Union Of India & Others vs Yogesh Chandra Pathak
2021 Latest Caselaw 978 j&K/2

                                                                                           Sr. No.08
                         IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                            AT SRINAGAR

                      CJ Court

                                                   LPASW No.08/2019


                      UNION OF INDIA & OTHERS                               ... APPELLANTS(S)
                      Through:       Ms. Masooda Jan, Advocate.
                      Vs.

                      YOGESH CHANDRA PATHAK                                 ...RESPONDENT(S)

                      Through:       Ms. Arifa Jan, Advocate.

                      CORAM:         HON'BLE THE CHIEF JUSTICE
                                     HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

                                                  (JUDGMENT)(ORAL)
                                                      27.08.2021

                      Sanjay Dhar, 'J'

                      1)       The instant intra-court appeal is directed against the judgment and

order dated 15th of November, 2018 passed by learned Writ Court in

SWP No.1839/2018 filed by the respondent herein (hereinafter referred

to as the writ petitioner), whereby the said writ petition has been allowed

and the appellants have been directed to transfer the writ petitioner on

the same analogy as has been adopted in the case of two similarly

situated persons mentioned therein.

2) Briefly stated, the facts giving rise to the filing of this appeal are

that the writ petitioner was appointed as a Lower Division Clerk Group

'C', in terms of order dated 03.09.2010 read with order dated 04.04.2011

and was posted in the Directorate of Census Operations, J&K, Srinagar.

MOHAMMAD ALTAF BHAT

2021.09.01 10:44 I attest to the accuracy and integrity of this document After joining his services and serving for some time, the writ petitioner

made a representation to the authorities of his department seeking his

transfer from the State of J&K either to his home town i.e. State of

Jharkhand or to some other State nearer to his home State on the ground

that he had developed certain health problems and that he happens to be

the only son of his old aged parents who require his constant care.

3) It appears that no action on the representation of the writ petitioner

was taken which compelled him to file a writ petition bearing SWP

No.694/2018. The said writ petition came to be dismissed by a learned

Single Judge of this Court on 30th March, 2018 and against this order,

the writ petitioner filed an appeal bearing LPA No.21/2018. A Division

Bench of this Court disposed of the said appeal directing the employer of

the writ petitioner to consider his representation in the light of

recommendations made in his favour. On 8th of May, 2018, the

appellants herein passed the consideration order, in terms whereof

representation of the writ petitioner was rejected.

4) The aforesaid rejection order came to be challenged by the writ

petitioner vide SWP No.1839/2018, primarily, on the ground that two

Lower Division Clerks, namely, Shri Pulkit Naval Gupta and Shri Vishal

Tiwari, who are similarly situated with the writ petitioner, were

transferred from the Directorate of Census operations, J&K, to DCO,

UP, and DCO, Delhi, respectively, on similar grounds as were agitated

by the writ petitioner in his representation. The writ petition was allowed

MOHAMMAD ALTAF BHAT

2021.09.01 10:44 I attest to the accuracy and integrity of this document by the learned Writ Court vide impugned judgment and order dated 15th

November, 2018, thereby quashing the rejection order dated 8th May,

2018. A further direction has been issued by the learned Writ Court to

the appellants to transfer the writ petitioner on the same analogy as has

been adopted in the case of afore named two similarly situated persons.

It is this judgment and order which is under challenged before us.

5) We have heard learned counsel for the parties and perused record

of the case.

6) Learned counsel for the appellants has contended that the writ

petitioner is a Group 'C' official and the transfer policy applicable to

Group 'C' officials of Registrar General of India and Directorate of

Census Operations does not envisage all India transfer i.e. transfer from

one State to another. It is contended that the Writ Court has erred in

issuing a Mandamus against the appellants directing transfer of the writ

petitioner in violation of transfer policy. Learned counsel for the

appellant has further contended that the cases of Shri Pulkit Naval Gupta

and Shri Vishal Tiwari are distinguishable, inasmuch as they have not

been transferred but their allocation has been changed from one State to

another even before they had joined their service.

7) In order to test the merits of contention of the learned counsel for

the appellants that there is a total prohibition on transferability of Group

'C' officials on all India basis, we need to go to the covenants of the

transfer policy applicable to Group 'C' officials in the office of Registrar

MOHAMMAD ALTAF BHAT

2021.09.01 10:44 I attest to the accuracy and integrity of this document General of India and its Directorates, which has been issued vide order

No.13014/18/ 2018-Ad.IV/V dated 26th of June, 2019. Clause (4) and (5)

of the said policy are relevant to the context and the same are quoted

herein-below:

"4.Transfer.

As Group C posts do not have all India liability, while framing transfer policy of Group A and B posts, the Group C posts were not considered in the transfer policy. It is pertinent to mention that cadre of Group C posts is maintained in respective Directorates/ORGI. The employees serving in these posts have their seniority in respective DCOs/ORGI(HQ) and accordingly they are promoted in their respective DCOs/ORGI(HQ). Transfer of these employees from one DCO to another DCO or from DCO to ORGI and vice versa affects the seniority and promotion prospects of other employees in the same grade and feeder grade. In light of this perspective, transfer in Group C posts be made, except for rarest cases in public interest/administrative exigencies.

5. Temporary Transfer:

The measure of temporary transfer may be adopted on humanitarian ground aligned with public interest to mitigate hardship of the employees and at times for administrative exigencies. Temporary transfer may be considered initially for a period upto one year and thereafter, may be extended from time to time depending upon the circumstances."

From a perusal of the aforesaid two clauses, it becomes clear that

as a general rule, Group 'C' posts do not have all India transfer liability.

Clause (4), quoted above, makes it clear that transfer in Group 'C' posts

cannot be made except in rarest cases in public interest/administrative

exigencies. Clause (5) of the policy, as quoted above, makes a provision

MOHAMMAD ALTAF BHAT

2021.09.01 10:44 I attest to the accuracy and integrity of this document for temporary transfer on humanitarian grounds aligned with public

interest to mitigate hardships of the employees and at times for

administrative exigencies. Thus, it is clear that transfer of Group 'C'

officials is not totally prohibited. It can be resorted to in rarest cases in

public interest/administrative exigencies or for a temporary period on

humanitarian grounds etc.

8) The impugned order dated 08.05.2018, whereby representation of

the writ petitioner has been rejected, has not taken into account the

exceptions to the general rule of non-transferability in Group 'C' posts,

as has been discussed hereinbefore. The aforesaid impugned order has

been passed only on the ground that the writ petitioner is holding the

post of LDC which is a Group 'C' and that does not have all India

transfer liability, though the writ petitioner had pleaded in his

representation that he was not keeping good health and that his old aged

parents are alone in his home town. This aspect of the matter has not

been considered while passing the impugned order of rejection. It was

incumbent upon the appellants to consider the aforesaid ground

projected by the writ petitioner in the light of Clause (5) of the transfer

policy, which they have not done in the instant case.

9) That takes us to the cases of Shri Pulkit Naval Gupta and Shri

Vishal Tiwari, with whom the writ petitioner has claimed parity. From a

perusal of communication No.12011/14/2014-Ad.IV dated 04.08.2016,

whereby above named two LDCs have been temporarily posted from

MOHAMMAD ALTAF BHAT

2021.09.01 10:44 I attest to the accuracy and integrity of this document DCO, Jammu and Kashmir to DC, UP and DCO, Delhi, respectively, it

becomes clear that the competent authority has considered their cases by

invoking Clause (5) of the transfer policy. To make things more lucid in

this regard, it would be apt to quote relevant excerpts of the aforesaid

communication:

"I am directed to say that dossier of Shri Pulkit Naval Gupta and Shri Vishal Tiwari were forwarded to DCO, Jammu & Kashmir for appointment to the post of LDC. These candidates requested this office for posting at Lucknow & Delhi respectively due to their unavoidable circumstances. The requests of these candidates were considered sympathetically by Competent Authority and accorded approval for temporary posting of Shri Pulkit Naval Gupta and Shri Vishal Tiwari to DCO, UP & DC, Delhi respectively along with post till 31.3.2017.

The above direct recruit LDC shall be adjusted against the post of LDC transferred vide communication No.A-11019/7/2013-Adv.V dt. 04- 08-2016.

Controlling officer DCO J&K is requested to issue an order immediately directing Shri Pulkit Naval Gupta to join DCO, U.P and Shri Vishal Tiwari to join DCO Delhi on above condition and the appointment formalities."

10) From a perusal of the afore-quoted contents of the

communication, it is clear that Shri Pulkit Naval Gupta and Shri Vishal

Tiwari, who, like writ petitioners, were allocated and posted to DCO,

J&K, have been given temporary posting at DCO, UP and DCO, Delhi,

till 31.03.2017 at their request on account of unavoidable circumstances.

Therefore, the writ petitioner is right in contending that he has been

invidiously discriminated by the appellants herein, inasmuch as his

representation has not been considered on humanitarian grounds in the

MOHAMMAD ALTAF BHAT

2021.09.01 10:44 I attest to the accuracy and integrity of this document manner in which the similar representations of the above named two

similarly situated officials were considered.

11) For the foregoing reasons, we do not find any illegality and

infirmity in the impugned judgment of the learned Writ Court to the

extent it quashes the impugned order dated 8th May, 2018, whereby

representation of the writ petitioner for transfer has been rejected. The

impugned judgment is upheld to the aforesaid extent.

12) The appeal is disposed of with a direction to the appellants to

consider the representation of the writ petitioner for his transfer to his

home town or to a nearby State on humanitarian grounds as projected by

him in his representation in the light of Clause (5) of transfer policy

pertaining to Group 'C' officials. A decision in this regard shall be taken

by the appellants within a period of one month from the date of this

order by passing a speaking order.

                                  (SANJAY DHAR)                       (PANKAJ MITHAL)
                                     JUDGE                              CHIEF JUSTICE
                      Srinagar
                      25.08.2021
                      "Bhat Altaf, PS"
                                           Whether the order is speaking:        Yes/No
                                           Whether the order is reportable:      Yes/No




MOHAMMAD ALTAF BHAT

2021.09.01 10:44
I attest to the accuracy and
integrity of this document