K.C. SINHA Vs. THE STATE OF BIHAR THOUGH THE ADDL. SECRETARY & ORS.

JUDGEMENT

(1.) Since we have heard the learned Counsel for the petitioner, J.C. to G.P. VI for the official respondents and the Counsel for the private respondent No. 3 at great length and also have perused the long drawn counter affidavits followed by rejoinders, we dispose of this application at the stage of admission itself. The matter relates to the implementation of a transfer order. A big chain -order of transfer was passed under Government notification, dated 13.8.1983 (annexure '1 ' in which several officers of the Department of Agriculture including the petitioner were transferred from one place to another. According to that order, whereas the petitioner was transferred from Sikta in West Champaran to Chapra, respondent No. 3 was transferred to his place, from Hasanpur in the district of Samastipur). The whole of the notification was stayed under the Government notification, dated 27th August 1983 (Annexure '3'). According to the case of the contesting respondent supported by the State's counter affidavit it appears that respondent No. 3 came to Bettiah, the district Headquarters of West Champaran on 18th August,, 1983 and was directed by the Collector to assume charge of the petitioner's office unilaterally. This appears from the order of the respondent Collector of the same date, i.e., 18th August 1983 (Annexure '2').

(2.) The petitioner has taken the stand that under the terms of rule 59 of the Bihar Service Code, the charge of an office must be made over at its headquarters when both the relieving and the relieved Government servants are present. An exception has been made only in two cases namely, (1) Where the relieved Government servant to be present is returning from leave to which holidays available have been pre -fixed and (2) for special reason of public nature, the Government for the reasons to be recorded in writing requires it to be made in any particular case otherwise. Nowhere in the counter affidavit filed either by the State or the contesting respondent No. 3 it has been stated that, either of the two conditions was present to adopt a mode different than the pre -scribed mode, just mentioned above, inasmuch as it is an undisputed fact that so far as the petitioner is concerned, he has not handed over the charge himself. The relevancy of the fact of handing over charge becomes important in view of the subsequent Government notification, issued on 24.9.83 contained in Annexure A/3 of the counter affidavit, filed by respondent No. 3, by which the Government for the reasons known to it, has again stayed the operation of the order of transfer (Annexure '1') with respect to all those case, which had not been implemented in the meantime.

(3.) State Counsel has orally given some statement of facts in order to support the order of the Collector. He has placed reliance upon this circumstances that on 18th August, 1983 respondent No. 3 had gone to Bettiah. He then went to the petitioner to take over charge from him and as he declined to hand over the charge, he went to the Collector, who recorded the fact and inasmuch as, as the retention of the petitioner at the place of his present posting was very much undesirable causing a law and order problem, the Collector issued him a direction in writing forthwith to assume charge from the petitioner. When the learned State Counsel was asked to show these sequence of events by the documents, he sought assistance from the second part of the order (annexure 2), wherein, it was further directed that if he did not hand over charge by 19.8.83 to respondent No. 3, he (respondent No. 3) would start functioning from the morning of 20.8.83 as the Project Executive Officer Sikta and the petitioner would be deemed to be automatically relieved. The question is whether respondent No. 3 would be deemed in law, to have assumed charge under the prescribed procedure mentioned above. If there is initial difficulty in the way of respondent No. 3, he will not be deemed to have assumed charge at all and the direction issued in paragraph 2 of the order in Annexure '2' will be of no assistance to the respondent. We have not been shown any thing in writing by respondent No. 3 regarding the non -cooperation of the petitioner in the fore -noon of 18th August, 1983 in the matter of making over charge to respondent No. 3, nor any written direction or order thereafter given to respondent No. 3 to assume charge of the office in question was shown. Even those would have been the materials, then perhaps they might have specified the condition mentioned in rule 59 of the Service Code constituting special reason of a public nature, but to add misfortune to them the letter (Annexure H) issued to the Secretary of the. Agriculture Department of the same date i.e. 19.8.83 makes a request to the Government for immediate transfer of the petitioner from Sikta be another place. This letter completely falsifies the stand of the respondents in the counter affidavit regarding the happenings that are said to have taken place on 18th August 1983. This Annexure H makes the administration completely unaware even about the transfer order, what to say of the arrival of respondent No. 3 to the head -quarters. This reveals a sorry state of affairs.