Uttarakhand High Court
Nand Kishor vs State Of Uttarakhand And Others on 16 August, 2018
Author: Manoj K. Tiwari
Bench: Rajiv Sharma, Manoj K. Tiwari
Reserved Judgment
Reserved on August 9, 2018
Pronounced on August 16, 2018
IN THE HIGH COURT OF UTTARAKHAND
(Under Article 226 of the Constitution of India)
Writ Petition (S/B) No. 316 of 2018
Nand Kishore ....... Petitioner
Versus
State of Uttarakhand and Others ......Respondents
Mr. K.P. Upadhyay, Advocate for the pe titioner.
Mr. S.S. Chauhan, Dy. A.G. for the State.
Mr. Sandeep Kothari, Advocate for respondent no.4.
MR. Subhash Upadhyay, Advocate for respondent no.5.
Coram : Hon'ble Rajiv Sharma, A.C.J.
Hon'ble Manoj K. Tiwari, J.
Per : Hon'ble Manoj K. Tiwari, J.
By means of the present writ petition, petitioner seeks following relief:
"(i) Issue a writ, order or direction in the nature of certiorari calling for the records and quashing the impugned annexure-1 order dated 05.07.2018 issued by the 3rd respondent.
2. Petitioner is serving on a Group-B post of Assistant Regional Transport Officer in District Udham Singh Nagar. He has been transferred to District Pithoragarh vide order dated 05.07.2018 passed by Assistant Transport Commissioner, Uttarakhand and by the same order, one Ms. Pooja Nayal has been transferred in his place from District Bageshwar. Feeling aggrieved by the order dated 05.07.2018, petitioner has filed this writ petition.
23. It is the contention of learned counsel for the petitioner that Assistant Transport Commissioner, who passed the transfer order, is not competent for the purpose, as he is not the Head of Transport Department. According to him, Transport Commissioner is the Head of State Transport Department, who alone is competent to transfer Assistant Regional Transport Officer from one District to another.
4. The State Legislature has enacted a legislation governing Transfer of Government Servants, which was enforced vide notification dated 05.01.2018. Section 21(1) of the Transfer Act, provides that transfer of 'Group A' Officers shall be made by the State Government on the recommendation of transfer committee, whereas transfer of 'Group B' Officers shall be made by the Head of concerned Department. Proviso to Section 21(1) further clarifies that in cases, where post of Head of Department is not there, transfer orders shall be passed by the State Government.
5. Section 16(5) of the Transfer Act provides that transfer of State employees shall be made by the 'Competent Authority' on the recommendation of Transfer Committee.
6. There is no dispute that Assistant Regional Transport Officer is a 'Group B' post. Thus, the only question which falls for consideration in the present writ petition is whether the Assistant Transport Commissioner, who issued impugned transfer order, is competent for the purpose?
7. In paragraph nos. 37 & 39 of the writ petition, it has been pleaded that Section 16(5) and Section 21(1) of the Transfer Act have been violated, as the transfer order has not been passed by the Competent Authority, i.e., Transport Commissioner.
38. Respondents in their counter affidavit have stated that since Transport Commissioner and the Additional Transport Commissioner were out of station, on the date of issuance of transfer order, therefore the impugned transfer order was issued by the Assistant Transport Commissioner.
9. The justification offered by the respondents cannot be accepted. If the Transport Commissioner was out of State Capital on 05.07.2018, then the order could have been passed once he returned to the State Capital. There is no explanation regarding the extreme urgency, if any, in issuing the transfer order on 05.07.2018, when Transport Commissioner was out of State Capital.
10. Even otherwise also, law is settled that when a statutory authority is required to do a particular thing, in a particular manner, the same must be done in that manner alone, as held by Hon'ble Supreme Court in State of Kerala Vs. Kerala Rare Earth & Minerals Limited reported in 2016 (6) SCC 323 and State of Andhra Pradesh Vs. Viswanadula Chetti Babu reported in (2010) 15 SCC 103.
11. Transfer is an incidence of service, therefore this Court normally does not interfere with the transfer orders. However, in the present case, the field is occupied by the Transfer Act and the impugned transfer order has been passed by an Authority, who is not competent for the purpose under the provisions of the Act. Therefore, the impugned transfer order dated 05.07.2018 is liable to be quashed on this score alone.
12. The writ petition is, therefore, allowed. The impugned transfer order dated 05.7.2018 is quashed and set aside.
(Manoj K. Tiwari, J.) (Rajiv Sharma, A.C.J.) mamta