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Allahabad High Court · body

2018 DIGILAW 2052 (ALL)

Naval Prasad Shukla v. State of U. P.

2018-09-25

NEERAJ TIWARI

body2018
JUDGMENT : 1. Heard Mr. Umesh Vats learned counsel for the petitioners in both the petitions, Sri Hare Ram Tripathi, learned Standing Counsel for the respondent no. 1 to 4 and Sri Ravindra Singh, learned counsel appearing for respondent no. 5. 2. Pleadings have been exchanged between the parties. With the consent of parties, both writ petitions are being decided at the admission stage itself. 3. By way of Writ Petition No. 18510 of 2018, the petitioner Naval Prasad Shukla is challenging the transfer order dated 31.7.2018 passed by respondent no. 4, on the administrative ground, by which the petitioner has been transferred from Sahkari Ganna Vikas Samiti Ltd. Khadda, Kushi Nagar to Sahkari Ganna Vikas Samiti Ltd. Padrauna, Kushi Nagar. 4. By way of Writ Petition No. 19220 of 2018, the petitioner Ramji Thakur is challenging the transfer order dated 31.7.2018 passed by respondent no. 4, on the administrative ground, by which the petitioner has been transferred from Sahkari Ganna Vikas Samiti Ltd. Padrauna, Kushi Nagar to Sahkari Ganna Vikas Samiti Ltd. Khadda, Kushi Nagar. 5. Since both the petitions arising out of the same order, therefore, both are being decided by a common order. 6. The petitioners are working on the post of seasonal clerk. The services of the petitioners are governed by U.P. Co-operative Cane Service Regulations, 1975 (hereinafter referred to as Regulations, 1975) framed under Section 122 of the U.P. Co-operative Societies Act, 1965 (hereinafter referred to as Act, 1965). 7. In both the writ petitions there is no factual dispute and only dispute is that whether, Chapter IX (Transfers) of Regulations, 1975 is applicable in the matter of seasonal clerk or not. 8. The case of the petitioner Naval Prasad Shukla is that he was initially appointed on the post of Seasonal Clerk on 16.5.1983 at Sahkari Ganna Vikas Samiti Ltd. Khadda, Kushi Nagar and since then he was regularly working. Thereafter he has been transferred from Sahkari Ganna Vikas Samiti Ltd. Khadda, Kushi Nagar to Sahkari Ganna Vikas Samiti Ltd. Padrauna, Kushi Nagar. The petitioner challenged the transfer order dated 31.7.2018 by filing Writ Petition No. 18510 of 2018 and this Court has granted interim order dated 30.8.2018 in his favour staying the transfer order. 9. Thereafter he has been transferred from Sahkari Ganna Vikas Samiti Ltd. Khadda, Kushi Nagar to Sahkari Ganna Vikas Samiti Ltd. Padrauna, Kushi Nagar. The petitioner challenged the transfer order dated 31.7.2018 by filing Writ Petition No. 18510 of 2018 and this Court has granted interim order dated 30.8.2018 in his favour staying the transfer order. 9. The case of the petitioner Ramji Thakur is that he was initially appointed on the post of Seasonal Clerk in the year 1983 at Sahkari Ganna Vikas Samiti Ltd. Padrauna, Kushi Nagar and since then he is regularly working. He has never been transferred to any other society. He further stated that he was not paid salary since the year 2018 and when he repeatedly demanded salary, by way of punishment, he has been transferred from Sahkari Ganna Vikas Samiti Ltd. Padrauna, Kushi Nagar to Sahkari Ganna Vikas Samiti Ltd. Khadda, Kushi Nagar. He has placed reliance upon an interim order dated 30.8.2018 by which the transfer of seasonal clerk was stayed by this Court vide order dated 30.8.2018 in connected Writ Petition No. 18510 of 2018 (Naval Prasad Shukla Vs. State of U.P. and others). 10. At this stage, the aforesaid interim order dated 30.8.2018 was challenged in Special Appeal No. 888 of 2018 (Dist. Cane Officer/Dist. Cane Service Authority and another Vs. Naval Prasad Shukla and others) and the said special appeal was disposed of by this Court with the observation that the learned Single Judge is requested to dispose of the matter finally if possible by Tuesday next i.e. 25.9.2018. The office was directed to post the petition for orders before the appropriate Bench on 25.9.2018 and interim order was extended till then. 11. Learned counsel for the petitioners has contended that services of the petitioners are governed by Regulations, 1975 and as per Regulations, 1975, service of seasonal clerk is not transferable, therefore, the petitioners cannot be transferred. 12. In support of his contention, he placed reliance on Chapter II of Regulations, 1975 which deals with classification of service. He stated that seasonal clerk is different from the post of clerk as the Regulation 3(e) of Chapter II deals with clerk whereas Regulation 3(g) of Chapter II deals with seasonal clerk and other seasonal staff. 13. He further placed reliance upon Chapter V of the Regulations 1975, which provides the recruiting and appointing authorities and their constitutions. He stated that seasonal clerk is different from the post of clerk as the Regulation 3(e) of Chapter II deals with clerk whereas Regulation 3(g) of Chapter II deals with seasonal clerk and other seasonal staff. 13. He further placed reliance upon Chapter V of the Regulations 1975, which provides the recruiting and appointing authorities and their constitutions. According to the petitioners, appointing authority of seasonal clerk is the District Cane Officer/District Cane Services Authority whereas the appointing authority of the clerk is Deputy Cane Commissioner/Regional Cane Services Authority. 14. He further placed reliance upon Regulations 62 and 63 of Chapter IX of Regulations, 1975 which deals with transfers. On the basis of the aforesaid provisions of the Regulations, 1975, learned counsel for the petitioners has stated that all posts are mentioned in Regulation 63 and it is having only the post of clerk and not seasonal clerk, therefore, under such circumstances, the petitioners cannot be transferred under the provisions of Chapter IX. Chapter IX of Regulations, 1975 is only applicable for the post mentioned in Regulation 63. 15. Learned counsel for the petitioners has also invited attention of the Court to the Regulation 61(3) of Regulations, 1975. According to that, transfer of Accountant, Cashiers and Assistant Accountants and clerks within region will be made by the Regional Authority and it also does not include the post of seasonal clerk. 16. The argument of learned counsel for the petitioners are that the post of seasonal clerk is entirely different from the clerk, therefore, the petitioners cannot be transferred under the provisions of Chapter IX (Transfer) of Regulations, 1975. 17. Mr. Ravindra Singh, learned counsel appearing for the respondent no. 5 has rebutted the argument made by learned counsel for the petitioners and again invited the attention of the Court to the Chapter IX of Regulations, 1975, which deals with transfer. He has also placed reliance upon Regulations 60 and 61 of the Regulations, 1975. Regulation 60 provides for transfer of various categories of staff from one Cane Union to another outside the district and from one Cane Union to another within the same district. Regulation 61 provides the authorities having power to transfer of different categories of staff. He has also placed reliance upon Regulations 60 and 61 of the Regulations, 1975. Regulation 60 provides for transfer of various categories of staff from one Cane Union to another outside the district and from one Cane Union to another within the same district. Regulation 61 provides the authorities having power to transfer of different categories of staff. He has heavily relied upon Regulation 61(2) of Regulations, 1975, according to which, transfer of the staff from one Cane Union to another within the district except Accountant, Cashier, Assistant Secretaries and Special Secretaries shall be made by the District Authority. On the basis of this, his argument is that Regulation 61(2) empowers the transfer of staff of various categories except four categories of employees i.e. Accountant, Cashier, Assistant Secretary and Secretary. Therefore as per Regulation 61(2), regular or seasonal both type of staff can be transferred except four category of staff. He has further submitted that so far as Regulations 62 and 63 are concerned, Regulation 63 is nothing but clarification of Regulation 62 (a), which provides transfer on the ground of overstay at a place in a district and Regulation 63 provides table having the time period of stay. He further submitted that the transfer of the petitioners has not been made on ground of overstay at a place in a district but it has been made on the administrative ground which is provided in Regulation 62(a), therefore, Regulation 63 would not applicable in the case of the petitioners. He further stated that the petitioners are the employee of Cane Society, therefore, their service conditions are governed by Regulations, 1975 and they can be transferred in accordance with Regulations 60 and 61 of the Regulations, 1975. 18. In support of his contention, Mr. Singh has placed reliance upon different judgments of this Court and Apex Court and argued that as the services of the petitioners are transferable, therefore, as per law laid down by Apex Court, first they should join their services and after that they may make representation against that. 19. Learned Standing Counsel has supported the case of respondent no. 5 and adopted the arguments of learned counsel for respondent no. 5. 20. I have considered rival submissions of learned counsel for the parties and perused the Regulations, 1975, judgments relied upon by learned counsel for the respondents and other relevant records. 19. Learned Standing Counsel has supported the case of respondent no. 5 and adopted the arguments of learned counsel for respondent no. 5. 20. I have considered rival submissions of learned counsel for the parties and perused the Regulations, 1975, judgments relied upon by learned counsel for the respondents and other relevant records. Only question before the Court is to decide whether provisions of Chapter IX of Regulations, 1975 dealing with transfer is applicable on the post of seasonal clerk or not. Learned counsel for the parties has relied upon the different Regulations of Regulations, 1975, which are quoted below:- Chapter II “(Classification of services, pay scales an allowances) 3. Classification of services. -Members of the service shall be classified as under: (a) Supervisory staff such as Secretary and Assistant Secretary, Accounts Officer, Fertilizer Officer, Managing Director (Already provided in the U.P. Co-operative Societies Act), additi9onal secretary, joint secretary (General), Joint Secretary (Planning & training), joint secretary (publicity), joint secretary (checking squad) Joint secretary (fertilizer), assistant accounts officer, special secretary, assistant fertilizer officer. (b) Field Staff such as Fertilizer Inspector, Supervisor, and Ganna Gram Sewak. (c) Instructors. (d) Technical staff such as engineer, overseer, road supervisor, tube-well operator, mechanics, vaid hakim, hakim, compounders and motor driver and mechanics. (e) Ministerial staff such as office superintendent, accountant, section incharge and assistant, accountant, senior noter and drafter, junior noter and drafter, cashier, clerk, typist, steno-typist and librarian. (f) Fourth class staff such as peon, orderly peon, mali, chaukidar, armed-guard, daftri, basta-bardar, Manure Mate Sweeper and cleaner. (g) Seasonal staff such as station or yard Incharge, seasonal clerk, Payment Clerk, Parchi Distributor or Cyclist and Jamadar.” CHAPTER V RECRUITING AND APPOINTING AUTHORITIES AND THEIR CONSTITUTIONS 5. Recruiting and appointing authorities- The following authorities shall be competent to recruit and appoint staff indicated against each under these regulations (1) ZONAL CANE SERVICE AUTHORITY: (1) Fourth class staff of the respective can union, as define in regulation 3(f) 2) Seasonal purzi distributors 3) Seasonal line jamadar. (2) DISTRICT CANE SERVICE AUTHORITY (1) Seasonal cashiers (2) Seasonal clerks (3) Seasonal yard incharge (4) Ganna gram sewaks (5) Jeep drivers (6) Hakim vaid and compounders for dispensaries run by the unions. (7) Operators of the tube-wells owned by the cane unions (8) Road supervisors (3) REGIONAL CANE SERVICE AUTHORITY (1) Assistant accountants (2) Clerks (3) Cane development supervisors. Chapter IX (Transfers) 60. (7) Operators of the tube-wells owned by the cane unions (8) Road supervisors (3) REGIONAL CANE SERVICE AUTHORITY (1) Assistant accountants (2) Clerks (3) Cane development supervisors. Chapter IX (Transfers) 60. The transfer of various categories of staff are classified as below: 1. From one cane Union to another outside the district. 2. From one Cane Union to another within the same district. 61. (1) The transfer within the region from one Cane Union to another outside the district, in case of the staff other than Assistant Secretaries and Special secretaries, shall be made by the “Regional Authority.” (2) The transfer of the staff from one Cane Union to another within the district except Accountant, Cashier, Assistant Secretaries and Special secretaries shall be made by the District Authority. (3) Transfer of Accountant, Cashiers and Assistant Accountants and clerks within region will be made by the Regional Authority. (4) The transfer of all supervisory staff including Assistant Secretaris, Secretaries, Special secretaries, Fertilizer inspectors, Overseers and Engineers from one place to another will be made by the State Authority. (5) The transfer of cashiers, Accountant, Clerks, and Assistant Accountants from one region to another will be made by the State Authority. 62. Ordinarily transfer may be made on the following grounds: (a) Overstay at a place or in a district. (b) Administrative grounds, (e) Own request. 63. For purposes of regulation No. 62 the period of stay at a place or in a district is prescribed as below for each category of staff: Maximum period of stay Category of staff ---------------------------- At a place In a district 1 Special Secretary, Secretary, Assistant Secretaries, Assistant Fertilizer Officer, Fertilizer inspector Secretaries 3years 6 years 2 Assistant Secretaries of all grades 3 years 6 years 3 Accountants 3 years 10 years 4 Cashiers 3 years 10 years 5 Supervisors 5 years 10 years 6 Ganna Gram Sewak 5 years ... 7 Clerks and typist 5 years 10 years 21. The crux of the argument of learned counsel for the petitioners is that the post of clerk is entirely different from the post of seasonal clerk and does not come within the purview of Chapter IX of Regulations, 1975 dealing with transfer. 22. Learned counsel for the petitioners has relied upon Chapter II of Regulations, 1975, which deals with classification of service and pay scales and allowances. 22. Learned counsel for the petitioners has relied upon Chapter II of Regulations, 1975, which deals with classification of service and pay scales and allowances. Regulation 3(e) of Regulations, 1975 provides the post of Ministerial staff which includes the post of clerk whereas Regulation 3(g) of Regulations, 1975 provides the post of seasonal staff which includes the post of seasonal clerk. In Chapter II there are different category of staff, but there is nothing to show that seasonal clerk is beyond the purview of Chapter IX dealing with transfer. 23, He has relied upon Chapter V which deals with different categories of staff. In the matter of post in dispute i.e. seasonal clerk and clerk, appointing authority of seasonal clerk is the District Cane Officer/District Cane Services Authority whereas the appointing authority of the clerk is Deputy Cane Commissioner/Regional Cane Services Authority, but by perusal of Chapter V, there is nothing available to demonstrate that there is any difference between both the post except appointing authority. 24. Focus of the argument of learned counsel for the petitioners is that Chapter IX of Regulations, 1975 deals with transfer and according to petitioners, as per Regulation 62 of the Regulations, 1975, ordinarily, transfer can be made on three grounds (a) overstay at a place or in district (b) administrative ground and (c) own request. Further Regulation 63 provides period of stay at a place or in district in which category of staff is also given but not having the post of seasonal clerk. Therefore, on this ground, it was his submission that the seasonal clerk cannot be transfered as this post is not included in Regulation 63 of Regulations, 1975. 25. I have perused the Regulations 62 and 63 of the Regulations, 1975. Regulation 62 provides three grounds for transfer and Regulation 63 is nothing but clarification of Regulation 62(a), which provides period of stay at a place or in district. Therefore, at the most what interpretation can be drawn that seasonal clerk cannot be transferred on the ground of overstay. In the present case, by perusal of the impugned order, it is factually clear that the petitioners have been transferred on the administrative ground as provided in Regulation 62 (b) of Regulations, 1975 and not on the ground of overstay as provided in Regulation 62 (a) of Regulations 1975. 26. In the present case, by perusal of the impugned order, it is factually clear that the petitioners have been transferred on the administrative ground as provided in Regulation 62 (b) of Regulations, 1975 and not on the ground of overstay as provided in Regulation 62 (a) of Regulations 1975. 26. Learned counsel for the respondents has pressed upon Regulations 60 and 61(2) of Regulations, 1975 and on the basis of that, he stated that Chapter IX (Transfer) shall be applicable in matter of petitioners. 27. I have perused both the Regulations. By perusal of the Regulation 60 of Regulations, 1975, it is very much clear that various categories of staff can be transferred from one Cane Union to another outside the district and from one Cane Union to another within the same district. Regulation 61(2) clearly provides that the transfer of the staff from one Cane Union to another within the district except Accountant, Cashier, Assistant Secretaries and Special Secretaries shall be made by the District Authority, meaning thereby, all staffs only excluding four categories mentioned in Regulation 62 of Regulations, 1975 can be transferred by District Authority. Learned counsel for the respondent has rightly interpreted that seasonal clerk can be transferred under the provisions of Chapter IX (Transfer) of Regulations, 1975. The post of the petitioners i.e. seasonal clerk is very well transferable in light of Regulation 61 (2) of Regulations, 1975 and argument of learned counsel petitioners is not acceptable. 28. This matter came up before this Court in Special Appeal No. 371 of 2013 (Umesh Kushwaha (Asstt. Clerk) Vs. State of U.P. and others. Relevant paragraph is quoted below:- “........................... The opinion in the judgment of the Supreme Court in General Officer Commanding-In-Chief and another vs. Dr. Subhash Chandra Yadav and another (supra) is not applicable to the petitioner as in the present case there is specific rules in the service regulations providing for transfer. Further we do not find that the hardships set out by the petitioner with regard to illness of petitioner's wife, who was suffering from jaundice is not such, which will be difficult for him to bear the consequence of transfer. The Special Appeal is dismissed.” 29. In Writ-A No. 6477 of 2017 (Vivek Raj Asthana Vs. State of U.P. and others), this Court held as under:- “…..................................... The Special Appeal is dismissed.” 29. In Writ-A No. 6477 of 2017 (Vivek Raj Asthana Vs. State of U.P. and others), this Court held as under:- “…..................................... Learned counsel for the petitioner has secondly argued that the petitioner is merely a seasonal worker and is engaged only for three months and, therefore, he cannot be transferred. Shri Ravindra Singh has relied upon a decision of this Court in Writ Petition No. 52869 of 2010 (Ram Chandra Singh and others Vs. Amar Singh/Dy. Cane Commissioner & another) decided on 31.8.2010 which has upheld such transfer of seasonal employees. There are other decisions of the Division Benches of this Court also on this question that seasonal employees can be transferred on administrative ground. One of such decisions is in the case of Umesh Kushwaha (Asstt. Clerk) Vs. State of U.P. and others passed in Special Appeal No. 371 of 2013 dated 7.3.2013. That being the case, the petitioner has been transferred from one co-operative society to another co-operative society within the same district and transfer being an incidence of service, I am not inclined to interfere with the same. However, there are personal reasons quoted in the grounds for resisting such a transfer such as, illness of the mother and other such issues. These questions can suitably be decided by a higher authority, i.e. Deputy Cane Commissioner, before whom the petitioner may make a representation for consideration for his claim and the Deputy Cane Commissioner shall consider the claim of the petitioner sympathetically. With the aforesaid observation/direction, the writ petition is disposed of.” 30. Writ-A No. 52869 of 2010 (Ram Chandra Singh and others Vs. Amar Singh/Dy. Cane Commissioner and another and this Court vide order dated 31.8.2018 has held as under:- “…................... Contention of the petitioners is that transfer order, which have been passed is beyond the competence of Regional Zonal Service Authority, East Zone, Gorakhpur and as such transfer order should not be implemented and given effect to. From the side of the respondents it has been contended that transfer order is strictly in consonance with the provision which covers the field known as U.P. Sugar Cane Cooperative Service Regulation,1976. From the side of the respondents it has been contended that transfer order is strictly in consonance with the provision which covers the field known as U.P. Sugar Cane Cooperative Service Regulation,1976. After respective arguments have been advanced, undisputed factual position, which is emerging in the present case is that under Chapter-9 of U.P. Sugar Cane Cooperative Service Regulation,1976, Regional Zonal Service Authority, East Zone, Gorakhpur is the competent authority to pass order of transfer within the region from one society to another. Here petitioners have been transferred within the region by Regional Zonal Service Authority from Sahkari Ganna Vikash Samiti Ltd. Pipraich, Gorakhpur to Sahkari Ganna Vikash Samiti Ltd. Sisawa Bazar, District Mahrajganj. In the present case keeping in view larger interest of seasonal workmen such resolution has been passed so that regular remuneration and wages are ensured. Once in this background order of transfer has been passed, then there is hardly any scope of interference. Consequently, present writ petition is dismissed.” 31. In the above referred judgment this Court held that under Chapter IX of Regulations, 1975, there is an Authority to pass transfer order in the matter of seasonal employee also. In that matter, transfer was made outside the region, therefore, the Court has held that the Regional Zonal Service Authority has power to pass transfer order and in the present case, transfer is within the region. The ratio of the law would be same and District Cane Service Authority would have power to pass transfer order in the matter of seasonal clerk. 32. In light of observation made by this Court with regard to Regulations, 1975 as well as law laid down by this Court on previous occasions, this Court is of the firmed view that Chapter IX (Transfer) of Regulations, 1975 is very well applicable in the matter of seasonal clerk also. 33. Once it is decided by the Court that the post of the seasonal clerk is transferable under the provisions of Chapter IX of Regulations, 1975, certainly in the light of judgment given by the Apex Court in the cases of Union of India and others Vs. Janardhan Debanath and another reported in 2004 (4) Supreme Court Cases 245, Major General, J.K. Bansal Vs. Union of India reported in 2005 (107) FLR 37 and S.C. Saxena Vs. Janardhan Debanath and another reported in 2004 (4) Supreme Court Cases 245, Major General, J.K. Bansal Vs. Union of India reported in 2005 (107) FLR 37 and S.C. Saxena Vs. Union of India and others reported in 2006 (9) SCC 583 , transfer should not be interfered unless is in violation of statutory provisions or the orders passed in malafide exercise of powers by the executive authorities. 34. In the light of the observation made herein above as well as law laid down by this Court on previous occasions, this Court holds that Chapter IX (Transfer) of Regulations, 1975 is also applicable on the post of seasonal clerk and there is no illegality in the impugned order passed by the respondents. It is in accordance with Chapter IX (Transfer) of Regulations, 1975, therefore, both the Writ Petition No. 18510 of 2018 and 19220 of 2018 lack merit and are accordingly dismissed. No order as to costs.