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2017 DIGILAW 374 (UTT)

BIRENDRA KUMAR SINGH v. STATE OF UTTARAKHAND

2017-07-12

ALOK SINGH, K.M.JOSEPH

body2017
JUDGMENT K.M. Joseph, C.J. (Oral) Petitioner has approached this Court seeking to challenge the Annexure no. 8 dated 03.06.2017 passed by respondent no. 2. By order dated 25.05.2017, the petitioner stood transferred from District Chamoli, where he was working as the Mines Officer since past four years. By order dated 27.05.2017, he was posted at District Udham Singh Nagar, to which place he was transferred by order dated 25.05.2017. The case of the petitioner is that on 01.06.2017 he joined at the new place of posting. It is while so, within two days that the impugned order dated 03.06.2017 was passed by respondent no. 2. Respondent no. 2 is the Director, Geological and Mining Unit. It is, therefore, that he also seeks a direction, to direct the respondents not to interfere in any manner in performance of his duties as Mines Officer at District Udham Singh Nagar. 2. We heard Mr. Rakesh Thapliyal, learned counsel on behalf of the petitioner and Mr. C.S. Rawat, learned Additional Chief Standing Counsel on behalf of the State of Uttarakhand. 3. Learned counsel for the petitioner would submit that many persons have been transferred by the transfer order by which he was transferred to District Udham Singh Nagar. This is the contention raised to counter the case of the respondents which is that having regard to the nature of mining activities which are undertaken in District Udham Singh Nagar, it was by mistake that the petitioner was transferred to District Udham Singh Nagar. Petitioner, according to the respondents, is a Mines Officer. The work which is carried out in District Udham Singh Nagar requires a Senior Mines Officer. The petitioner is not a Senior Mines Officer. It is to correct this mistake that the impugned order was passed to keep in abeyance pending decision to be taken regarding posting. The further case of the petitioner is that he has completed four years at District Chamoli and he was eligible to be transferred. It is after the Committee considered the matter that the proper authority, namely, the Principal Secretary ordered his transfer to District Udham Singh Nagar. Regarding the contention of the State that it is only Senior Mines Officer who was to hold the post at District Udham Singh Nagar, he would submit that the Mines Officer is to work in the Districts. Regarding the contention of the State that it is only Senior Mines Officer who was to hold the post at District Udham Singh Nagar, he would submit that the Mines Officer is to work in the Districts. The Senior Mines Officers are to work in the regions, namely, Kumaon and Garhwal. 4. In this regard he, in fact, drew our attention to Annexure no. 1, which provides for distribution of work and according to him Mines Officer can perform the duties at District Udham Singh Nagar. In this regard, he would submit that the present incumbent at District Udham Singh Nagar, namely, the fourth respondent, to whom we have not issued notice, has been working there for more than 8 years. 5. The further argument raised out of this circumstance is that when he was originally posted, he was posted as Mines Officer. He continued there till the year 2013 as Mines Officer and only in the year 2013 he became Senior Mines Officer by promotion. This argument is raised to counter the case of the respondents that there is a mistake and what was intended is that Senior Mines Officer should work at District Udham Singh Nagar, is not correct. Further he would also submit that once, the petitioner has joined pursuant to the transfer order, it may not be legal to do what respondents have done in this case. What has respondents done in this case? By the impugned order dated 03.06.2017 the Director, has directed that the order will be kept in abeyance. The petitioner immediately approached this Court by filing writ petition on 15.06.2017. The case of the respondents is that no further action has been taken on account of the oral directions issued by this Court regarding posting and they are honouring the oral directions given by this Court. Subsequent to the order passed by the second respondent, who is working under the Principal Secretary who had issued the order of transfer in favour of the petitioner, the Principal Secretary also according to the respondents has approved the order. 6. Learned counsel for the petitioner Mr. Rakesh Thapliyal would contend that Principal Secretary has not issued a fresh order cancelling the earlier transfer order itself which has already come into effect. Therefore, this procedure may not be countenanced besides the other arguments. 6. Learned counsel for the petitioner Mr. Rakesh Thapliyal would contend that Principal Secretary has not issued a fresh order cancelling the earlier transfer order itself which has already come into effect. Therefore, this procedure may not be countenanced besides the other arguments. In fact, the learned counsel for the petitioner also relied on the Full Bench judgment of the Hon’ble Allahabad High Court in the case of Director, Rajya Krishi Utpadan Mandi Parishad, Lucknow and others Vs. Natthi Lal reported in (1995) 2 UPLBEC 1128 and he would submit that in the said case, the Court took the view that transfer order can indeed be revoked providing that there is some fraud or misrepresentation or order being without jurisdiction or any other ground similar to it. Learned counsel for the petitioner also relied on judgment of the Jharkhand High Court in the case of Deena Nath Singh Vs. State of Jharkhand reported in 2007 4 JCR 407 wherein, the learned Single Judge took the view that an order of stay of an order of transfer when the transfer is complete could not be sustained as it was found to be mechanical and without application of mind. It is true that petitioner has completed four years at District Chamoli and he was due for transfer under the Transfer Policy. It is equally true that the Principal Secretary has transferred the petitioner to District Udham Singh Nagar. It is also beyond dispute that several other persons were transferred by the order. We cannot, however, ignore certain facts. There are 13 districts in the State of Uttarakhand. The Additional Chief Standing Counsel would point out that there are six Mining Officers. There are three Senior Mining Officers. One Senior Mining Officer is located in the Head Quarters, another is at District Haridwar. Haridwar, it must be noticed is in the Garhwal Region. Udham Singh Nagar is located in the Kumaon Region. The stand of the State appears to be that they would like to have a Senior Mines Officer in District Udham Singh Nagar having regard to the scale of mining operations, which are conducted. A Senior Mines Officer is a person who is holding the next higher post of Mines Officer. Udham Singh Nagar is located in the Kumaon Region. The stand of the State appears to be that they would like to have a Senior Mines Officer in District Udham Singh Nagar having regard to the scale of mining operations, which are conducted. A Senior Mines Officer is a person who is holding the next higher post of Mines Officer. If the administration feels that a Senior Mines Officer should man a particular place and District Udham Singh Nagar being in the Kumaon Region and there is no other place where a Senior Mines Officer is located, it is no part of Court’s jurisdiction to make an intrusion into such a decision. No doubt, all that happened was after the transfer order was passed in favour of the petitioner to District Udham Singh Nagar. He immediately joined but realizing that it was a Senior Mines Officer who should be posted there, the order impugned was passed which itself shows, that initially on the basis of instruction of the Chief Secretary the Director passed the order keeping the transfer order in abeyance. This is not to say that in no case, the Courts can interfere when an order of transfer which is properly passed, is without application of mind or for mala fide reasons or without any relevant reasons, sought to be interfered with or kept in abeyance. Every decision of the Public Authority is presumed to be passed after due application of mind. Every public authority is vested with power for the purpose of doing public good only. These genuine principles apply in all fields of administrative activities and orders of transfer are not immune from applicability of these principles. 7. What has happened in this case apparently is that administration wanted a Senior Mines Officer to man the post of the Senior Mines Officer falling in the Kumaon Region. The person working at present is a Senior Mines Officer. It may be true that originally he was posted as Mines Officer and only subsequently he was promoted but we do not know exactly when the decision was taken that they should have a Senior Mines Officer. We cannot hold that the exercise is mala fide. The person working at present is a Senior Mines Officer. It may be true that originally he was posted as Mines Officer and only subsequently he was promoted but we do not know exactly when the decision was taken that they should have a Senior Mines Officer. We cannot hold that the exercise is mala fide. We would also see no reason to accept the plea of the learned counsel for the petitioner that the impugned order should be set aside and the Principal Secretary should pass a further order revoking the impugned order. Apparently, consequential order pursuant to the impugned order has not been passed pursuant to the oral directions given by this Court. 8. In such circumstances, we decline to interfere in this matter. The writ petition will stand dismissed. But we only make it clear that consequential order pursuant to the impugned order will be passed without any delay as otherwise uncertainties will be maintained.