Devendra Kumar vs State Of U.P. And 2 Ors.
2018 Latest Caselaw 2788 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

 A.F.R
 
Court No. - 3
 

 
Case :- WRIT - A No. - 50306 of 2017
 

 
Petitioner :- Devendra Kumar
 
Respondent :- State Of U.P. And 2 Ors.
 
Counsel for Petitioner :- Chandra Jeet Yeadav
 
Counsel for Respondent :- C.S.C.,Pranjal Mehrotra,Ramendra Pratap Singh
 
With
 
Case :- WRIT - A No. - 8230 of 2018
 

 
Petitioner :- Devendra Kumar
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Chandra Jeet Yeadav,Pranesh Kumar Mishra
 
Counsel for Respondent :- C.S.C.,Ramendra Pratap Singh
 

 

 
Hon'ble Neeraj Tiwari,J.

Heard Sri Pranesh Kumar Mishra, learned counsel for the petitioner, learned Standing Counsel for the respondent no.1, Sri Ramendra Pratap Singh, learned counsel appearing for the respondent no.2 and Sri Pranjal Mehrotra, learned counsel appearing for the respondent no.3.

Pleadings have been exchanged between the parties. With the consent of parties, writ petition is being decided at the admission stage itself.

Both the writ petitions are arising out of same dispute, therefore, both are being decided by a common order.

By way of first writ petition bearing Writ-A No.50306 of 2017, petitioner is challenging the transfer order as well as relieving order having the same date 28.09.2017 passed by the respondent nos. 2 and 3 and by way of second writ petition bearing Writ-A No.8230 of 2018, petitioner is challenging the suspension order dated 23.01.2018, by which he was placed under suspension for non compliance of transfer order dated 28.09.2017.

The case of petitioner is that he was transferred on 28.09.2017 from the office of Electric Distribution Division Najibabad (Paschimanchal Vidyut Vitran Nigam Limited, Meerut) to the office of Managing Director, Purvanchal Vidyut Vitran Nigam Limited, Varanasi. Petitioner is challenging the transfer order on the ground that Apex Court vide order dated 24.02.2005 in Writ Petition (Civil) No.79 of 1997 (Suresh Chandra Sharma Vs. Chairman, UPSEB & Ors.) has laid down the guidelines for transfers/postings of officers and staff, which provides that all proposals for transfers/postings of officers and staff can be finalized only after obtaining approval from the independent committee. By the said order, Supreme Court has also constituted the independent committee. Learned counsel for the petitioner submitted that this transfer order has been passed without obtaining approval of the independent committee as provided by the Apex Court.

Learned counsel for the petitioner has invited attention of this Court to another order of Apex court dated 21.03.2007 passed in Writ Petition (Civil) No.79 of 1997, where the Apex Court has further held that on certain occasions transfer may be made without approval, but in that case ex post facto approval is required.

The case of petitioner is that he does not fall within the category given by the Apex Court in order dated 21.03.2007, which is only applicable in the matter of promotion, new recruitment, retirement and wastage, disciplinary action and emerging and genuine medical grounds of staff. It is specific case of petitioner that his case of transfer lies in the category of transfer covered by the order dated 24.2.2005 of Apex Court in Writ Petition (Civil) No.79 of 1997.

Learned counsel for the petitioner further stated that in para 10 of the writ petition, it is clearly mentioned that his transfer has been made without previous approval of the independent committee, therefore, transfer order as well as relieving order dated 28.09.2017 is without jurisdiction and, therefore, is liable to be quashed.

Sri Ramendra Pratap Singh, learned counsel appearing for the respondent no.2 submitted that after transfer of petitioner, letter dated 9th September, 2017 was written by Managing Director of Pashchimanchal Vidyut Vitran Nigam Ltd. to Chief Engineer for ex post facto approval.

Apart from that, he also stated that there are so many complaints against the petitioner, therefore, in light of relaxation given by the Apex Court in Writ Petition (Civil) No.79 of 1997 vide order dated 21.03.2007, he has been transferred on account of disciplinary action.

In rejoinder argument, learned counsel for the petitioner stated that first of all Chief Engineer is not independent committee as constituted by the Apex Court and further the case of petitioner is also does not lie in the second category as directed by the Apex Court in Writ Petition (Civil) No.79 of 1997 vide order dated 21.03.2007, for the reason that no enquiry proceedings has ever been initiated against the petitioner. Therefore it cannot said that he has been transferred against the disciplinary action. It is also his argument that even otherwise Chief Engineer has not granted ex post facto pursuant to the letter dated 9th September, 2017.

I have perused the orders dated 24.02.2005 and 21.3.2005 of Apex Court in Writ Petition (Civil) No.79 of 1997 (Suresh Chandra Sharma Vs. Chairman, UPSEB & Ors.) and relevant paragraphs of both the orders are quoted herein below:-

Order dated 24.02.2005

"......................

We have heard the learned counsel for the State of U.P. and the Corporations. We are satisfied that the suggestion made by the amicus curiae has merit and needs to be accepted. That there is imperative necessity to act urgently, is born out by the facts. Considering that the transfers are likely to be made in a couple of months, we think that urgent steps are needed to be taken. We, therefore, direct as follows:

1. No Minister of the State of U.P., nor any Government officer shall interfere with the transfers/postings of the officers in any of the Corporations named above.

2. All postings/transfers of the officers/staff of the aforesaid Corporations shall be monitored by an independent committee consisting of the following persons:

(I) Shri S. Venkatnarayayan, (IAS) Retd. Former Chairman, National Power Finance Corporation, as Chairman;

(ii) A member of the U.P.S.C. to be nominated by the Chairman of the U.P.S.C.;

(iii) A nominee of the Chairman of the Central Electricity Authority.;

(iv) A nominee of the Comptroller and Auditor General; and

(v) A nominee of the Central Vigilance Commission.

All proposal 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.

No transfers/postings which is disapproved by the said Committee shall be made by the Board of Directors of any of the aforesaid eight Corporations.

......................"

Order dated 21.03.2007

"......................

"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 transfers/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. 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 for submitted with the reason for such transfer, immediately for approval or rejection of the committee mentioned in the preceding paragraph.

......................"

By perusal of the aforesaid orders, this fact is very much clear that general transfer can only be made after approval of independent committee and transfer in special circumstances category may be made, but ex post facto approval is required.

The Court has raised pointed query to learned counsel for the petitioner to show that any disciplinary proceedings have ever been initiated against the petitioner or not, but he could not demonstrate any document.

Apart from that, if argument of Mr. Ramendra Pratap Singh is accepted for a moment that petitioner has been transferred on account of disciplinary action, even though letter dated 9th September, 2017, by which ex post facto approval is required from the Chief Engineer is in violation of direction of Apex Court, as the Chief Engineer is not the independent committee constituted by the Supreme Court. Further, Chief Engineer has also not granted ex post facto approval pursuant to the letter dated 9th September, 2017.

Therefore, under such facts, certainly transfer of petitioner has to be made in consonance with the guidelines issued in Writ Petition (Civil) No.79 of 2017 vide order dated 24.02.2005 and this fact is undisputed that no such approval has ever been taken from the independent committee, before issuance of impugned transfer order of petitioner, therefore, the same is bad in law.

Reply of para 10 of the writ petition is given in para 10 of the counter affidavit, in fact, there is no denial of the fact that transfer order has been passed without previous approval from the independent committee.

I have also perused the judgment of this Court in Writ-A No.35104 of 2015 (Yogesh Kumar "Junior Engineer Vs. State of U.P. & 3 Others) in which similar controversy is involved and this Court has quashed the transfer order only on the ground that it was passed in violation of order of Apex Court and without any approval by the independent committee. Relevant paragraph of this judgment is being quoted herein below:-

"From the perusal of the original record, it seems that the proposal for transfer was made on 23.5.2015 and the next note upon the original record, is with regard to the approval of Director on 2.6.2015. From the original record, it could not be demonstrated that the proposal of transfer was sent for approval to the committee transfer was sent for approval to the committee immediately after 23.5.2015 or that the proposal was approved on any date prior to 1.6.2015. It appears that on the basis of proposal itself, the order of transfer has been issued on 1.6.2015. This Court is, therefore, of the opinion that the direction of the Apex Court, extracted above, requiring approval by an independent committee, had not been complied before passing the order of transfer. Any subsequent approval by the committee would not serve the object, for which such a direction has been issued. The order of transfer, therefore, cannot be said to be in conformity with the directions issued by the Apex Court."

In light of observation herein above, this Court is of the view that transfer order of petitioner was passed without obtaining approval from the independent committee as provided by the Apex Court and also does not lie in the special circumstances of transfer as provided by the Apex Court vide order dated 21.03.2007. In fact, this transfer order is in teeth of direction given by the Apex Court vide orders dated 24.02.2005 and 21.03.2007 in Writ Petition (Civil) No.79 of 1997 and is not sustainable in eye of law. Therefore, the impugned orders dated 28.09.2017 are hereby quashed. Writ-A No.50306 of 2017 succeeds and is, accordingly, allowed.

So far as the second writ petition bearing Writ-A 8230 of 2018 is concerned, in this matter suspension order is challenged which was passed only on the ground that petitioner has not complied with the transfer order dated 28.09.2017. Once the transfer order dated 28.09.2017 is quashed by this Court, automatically this order would not be sustainable in the eye of law. Therefore, impugned order dated 23.01.2018 is hereby quashed. Writ-A No.8930 of 2018 also succeeds and is allowed. No order as to costs.

At this stage, learned counsel for the respondent no.2, Sri Ramendra Pratap Singh prays that respondent no.2 may be permitted to pass fresh order in accordance with law.

There is no need to grant such permission for the reason that it is always open for the respondents to pass any transfer order in accordance with law.

Respondents are directed to permit the petitioner to work on his post and also pay him month to month salary. Petitioner is also entitled for all consequential benefits from which he was deprived during the transfer and suspension period.

Order Date :- 25.9.2018

Junaid