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2019 DIGILAW 2385 (ALL)

Raju Sharma v. State of U. P.

2019-10-19

AJAY BHANOT, BISWANATH SOMADDER

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JUDGMENT : 1. Heard Dr. S.B. Singh, learned advocate assisted by Sri Pranesh Kumar Mishra, learned advocate for the appellant, Ms. Usha Kiran, learned advocate for the respondents No.2 to 4 and learned Standing Counsel for the respondent-State. 2. The subject matter of challenge in the present Special Appeal is a judgment and order dated 16th September, 2019 passed by a learned Single Judge whereby Writ-A No.13852 of 2019 (Raju Sharma Vs. State of U.P and others), was dismissed having found to be misconceived. 3. The appellant before us is the writ petitioner. 4. The brief facts of the case are as follows: 5. The writ petitioner approached the writ Court challenging a transfer order dated 12th July, 2019 and also a relieving order dated 26th July, 2019. In terms of the impugned transfer order, 36 employees working in different offices of the Electricity Urban Distribution Khand/Zone were transferred from Aligarh to the adjoining districts such as Etah, Hathras and Kasganj. A ground for challenging the transfer order was that it affected the seniority of the writ petitioner once he was transferred from one Circle to another. Another ground which the writ petitioner took before the learned Single Judge was that his wife was working in U.P. Power Corporation Limited in Aligarh and under the transfer policy, spouses are to be posted at the same place and the writ petitioner therefore, could not be transferred from Aligarh to another district. 6. It was contended before the learned Single Judge that the transfer policy dated 3rd June, 2019 had not been formulated strictly in terms of the judgment of the Hon'ble Supreme Court in Writ Petition (Civil) No.(s) 79 of 1997 (Suresh Chandra Sharma Vs. Chairman, U.P.S.E.B and others). 7. 6. It was contended before the learned Single Judge that the transfer policy dated 3rd June, 2019 had not been formulated strictly in terms of the judgment of the Hon'ble Supreme Court in Writ Petition (Civil) No.(s) 79 of 1997 (Suresh Chandra Sharma Vs. Chairman, U.P.S.E.B and others). 7. The learned Single Judge considered the respective contentions of the parties and came to a conclusion that the submissions made on behalf of the writ petitioner, were not entertainable for the following reasons :- (i) The writ petitioner had remained posted in District Aligarh for more than ten years; (ii) Clause 3(ii) of the transfer policy categorically provides that a Class III employee cannot be kept under posting for more than 10 years in one district and in that eventuality, he was required to be transferred to the adjoining district; (iii) The same clause further provides that as a result of the transfer of the Class III employees, his seniority would not be affected as it shall be determined from his original posting in the office concerned; (iv) There cannot be any dispute to the fact that Kasganj is an adjoining district to Aligarh. 8. Giving the above reasons, the learned Single Judge proceeded to dismiss the writ petition while observing as follows: “For (sic; read From) the said facts, the claim of the petitioner that he was transferred in violation of the transfer policy is found misconceived. As far as the plea of the petitioner's wife being posted in District Aligarh, relevant is to note that she can seek for her transfer under the transfer policy, whereunder spouses are to be posted at one place. In any case, the petitioner cannot claim posting beyond ten years in the same district in view of the clear provisions in clause 3 (ii) of the transfer policy. As far as the contention of learned counsel for the petitioner that the transfer policy dated 03.06.2019 itself is contrary to the decision of the Apex Court, the same cannot be entertained as no relief has been sought in this regard. The transfer policy is not under challenge. For all the aforesaid reasons, the writ petition is found misconceived and hence dismissed.” 9. Two questions arise for consideration arise before us. (i) Whether the transfer of the appellant/writ petitioner is in accordance with the transfer policy or not? The transfer policy is not under challenge. For all the aforesaid reasons, the writ petition is found misconceived and hence dismissed.” 9. Two questions arise for consideration arise before us. (i) Whether the transfer of the appellant/writ petitioner is in accordance with the transfer policy or not? (ii) Whether the appellant/writ petitioner's transfer is contrary to the judgment of the Hon'ble Supreme Court in Writ Petition (Civil) No.(s) 79 of 1997 (Suresh Chandra Sharma Vs. Chairman, U.P.S.E.B and others) ? 10. In order to answer the first question we need to look at the relevant clause of the prevailing transfer policy. The said clause, being clause 3 (ii) of the transfer policy, reads as follows: (ii) lewg ^x^ ds fyfidh;@ys[kk@dyk laoxZ ds deZpkfj;ksa dks ,d in ij vf/kdre 03 o"kZ ds vUrjky ds i'pkr mudk LFkkukUrj.k fd;k tk;sxkA fdlh ,d dk;kZy; esa dk;Z djrs gq, mudh vf/kdre vof/k 06 o"kZ dh gksxh] ftlds mijkUr mUgsa mlh tuin dh vU; rglhy esa LFkkukUrfjr fd;k tk;sxkA fdlh ,d tuin esa bu dfeZdksa dh vf/kdre rSukrh vof/k 10 o"kZ dh gksxh] rRi’pkr mUgasa fudVorhZ tuin esa LFkkukUrfjr fd;k tk;sxkA dk;Zdkjh@ofj"B dk;Zdkjh lgk;dkas dks muds x`g tuin eas rSukr ugha fd;k tk;sxkA mDr ds QyLo:i] fyfidh; laoxZ ds dfeZdksa dh T;s"Brk ifjofrZr ugha gksxh vfirq ;g muds ewy fu;qfDr dk;kZy; esa ;Fkkor cuh jgsxhA mDr fu/kkZfjr vof/k iw.kZ gksus ds mijkUr Hkh fdlh dkfeZd dh rSukrh iqu% mlh tuin esa dh tk ldsxh] ;fn og U;wure 05 o"kksZ dh vof/k gsrq fdlh vU; tuin esa rSukr jgk gksA ,sls fyfid tks fufonk dk;Z laca/kh iVy ij 03 o"kksZ dh vof/k iw.kZ dj pqds gksa] mUgsa vU;= LFkkukUrfjr fd;k tk;sxkA izfrcU/k ;g gksxk fd 05 o"kksaZ dh vof/k ds mijkUr gh mUgsa iqu% fufonk dk;Z laca/kh iVy ij rSukr fd;k tk ldsxkA uks;Mk ,oa xkft;kckn {ks=ksa esa rSukr dfeZdksa dks 10 o"kksZ ds i'pkr fdlh rhljs fudVorhZ tuin eas rSukr fd;k tk;sxkA 11. A plain reading of the aforesaid clause reveals that a Class III employee cannot be kept under posting for more than 10 years in one district and in that eventuality he/she is required to be transferred to an adjoining district. 12. Therefore, the answer to the first question is that the transfer of the appellant/writ petitioner has been effected in accordance with the prevailing transfer policy. 13. 12. Therefore, the answer to the first question is that the transfer of the appellant/writ petitioner has been effected in accordance with the prevailing transfer policy. 13. Now to the answer the second question, we need to examine the two judgments and orders passed by the Hon'ble Supreme Court in Writ Petition (Civil) No.(s) 79 of 1997 (Suresh Chandra Sharma Vs. Chairman, U.P.S.E.B and others). 14. The first judgment is dated 24th February, 2005 and the second judgment is dated 21st March, 2007. 15. A bare perusal of the judgment of the Hon'ble Supreme Court dated 24th February, 2005 reveals that the issue before the Hon'ble Supreme Court was primarily centered around large scale interference with the autonomous functioning of the Electricity Board (which was later transformed into eight autonomous corporations). The Hon'ble Supreme Court, while dealing with the issue extensively, constituted an independent committee so that no Minister of the State of Uttar Pradesh nor any Government Officer could interfere with the transfers/postings of the officers in any of the eight autonomous corporations. The terms of reference of the independent committee had been clearly spelt out by the Hon'ble Supreme Court in its judgment and order dated 24th February, 2005. Three relevant terms and or conditions are required to be noticed. They are as follows: “3. All proposals for transfers/postings of officers and staff of the aforesaid Corporation should, before finalization, be placed before the independent committee which shall examine and approve the transfers/postings on merits and in the light of the guidelines for transfer policy of officers. (see at Page 495 of Volume IA of the Paper Book). 4. No transfer/posting which is disapproved by the said Committee shall be made by the Board of Directors of any of the aforesaid eight Corporations. 5. The Committee shall make a report to this Court containing its observations with regard to the transfers/postings of officers and staff, if any, made for the year 2005, after all such cases have been considered and decisions thereupon taken.” 16. 5. The Committee shall make a report to this Court containing its observations with regard to the transfers/postings of officers and staff, if any, made for the year 2005, after all such cases have been considered and decisions thereupon taken.” 16. The above quoted portion of the judgment and order of the Hon'ble Supreme Court dated 24th February, 2005 clearly reveals that the Hon'ble Supreme Court had constituted the independent committee primarily to submit a report containing its observations with regard to transfers/postings of officers and staffs, if any, “made for the year 2005” (emphasis supplied), after all such cases have been considered and decisions taken thereupon. 17. Now, the subsequent judgment and order of the Hon'ble Supreme Court dated 21st March, 2007 is required to be noticed. 18. While rendering the latter judgment, the Hon'ble Supreme Court considered the recommendations made by the independent committee which were in the form of guidelines. We need to reproduce the guidelines recommended by the independent committee which were taken notice of by the Hon'ble Supreme Court. “(i). No change in the transfer and posting of officers and staff approved by the IC, shall be made subsequent to the submission of this report to the Hon'ble Supreme Court, unless and until the Hon'ble Court decides and directs otherwise; (ii) If on account of promotions, new recruitment, retirement and wastage, disciplinary action and emerging and genuine medical grounds of staff, transfers/postings become inevitable they should be done in accordance with the TP, such transfer/postings should be reported ex post facto at intervals of three months to a committee comprising two senior' Secretaries to the Government of UP, one of whom shall be the Secretary in charge of Power in the State Government in charge of Power in the State Government. While so reporting the managements of the Corporations shall give written justification in respect of each posting in the format prescribed by the IC in its deliberations; (iii) If such change is in violation of the TP in force, for any unavoidable reason, it shall be submitted with the reason for such transfer, immediately for approval or rejection of the committee mentioned in the preceding paragraph." 19. The Supreme Court, while taking note of the above recommendations made by the independent committee, also took note of the fact that the counsel representing all five companies was agreeable with the suggestions made by the independent committee and in view of the report of the committee, proceeded to dispose of the writ petition along with the contempt application since nothing further survived. 20. If one notices the recommendations made by the independent committee in the form of guidelines which have been accepted by the Hon'ble Supreme Court, we find that only if any transfer is effected in violation of the transfer policy in force, for any unavoidable reason, it shall be submitted with the reason for such transfer, immediately for approval or rejection of the committee mentioned in the second guideline as reproduced hereinabove. 21. This is not the case so far as the appellant/writ petitioner is concerned. Rather, his transfer is in accordance with the prevailing transfer policy in particular clause 3 (ii), which has been set out hereinbefore. 22. As such, we do not find that the transfer has been effected contrary to the judgments and orders of the Hon'ble Supreme Court referred above. We are, therefore, not inclined to interfere with the impugned judgment and order dated 16th September, 2019 passed by the learned Single Judge. 23. The Special Appeal is liable to be dismissed and stands accordingly dismissed.