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2016 DIGILAW 389 (UTT)

Ashok Mishra v. State of Uttarakhand

2016-07-25

K.M.JOSEPH, V.K.BIST

body2016
JUDGMENT : K.M. Joseph, J. Petitioner has approached this Court purporting to challenge the orders dated 29.06.2016 and 09.07.2016 (Annexure Nos. 1 and 2 respectively). 2. Briefly put, the case of the petitioner is as follows: (i) Petitioner was recruited as an Excise Inspector. He worked at Kashipur from 23.07.2006 till 23.10.2009. Thereafter, he was transferred to Almora, where he worked from October, 2009 till November, 2010. Thereafter, he was transferred to Bazpur on 20.11.2010 and he worked there till October, 2011. Thereafter, he was transferred to Haldwani in October 2011. Thereafter, he was transferred to Nainital, where he worked from June 2014 to 28.10.2014. With effect from October 2014, he was promoted as Assistant Excise Commissioner and was also given additional charge as Excise Inspector, Nainital. On 28.10.2014, he was transferred to Headquarters at Dehradun. Thereafter, on 26.12.2015, he was transferred from Dehradun Headquarters to Nainital as District Excise Officer. (ii) By the first impugned order dated 29.06.2016, petitioner was transferred from Nainital to Udham Singh Nagar. A writ petition was filed earlier challenging the said order, which was taken up on 08.07.2016. Thereafter, on 09.07.2016, the second impugned order was passed, by which the earlier order dated 29.06.2016 was modified insofar as it related to the person, who was posted in his place at Nainital. 3. We have heard Mr. Sharad Sharma, learned senior counsel for the petitioner and Mr. S.S. Chauhan, Deputy Advocate General for the State of Uttarakhand. 4. Learned senior counsel appearing for the petitioner would submit that there is no administrative ground, on which the petitioner could be transferred. In the order dated 29.06.2016, along with the petitioner, several others were transferred. In the said order, it is mentioned “administrative interest”. He poses a question as to how administrative interest can co-exist with administrative ground. This is for the reason that the contention taken in the counter affidavit is that it was found that the liquor was being sold at a higher price and also there was increase in the sale of illicit liquor. The third ground taken is that there is no decision taken by the transfer committee and no decision is reflected in the order of transfer. It is also submitted that Zero Session has been declared, meaning thereby, there could be no transfers. The third ground taken is that there is no decision taken by the transfer committee and no decision is reflected in the order of transfer. It is also submitted that Zero Session has been declared, meaning thereby, there could be no transfers. Learned senior counsel appearing for the petitioner would point out that order dated 09.07.2016 was passed on a second Saturday, which shows the undue interest shown in the matter and, thus, the order is vitiated. Learned senior counsel would further submit that there is no Committee decision for bringing on the amended order dated 09.07.2016. 5. Per contra, learned Deputy Advocate General for the State would point out that the petitioner was actually transferred only on administrative interest and not on administrative ground. The ground taken is about the slackening of the sales at the regular shops and increase in the sale of illicit liquor. It is further submitted that there is, indeed, a decision taken by the Committee under the transfer policy concerning the petitioner, which is reflected in the first order dated 29.06.2016. Learned Deputy Advocate General would further submit that work is, indeed, carried out on second Saturdays also. Moreover, it relates to modifying the earlier order and providing for someone else in place of petitioner at Nainital. In regard to the contention of the petitioner that Zero Session was declared, it is submitted that it was declared from 12.07.2016 and the orders impugned were passed before the said date. 6. Learned Deputy Advocate General would submit that the petitioner is transferred only 35 kms. away. Mr. Sharad Sharma would submit that it is not the distance, which counts; petitioner has already been transferred on 26.12.2015, and within six months, he is being transferred without any basis. 7. Mr. Sharad Sharma, learned senior counsel would, then, also contend that the appointing authority of the petitioner is the Governor, but the transfer order is passed by the Excise Commissioner. To the same, learned Deputy Advocate General would point out that actually petitioner was promoted as Assistant Excise Commissioner, a post which is equivalent to District Excise Officer, by the Excise Commissioner. It is also pointed out that the Excise Commissioner is also the Additional Secretary in the concerned Ministry. 8. The impugned order dated 29.06.2016 does not show that it was an order passed on administrative ground as such. It is passed in administrative interest. It is also pointed out that the Excise Commissioner is also the Additional Secretary in the concerned Ministry. 8. The impugned order dated 29.06.2016 does not show that it was an order passed on administrative ground as such. It is passed in administrative interest. If an order is passed on administrative ground, indeed, it may involve the applicability of the principles laid down by the Full Bench of this Court; but, we need not go that far, as the order is passed on administrative reasons. What are the administrative reasons? The answer is, as already noted, finding that the Government revenue is being lost on the basis of increased sale of illicit liquor and decrease in the sale from the authorized shops. 9. The petitioner has been transferred along with several others. Transfer is an incident of service and, while there may be norms providing for a tenure, they are not inflexible, but subject to abridgement if public interest or administrative interest so genuinely demands. We notice that there is a decision by the Committee under the transfer policy recommending transfer of the petitioner. The fact that there may not be any Committee recommending the modification of the order dated 29.06.2016 by order dated 09.07.2016 cannot advance the case of the petitioner, as modification is only as regards the person, who is to replace the petitioner in Nainital. There is no change in the order on the basis of which the petitioner can raise any claim or advance any grievance. In other words, petitioner’s transfer is on administrative interest and it is preceded by the recommendation of the Committee. The Zero Session prohibiting transfers came into being only from 12.07.2016 and both the impugned orders were passed before the said date. Therefore, that argument also cannot advance the case of the petitioner. This is not a case, where there is a camouflage for an administrative ground, but it is on administrative interest that the transfer is made. 10. The petitioner was promoted by the Excise Commissioner. In the counter affidavit, the stand taken is that, under the transfer policy, the Head of the Department can transfer. The Excise Commissioner, who is also Additional Secretary, is the Head of the Department. Petitioner was, in fact, promoted by the same Excise Commissioner. Therefore, the argument that the appointing authority is the Governor and, therefore, he alone can transfer, may not hold good. The Excise Commissioner, who is also Additional Secretary, is the Head of the Department. Petitioner was, in fact, promoted by the same Excise Commissioner. Therefore, the argument that the appointing authority is the Governor and, therefore, he alone can transfer, may not hold good. 11. In such circumstances, absence of mala fides and absence of violation of statutory provisions persuade us not to interfere with the impugned orders. 12. The writ petition will stand dismissed. No order as to costs.