IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13257 of 2008 BRHMANAND TIWARI Versus THE STATE OF BIHAR & ORS ----------- 3/ 23-Sep-08 Heard learned counsel for the petitioner, learned counsel for the State and learned counsel for Respondent No.5. By an order of transfer dated 18.5.2005 the petitioner and Respondent No.5 were transferred to the places which were held by the other earlier. In a limited sense, it worked out to be a mutual transfer to which Respondent No.5 objected and preferred an appeal. The appeal was first rejected by the Director of Education Department vide order dated 3.3.2006. The Respondent No.5 then preferred another appeal before the State Government which has been allowed by order of Principal Secretary of the Education Department dated 31st July, 2008 (Annexure-3). The impugned order contained in Annexure-3 has been challenged by the petitioner on two grounds. Firstly, it has been submitted that in matters of transfer only one appeal is provided and that appeal was already rejected by the Director in March, 2006 hence, Respondent No.5 could not have preferred any other appeal before the Government. Secondly, it was submitted that even if it is 2 held that another authority had appellate jurisdiction then the petitioner should have also been given an opportunity of hearing because allowing appeal of the Respondent No.5 would have adverse affect upon the petitioner since he has been posted to the post earlier held by Respondent No.5. Learned counsel for the Respondent No.5 has submitted that according to views of the Principal Secretary as mentioned in Annexure-3 a notification bearing no.3435 dated 13.8.1974 provides in general terms that the service matters relating to Ministerial Officers will be finally dealt with by the head of the Department and against such orders of the Departmental head an appeal may be preferred before the State Government. According to Principal Secretary Director is the head of the Department and the appeal before the Government could be disposed of by the Principal Secretary as desired by the Minister. However, this Court has been shown another Circular of the Education Department contained in Memo No.454 dated 3.8.1987 whereby in matters of transfer and posting of Class-III and Class-IV employees of regional offices the provisions of notification No.3435 dated 13.8.1974 are to be followed but as per paragraph-3 of this notification dated 3rd August, 1987 the power to hear the appeals in matters of transfer of Class-III and IV employees 3 would vest in a Committee headed by the Special Secretary of the Department. No other Circular or Policy decision of the State Government was brought to the notice of the Court and hence the provisions of aforesaid Circular dated 3.8.1987 appear to be operative till date. There is no dispute that writ petitioner and Respondent No.5 are Class-III employees in the regional offices and in view of special provision in respect of the appeal against transfer and posting as provided in the Circular dated 3.8.1987, the appeal preferred by Respondent No.5 against his transfer dated 18.5.2005 had to be considered finally by Committee headed by a Special Secretary of the Department. Apparently, that has not been done. In that view of the matter, the impugned order contained in Anenxure-3 passed by Principal Secretary is quashed and the matter is remitted to the Principal Secretary to see that a Committee is constituted in accordance with the Circular dated 3rd August, 1987 and such Committee headed by Special Secretary or any other officer of equivalent rank if the post of Special Secretary has been subjected to any change of nomenclature should hear the appeal of the Respondent No.5 at an early date preferably within three months from the date of production/communication of a copy of this order. 4 In transfer matters, this Court is not persuaded to grant right of hearing to all affected persons at the stage of Government because it is well settled in law that transfer does not affect any right of a Government employee. It is merely an incident of service. However, it is expected that the concerned authority shall consider all the relevant facts objectively and take decision in accordance with law. It is again made clear that since the impugned order of transfer is more than three years old, the pendency of the appeal will not stand in the way of authorities in considering the transfer of petitioner or Respondent No.5 in the usual chain for transfer in accordance with law. The writ petition is allowed to the aforesaid extent. perwez (Shiva Kirti Singh, J.)