IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10659 of 2010 1. DR. SUSHIL KUMAR SINGH S/O LATE SURENDRA PRASAD SINGH R/O VILL.- BASATPUR, P.S. PANAPUR, DISTT.- SARAN (CHHAPRA) Versus 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY DEPARTMENT OF HEALTH, GOVT. OF BIHAR, PATNA 2. THE PRINCIPAL SECRETARY, DEPARTMENT OF HEALTH, GOVT. OF BIHAR, PATNA 3. THE CIVIL SURGEON, SIWAN 4. THE UNDER SECRETARY DEPARTMENT OF HEALTH, GOVT. OF BIHAR, PATNA ----------- For the Petitioner : Mr.S.S.Sundaram For the State : Mr. Dinekar Yadav 3 30.8.2010 Petitioner has filed this writ application challenging his transfer, as made by notification no.1159(2), dated 29.6.2010 (Annexure 2). While challenging the aforesaid notification, petitioner drew the attention of this Court to the notification itself, which clearly stipulated that all these transfers were made on basis of request by the concerned Doctor himself. This is clear from Circular no.956(2), dated 17.5.2010 issued by the State Government in the Department of Health whereby Civil Surgeons were to invite applications for such transfer on request and forward. It is pursuant to this that the transfer notification dated 29.6.2010 has been issued. Petitioner has categorically stated that he never made a request for transfer and his name has been mischievously put in this list. While staying the transfer of the petitioner, by order 2 dated 12.8.1210, this Court adjourned the matter for learned counsel for the State to seek instruction in the matter. Though learned counsel for the State has received instruction , he has not been able to file a counter affidavit. Learned counsel for the State states that by notification no.1417(2) dated 19.8.2010 realizing the mistake, State has stayed the notification of transfer of the petitioner . Learned counsel for the State states that the instruction is clear that the petitioner had not been asked for transfer and due to inadvertence or some mistake, his name was included in the list where it should not have been and it is because of that the transfer has been stayed. Firstly, I am surprised by the stand of the State. If State found that the petitioner was wrongly included then instead of staying the transfer , the transfer order had to be cancelled, which I do accordingly. The second is that the learned counsel for the State submits that the transfer is an administrative prerogative of the State. The transfer order even mistakenly is made , cannot be challenged as the authority for transferring is there .There is no jurisdictional error. This argument again is surprising. The jurisdiction to order transfer was being exercised on certain conditionality i.e. personal request. Petitioner not having made any request, he cannot be transferred. It is not the case of the State that the transfers were being effected as a matter of course or on in course of administrative 3 consideration. Thus apparently petitioner was being harassed for some other cause, if any, but not on a genuine administrative count. In that view of the matter, the transfer of the petitioner cannot be sustained and it is set aside, so far as it relates to the petitioner. Petitioner would continue at Siwan as before. With the aforesaid observations and directions, the writ petition stands disposed of. singh ( Navaniti Prasad Singh, J.)