Uttarakhand High Court
Tejbal Singh vs State Of Uttarakhand And Others on 11 September, 2019
Author: Alok Kumar Verma
Bench: Ramesh Ranganathan, Alok Kumar Verma
1
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No.415 of 2019 (S/B)
Tejbal Singh ...........Petitioner
Vs.
State of Uttarakhand and others .....Respondents
Coram : Hon'ble Ramesh Ranganathan, C.J.
Hon'ble Alok Kumar Verma, J.
Ramesh Ranganathan, C.J. (Oral) Heard Mr. Anil Kumar Joshi, learned counsel for the petitioner and Mr. Pradeep Joshi, learned Standing Counsel for the State of Uttarakhand.
2. The petitioner herein has invoked the jurisdiction of this Court seeking a writ of certiorari to quash the transfer order dated 31.08.2019; and a writ of mandamus directing the respondents to permit the petitioner to discharge duties in the post of District Supply Officer, Dehradun.
3. The petitioner's grievance in this writ petition is regarding his frequent transfer from one place to another during the last two years. It is not in dispute that the petitioner was transferred from Nainital to Almora on 05.07.2017 as a District Supply Officer. He was again transferred, from Almora to Nainital on 16.02.2018, to the very same post. Again, during the Annual Transfer Exercise, he was transferred from Nainital to Dehardun on 04.06.2019 on administrative grounds. He has now been transferred from Dehradun to Almora, on 31.08.2019, in public interest.
24. Mr. Anil Kumar Joshi, learned counsel for the petitioner, would rely on the judgment of the Supreme Court in B. Varadha Rao vs. State of Karnataka and others : (1986) 4 SCC 131, in support of his submission that frequent transfers would not be countenanced by this Court. On the other hand Mr. Pradeep Joshi, learned Standing Counsel, would submit that the petitioner's transfer was made in public interest, purely because of administrative exigencies; the person, who was posted as the District Supply Officer at Almora, retired from service on his attaining the age of superannuation on 31.08.2019; and, consequently, the petitioner was transferred and posted in the vacant post of District Supply Officer, Almora.
5. The impugned order of transfer records that the petitioner's transfer is in public interest. Section 17 of the Uttarakhand Annual Transfer for Public Servant Act, 2017 (for short the "2017 Act") provides for the consideration, of transfer proposals, by the Transfer Committee. Section 18 prescribes the procedure for posting on appointment/promotion and other transfers; and stipulates that, in addition to annual/general transfer, the procedure of posting in appointment/ promotion and other transfers shall be in terms of the conditions stipulated therein. Clause (3) of Section 18 relates to mutual transfers and, thereunder, transfer of two employees shall be made, on their willingness for transfer, in the place of each other, (accessible and remote or remote and remote or accessible and accessible), for which no travelling allowance shall be allowed; and mutual transfer shall not be admissible between two employees working in accessible places.
3Clause (4) relates to transfer on enquiry, on grounds of serious complaints of misconduct, misbehavior with senior officers and lack of interest in work, etc; and, after necessary enquiry and confirmation, transfer of such employee may be made on administrative grounds. Section 18(5) stipulates that the competent authority may issue posting/transfer orders besides the transfers to be made as per clauses (1) to (4) of Section 18 in separate and different periods also; and it shall not be necessary to bring such cases before the Transfer Committee.
6. It is evident, therefore, that, in terms of Clause (5) of Section 18 of the 2017 Act, transfer of an employee can be made for reasons other than those specified in Clause(1) to (4) of Section 18; and, while effecting such transfers, the matter is not required to be brought before the Transfer Committee. The proviso thereunder, however, restricts such transfer; and stipulates that, on transfer made on administrative grounds, the competent authority shall have to take approval from an officer one rank higher than him.
7. In the present case the petitioner was transferred by the Secretary, Civil Supplies; and the order, made by the Secretary, was approved by the Chief Minister of the State of Uttarakhand. Consequently, the requirements of the proviso to Section 18(5) have been complied with. While it is no doubt true that the petitioner has been subjected to transfer four times in the last two years, the question which necessitates examination is whether such transfers should be interdicted by this Court in writ proceedings under Article 226 of the Constitution of India.
48. In B. Varadha Rao, on which reliance has been placed on behalf of the writ petitioner, the Supreme Court observed that it was an accepted principle that, in public service, transfer was an incident of service; it was also an implied condition of service, and the appointing authority has a wide discretion in the matter; the Government was the best judge to decide how to distribute and utilize the services of its employees; however, this power must be exercised honestly, bonafide and reasonably; it should be exercised in public interest; if the exercise of power is based on extraneous considerations, or for achieving an alien purpose or an oblique motive, it would amount to malafide and colourable exercise of power; frequent transfers, without sufficient reasons to justify such transfers, cannot but be held as mala fide; a transfer is malafide when it is made not for the professed purpose, such as in the normal course or in public or administrative interest or in the exigencies of service, but for other purposes, that is to accommodate another person for undisclosed reasons; and it is the basic principle of the rule of law and good administration that even administrative actions should be just and fair.
9. It is only frequent transfers, without sufficient reasons to justify such transfers, which are malafide. In the present case the petitioner was transferred to Almora on 31.08.2019, less than three months after he was transferred from Nainital to Dehradun by order dated 04.06.2019, since the District Supply Officer at Almora had retired from service, on attaining the age of superannuation, on the same day i.e. 31.08.2019. It cannot, therefore, be said that the petitioner's transfer 5 to Almora was without sufficient reasons justifying such transfer.
10. Mr. Anil Kumar Joshi, learned counsel for the petitioner, would submit that, in the post vacated at Dehradun, consequent on his transfer to Almora, an officer lower in rank than him was posted thereat; and it was always open to the authorities concerned to post the said officer from Pauri to Almora, instead of shifting the petitioner from Dehradun to Almora. Issues, regarding which officer should be posted where, are not for this Court to examine in proceedings under Article 226 of the Constitution of India. While it was always open to the State Government to post the officer working at Pauri to Almora, instead of the petitioner, the mere fact that it has chosen, instead, to post the petitioner at Almora would not justify a mandamus being issued to the authorities concerned directing them to retain the petitioner at Dehradun; and, instead, to post the other officer from Pauri to Almora. We see no reason, therefore, to interfere with the impugned order of transfer.
11. Mr. A.K. Joshi, learned counsel for the petitioner, would submit that the petitioner has, consequent on his being transferred to Dehradun on 04.06.2019, made arrangements for his children's schooling thereat; and his transfer to Almora, during the middle of the academic session, would result in his children losing one precious academic year of school education.
12. While the grievance put forth on behalf of petitioner by Mr. Anil Kumar Joshi, learned counsel, 6 cannot be said without merit, these are all matters for the authorities concerned to examine. Suffice it, in such circumstances, to permit the petitioner to make a representation to the first respondent. If any such representation is made within ten days from today, the first respondent shall, within two weeks from the date of receipt of the petitioner's representation, consider his case for retention at Dehradun in accordance with law pass appropriate orders, and communicate the same to the petitioner.
13. With the aforesaid directions, the writ petition is, accordingly, disposed of. No costs.
14. Let a certified copy of this order be issued to the learned counsel for the parties, on payment of the prescribed charges, by 13.09.2019.
(Alok Kumar Verma, J.) (Ramesh Ranganathan, C.J.) 11.09.2019 JKJ/Neha