Patna High Court
Dinesh Kumar SinghversusThe State Of Bihar and Ors
- Decided
- Disposal
- DISMISSED
- Bench
- PARTHA SARTHY
Holding
Rule 56(a) is discretionary and does not confer a right to substantive transfer; the petition is dismissed.
Summary
The petitioner, a Jeep Driver employed by the Bihar government, filed a writ petition seeking quashing of orders dated 26‑08‑2014 and 30‑08‑2014 that rejected his application for a substantive transfer to the post of Lower Division Clerk under Rule 56(a) of the Bihar Service Code. He argued that the rule permits transfer on a written request and relied on the decision in Shailendra Kumar Pathak v. State of Bihar. The respondents contended that Rule 56(a) is discretionary and does not guarantee a right to conversion of post. The Court examined the language of Rule 56(a) and held that it merely gives the State Government the option to transfer, not an obligation, and that the earlier case was factually different. Consequently, the petitioner's claim was found unsubstantiated and the writ application was dismissed.
Issues considered
- Whether Rule 56(a) of the Bihar Service Code obligates the State Government to substantively transfer a government servant upon his written request.
- Whether the petitioner is entitled to conversion of his post from Jeep Driver to Lower Division Clerk under the said rule.
- Whether the precedent set in Shailendra Kumar Pathak v. State of Bihar is applicable to the present facts.
Legislation cited
- Bihar Service Code — s. 56(a)
Subjects
- service transfer
- Bihar Service Code
- Rule 56(a)
- government servant
- substantive transfer
- writ petition
- administrative law
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.4935 of 2017
======================================================
Dinesh Kumar Singh Son of Shree Damodar Singh, Resident of Village-
Sisai, P.S.- Goryakothi, District- Siwan, at present posted as Jeep Driver at
Block Office Raghunathpur, P.S.- Raghunathpur, District- Siwan.
... ... Petitioner/s
Versus
1. The State Of Bihar
2. The Secretary, General Administration Department, Govt. of Bihar, Patna.
3. The Principal Secretary, Rural Development Department, Govt. of Bihar,
Patna.
4. The Secretary, Rural Development Department, Govt. of Bihar, Patna.
5. The Director, Rural Development Department, Govt. of Bihar, Patna.
6. The Commissioner, Saran at Chapra.
7. The Collector cum the Magistrate, Siwan, District- Siwan.
8. That Deputy Collector, Establishment, Siwan, District- Siwan.
9. The Block Development Officer, Raghunathpur, District Siwan.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Vijay Kumar Mishra, Advocate
For the Respondent/s : Mr. Md.Nashrul Hoda Khan-SC1
======================================================
CORAM: HONOURABLE MR. JUSTICE PARTHA SARTHY
ORAL ORDER
4 10-02-2026 Heard learned counsel for the petitioner and learned
counsel for the respondents.
2. The petitioner has filed the instant application
praying for quashing the order dated 26.8.2014 and 30.8.2014
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whereby the Deputy Collector and the District Magistrate,
Siwan, have rejected the application of the petitioner for being
substantively transferred from the post of Jeep Driver to where
the petitioner is at present working to one of the Lower Division
Clerk in terms of Rule 56 of the Bihar Service Code.
3. The case of the petitioner in brief is that pursuant
to a selection having been conducted by the Bihar Staff
Selection Commission, Patna, the petitioner was appointed as a
Jeep Driver on 27.10.2006. A copy of the appointment letter has
been brought on record as Annexure-1 to the writ application.
4. It is the case of the petitioner that inspite of the
petitioner having filed an application on 1.3.2013 before the
Block Development Officer, Raghunathpur, Siwan to consider
the petitioner's service for substantive transfer to the post of a
Lower Division Clerk (‘LDC’ in short) by conversion in terms
of Rule 56(a) of the Bihar Service Code, the same came to be
rejected by the respondents by the orders impugned dated
26.8.2014 and 30.8.2014. Hence the instant writ application for
the relief as stated herein above.
5. It is submitted by learned counsel for the petitioner
that Rule 56(a) of the Bihar Service Code clearly provides that
the State Government may transfer Government servant from
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one post to another on his written request. The petitioner having
filed an application for his transfer to the post of LDC as has
been done in similar other case, the application should have
been allowed and the petitioner's service converted to that of the
LDC. Learned counsel places reliance on the judgment in the
case of Shailendra Kumar Pathak versus State of Bihar &
Ors.; 2001(2) PLJR 614.
6. The application is opposed by learned counsel for
the respondents.
7. Referring to the counter affidavit filed, learned
counsel submits that the petitioner was originally appointed as a
Jeep Driver against permanent vacancy vide appointment letter
dated 27.10.2006. The application of the petitioner for
conversion of his post to LDC has been rejected by the order
impugned. Rule 56(a) does not provide for substantive
conversion from the original post and it is not a matter of right
that as soon as an application is filed, the applicant has an
indefeasible right of his post being converted.
8. Heard learned counsel for the parties and perused
the material on record.
9. The relevant facts in brief are that the petitioner
who was working as a Jeep Driver in the office of the
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respondent authorities, his application for conversion of his post
from that of Jeep Driver to LDC has been rejected by orders
impugned. Learned counsel has placed reliance on Rule 56(a) of
the Bihar Service Code to submit that the respondents should
have allowed the prayer made by the petitioner in his
representation. For ready reference Rule 56(a) of the Bihar
Service Code is reproduced hereinbelow.
“56. (a) The State Government may transfer a
Government servant from one post to another:
Provided that, except;—
(1) on account of inefficiency or misbehaviour,or
(2) on his written request,
a Government servant shall not be transferred
substantively to, or except in a case covered by
Rule 103 appointed to officiate in a post
carrying less pay than the pay of the permanent
post on which he holds a lien, or would hold a
lien, had his lien not been suspended under Rule
70.”
10. A bare perusal of the provision would show that
the the provision does not make it mandatory that any
application filed by the applicant has necessarily to be allowed
by the State Government. Further, the option of the transfer is
given to the State Government and the provision of Rule 56(a)
mainly provides that a person shall not be transferred
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substantively to or be asked to officiate in a post carrying less
pay than the pay of the permanent post on which he holds a lien
unless he is being transferred on account of inefficiency or
misbehavior or the transfer is being made on his written request.
11. In the opinion of the Court, Rule 56(a) is not a
provision enabling the petitioner to file an application or giving
a right to the petitioner to get himself substantively transferred
on another post as desired by him. So far as the judgment in the
case of Shailendra Kumar Pathak (supra) is concerned, the
petitioner therein was affected on account of his transfer being
made to officiate on a post carrying less pay. The Court in the
said judgment held that the petitioner of the said case having
been transferred on the ground of inefficiency, Rule 56(a)
provided that he can be asked to officiate in the post carrying
less pay than the pay of his permanent post. Taking this into
consideration, the Court did not interfere with the transfer of the
petitioner.
12. In the opinion of this Court, the judgment in the
case of Shailendra Kumar Pathak (supra) is of no assistance to
the petitioner in the facts and circumstances of the instant case.
13. Having heard learned counsel for the parties
and having perused the contents of the petition, the Court is of
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the opinion that the petitioner has not made out a case for grant
of relief in the instant writ application.
14. The application is dismissed.
(Partha Sarthy, J)
Bibhash
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