IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11825 of 2008 DR.VIJAY KUMAR JHA & ORS Versus THE STATE OF BIHAR & ORS ----------- 7. 17.09.2008 Heard learned counsel for the petitioners and the State. The petitioners hold the post of Junior Assistant Research Officer in the Institute of Animal Health and Production under Animal & Fisheries Resources Department. They are aggrieved by the orders dated 29.6.2008 and 30.6.2008 of their transfer. The submission is that the transfer is contrary to the instructions of the Department of Animal Husbandry and Fisheries in the Ministry of Agriculture, Government of India, that persons like the petitioners should not be transferred. The transfer is punitive. The petitioners are technically qualified persons and their posting outside the Institute entails loss of status, and their utility as resources persons with technical knowledge. That the order of transfer had not been made by the competent authority. Reliance has been placed on the judgments of the Supreme Court reported in A.I.R. 1986 Supreme Court 1200 (Vice Chancellor, L.N. Mithila University v. Dayanand Jha) and (1987) 4 SCC 601 (P.K. Chinnasamy v. Government of Tamil Nadu & ors. ) and 1995(1) PLJR 69 (Shyam Kumar Prasad V. State of Bihar). The State contended that the petitioners have remained at their present place of posting for over 10 years; that no highly skilled specialized work of research was being done in the laboratory much less by the petitioners, and the nature of work that were being carried - 2 - was not to be hampered in the Institution as there were several competent persons having qualification like M.V.Sc.; that the transfer was necessary to enforce administrative discipline when the petitioners failed to abide by administrative orders of their deputation at a time of calamity, of bird flu. Reliance has been placed on a judgment of the Supreme Court reported in (2004) 4 SCC 245 (Union of India & ors. V. Janardhan Debanath & another). Transfer is an incidence of service. Where an employee is to be posted, is a matter for the employer/administration to decide and not for the Courts. Likewise the issue of discipline and enforcement of the same are for the employer and/or administration to decide. The Courts have always been loath to interfere with orders of transfer unless grounds of malafide or statutory violations are made out. The directives of the Government of India in the Ministry of Agriculture relied upon by the petitioners itself visualizes the posts as transferable but is only suggestive that the transfer be not done for at least for 10 years. Being merely an administrative recommendation has no statutory force to base a legal claim. On their own showing the petitioners have completed 10 years at their present places of posting. The instruction of the State Government dated 10.6.2000 of the policy for transfer and postings in the Animal Husbandry and Fisheries Department at clause 14 provides that the personnel can be transferred inter alia for unsatisfactory work. It is an old English adage that the strength of a man’s character is tested during adversity. The petitioners are Government - 3 - servants. The Government faced a calamity of bird-flu, which not only was an issue of culling of infected poultry but which could have fatal implications for human beings. The petitioners were given movement orders to proceed for controlling this calamity. Instead of responding to the call of duty as Government servants, on 5.2.2008 they protested that it was a dangerous disease and that they would not proceed without the safety kit for the same. It was reiterated on 13.2.2008 that without special training they would not like to risk their own lives and that their economic compulsions do not permit them to go. A meeting was held to oppose the movement order in which a resolution was passed on 8.2.2008 that such transfer order defeats the morale and interferes with work and, therefore, the movement orders be annulled. The control of bird-flu was a scientific matter to be done by technical persons, that the Government was not following the procedures which was objectionable. The Government instructions itself provide that the safety kit for culling operations are to be made available at the district headquarters where the petitioners had to join. This has specifically so asserted by the Respondents in the counter affidavit that the same were awaiting distribution at the District headquarters. Petitioners 1 to 7 though not served any movement orders, nonetheless participated and signed the resolution dated 8.2.2008. To accept that a Government servant can be permitted to raise objections on his assignment of duty for what he considers arduous or detrimental to his own interest, may well sound the death knell of administrative - 4 - discipline and leave a Government virtually incapable and incapacitated during a national calamity of the present nature. A defence personnel denying the call of duty at the time of external aggression, for arduous and risky duty shall be the natural extension of the claim of the petitioners. Surely these were acts grossly subversive of discipline and probity in Government service. The case of Dayanand Jha (supra) relied upon by the petitioners is misconceived. It was a case where a Principal was sought to be transferred as a Reader without any issue of enforcement of administrative discipline. That distinguishes it from the facts of the present case. In the case of P.K. Chinnasamy (supra) relied upon by the petitioners, the issue was of lack of posting when directions were given for commensurate posting. In Janardhan Debanath & anr. (supra) relied upon by the Respondents, it was a transfer based on administrative indiscipline in office. The Supreme Court refusing to interfere with the order of transfer at paragraph 11 of the judgment observed : “11. A bare reading of FR 15 makes it clear that except in cases where the transfer is (a) on account of inefficiency or misbehaviour, or (b) on a written request the government servant cannot be transferred or except in a case covered by Rule 49 appointed to officiate in a post carrying less pay than the pay of the post on which he holds a lien. The clear intention of the prescription is that except the two categories indicated above, in all other cases the pay to be paid on transfer shall not be less than of the post on which he holds - 5 - a lien. Exception is made in case of a transfer where it is on account of inefficiency or misbehaviour. In a case where transfer is on account of inefficiency or misbehaviour, the same can be made to a post carrying less pay than the pay of the post on which he holds a lien. Similar is the position where a transfer is made on a written request. Where the transfer is otherwise than for inefficiency or misbehaviour or on a written request made by the transferred employee, the protection of pay is ensured. The High Court seems to have completely misconstrued the rule as if there cannot be any transfer in terms of FR 15 on account of inefficiency or misbehaviour. The view is clearly contrary to the pronounced intention of FR 15. “ In a case where transfer is on account of inefficiency or misbehaviour, the same can be made to a post carrying less pay than the pay of the post on which he holds a lien. Of course it was in context of the fundamental rules which itself permitted such transfer. In the present case, no such statutory rules have been cited prohibiting such transfer. It was held therein that an order of transfer passed to enforce administrative discipline was a matter for the employer to decide. This was completely distinct from an issue of a departmental proceeding for such acts of administrative indiscipline. Any requirement for holding an elaborate enquiry for the purposes of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity in that event shall get frustrated. In the present case, there is no loss of seniority, promotional prospects or pay. - 6 - From the counter affidavit of the official Respondents, it is apparent that no highly skilled specialized research work is being carried out by the petitioners. The qualifications acquired by them and that they possess will also be useful for the Government at their places of fresh posting. Lastly, reliance has been placed on a Division Bench decision of this Court in the case of Shyam Kumar Prasad (supra) to urge that the order of transfer is vitiated as being at the behest of the Departmental Minister. The order has not been issued by the authority competent to transfer the petitioner i.e. the Director or the Principal Secretary of the Department. The view taken in Shyam Kumar’s case (supra) deprecating political interference in transfer has now evolved in (2007) 8 SCC 150 (Mohd. Masood Ahmad v. State of U.P. & ors.) to hold in the relevant extract at paragraph 8 as follows : “8………… In our opinion, even if the allegation of the appellant is correct that he was transferred on the recommendation of an M.L.A. , that by itself would not vitiate the transfer order. After all, it is the duty of the representative of the people in the legislature to express the grievances of the people and if there is any complaint against an official the State Government is certainly within its jurisdiction to transfer such an employee……” Under the Government policy dated 1.3.2007 on transfers and postings, the Minister is fully competent to order transfer of persons like the petitioners. The letter dated 3.9.1998 is only a - 7 - communication to the Accountant General that the Director was the drawing/disbursing Officer. It equally stands well settled by a Division Bench judgment of this Court in 1982 BBCJ 392 (Man Singh v. State of Bihar) that transfer without consultation of the Establishment Committee is not invalid and which has been followed in 1996(2) PLJR 9 (Rajeev Ranjan V. the State of Bihar & ors.) The order of transfer has been issued at the level of the State Government under the orders of the Governor, after approval of the departmental Minister. Each case shall depend on its own facts. In the case of Shyam Kumar, the Court primarily interfered on grounds of political interference and absence of Establishment Committee to conclude that the order was not authenticated properly. This Court for reasons discussed has already distinguished the issue. There is no merit in this writ application. It is, accordingly, dismissed. AKS/ (Navin Sinha, J.)