- (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. Counter affidavit has been filed on behalf of the respondents.
(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. The respondent State has contested the petitioners claim by filing its counter affidavit denying and disputing the entire grounds raised by the petitioner. The contention of the respondents as explained by Sri Rajiv Ranjan, learned counsel for the Respondent State, is that on receipt of the complaint against the petitioner, a preliminary fact finding enquiry was held by an Enquiry Committee consisting of the Deputy Commissioner of Excise, Santhal Pargana Division, and HQ and the Assistant Commissioner Excise, Dhanbad. The Committee submitted its report on 17.12.2008 disclosing certain irregularities regarding evasion of excise duty and fees during the financial year 2008 -09. The Departmental Establishment Committee held its meeting on 26.12.2008 and 27.12.2008 presided over by the Secretary, Excise Department, and the Commissioner of Excise and a nominee representative of SC/ST of the rank of Deputy Secretary, Directorate of Panchayati Raj Government. It was pursuant to their recommendation that the decision to transfer the petitioner was taken and accordingly the impugned notification of his transfer was issued. Learned counsel would explain that even though the Departmental Resolution stating the policy in the matter of transfer of Government servants provides for choice posting of a Government servant who is on the verge of retirement, but such benefit would be available to such officers only who have maintained an unblemished record of service and not to those who are facing enquiry proceedings of serious allegations. Learned counsel explains further that in the light of the allegations and the preliminary findings of the enquiry committee, the Departmental Establishment committee had rightly decided that it would not be proper to allow the petitioner to continue at his present place of posting. Learned counsel adds further that even otherwise, the petitioner has already completed more than two years of his posting at Jamshedpur in the district of Singhbhum and therefore he has no right to continue on the same place of posting. Learned counsel informs that pursuant to the notification no. 1652 dated 29.12.2008, the respondent 5 has been given posting as Assistant Commissioner of Excise (Headquarters). The transfer of petitioner has been made in accordance with the resolution specified by the Excise Department vide resolutions dated 11.2.1972 and 18.2.2000. Posting the Government servant at his place of choice can be considered only in exceptional circumstances in the nature of domestic and family calamities. Otherwise, the transfer in general, shall take place after every two years of posting. No such exceptional circumstance appears in the case of the petitioner to allow him the benefit of choice posting. Learned counsel adds further that even otherwise, the notification of transfer of the petitioner does not indicate in any manner that the transfer was on account of any allegation and therefore no stigma is attached to the petitioner by virtue of impugned transfer notification. The order of transfer being simpliciter in nature cannot be termed as perverse. Since the petitioner has completed more than two years service at a particular place, the order of transfer cannot be challenged. Learned counsel explains further that the petitioner is not the only person who has been transferred. Rather, his transfer has been effected along with several other officers in the Excise Department by way of general transfer and the procedure as laid down under the rules of the State government has been duly adopted. 2004 (4) SCC 245]. The interpretation of the Rule has been given by the apex Court, would clearly indicate that in case of inefficiency and misconduct of a Government servant, the rule does not lay down any inhibition for transfer of the government servant. As claimed by the respondents, the transfer notification does not indicate in any manner that the decision of transfer was taken on the basis of the allegations against the petitioner. In this view of the matter, the transfer has to be considered as transfer simpliciter. 8. Admittedly, the petitioner has completed more than two years of posting at the present place of posting and as such, even otherwise, as per rules, he was liable for transfer. It also appears that the case of the petitioner along with several others was placed before the DPC and it was on the recommendation of the Committee that the petitioners transfer along with several others was effected by way of chain transfer. To this extent. it appears that the rule of procedure as laid won by the State Government in the matter of policy of transfer of government servants has been duly adopted and applied in the case of the petitioner. The contention of the petitioner that even though the transfer notification does not specifically indicate reasons for transfer as indicated in the counter affidavit of the respondents, it does indicate that it was made on the ground of some allegations against the petitioner. As such, the petitioner ought to have been given an opportunity of being heard before taking any decision on the allegation and subjecting the petitioner to an abrupt transfer. It is in this context that the learned counsel invites attention to 56(a) of the Jharkhand Service Code and would claim support from the judgment in CWJC no. 725 of 2002 ( Dhrub Pd Vs. State of Jharkhand ). It needs to be noted at the outset that even though the counter affidavit mentions that pursuant to receipt of some complaints against the petitioner, a fact finding enquiry was conducted and the preliminary report was received from the Committee. It appears that regular departmental proceeding against the petitioner was not initiated as yet, though contemplated by the respondent authorities. The petitioner would certainly have the benefit of being heard in the departmental proceedings if initiated upon the charges based on preliminary report submitted by the Enquiry Committee. Even considering the fact that certain allegations were received against the petitioner and the respondents were prompted to act upon the report of the Enquiry Committee, which had suggested that the petitioner was inefficient in discharging his duty, in such a situation, there was reasonable ground for the authorities concerned to take administrative decision regarding transfer of the petitioner. In my opinion, the provision of Rule 56(a) of the Code does not impose any bar against the respondents for taking an administrative decision to transfer the petitioner, if there is prima facie material to suggest that he has been inefficient in discharge of his duties. Rule 56(a) of the Bihar Service Code as adopted by the Jharkhand Service Code which deals with the general conditions of service reads as follows : "56(a) The State Government may transfer a Government servant from one post to another; provided that, except - .(1) on account of inefficiency or misbehaviour, or .(2) on his written request. a Government servant shall not be transferred substantively to, or except in a case covered by rule 103 appointed to officiate in a post carrying less pay than the pay of the permanent post on which he holds a lien, or would hold a lien, had his lien not been suspended under rule 70. (b) Nothing contained in clause (a) of this rule or in rule 21, shall operate to prevent the re -transfer of a Government servant to the post on which he would hold a lien, had it not been suspended in accordance with the provisions of clause (a) of rule 70. " 11. In the case of Union of India Vs. Janardhan Debanath (supra), the Supreme Court had occasion to consider a similar rule FR 15 of the Fundamental Rules relating to the conditions of service of Central Government servants and the said rule is quoted as under : 8. FR 15 reads as follows : "15(a) The President may transfer a government servant from one post to another; provided that except "(1) on account of inefficiency or misbehaviour, or (2) on his written request, a government servant shall not be transferred to, or except in a case covered by Rule 49, appointed to officiate in a post carrying less pay than the pay of the post on which he holds as lien.  12. It is apparent that the language of Rule FR 15 of the Fundamental Rules and that of Rule 56(a) of the Bihar Service Code is identical. The Supreme Court in the above case has observed that the view that there cannot be any transfer in terms of FR 15 on account of inefficiency or misbehaviour is clearly contrary to the pronounced intention of FR 15. The same ratio would apply to the facts of the present case also when the interpretation of the provisions of Rule 56(a) of the Bihar Service Code is called upon to be made. Further more, the petitioner has been relieved from the place of posting at Jamshedpur and he has taken over charge of his office at the transferred place pursuant to the impugned notification. Likewise, pursuant to the other impugned notification, respondent no. 5 has also assumed charge of office in place of the petitioner at Jashedpur. The claim of the petitioner that the benefit of continuing him at his place of posting at the last lap of his service ought to have been given to him in the light of the Government transfer policy, cannot be tenable. The Resolutions dated 11.2.1972 and 18.2.2000 which apply to the government servants of the Excise Department, does not apply to the case of the petitioner in absence of any exceptional circumstances shown by him, for his retention at the same place. In the light of the above discussion, I do not find any merit in this writ petition, which is dismissed accordingly at the stage of admission. The respondents shall treat the period of one month during which the petitioner could not join his transferred place of posting on account of the order of stay granted by this Court in this case, as period on duty.;