- (1.) CHALLENGE in this writ application is to the order dated 30.06.2008 (Annexure -9) passed by the respondent No. 1 whereby the petitioner has been transferred from Ranchi to Hazaribagh, in the post of Assistant Director and by the same impugned notification the intervenor Sukhdev Hembrom has been transferred to Ranchi as Deputy Director.
(2.) THE grievance of the petitioner is that he was rendering his services in the post of Deputy Director, Agriculture Plant Protection, Ranchi but by the impugned transfer order, he has been now placed on the post of Assistant Director which amounts to his demotion. Mr. Awdesh Kumar Mishra, learned counsel for the petitioner submits that the impugned order of transfer is unconstitutional and suffers from vice of arbitrariness and violation of the principles of natural justice. Learned counsel explains that the petitioner after his initial posting in the service under the respondents, had obtained his promotion to the post of Assistant Director, which is in the zone of category -5 class -II gazetted officer. When the petitioners promotion to the higher post was not taken up, inspite of his eligibility, he filed a writ petition before the Patna High Court seeking a direction upon the respondents to consider his promotion to the higher post of Deputy Director. A Single Bench of the Patna High Court had allowed the writ petition with a direction to the respondent to consider the petitioners case for his promotion within six months from the date of the order. Earlier, the petitioner had obtained a direction from Patna High Court in a separate writ application vide C.W.J.C. No. 8136 of 1998 whereby the respondents were directed to promote the petitioner to the post of Surveillance Officer and Assistant Director. When that order was not complied within the period stipulated in the order, the petitioner filed a contempt petition. In their show cause replies the respondents informed the Court that the petitioner was already promoted to the post of Surveillance Officer which was merged by a Government notification with the post of Assistant Director. Therefore, the petitioners claim for his promotion to the post of Assistant Director was complied with. Learned counsel for the petitioner informs that in the aforesaid contempt petition, the respondents had, in their show cause replies, given an undertaking to consider the petitioners case for his promotion to the post of Deputy Director on completion of qualifying period which, according to the petitioner, was in the year 2003. Upon such undertakings, the contempt petition was dropped. However, the respondents did not proceed to promote the petitioner as per their undertaking. The petitioner was, therefore, prompted to file another writ application vide W.P. (S) No. 1881 of 2004. The writ application was disposed of with a direction to the respondents that if the post of Deputy Director is vacant then the respondents should fill up the post in accordance with law. The petitioners grievance is that despite the fact that the post is vacant at Ranchi and despite the above directions of the Court in the aforesaid writ petitions, the respondents have not taken any initiative to fill up the vacancy by promoting the suitable candidates. Claiming himself to be the senior most gazetted officer and most eligible, the petitioners contention is that the respondents cannot possibly ignore the petitioner and deny the promotional prospects to him.
(3.) A counter affidavit has been filed on behalf of the respondent State of Jharkhand explaining therein that the substantive post of the petitioner is that of the Assistant Director and by the impugned order of transfer, he has been placed in the same post and he cannot claim that by the impugned order of transfer he has been demoted in any manner. Learned counsel explains further that at the time when the petitioner was transferred to Ranchi, there was no vacant post of Assistant Director and therefore, the petitioner was allowed to officiate in the post of Deputy Director at Ranchi on his original pay scale. Learned counsel submits further that the issue of promotion could not be taken up by the respondents due to the fact that the relevant documents are presently lying with the State of Bihar and the respondent authorities have not received the same as yet.;