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2023 DIGILAW 266 (UTT)

Nirmala Singh v. State of Uttarakhand

2023-04-10

ALOK KUMAR VERMA, VIPIN SANGHI

body2023
JUDGMENT : Vipin Sanghi, J. Mr. Hari Mohan Bhatia, learned counsel for the petitioner has taken instructions to press the present Writ Petition. 2. The petitioner, who is serving as Senior Administrative Officer, Prantiya Khand, Dehradun, has been transferred to Prantiya Khand, Bageshwar to serve as Senior Administrative Officer, which is being challenged before us. 3. The glaring facts of the case are that the petitioner has continuously served in accessible areas for the past more than 30 years, i.e. from the time even before the creation of the State of Uttarakhand, on the ground that her husband is also a government servant, and is serving at Dehradun. 4. The aforesaid ground, for the petitioner not being transferred throughout her career, is not to be found in the Uttarakhand Annual Transfer for Public Servants Act, 2017. That cannot be a reason for not transferring a government servant for such long periods. The place of posting of the other spouse, who may be serving in a government department, is only one of the considerations, and that ground cannot be available throughout the career of the government servant, for not being transferred out like all other employees in the cadre. When the petitioner was sought to be transferred to Bageshwar, she resisted the same by approaching the Scheduled Caste Commission, Uttarakhand, which sought to pass orders, staying the same, even though the said Commission has no such authority in law to do so. 5. We caution the said Commission not to pass such interim orders, which it has no power to do. This order shall be communicated for information andcompliance by the Scheduled Caste Commission, Uttarakhand in future. 6. Mr. Bhatia submits that the transfer of the petitioner was wrongly nomenclatured as to Nirman Khand, Bageshwar, whereas there is no Nirman Khand in Bageshwar. 7. The documents produced by the respondents show that the said order had been amended on 16.03.2023 to read as “Prantiya Khand, Bageshwar”. 8. The aforesaid hyper-technical ground taken by the petitioner, therefore, does not survive. The documents produced by the respondents in Court show that, as early as on 14.02.2023, the petitioner was directed to join the post of Senior Administrative Officer at Prantiya Khand Bageshwar, which she refused to accept, as is clear from the endorsement made on 15.02.2023 in the register. The aforesaid hyper-technical ground taken by the petitioner, therefore, does not survive. The documents produced by the respondents in Court show that, as early as on 14.02.2023, the petitioner was directed to join the post of Senior Administrative Officer at Prantiya Khand Bageshwar, which she refused to accept, as is clear from the endorsement made on 15.02.2023 in the register. It appears to us that the petitioner is hell bent on not leaving Dehradun, and joining the post, to which she stands transferred. Even till date, she had not reported at her present place of posting. 9. Mr. Bhatia submits that her transfer has been made on administrative grounds. He further submits that the case of the petitioner was not placed before the Transfer Committee for consideration of her transfer, as required under Section 17(2)(c) of the Uttarakhand Annual Transfer for Public Servants Act, 2017. He submits that no enquiry has been conducted, by grant of any opportunity to the petitioner, on the alleged grounds of serious complaints of misconduct, misbehavior with senior officers and lack of interest in work, etc. Section 18, insofar as it is relevant, reads as follows :- “Procedure of Posting on Appointment/Promotion and other Transfer 18. In addition to annual/general transfer, the procedure of posting in appointment/promotion and other transfers shall be in following conditions, as follows-- (1) …… (2) …… (3) …… (4) On enquiry, on the grounds of serious complaints of misconduct, misbehavior with senior officers and lack of interest in work, etc. after necessary enquiry and confirmation, transfer of such employee may be made on administrative grounds: Provided that the transfer on administrative grounds shall not be made casually or on the basis of complaints of routine nature and in the orders of such transfer it shall be necessary to mention Administrative Grounds.” 10. In our view, the words “on enquiry” does not contemplate a disciplinary enquiry into the conduct of the employee concerned. The enquiry referred to in Section 18(4) is an enquiry, which the department undertakes for the purpose of transfer, in which the participation of the employee is not necessary, since transfer is an incident of service, and it is for the employer to effect the transfer. All that is required, is that the grounds of serious complaints of misconduct, misbehavior with senior officers and lack of interest in work, etc. All that is required, is that the grounds of serious complaints of misconduct, misbehavior with senior officers and lack of interest in work, etc. should form part of the record when the transfer, on administrative grounds, is made under Section 18(4) of the aforesaid Act. If the said provision is read to mean that a full fledged enquiry should first be held before such a transfer can be made on administrative grounds, it would defeat the very purpose for which the said provision is enacted, and it would also mean that the employee concerned will have to remain till such full fledged enquiry is completed, which could prolong for months, if not years. 11. Mr. K.N. Joshi submits that the senior officers have complained that the petitioner is not taking the responsibilities given to her, and is shirking her responsibilities by stating that the work given to her may be assigned to other officers.12. Reliance placed on Section 17(2)(c) is misplaced, inasmuch as, Section 18(5) itself records that, in case of administrative transfers, the matter need not be placed before the Transfer Committee. It is not in dispute that the approval of the officer, who is one rank higher than the competent authority, has been obtained in the present case. 13. We, therefore, dismiss this Writ Petition. 14. Looking to the circumstances of the case, we are not inclined to condone the action of the petitioner in not joining at her transferred place of posting, and the respondents shall be free to take appropriate action against the petitioner, as may be considered appropriate. 15. Consequently, pending applications, if any, also stand disposed of.