IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.89 of 2008 BRAJESH KUMAR Versus THE STATE OF BIHAR &ORS ----------- For the Appellant : Mr. Md. Khurshid Alam, Advocate For the Respondents : Mr. Lalit Kishore, Additional Advocate General-III Mr. Satyabir Bharti, Additional Advocate General-III ----------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ----------- Dated, the 19th August, 2008. We heard the counsel for the appellant. 2. Upon a careful perusal of the order of transfer, we are of the considered view that it does not reflect any stigma and the competence to issue such transfer order can be traced to Rule 268 of Bihar Jail Manual. 3. It is pertinent to note that vide notification dated 3rd June, 2008, the State Government, in exercise of powers conferred by Section 59 of the Prisoners Act, 1894, has substituted Rule 268 by the following Rule: - “Rule – 268 – Cadre of Warders – (i) The cadre of warders shall be State level. (ii) The appointing authority for the warder cadre shall be Inspector General of Prisons and the power of appointment, Promotion, Suspension, Major punishment, - 2 - Minor punishment and inter-circle transfer shall be vested in the Inspector General of Prisons. Appellate Authority against the order of Inspector General of Prisons will be Principal Secretary, Home Department. (iii) The powers and responsibility regarding other establishment matters like intra-circle transfers, and payment of all retirement benefits shall lie with concerned (Place of posting) Central Jail Superintendent. Appellate Authority against the order of Central Jail Superintendent will be Inspector General of Prisons. (iv) The current existing Circle level list of Warders/Female Warders/Head Warders, who were appointed earlier shall be amalgamated and State Level gradation list shall be formed. The basis of deciding their inter-se seniority shall be the date of appointment on the post of Warders/Female Warders/Head Warders. If the date of appointment is same for more than one person, inter-se seniority shall be decided on the basis of their date of birth.” 4. Although strictly speaking, the said amendment may not be applicable to the impugned order of transfer, as it was issued prior to amendment, but as noticed above even existing Rule 268 empowers the Inspector General of Prisons for transfer of Head Warders from one Circle to the other in the interest of exigency of service. 5. Moreover, posting of warder at a particular jail over a period of time may lead to indiscipline in the jail. The Supreme Court in the case of Sanjay Suri v. Delhi Administration Delhi, A.I.R. 1988 S.C. 414, as a mater of law, laid down the guidelines that the warders should be transferred at the end of every three years, as such transfer will be helpful in restoring discipline in the jail. This is what the Supreme Court has said in paragraph 7: - - 3 - “We direct that steps should be taken to shift the warders at the end of every three years. This is a principle which had been accepted in the Punjab Jail Manual (Chapter VI, Rule 273). Delhi Administration has a difficulty in doing so in a real way because it has only one jail and may have one more when the other jail under construction comes up, but there is no other place to which warders can be transferred. The Administration should take note of the situation; the rules should be changed and the warders may either be inter-changed with some other category of service working outside the jail or a common Union Territory service could be set up to permit the same. Such transfer will indeed be helpful in restoring discipline in the jail.” 6. For all these reasons the appeal does not deserve to be admitted. It is dismissed in limine. R. M. Lodha, CJ Kishore K. Mandal, J Pawan/-