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2019 DIGILAW 11 (UTT)

Nand Kishor v. State of Uttarakhand

2019-01-03

R.C.KHULBE, RAMESH RANGANATHAN

body2019
JUDGMENT : Ramesh Ranganathan, J. Heard Shri K.P. Upadhyay and Mr. Hemant Pant, learned counsel for the petitioner, Mr. C.S. Rawat, learned Additional Chief Standing Counsel for the State of Uttarakhand and Shri Siddhartha Singh, learned counsel for the fourth respondent and, with their consent, the writ petition is disposed of at the stage of admission. 2. The petitioner has invoked the jurisdiction of this Court questioning his order of transfer dated 17.12.2018 from Udham Singh Nagar to Pithoragrah (from an accessible area to a remote area), and the transfer of the fourth respondent from Bageshwar (a remote area) to Udham Singh Nagar (an accessible area) in the place of petitioner. 3. Facts, to the extent necessary, are that the petitioner has been working at Udham Singh Nagar (an accessible area) for the past more than six years, ever since 23.08.2012. The Assistant Transport Commissioner passed an order of transfer on 05.07.2018 questioning which the petitioner filed WP(S/B) No.316 of 2018 before this Court. Among other grounds the petitioner questioned the competence of the Assistant Transport Commissioner to pass the impugned order of transfer contending that, in terms of Section 21 (1) of the Uttarakhand Annual Transfer for Public Servants Act, 2017 (the “2017 Act” for short), it is only the Head of Department who can effect transfer of Group ‘B’ Officers, to which cadre the petitioner and the fourth respondent belong. 4. In its order in W.P. (S/B) No. 316 of 2018 dated 16.08.2018, the Division Bench held that the Additional Transport Commissioner lacked jurisdiction to effect transfer, and quashed the order of transfer dated 05.07.2018 on this score alone. Thereafter, the fourth respondent filed Application No. 1165 of 2018 seeking modification of the earlier order seeking liberty, for the authorities concerned, to pass an order afresh. This application was dismissed on the ground that, since the order dated 16.08.2018, passed in WP(S/B) No.316 of 2018, did not suffer from an error apparent at the face of the record, the said order did not necessitate interference. 5. The fourth respondent, thereafter, filed WP (S/B) No.417 of 2018 to direct the respondents to consider the representation of the fourth respondent for his transfer to an accessible area from the remote area where he was working in Bageshwar District. 5. The fourth respondent, thereafter, filed WP (S/B) No.417 of 2018 to direct the respondents to consider the representation of the fourth respondent for his transfer to an accessible area from the remote area where he was working in Bageshwar District. The said writ petition also came to be dismissed, by order dated 19.09.2018, as not maintainable in view of the earlier order passed in WP(S/B) No.316 of 2018 dated 16.08.2018. 6. Aggrieved thereby the fourth respondent filed SLP No. 28636 of 2018, and the Supreme Court, by its order dated 30.11.2018, disposed of the SLP directing the State Government to take an appropriate decision on the pending representation, if already not taken, within three weeks from the date of the order. The Supreme Court made it clear that the State Government should take an appropriate decision as per the relevant provisions in the Act and the Rules, they had expressed no opinion on the merits of that decision, and if the said decision was adverse to the petitioner (the fourth respondent herein), it would be open to her to assail the same by way of an appropriate remedy as per law. 7. In compliance with the aforesaid directions of the Supreme Court the impugned order dated 17.12.2018 was passed wherein, after referring to the entire history of the case, including to the several orders passed by this Court and the Supreme Court, the Transport Commissioner noted the request of the fourth respondent for re-issuance of the order of transfer after removing the technical error of the transfer order issued on 05.07.2018. The Transport Commissioner, keeping in view the procedure of the 2017 Act, transferred the petitioner from the post of Assistant Regional Transport Officer, Udham Singh Nagar (accessible area) to the post of Assistant Regional Transport Officer, Pithoragrah (remote area), and the fourth respondent from the post of Assistant Regional Transport Officer, Bageshwar (remote are) to the post of Assistant Regional Transport Officer, Udham Singh Nagar (accessible area). Both of them were permitted to take over charge at the new place of posting within one week from the date of issue of this order without waiting for the substitute; and ensure that a compliance report was submitted to their office. 8. Aggrieved thereby, the petitioner has invoked the jurisdiction of this Court by way of the present writ petition. 8. Aggrieved thereby, the petitioner has invoked the jurisdiction of this Court by way of the present writ petition. Shri K.P. Upadhyay, learned counsel for the petitioner, while fairly stating that the petitioner’s name was initially shown at Sl. No.3 in the compulsory list of transferable employees from accessible to remote areas, and was subsequently shown at Sl. No.1 of the said list, would however contend that the fourth respondent had just completed a little more than six years of service in a remote area and was not eligible to be transferred to an accessible area; adherence to the timelines, stipulated in the 2017 Act for effecting transfer, has been held to be mandatory by a Division Bench of this Court in its order in WP(S/B) No.300 of 2018 and 301 of 2018 dated 26.07.2018; since the last date for effecting transfers was 10.06.2018, the petitioner can only be transferred in the next year, and not midway through the year; for effecting transfers after the stipulated date, approval of the Chief Minister is required; and, since the impugned order does not specifically state that transfers were effected vide proceedings dated 17.12.2018 after obtaining approval of the Chief Minister, the impugned order of transfer is liable to be quashed. 9. On the other hand both Shri C.S. Rawat, learned Additional Chief Standing Counsel and Shri Siddhartha Singh, learned counsel for the fourth respondent, would submit that, while effecting transfers earlier vide proceedings dated 05.07.2018, approval of the Chief Minister had been obtained; the impugned order dated 17.12.2018 has merely cured the defect in the earlier order of transfer dated 05.07.2018; consequently, the extended timelines till 05.07.2018 would govern the subject transfer also; and since the petitioner has been staying in an accessible area for the past more than six years, and is liable to be transferred to a remote area, no interference is called for with the impugned order of transfer. 10. The observations of the Division Bench on which reliance is placed by Shri K.P. Upadhyay, learned counsel for the petitioner, do not lend support to the submissions made on behalf of the petitioner, that the timelines, prescribed for effecting transfers in the 2017 Act, are imperative in all cases. 10. The observations of the Division Bench on which reliance is placed by Shri K.P. Upadhyay, learned counsel for the petitioner, do not lend support to the submissions made on behalf of the petitioner, that the timelines, prescribed for effecting transfers in the 2017 Act, are imperative in all cases. The said order of the Division Bench makes it clear that, having regard to Section 21 (3) of the 2017 Act, transfers can be made after the date indicated in the timetable with the approval of the authorities. 11. The question which necessitates examination is whether the impugned order dated 17.12.2018 is merely an order passed in rectification of the earlier order of transfer dated 05.07.2018 or whether it is a fresh order of transfer and, if it is the latter, whether the approval of the Chief Minister is required to give effect thereto. 12. As noted hereinabove, the earlier order of transfer dated 05.07.2018 was issued by the Assistant Transport Commissioner who lacked jurisdiction, under Section 21 (1) of the 2017 Act, to pass the order of transfer, as it is only the head of the concerned department who can effect transfer of Grade ‘B’ Officers on the recommendations of the Transfer Committee. The Head of the Transport Department is the Transport Commissioner, and not the Assistant Transport Commissioner; and the Division Bench, therefore, held that the order of transfer, passed by the Assistant Transport Commissioner, was without jurisdiction. 13. The submission, urged on behalf of the petitioner, that the order of transfer dated 17.12.2018 is merely an order passed in rectification of the earlier order of transfer dated 05.07.2018, does not must acceptance. The earlier transfer order dated 05.07.2018 was quashed as it was passed by an officer who lacked jurisdiction, and, consequently, the impugned order, passed by the competent authority on 17.12.2018, is a fresh order of transfer, and not a rectification of the earlier transfer order. 14. As noted hereinabove, the impugned order of transfer came to be passed pursuant to the directions of the Supreme Court in SLP No. 28636 of 2018 dated 30.11.2018. As the deadline, for effecting transfers for the year 2018-19 in terms of the Section 23 of 2017 Act, expired on 10.06.2018, transfers can be effected thereafter only in terms of Section 21(3) of the 2017 Act with the approval of the Chief Minister. As the deadline, for effecting transfers for the year 2018-19 in terms of the Section 23 of 2017 Act, expired on 10.06.2018, transfers can be effected thereafter only in terms of Section 21(3) of the 2017 Act with the approval of the Chief Minister. The earlier approval granted by the Chief Minister, on which reliance is placed by the respondents, was for extension of time for effecting transfers from 10.06.2018 till 05.07.2018, and not beyond; and, since the impugned order of transfer dated 05.07.2018 was quashed as without jurisdiction, the subsequent order of transfer dated 17.12.2018 could only have been passed with the approval of the Chief Minister. The impugned order of transfer dated 17.12.2018 does not record approval of the Chief Minister having been obtained. It is evident, therefore, that the impugned order of transfer cannot be given effect to, until and unless approval of the Chief Minister is obtained in this regard. 15. The submission, urged on behalf of the respondents, that the impugned order of transfer dated 17.12.2018 is in compliance with the directions of the Supreme Court, and therefore fresh approval of the Chief Minister is not necessary, does not also merit acceptance. As noted hereinabove the Supreme Court, in its order in SLP No. 28636 of 2018 dated 30.11.2018, made it clear that the State Government should take an appropriate decision as per the relevant provisions of the 2017 Act and the Rules. The relevant provision, in the present case, is Section 21 (3) of the 2017 Act, which requires approval of the Chief Minister to be obtained to effect transfers beyond the time-lines stipulated in Section 23 of the 2017 Act. 16. Suffice it, therefore, to dispose of the writ petition directing the respondents not to give effect to the impugned order of transfer dated 17.12.2018 unless and until approval of the Chief Minister is obtained under Section 21 (3) of the 2017 Act, extending the timelines stipulated under Section 23 of the 2017 Act. With regards the submission put forth on the merits of the order of transfer, it is not even the petitioner’s case that he is not liable to be transferred in terms of the provisions of the 2017 Act. With regards the submission put forth on the merits of the order of transfer, it is not even the petitioner’s case that he is not liable to be transferred in terms of the provisions of the 2017 Act. Without putting forth any valid submissions on his being liable to be transferred from an accessible area to a remote area, as he has been working in an accessible area for the past more than six years, the petitioner would only find fault with the transfer of the fourth respondent. 17. Since the petitioner is, admittedly, liable to be transferred from an accessible area to a remote area in terms of the 2017 Act as he has been working in an accessible area for the past more than six years ever since 23.08.2012, we see no reason to examine whether or not the fourth respondent was entitled to be transferred, from a remote area to an accessible area to the post hitherto held by the petitioner, since the petitioner is, in any event, required to be transferred to a remote area in terms of the provisions of the 2017 Act. 18. The writ petition is, accordingly, disposed of directing the respondents not to give effect to impugned order of transfer dated 17.12.2018, until and unless approval of the Chief Minister is obtained for extending the timeliness stipulated in Section 23 of the 2017 Act. 19. The writ petition stands disposed of accordingly. 20. Needless to state that the decision, whether or not to extend the timelines stipulated in Section 23 of the 2017 Act, is wholly within the discretion of the Chief Minister; and the discretion conferred, under Section 21 (3) of the 2017 Act, shall be exercised by him without being influenced by any observations made in this order.