IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8857 of 2009 Ram Bachan Prasad son of Late Ram Sevak Ram, resident of village Rampur, P.S. Phulwarisarif, District-Patna at present posted as Museum keeper, in Government Ayurvedic College, Patna .......Petitioner. Versus 1.The State Of Bihar, through the Principal Secretary, Department of Health, Medical Education& Family Welfar, Government of Bihar, Patna. 2.Secretary, Department of Health, Medical Education & Family Welfare, Government of Bihar, Patna. 3.Joint Secretary-cum-Director, Indigenous Medicine, Department of Health, Medical Education & Family Welfare, Government of Bihar, Patna. 4.Vijay Shankar Verma son of name not know, at present posted as Museum Keeper, Rajkiya Ayodhya Shive Kumari Ayurvedic College, Begusarai. 5. Registrar, Bihar State Board of Heomeopathic medicine, Patna. 6. Principal, Government Ayurved College, Begusarai. ......Respondents. ----------- 6. 1.10.2010 In this writ application petitioner has challenged the order contained in memo No. 526 (Desi Chiketsa) dated 27.6.2009 of the Health Department, as contained in Annexure-1, by which the petitioner has been transferred from the post of Museum Keeper, Government Ayurvedic College Patna to Government Ayodhya Shiv Kumari Ayurvedic College Begusarai (hereinafter referred to as `Begusarai College’) and in his place one person namely Ram Thakur, Museum Keeper of Government Ayodhya Shiv Kumari Ayurvedic College Begusarai has been transferred to Government Ayurvedic College 2 Patna. When the case was taken up on 6.8.2009, learned counsel for the petitioner had submitted that, since the order shows that it has been issued for administrative reasons, it must have the concurrence of the establishment committee and approval of the higher authorities which was mandatory. It was submitted that the same was not done and therefore, this transfer on administrative grounds was illegal. In the circumstances, while granting three weeks time to the respondents’ counsel to file counter affidavit, this Court directed the status-quo as existing on the date to be maintained. When the case was taken up on 19.8.2010, learned counsel for the petitioner submitted that, in spite of status-quo order, salary of the petitioner has not been paid, which was a violation of the order of this Court. For payment of salary, petitioner had filed another writ application, namely C.W.J.C No. 16998 of 2009, which was taken up by this Court and disposed of by order dated 31.3.2010, with a direction to respondent No.3 to consider his pending representation for payment of 3 salary within two weeks and pass appropriate orders. This Court also directed in the order that the arrears as well as current salary of the petitioner must be paid to him. Learned counsel for the petitioner also submitted that the transfer order was malafide as the Government Ayurvedic College, Patna was likely to be taken over by the Central Government and therefore the respondents were shifting the employees from there and bringing persons of their choice in the Institution. Therefore, matter was adjourned and learned counsel for the respondents’ was directed to file specific reply in respect of non-payment of salary of the petitioner as well as in respect of the said allegations of malafide against the respondents. The matter was again taken up on 1.9.2010 and, in view of allegations of malafide, learned counsel for the respondents was directed seek instructions from the Joint Secretary-cum-Director, Indigenous Medicine, as to what was the reason for transfer of the petitioner from Patna to Begusarai, as the order of transfer mentions that it has been done on administrative grounds. Directions 4 were also issued for sending absentee report of the petitioner to the Principal of the Begusarai College, and to pay salary of the petitioner. Learned counsel for the respondents (wrongly typed as ‘petitioner’) was also directed to produce the original records dealing with the transfer of the petitioner. Learned counsel for the Petitioner informs that in spite of the fact that the petitioner approached the Principal of Begusarai College, he has not been paid his salary till now, in spite of interim orders in this case and directions issued in his independent writ application as mentioned above. He also submits that the Resolution of the Cabinet Secretariat dated 3.6.2009, which contains guidelines for transfer and posting of the employees of the Government, clearly mentions administrative reasons on which an employee can be transferred from one place to another. He points out that it is clearly mentioned in Clause (gha) of Sub-paragraph 4 of paragraph 2 the Resolution that if the transfer is being sought to be made on administrative grounds, reasons must be mentioned clearly in the files of the Government and complete 5 transparency should be maintained in the matter. Learned counsel for the respondents has filed second supplementary counter affidavit sworn by the Joint Secretary of the department. He has also produced the file in which transfer of the petitioner has been dealt with, as direct by this Court earlier. Neither from the affidavit filed today, nor from the file it appears that any administrative reasons for transfer as enlisted in the said letter of the Cabinet Secretariat dated 3.6.2009 was taken into account for transfer of the petitioner. On the other hand, learned counsel for the respondents relies on Annexure-A to the counter affidavit filed on behalf of respondent No.3 earlier. This Annexure is a Resolution dated 1.3.2007 of the Cabinet Secretariat and Coordination Department. He submits that this Resolution provides for normal transfer of the employees on completion of three years of their posting at one place. He submits that since the petitioner was posted in the College since 1994, he was being transferred in a routine manner in the month of June, in the same rank 6 and post in Begusarai College. He also submits that the transfer of the petitioner was in fact a routine transfer on completion of his service on one post for three years. As against this, learned counsel for the petitioner has pointed out that the said resolution of the Cabinet Secretariat dated 3.6.2009 makes it clear that for transfer on administrative grounds, approval of one authority higher to the competent authority issuing transfer order was required which has not been shown to have been obtained by the respondents. He submits that in fact matter with regard to take over of Patna Ayurvedic College is under consideration with Central Government since long and the name of the petitioner has also been included in the report submitted to the Central Government for take over of the Institution. After hearing learned counsel for the parties and considering the records, it is clear from Annexure-1 that the same was issued by the Health Department in respect of three employees of Government Ayurvedic College, Patna, who were transferred to the Begusarai College, and from there three persons are being 7 sought to be brought to Government Ayurvedic College Patna. It is mentioned that this order has been issued for administrative reasons. As stated earlier, learned counsel for the petitioner had challenged the bonafide of this order on the ground that since petitioner’s name was being considered for take over with the take over of the Institution, this transfer order was issued for allegedly administrative reasons which was, in fact, only to accommodate their own men in Patna Ayurvedic College. As stated earlier, no administrative reasons has been disclosed in the counter affidavit or supplementary counter affidavit. On the other hand, today respondents have changed their stand, stating that this was a routine transfer and was not a transfer on administrative reasons. Clearly the respondents are playing hide and seek with the Court and changing their stand to suit themselves. This gives credence to the submissions of learned counsel for the petitioner that only on account of the College under consideration for being taken-over by the Central Government, transfer of the petitioner has been effected. It is true that no employee has a right 8 to remain at one place of posting normally for more than three years and the employer has a right to transfer his employees. This has to be routine transfer but in case transfer is sought to be made on administrative grounds, then the approval of the higher authority as laid down in the said Resolution dated 1.3.2007 and the provisions for effecting such transfer, as contained in Resolution dated 3.6.2009 has to be followed. It is now admitted position that except for mentioning administrative reasons in the transfer order, none of these provisions have been complied with. In the circumstances, this Court finds that there is substance in the submission of the learned counsel for the petitioner that transfer of the petitioner was malafide and may be actuated in the wake of proposal of the Central Government to take over the Institution. As such the order, as contained in Annexure-1, effecting transfer of the petitioner from Government Ayurvedic College Patna, to Government Ayodhya Shiv Kumari Ayurvedic College Begusarai is quashed in respect of the petitioner. Since there was status quo order passed by this Court on the 9 date of first hearing itself i.e. 6.8.2009, petitioner shall be allowed to join at Government Ayurvedic College Patna, and shall be paid his salary of the entire period, irrespective of the fact that he has not actually performed his duties. However, if there is any administrative reason for his transfer, which is covered by the aforesaid Resolution of the Government, it will be open to the respondents to consider his case for transfer by strictly complying with the provisions as laid down in the said two Resolutions of the Cabinet Secretariat Department. This writ application is accordingly allowed with the aforesaid observations and directions. Prakash /Pradeep (J. N. Singh, J.)