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2023 DIGILAW 440 (UTT)

Bikram Chand Shah v. State of Uttarakhand

2023-08-02

RAKESH THAPLIYAL, VIPIN SANGHI

body2023
JUDGMENT : VIPIN SANGHI, J. The petitioner has filed a supplementary-affidavit. Along with the supplementary-affidavit, the petitioner has placed on record the judgment dated 21.07.2023, rendered by this Court in the petitioner’s earlier writ petition, i.e. Writ Petition (S/B) No.322 of 2023, whereby the said writ petition was dismissed by this Court. The petitioner has also placed on record certain other documents along with the supplementary-affidavit, which have been referred to during his submission by Mr. Yadav. 2. In the first round, the petitioner had primarily challenged Section 7(d) and Section 17(2)(d) of the Uttarakhand Annual Transfer for Public Servants Act, 2017, and that challenge was rejected by us. 3. The petitioner has preferred the present writ petition to seek the following reliefs:- “i. Issue a writ or writs, order or orders, direction and directions particularly a writ in the nature of mandamus directing the respondent no.1 and 2 to place the matter of the petitioner under Section 27 of the Uttarakhand Annual Transfer for Public Servants Act, 2017 for proper consideration taking into account the public interest and administrative exigency and requirement of students in the institution. ii. Issue a writ or writs, order or orders, direction and directions particularly a writ in the nature of mandamus directing the respondents to keep in abeyance the effect and operation of any order which is disturbing the present continuance of the petitioner in the institution till the disposal of the representation dated 21.07.2023 (Annexure No.9 to the writ petition) under Section 27 of the Uttarakhand Annual Transfer for Public Servants Act, 2017. iii. Issue a writ or writs, order or orders, direction and directions particularly a writ in the nature of mandamus directing the respondents to not relieve the petitioner from present place of posting i.e. Government P.G. College, Chamoli, District Chamoli till the joining of any officer holding the vacant post of ANO in the Government P.G. College, Chamoli, District Chamoli”. 4. The submission of Mr. Yadav is that the petitioner, while serving in the substantive post of Professor (B.Ed.) at Government P.G. College, Chamoli, District Chamoli, was deployed for refresher course by the NCC on 16.05.2023. In this regard, the communication issued by the NCC to the Institution, where the petitioner was serving, has been placed on record. 5. 4. The submission of Mr. Yadav is that the petitioner, while serving in the substantive post of Professor (B.Ed.) at Government P.G. College, Chamoli, District Chamoli, was deployed for refresher course by the NCC on 16.05.2023. In this regard, the communication issued by the NCC to the Institution, where the petitioner was serving, has been placed on record. 5. The case of the petitioner is that he has been serving as Associate NCC Officer (ANO) at the Institution in Chamoli. However, no appointment/engagement order of the petitioner as an ANO has been placed on record, either with the writ petition, or with the supplementary-affidavit. 6. Pertinently, the NCC has also not been impleaded as a party-respondent. This aspect becomes even more relevant when one considers the submissions of Mr. Yadav. 7. Mr. Yadav submits that before transferring the petitioner, the NCC has not been consulted. He submits that the transfer order dated 23.06.2023 does not show any application of mind by the respondents to the aspect that the petitioner was rendering service also as an ANO, while serving in substantive capacity of Professor (B.Ed.). 8. As aforesaid, no document has been placed on record to show that the petitioner was ever appointed/engaged as an ANO, or he was assigned any such duty formally. Similarly, the petitioner places reliance on the communication dated 18.01.2023, issued by the Secretary to the Director General, School Education, which, inter alia, reads as follows:- ^^¼2½- LFkkukarj.k l= 2022&23 gsrq ,uŒlhŒlhŒ ds ,sls f'k{kd ftudh inksUufr@LFkkukarj.k ij inLFkkiuk dh tkuh gks dks lqxe@nqxZe dh ck/;rk esa f'kfFkyhdj.k nsrs gq, ;FkklEHko in fjDr jgus ij mlh fo|ky; esa vFkok ,sls fo|ky; tagk ,uŒlhŒlhŒ lapkfyr gks] es inLFkkfir fd;k tk;A^^ 9. Pertinently, this communication is addressed to the Director General, School Education, whereas the petitioner is not serving in a school, as he is serving in an institution of higher education. Thus, this communication, in any event, cannot be invoked by the petitioner. 10. As aforesaid, the petitioner has not been able to show that he was ever appointed/engaged to serve as an ANO, or he was assigned any such additional duty. Thus, this communication, in any event, cannot be invoked by the petitioner. 10. As aforesaid, the petitioner has not been able to show that he was ever appointed/engaged to serve as an ANO, or he was assigned any such additional duty. The petitioner has also placed on record and placed reliance on another communication dated 07.02.1997, issued by the Director General, NCC, New Delhi, which, inter alia, provides that “while transferring the ANos, the States/UTs must ensure that a successor who is also an ANO must be posted in his place”. 11. Even this communication is not relevant qua the petitioner, since there is nothing to show that he was appointed/engaged to serve as an ANO. 12. Lastly, reliance is placed on the communication dated 17.04.2014, issued by the NCC to the Secretary, Higher Education, which reads as follows:- ^^d`I;k ,uŒlhŒlhŒ funs'kky;] mŸkjk[k.M nsgjknwu ds i= la[;k% 1325@17@ilZ¼ch½ fnuakd 04-04-2012 tks lfpo fo|ky;h f'k{kk ds lkFk&lkFk vkidks Hkh lacksf/kr gS rFkk mDr dh izfr funs'kd izkfof/kd f'k{kk@mPp f'k{kk o dkfeZd foHkkx dks Hkh i`"Bkafdr gS ds lanHkZ esa eq>s vkils vuqjks/k dj ;g djus dh vis{kk dh xbZ gS fd ,uŒlhŒlhŒ foHkkx mŸkjk[k.M esa Ldwy@dkystksa esa ,uŒlhŒlhŒ foHkkx dh xfrfof/k;ksa dks lapkfyr djus gsrq ek/;fed f'k{kk foHkx} mPp f'k{kk foHkkx ,oa izkfof/kd f'k{kk foHkkx ls va'kdkfyd :i es rSukr fd;s x;sA baLVªDVj@ysDpjj dks o"kZ 2012&13 esa ,uŒlhŒlhŒ foHkkx dh xfrfof/k;k@fØ;kdyki lqpk: :i ls lapkfyr fd;s tkus gsrq vU;= LFkkukUrfjr uk fd;k tk;sA ;fn inksUufr ij LFkkukUrj.k djuk vfr vko';d gks rks ,sls Ldwy@dksytks esa LFkkukUrfjr fd;k tk, tgka ij ,uŒlhŒlhŒ miyC/k gks rFkk izf'kf{kr ,uŒlhŒlhŒ lg;ksxh vf/kdkfj;ksa dh lsok ls ykHk mBk;k tk ldsA d`I;k iz'Ukxr izdj.k esa vuqjks/k djuk gS} mijksDrkuqlkj dk;Zokgh gsrq vius Lrj ls Hkh lacaf/kr dks funsf'kr djus dk d"V djsA^^ 13. For the same reason, as aforesaid, namely, that the petitioner has not been appointed/engaged as an ANO, this communication has not application in the petitioner’s case. 14. The petitioner has placed reliance on the Transfer Policy dated 08.04.1999 of the State of U.P., and, in particular, on clause 10(4) thereof, which reads as follows:- ^^10¼4½ mŸkjk[kaM ,oa cqansy[k.M {ks= esa rSukr dkfeZdks dks muds fu;a=d izkf/kdkfj;ksa }kjk rc rd voeqDr u fd;k tk;] tc rd fd muds izfrLFkkuh dk;ZHkkj xzg.k u dj ys ;g izfrca/k vkbZ-,-,l- vkbZ-ih-,Lk- ih-lh-,l- ,oa ih-ih-,l- vf/kdkfj;ksa ij ykxw ugha gksxkA^^ 15. To claim that this policy also binds the State of Uttarakhand, Mr. Yadav places reliance on Section 86 of the U.P. Reorganization Act, 2000, which reads as follows:- “86. Territorial extent of laws.— The provisions of Part II shall not be deemed to have affected any change in the territories to which the Uttar Pradesh Imposition of Ceiling of Land Holding Act, 1961 (U.P. Act 1 of 1961) and any other law in force immediately before the appointed day, extends or applies, and territorial references in any such law to the State of Uttar Pradesh shall, until otherwise provided by a competent Legislature or other competent authority be construed as meaning the territories within the existing State of Uttar Pradesh before the appointed day.” 16. In our view, the said provision has absolutely no relevance considering the fact that the State of Uttarakhand has enacted its own Transfer Act, namely, the Uttarakhand Annual Transfer for Public Servants Act, 2017, and it is the said Act of the State, which shall prevail. 17. Therefore, the Transfer Policy dated 08.04.1999 of the State of Uttar Pradesh cannot be relied upon by the petitioner for any purpose, whatsoever. 18. For the aforesaid reasons, we do not find any merit in this petitioner, and the same is, accordingly, dismissed. 19. In case the petitioner does not comply with the transfer order within the next four working days, it shall be open to the respondents to take appropriate disciplinary action against him. 20. Pending application, if any, also stands disposed of.