Uttarakhand High Court
WPSB/279/2021 on 2 August, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN
AND
THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA
WRIT PETITION (S/B) NO. 279 OF 2021
02ND AUGUST, 2021
BETWEEN:
Chandrakant Bhatt .....Petitioner.
And
State of Uttarakhand & another ....Respondents.
Counsel for the Petitioner : Mr. Ajay Veer Pundir.
Counsel for the respondents : Mr. B.P.S. Mer, learned Brief
Holder for the State.
The Court made the following:
JUDGMENT:(per Hon'ble The Chief Justice Sri Raghvendra Singh Chauhan)
The petitioner has challenged the legality of the
transfer order dated 20.07.2021, passed by the respondent
No.1.
2. Briefly, the facts of the case are that, earlier the
petitioner was posted as an Executive Officer, Nagar
Panchayat Jhabrera, District Haridwar. By transfer order
dated 17.07.2017, he was transferred as In-charge Assistant
Municipal Commissioner, Municipal Corporation Roorkee,
District Haridwar. Consequently, 08.08.2017, the petitioner
joined the said post. Presently, the petitioner is posted as In-
charge Assistant Municipal Commissioner, Municipal
Corporation Roorkee, District Haridwar. By order dated
20.07.2021, the petitioner has been directed to report to the
Urban Development Directorate, District Dehradun and to
attach with the said Directorate. Hence, the present writ
petition before this Court.
3. Mr. Ajay Veer Pundir, the learned counsel for the
petitioner, submits that by order dated 28.06.2007, a
prohibition was announced on attachment of an employee to
the Headquarter. Therefore, the present attachment order is
in violation of the order dated 28.06.2007.
Secondly, the petitioner was directed to
"immediately report" to the Urban Development Directorate,
District Dehradun. Therefore, the said attachment is stigmatic
in its scope and ambit.
4. On the other hand, Mr. B.P.S. Mer, the learned
Brief Holder appearing for the State, submits that, firstly,
after the passing of the order dated 28.06.2007, the
Uttarakhand Annual Transfer for Public Servants Act, 2017
(for short "the Act, 2017") has been enacted. According to
Section 18(5) of the Act, 2017, the Competent Authority may
issue posting/transfer orders against an employee. Therefore,
it is well within the power of the employer to attach an
employee to the Headquarter. Moreover, the attachment does
not cast any stigma on the employee.
Secondly, it is well within the discretion of the
employer to decide to where the future posting of an
employee should be. Till a decision is taken by the employer,
it is well within its power to attach an employee to the
Headquarter.
Lastly, the impugned order is a posting order
simpliciter. Therefore, it does not cast any aspersion or
stigma upon an employee. Hence, the learned Brief Holder
appearing for the State has supported the impugned order.
5. Heard the learned counsel for the parties, and
perused the impugned order.
6. Admittedly, the order dated 28.06.2007 has been
replaced by the Act, 2017. Therefore, the said order loses all
its legal significance. Hence, the learned counsel for the
petitioner is unjustified in relying upon an order which is
absolutely obsolete after the enactment of the Act, 2017.
7. Section 18 of the Act, 2017 reads as under:-
"18. Procedure of Posting on
Appointment/Promotion and other Transfer. - In
addition to annual/general transfer, the procedure of
posting in appointment/promotion and other transfers
shall be in following conditions, as follows-
(1) At the time of first appointment, posting
shall compulsorily be made in remote areas.
(2) At the time of promotion, the posting shall
essentially he made in remote areas subject to the
conditions of clause (d) of Section 7:
Provided that if the post of promotion does not
exist/is not vacant in remote areas, the posting
after promotion may be made against vacancy
available in accessible areas;
(3) Mutual transfers of two employees shall be
made on willingness for transfer in place of each
other (accessible and remote or remote and remote
or accessible and accessible for which no travelling
allowance shall be allowed and mutual transfer shall
not be admissible between two employees working
in accessible places;
(4) On enquiry, on the grounds of serious
complaints of misconduct, misbehaviour 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".
8. Section 18(5) of the Act, 2017 clearly empowers
the employer to pass "a posting/transfer order". The
impugned order is merely a posting order directing the
petitioner to attach himself to the Directorate. Thus, the
impugned order is in consonance of Section 18(5) of the Act,
2017.
9. In catena of judgments, the Hon'ble Supreme Court
has opined that an attachment order is not a stigmatic order
at all. Therefore, it neither affects the civil/fundamental right
of an employee.
10. Even a bare perusal of the impugned order does
not reflect that any stigma is attached with the petitioner.
Merely because that impugned order directs the petitioner to
"immediately report" to the Directorate, it cannot be
interpreted as being a stigmatic order.
11. For the reasons stated above, this Court does not
find any merit in the present writ petitioner. It is, hereby,
dismissed.
12. No order as to costs.
(RAGHVENDRA SINGH CHAUHAN, C.J.)
(ALOK KUMAR VERMA, J.)
Dated: 02nd August, 2021
NISHANT
