IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6520 of 2010 1. Krishna Kumar Dixit S/O Late Paramhans Dixit R/O Krishna Bhawan, Bhagwan Bazar, P.S.- Bhagwan Bazar, Distt.- Chapra, Posted At Senior Accounts Clerk, Public Health Division, Chapra Versus 1. The State Of Bihar 2. Secretary, Public Health Engineering Department, Bihar Patna 3. Chief Engineer Mechanical, Public Health Engineering Department, Bihar, Patna 4. Superintending Engineer, Public Health Engineering Circle, Chapra 5. Executive Engineer, Public Health Division, Chapra 6. Manindra Kumar Singh S/O Not Known To The Petitioner Proprietor, M/S Ambika Construction, P.O. & P.S.- Salempur At Chapra ---------------------------------- 4. 22.09.2011 Learned Counsel for the petitioner prays for leave to delete Respondent no. 6. Let him do so at the risk of the petitioner. Heard learned Counsel for the petitioner and the State. The petitioner is aggrieved by the order dated 26.3.2010 of the Chief Engineer (Mechanical) Public Health Engineering Department, transferring the petitioner from the post of Accounts Clerk, Public Health Engineering Division, Chapra to the post of Accounts Clerk in Purnea. It is contended that the transfer is punitive on account of certain frivolous allegations made against him by a contractor. The transfer is therefore malafide. There has been no enquiry in accordance with law on the allegations.The cadre of Accounts Clerk is circlewise. If the petitioner is transferred from Chapra to a different circle at Purnea his seniority will get affected. The petitioner has no 2 objection to being transferred to any other location within the Chapra circle. Rule 16 of the PWD Code empowers the Chief Engineer to make transfers of non gazetted staffs, executive, ministerial and menial staff from one circle to another. The Code was framed in 1950. Subsequently in 1957 by order dated 18.11./20.12.1957 the system of circle was introduced by the Public Health Engineering Department. This created circle cadre inter alia of Accounts Clerk. The appointing authority was the Superintending Engineer, seniority was to be under the circle reckoned from the date of substantive appointment. Counsel for the State submitted that the petitioner from his appointment on 16.2.1982 has remained in the Chapra Circle. The power to transfer from one circle to another exists in Rule 16 of the PWD Code. Certain allegations were made against the petitioner and therefore it was thought best to move him out in his interest also. The order of transfer simply states that it was being done on administrative grounds. A specific statement has been made in para 15 that his seniority and emoluments shall be protected. Transfer and postings are prerogative of the administrator and an incidence of service. If there are administrative grounds, there is no occasion for the Court to substitute its views in place of the administrator. But the grounds have to remain at the administrative plain only. If they are to be considered for any other purpose of service, it can be done only by a process established by law with due opportunity to defend and not in any other manner. Nothing in the present order shall therefore be construed, 3 understood or opined as any confirmation of the allegations against the petitioner. The distinction between the administrative ground and the disciplinary aspect has been emphasized in (2004) 4 SCC 245 (Union of India v. Janardhan Debanath) holding:- “14. ……….Whether there was any misbehaviour is a question which can be gone into in a departmental proceeding. For the purposes of effecting a transfer, the question of holding an enquiry to find out whether there was misbehaviour or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirement, as submitted by learned counsel for the respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated……..” If the petitioner has remained at his present place of posting more than three years he does not have any indefeasible right to claim continuance upon the same. But the petitioner has raised a more important issue with regard to a circle cadre, seniority in the cadre and being consequently affected by the transfer. The counter affidavit does not answer the writ petition by paragraph but is composite in nature. The respondents have not denied the assertion of the petitioner at para 6 & 7 in respect of circle cadre seniority under the departmental circular dated 18.11./30.12.1957. The counter affidavit sworn by an officer namely Sri Chandeshwar Ram of the rank of Executive Engineer states that he has gone through the contents of the writ application in his capacity as Respondent no. 4 and has understood the same. That he was authorized to swear affidavit on behalf of other respondents. The Court finds it difficult to 4 understand why the departmental circular dated 18.11./2012.1957 and the availability of pleadings in para 6 & 7 found no consideration in the counter affidavit. The manner in which the issue has been dealt with by the deponent the Court could easily have held that they have no answer to the assertion to the circle cadre and seniority of the writ petitioner. An assertion has been made in paragraph 15 of the counter affidavit, by insertion in hand that the transfer had been made under the provisions of the PWD Code and that his emoluments and seniority shall remain protected. But there is no reference to the Departmental Circular of 1957. The Court is therefore satisfied that the counter affidavit is casual and hinders proper final adjudication by the Court. The Court does not have confidence that in the nature of the counter affidavit any orders can be passed by it of a positive nature and that it would be in consonance with law. Perhaps if the respondents had placed proper materials and taken a clear stand how they propose to protect the seniority and emoluments of the petitioner by referring to Rule 16 of the PWD Code and the circular of 1957 the Court may have proceeded to finally adjudicate the matter. The nebulous situation created by the respondents through the counter affidavit leaves this Court with no option but to refer the matter to the Secretary Public Health Engineering Department, Government of Bihar to decide this important issue by a reasoned and speaking order of transfer from one circle to another in view of the what appears to be a undisputed position that a circle cadre exists with circle seniority. How the respondents propose to protect his seniority over another who may be senior in his own right at Purnea remains to be considered also. 5 The aspect of circle seniority has been considered in (2002) 10 SCC 254 (Maharashtra State Electricity board v. Rama Rajaramji Wadekar): “6. In view of the definition of “cadre” as already stated, and in view of the fact that seniority of Sub-Engineers was being determined Circlewise and each Circle constitutes a cadre, transfer of the respondents from one Circle to the other cannot but be held to be an ex-cadre transfer and such ex-cadre transfer having been made at the request of the employees, their seniority has to be governed by Regulation 21(a). The High Court, therefore, has been wholly in error in misconstruing the provisions of Regulation 21(a) and directing that the seniority shall be determined on the basis of their continuous length of service……..” It is expected that the Secretary shall pass a reasoned and considered order so that not only juidical review is facilitated, if necessary, but if the order is prejudicial to the petitioner he also may have the occasion to apply his mind whether it is worth his interest to go for further litigation or not. Since the Court has arrived at the conclusion after the respondents have failed to assist the Court properly for final adjudication in the matter, keeping in mind the aspect of reasonableness, equity and the responsibility of the Government not only to act as a model employer but also to assist this Court, till such decision with regard to protection of seniority of the petitioner is not taken no coercive action shall be taken against the petitioner under the impugned order as that will amount to the respondents taking advantage of their own lapses. Nothing in this order shall be deemed or construed as any opinion of this Court on the transfer of the petitioner to any other place within the circle. The impugned order is set aside to facilitate such fresh order. It shall be duty of the petitioner to bring this order to the attention of 6 the Secretary within a period of two weeks from today failing which the writ petition shall be deemed to have been dismissed. The writ application stands disposed. Snkumar/- (Navin Sinha,J.)