Smt. Geetika vs State Of Uttarakhand
2021 Latest Caselaw 60 UK

                                                             Reserved judgment

     IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

               Writ Petition No. 2668 of 2019 (S/S)
                (Under Article 226 of the Constitution of India)


Smt. Geetika w/o Pradeep Aggarwal                         .....Petitioner
                                   Versus
State of Uttarakhand                                      .....Respondents

Mr. Parikshit Saini, Advocate for the petitioner.
Mr. Tej Singh Bisht, Dy. A.G. with Ms. Indu Sharma and Mr. Narain Dutt, Brief
Holder for the State.


Hon'ble Lok Pal Singh, J.

By means of this petition, petitioner has sought following reliefs:

"(i) Issue a writ or order in the nature of certiorari quashing the order dated 19.10.2019 passed by respondent no.2 (contained as annexure no.8 to this writ petitioner.)

(ii) Issue any other writ, order or direction which this Hon'ble Court deem fit and proper under the facts and circumstances of the case in favour of the petitioner.

(iii) Award the cost of the present writ petition to the petitioner."

2. Brief facts of the case are that initially the petitioner was appointed as Mukhya Sewika/Supervisor in Department of Women Empowerment and Child Development through Sub-ordinate Services Selection Commission in the year 2013. She joined her services on 05.04.2013 at Block Laksar, District Haridwar. The main job of the Mukhya Sewika/supervisor is to look after Anganwadi Centre in village and the petitioner is having charge of almost ten villages, as such to the children below the age of three years under the schemes are given packet of food containing Dalia, Chana, Gur, peanut, Chane ki Dal and for the cost of these packets Rs. 150/- are insured; these type of packets are also given to the

pregnant women, lacerating women and women above age of sixty years and the children from three years to five years are provided cooked food at the Anganwadi centre. The amount used in expenditure of making food packets are directly send to the account of Anganwadi Karyakartis, as such some NGO's have been formed in villages under the name of self help group and these NGO's are assembling these food packets, although, the food packets does not have good quantity and quality and this was checked by the petitioner. Meanwhile, a complaint was sent to the Chief Minister by some resident of Laksar against the petitioner. Thereafter, an enquiry was conducted against the petitioner. The ADM Finance and Revenue, Haridwar-respondent no.3 was appointed as an Enquiry Officer. Thereafter, a notice was issued to the petitioner. Thereafter, the Tehsildar Laksar issued notice to the petitioner to the effect that the petitioner shall submit her explanation on or before 20.06.2019 before the respondent no.3 and shall appear on 21.06.2019. In compliance of the same, the petitioner submitted her explanation before respondent no.3 with complete details. Thereafter, on 09.07.2019, the respondent no.3 submitted his inquiry report stating therein that the allegations are not found true. Thereafter, the petitioner was transferred to Tharali Chamoli on administrative ground by the respondent no.2 vide order dated 07.08.2019. Feeling aggrieved, the petitioner preferred Writ Petition No. 2123 of 2013, this Court vide order dated 12.09.2019 allowed the writ petition and quashed the order dated 07.08.2019, however, the liberty was granted to the respondents to pass a fresh transfer order in accordance with law. Thereafter, on 19.10.2019, another transfer order under provision of Section 18(4)(5) of the Transfer Act was passed, whereby the petitioner has again been transferred to Tharali District Chamoli on administrative ground. Hence, this petition.

3. Heard learned counsel for the parties and perused the material available on record.

4. Learned counsel for the petitioner would submit that the transfer order has been passed in violation of the Transfter Act, as the same has been passed without giving opportunity of hearing to the petitioner. He would further submit that though all allegations were not found true against the petitioner in the inquiry but the petitioner has been transferred, therefore, there is violation of provision of Section 18 (5) of Uttarakhand Annual Transfer for Public Servants Act, 2017 (hereinafter referred to as "Transfer Act, 2017"). He would further submitted that the order dated 19.10.2019 is violative of the Court's order dated 12.09.2019 as the transfer order dated 07.08.2019 has already been quashed. He would further submit that the order dated 19.10.2019 has been passed without taking prior approval of the Transfer Committee, as mandate din Subsection 18(5) of the Transfer Act, therefore, the order dated 19.10.2019 is illegal and same is liable to be quashed.

5. A counter affidavit has been filed on behalf of respondent no. 2 stating therein that a complaint has been received by the department against the petitioner regarding certain irregularities. Additional District Magistrate (Finance and Revenue), District Haridwar conducted enquiry in the matter and after completion of enquiry submitted the enquiry report and on the basis of the enquiry report, the petitioner was transferred to District Chamoli vide order dated 07.08.2019. It is further stated that feeling aggrieved by the aforesaid transfer order, the petitioner has filed WPSS No. 2123 of 2019, which was allowed by the Court vide order dated 12.09.2019, however, the respondent was given liberty to pass fresh transfer order. Pursuant to the said order, the respondent

department has passed the fresh order impugned order dated 19.10.2019 in accordance with law.

6. Before any discussion, it would be apt to reproduce Section 18 of the Uttarakhand Annual Transfer for Public Servants Act, 2017. The same is extracted below:

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 be 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, 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: Procedure of Posting on Appointment/ Promotion and other Transfer 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.

(5) The competent authority may issue posting/transfer orders besides the transfer to be made as per clause (1) to (4) aforesaid in separate and different period also and it shall not be necessary to bring such cases before the transfer committee:

Provided that on transfers made on administrative grounds the competent authority shall have to take approval from the one rank higher officer.

7. Perusal of Section 18 of Transfer Act, 2017 would reveal that the said Act provides that every employee has to work in the accessible areas as well as in remote areas. Sub clause (5) of Section 18 of the Act, 2017 reveal that before making transfer on administrative ground the competent authority shall take approval from the one rank higher officer. In the impugned order, it is specifically mentioned that before passing the transfer order, approval was obtained from the Secretary, Women Empower and Child Development, thus, the transfer order has not been passed in violation of the Transfer Act. That being the position the argument of learned counsel for the petitioner that there is violation of provisions of Transfer Act, 2017 is totally unsustainable. In my view the impugned order has been passed in accordance with law. It is settled principle of law that transfer is an exigency of service. A person cannot claim a vested right to work at a particular place as the transfer order does not affect any of his/her legal rights and Court should not interfere with the transfer order unless it suffers from arbitrariness and malafide. The law of transfer has been well settled by the Courts in a catena of decisions. Hon'ble Apex Court in the case of State of U.P. Vs. Gobardhan Lal reported in AIR 2004 SC 2165 has held that the orders of transfer should not be interfered with unless there is a violation of some statutory rule or in the cases of proved malice. Mere violation of guidelines issued by the Government cannot be made a ground to interfere in the exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India. Transfer or posting are ordinary incidents of service and ordinarily any transfer or posting is presumed to have been made to satisfy the administrative exigency of service. In the case at hand, it is not the case of the petitioner that the impugned order suffers from malice.

8. Honble Apex Court in the case of State of U.P and another Vs. Siya Ram and another reported in (2004) 7 SCC 405. The Honble Apex Court in the case of Shilpi Bose (Mrs.) Vs. State of Bihar and others reported in 1991 Supp. 2 SCC 659 has held as under:-

"4. In our opinion, the Courts should not interfere with a transfer Order which are made in public interest and for -13- OA/051/00477/2018 administrative reasons unless the transfer Orders are made in violation of any mandatory statutory Rule or on the ground of malafide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer Orders issued by the competent authority do not violate any of his legal rights. Even if a transfer Order is passed in violation of executive instructions or Orders, the Courts ordinarily should not interfere with the Order instead affected party should approach the higher authorities in the Department. If the Courts continue to interfere with day-to- day transfer Orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration which would not be conducive to public interest. The High Court over looked these aspects in interfering with the transfer Orders."

9. In view of the forgoing discussion, this Court is of the view that the impugned transfer order has been passed by the respondent authority for smooth functioning of the administration, which cannot be said to be unfair. It is the employer who is the best judge to decide where any employee is to be deputed. There is no merit in the case. Thus, I do not find any illegality or perversity in the impugned transfer order. The writ petition fails and is liable to be dismissed. Same is hereby dismissed.

10. No order as to costs.

(Lok Pal Singh, J.) Mamta Dated: 07.01.2021