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2020 Supreme(Jhk) 807
IN THE HIGH COURT OF JHARKHAND AT RANCHI
SANJAY KUMAR DWIVEDI, J.
Dilip Kumar Poddar – Appellant
Versus
The State of Jharkhand – Respondent
W.P. (S) No.4958, 6152 of 2019
Decided on : 23-09-2020
Advocate Appeared:
For the Appellant :Mr. Piyush Chitresh, Advocate
For the Respondents: Mr. Binit Chandra, Mr. Sanjay Sahil, adv
The main legal point established in the judgment is that the authority vested with the power to exercise its discretion alone can pass the order, and once the transfer order is acted upon, it cannot be revoked without following the procedure.
Headnote:
Transfer - Quashing of Transfer Order - Rule 20 - [Rule 20 of transfer] - The court discussed the legal provisions and interpretations related to the authority vested with the power to act under the statute, the revocation of transfer orders, and the interference by the courts with transfer orders. The court emphasized that the authority vested with the power to exercise its discretion alone can pass the order, and once the transfer order is acted upon, it cannot be revoked without following the procedure. The court also highlighted that transfer is an exigency of service and should not be interfered with by the courts unless it is shown to be clearly arbitrary or vitiated by mala fides or infraction of any professed norm or principle governing the transfer.
Fact of the Case:
The petitioners sought to quash the order cancelling their transfer, arguing that the transfer order was not passed in accordance with rules, regulations, and guidelines.
Finding of the Court:
The court found that the transfer order was cancelled by an authority not competent to do so, and the cancellation was dehors rule. The court emphasized that the transfer order had already taken effect and the competent authority for transfer was the Establishment Committee.
Issues: The issues involved the legality of the cancellation of the transfer order, the authority vested with the power to act under the statute, and the interference by the courts with transfer orders.
Ratio Decidendi: The court held that the impugned order cancelling the transfer was not sustainable in the eye of law as it was dehors rule and not in accordance with the legal principles established in previous judgments.
Final Decision: The court quashed the impugned order dated 28.08.2019 so far as the petitioners were concerned, and remitted the matter back to the State to take a decision afresh in accordance with the law.
JUDGMENT :
Heard Mr. Piyush Chitresh, learned counsel for the petitioners, Mr. Binit Chandra and Mr. Sanjay Sahil, learned counsel for the respondents-State.
2. These writ petitions have been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.
3. In both these writ petitions, common question of law is involved and as such both the writ petitions have been heard together.
4. The petitioners have preferred this writ petition for quashing of order dated 28.08.2019 whereby the transfer of the petitioners have been cancelled. Pursuant to Advertisement No.74 of 2011 for appointment of Post Graduate Trained Teachers for 10+2 Schools, the petitioners are working in their initial place of joining from the date of the appointment and have not been transferred since their initial joining. The petitioners made individual applications to the respondents for their transfer from their existing school to different schools for various individual reasons. The District Education Officer of respective Districts recommended the applications in favour of the petitioners for their transfer from the present place of posting to the desired place of posting. Thereafter, the meeting of Establishment Committee was commenced on 29.07.2019 and the petitioners were transferred to difference places. Pursuant to that, the petitioners in W.P.(S) No.4958 of 2019 were relieved and jointed their new places of posting. On 02.08.2019, after joining of new places of posting, Annexure-12 has been issued whereby the transfer order was stayed on next day. Further communication from the concerned Minister and by order dated 28.08.2019 the transfer orders were cancelled by the Director (Secondary Education) School Education and Literacy Department. Aggrieved with this, the petitioners have challenged this writ petition.
5. Mr. Piyush Chitresh, learned counsel appearing for the petitioners submits that in view of rule made for transfer, only the Establishment Committee is competent to take a decision for transfer under Rule 20 Clause 3 and 4. He submits that transfer order has been cancelled by the Director (Secondary Education) School Education and Literacy Department whereas the Establishment Committee is competent to take a decision with regard to the transfer of the petitioners. He further submits that the Director acted at the instance of Minister and without adhering to the said rule, cancelled the transfer order. He further submits that once the rule is there, it needs to be adhered to and without following that, the impugned order is not sustainable in the eye of law. He further submits that in absence of transfer by the competent authority, the impugned order is liable to be quashed. To substantiate his argument, he relied on the judgment in the case of Air Line Pilots’ Assn. of India Versus DG of Civil Aviation reported in (2011) 5 SCC particularly Para 27 and 28 which is quoted hereinbelow:-
27. Similar view has been reiterated by this Court in Commr. of Police v. Gordhandas Bhanji, Bahadursinh Lakhubhai Gohil v. Jagdishbhai M. Kamalia and Pancham Chand v. State of H.P. observing that an authority vested with the power to act under the statute alone should exercise its discretion following the procedure prescribed therein and interference on the part of any authority upon whom the statute does not confer any jurisdiction, is wholly unwarranted in law. It violates the constitutional scheme.
28. In view of the above, the legal position emerges that the authority who has been vested with the power to exercise its discretion alone can pass the order. Even a senior official cannot provide for any guideline or direction to the authority under the statute to act in a particular manner.
6. He further assailed the impugned order on the ground that once the tran
