RAMESH KUMAR MERATHIA, J. - (1.) Heard the parties at length.
(2.) PETITIONER has challenged Notification No. 3811 (Bha) dated 31.12.2007 (Annexure 2) by which he has been transferred. He has also challenged the second part of Notification No. 3841 (Bha) dated 31.12.2007 (Annexure 3) by which respondent No. 5 (for short 'R -5') has been posted to work as Incharge in place of petitioner till further order. Mr. B.B. Pandey, learned senior counsel appearing for the petitioner, submitted that meeting of the Establishment Committee was held on 28.12.2007 but it did not recommend the petitioner's transfer, but even then he was transferred within ten months from his last transfer. He further submitted that if any enquiry was going on against the petitioner in September/ October/November, 2007 which necessitated the transfer of petitioner, the Establishment Committee could have recommended the petitioner's case of transfer. He further submitted that by counter affidavit, the State cannot explain the reasons which were not in the order of transfer. For this, he relied on the judgment of Supreme Court in Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors. : [1978]2SCR272 . He further submitted that the respondents are required to follow the policy of transfer dated 25th October, 1980. He further submitted that the seniority of R -5 is under clouds but even then he was made Incharge in place of the petitioner, and after the order of interim stay was passed in this writ petition, he has been made Incharge Executive Engineer at Bokaro. For this purpose, he referred to the representation dated 8.10.2004 (Annexure 21) given to the Commissioner -cum -Secretary, Road Construction Department, Jharkhand by the Jharkhand Engineering Service Association.
(3.) MR . Sumit Gadodia, J.C. to Advocate General, appearing for the State of Jharkhand, submitted that the petitioner's performance at Dhanbad was not found satisfactory and numbers of complaints were received against him from the Deputy Commissioner, Dhanbad. He further submitted that the observance of the said transfer policy is directory and not mandatory as has been held in the Division Bench judgment of the Patna High Court in Man Singh v. The State of Bihar and Ors. 1982 PLJR 368. Referring to another Division Bench judgment of Kailash Bihari Prasad and Anr. v. The State of Bihar and Ors. 1992 (1) PLJR 209, he submitted that Minister -in -charge is competent to alter/modify the recommendations and pass such transfer order as are necessary in public interest and in best interest of administration. He further submitted that no mala fide has been alleged by the petitioner against any one.;