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1994 Supreme(Pat) 69
High Court of Patna
B.N. Agrawal and S.K. Chattopadhyaya, JJ.
Md. Kalimullah and others - Petitioners
Versus
The State of Bihar and others - Respondents
With
Moti Lal Prasad - Petitioner
Versus
The State of Bihar and others - Respondents
With
Harihar Rana - Petitioner
Versus
The State of Bihar and others - Respondents
Civil Writ Jurisdiction Case No. 5944 of 1992 with Civil Writ jurisdiction Case No. 11601 of 1992 with Civil Writ Jurisdiction Case No. 2544 of 1993
Decided on : 22.2.1994
For the Petitioners: M/s Bhupendra Narain Sinha and Shailendra Kumar, M/s S.J. Mukhopadhya, Rudreshwar Singh, N.K. Sharma, R.N. Mukhopadhya, M/s. Ganesh Prasad Singh, Mithilesh Kumar Rai, Bishnu Kant Dubey and Anisur Rahman.
For the State: M/s. B.P. Pandey and D.K. Singh, M/s J.P. Karn, Ajay Kumar, Rajiv Nandan Prasad and Dhirendra Narain Mallick, Mr. J.P. Karn.
Transfer of a person beyond his cadre without his consent and without any provision for such transfer is illegal and violative of Article 16 of the Constitution of India.
Headnote:
CADRE TRANSFER - CIVIL SURGEON OFFICE - MEDICAL COLLEGE HOSPITAL - STATE GOVERNMENT DECISION - VALIDITY - ARTICLE 16 OF THE CONSTITUTION OF INDIA - TRANSFER BEYOND CADRE - INVALIDITY.
Fact of the Case:
Three writ petitions were filed challenging the transfer orders of seven petitioners, who were working as selection grade clerks in various hospitals and offices in Bihar. The petitioners contended that the transfer orders were illegal as they were transferred outside their cadre without their consent and there was no provision for such transfer.
Finding of the Court:
The court held that the transfer orders were illegal as they were issued without obtaining the consent of the petitioners and were not passed by way of promotion. The court further held that the Government decision, which was incorporated in a letter issued by the Commissioner-cum Secretary, Department of Health, Government of Bihar, regarding the formation of cadre and transfer of class III and class IV employees, was valid. However, the court held that the provisions in clauses (d) and (j) of the letter, to the extent they conferred power upon the Director-in-Chief to transfer any person beyond the cadre, were invalid as they violated Article 16 of the Constitution of India.
Issues: 1. Whether the transfer orders were illegal as they were issued without obtaining the consent of the petitioners and were not passed by way of promotion? 2. Whether the Government decision regarding the formation of cadre and transfer of class III and class IV employees was valid? 3. Whether the provisions in clauses (d) and (j) of the letter, to the extent they conferred power upon the Director-in-Chief to transfer any person beyond the cadre, were valid?
Ratio Decidendi: 1. The court held that in absence of any statutory provision, a person cannot be transferred from one cadre to another without his consent except by way of promotion. 2. The court held that the Government decision regarding the formation of cadre and transfer of class III and class IV employees was valid as it was issued in the name of the Governor and was in accordance with the provisions of Article 16 of the Constitution of India. 3. The court held that the provisions in clauses (d) and (j) of the letter, to the extent they conferred power upon the Director-in-Chief to transfer any person beyond the cadre, were invalid as they violated Article 16 of the Constitution of India, which guarantees equality of opportunity in matters of public employment.
Final Decision: The court allowed the writ petitions and quashed the transfer orders of the petitioners. The court also held that the provisions in clauses (d) and (j) of the letter, to the extent they conferred power upon the Director-in-Chief to transfer any person beyond the cadre, were invalid.
B.N Agrawal, J.
These three writ applications are being disposed of by one judgment as common question of law is involved therein.
2. In C.W.J.C. No. 5944 of 1992 prayer has been made for quashing that portion of order dated 19.6.1992, issued by the State Government, contained in annexure 1' whereby the seven petitioners, who were working as selection grade clerks in Patna Medical College Hospital, were transferred to Sadar Hospital, Chaibasa, District Public Bureau, Daltonganj, Civil Surgeon Office, Daltonganj, sub-divisional Medical Officer's Office, Gumla, Regional Deputy Director's office at Bhagalpur, Sadar Hospital, Madhubani and District Malaria Officer's Office, Dumka, respectively. All the petitioners of this writ application were appointed as clerks in Patna Medical College Hospital.
In C.W.J.C. No. 11601 of 1992 prayer has been made for quashing that portion of order dated 1.6.1992, contained in• annexure 1' whereby sole petitioner, who was working as selection grade clerk in. Civil Surgeon Office, Aurangabad, was transferred to the office of the Superintendent, Darbhanga Medical College Hospital at Darbhanga. The petitioner of this writ application was appointed as clerk and at the relevant time, he was working on the vacant post of head-clerk in the office of Civil Surgeon, Aurangabad.
In C.W.J.C. No. 2544 of 1993 the petitioner has challenged order dated 18.1.1993 issued by the Director-in-Chief, Health Services, Government of Bihar, contained in Annexure "11", whereunder the petitioner, who was working as selection grade clerk in the office of Civil Surgeon, Giridih, was transferred to District Tuberculosis Centre, Daltonganj as clerk. Petitioner of this writ application was appointed as clerk by the Civil Surgeon, Giridih.
3. Orders of transfer passed in these cases have been challenged on the ground that the petitioners of these cases have been transferred outside their cadre without their consent and the same was not permissible under law specially in absence of any provision to that effect. The stand of the State, on the other hand is that at the initial stage the cadre of class III employees working under Civil Surgeon is District cadre and working under Superintendent, Medical College Hospital is Medical College Hospital cadre, but no sooner they are placed in selection grade the cadre becomes State cadre.
4. Both the parties accepted the position in law that in absence of any statutory provision, a person cannot be transferred from one cadre to another without his consent except by way of promotion. Reference in this connection was made to a decision of Division Bench of this Court in the Case of Kanhaiya Lal v. The State of Bihar and others (1983 Bihar Bar Council Journal, 187), wherein a person was transferred from one cadre to another without his consent and while quashing the transfer order it was laid down that a person cannot be transferred from one cadre to another. It was further laid down that transfer can be made from one cadre to another only if it is by way of promotion. In the case of Ganesh Chandra Jha v. Steel Authority of India (1992 (1), Patna Law Journal Reports 89), a learned single judge of this Court quashed the order of transfer from one cadre to another and laid down the law that the same is not permissible without consent of the Government servant unless there exists provision for the same. Same view was reiterated in the case of Ramashish Ram v. Rajendra Agriculture University and others (1993 (1) (Patna Law Journal Report, 89). In the present case the parties are in agreement that there is no rule under which a person can be transferred from one cadre to another. Undisutedly, the impugned orders or transfer were issued without obtaining consent of the petitioners of these writ applications and the same have not been passed by way of promotion. Therefore, the only question to be considered is as to whether these petitioners have been transferred beyond their cadre.
5. All the pet
