi just after six months and Uttam Kujur has been transferred at his place. The writ petitioner has made specific averments in paragraph Nos. 14, 15 and 18 of the writ application, alleging bias, stating that the Establishment Committee did not recommend either the name of Binod Kumar or Uttam Kujur and it is only the Minister concerned, who inserted their names with a view to accommodate Uttam Kujur, the appellant herein.
(3.) AS regards the violation of resolution dated 25th October, 1980 is concerned, a copy of the same has been placed on record as Annexure -5 to the writ petition. Vide this resolution, duly published in the Extra -ordinary Gazette of the State of Bihar, comprehensive transfer and posting policy for the Government servants was notified by the then State of Bihar. It is relevant to notice some of the important features of this resolution : "The 25th October, 1980 Subject. ''Policy and procedure regarding transfer and posting of Government servants. The policy and procedure regarding transfer and posting of Government servants has been laid down by the State Government, from time to time. The policy and procedure as laid down in the Personnel and Administrative Reforms Departments Resolution No. 14747, dated the 6th September, 1979 and No. 16609, dated the 18th October. 1979 which is enforced at present has failed to fulfill the desired objective. The matter has, therefore, been reconsidered by the State Government and with a view to further streamlining the policy and procedure of transfer and postings, the State Government have been pleased to take the following decisions in supersession of all previous orders : '' (A) General policy regarding transfer and posting. '' (1) Transfer and postings will generally be done twice, i.e., in May -June and November - December of each year : Provided that in special circumstances, e.g., death, illness, vacancy or other administrative reasons transfer and posting could be made at any other time subject to the following conditions : '' (i) In respect of officers whose transfer/posting is done with the approval of Minister or by Council of Ministers, specific prior approval of the Chief Minister has to be obtained; (ii) In respect of such officers and Government employees whose transfer and posting is done by subordinate officers under delegated power of transfer, specific prior approval of the immediate superior officers is obtained. (2) The duration of posting on any post and at any particular place will generally be for a period of 3 years. For some posts of places, the period of posting may. however be kept for 2 years which should be specified by the departments by Standing Orders. xxx xxx xxx (B) Procedure for transfer and posting. '' (1) xxx xxx xxx (2) Proposals regarding transfer. posting and deputation of such officers whose maximum pay in the pay scale exceeds Rs. 810 but dose not exceed Pis. 1,200 should be placed before the Minister -in -charge for orders after the recommendation of the Establishment Committee. Proposals regarding transfer, posting and deputation of such officer whose maximum pay in the pay scales exceeds Rs. 1,200 shall be placed before the Cabinet after obtaining the recommendation of the Establishment Committee and approval of the Minister -in -charge. xxx xxx xxx (C) Formation of Establishment Committee. '' (1) An Establishment Committee should be formed for each Department with the approval of the Departmental Minister for recommending transfer/posting of such officers whose transfer and posting is made by Government. The Committee will consist of the following officers : '' (i) Commissioner and Secretary, (ii) Seniormost head of Department, (iii) One Special Secretary/Additional Secretary, (iv) Suitable seniormost officer of the Scheduled Caste/Scheduled Tribe. xxx xxx xxx A plain reading of the preamble of this resolution clearly indicates that the State Government has laid down norms for transfer and posting of State Government servants. Under these norms normally the transfer should take place twice in a year i.e. in May -June and November -December. The normal tenure of posting of a Government servant at one place is prescribed as three years but it can be reduced to two years. Clause (B) of the resolution prescribes the procedure for transfer and posting. In all cases where the transfer and posting is to be ordered by the Cabinet or the Minister -in -charge under the Business Rules, formulated by the State Government for transacting business in accordance with the constitutional provisions, the recommendations of the Establishment Committee have to be obtained. Under Clause (C) where the transfers are to be made by the Government, the Establishment Committee has been constituted comprising of Senior Government Officials. This policy decision has been duly notified in the extra -ordinary Government Gazette on 29th October. 1980 and has been in operation since then. It is not in dispute that even after creation of the State of Jharkhand, this resolution has been duly adopted and applied in this State.;