Uttarakhand High Court

WPSB/236/2021 on 8 July, 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. 236 OF 2021



                           8TH JULY, 2021


   Between:

   Komal Singh                                        ...Petitioner

   and


   State of Uttarakhand and others.                  ...Respondents

Counsel for the petitioner : Mr. Vinay Kumar.

Counsel for the respondents : Mr. B.S. Parihar, learned Standing Counsel for the State of Uttarakhand.

The Court made the following:

JUDGMENT : (per Hon'ble The Chief Justice Sri Raghvendra Singh Chauhan)

The petitioner, Mr. Komal Singh, has challenged

the legality of the transfer order, dated 29.06.2021,

passed by the Secretary, Forests, Government of

Uttarakhand, whereby the petitioner has been

transferred from Govind Vanya Jeev Pashu Vihar,

Purola, District-Uttarkashi to Uttarakhand Biodiversity

Board, Dehradun.

2. Briefly, the facts of the case are that the

petitioner is a substantively appointed Assistant

Conservator of Forest, and belongs to the cadre of

State Forest Service. In October, 2020, the petitioner

was posted as a Wildlife Warden, Rajaji Tiger Reserve,

Dehradun. Subsequently, he was posted as an In-

charge Deputy Director, Govind Wildlife Sanctuary and

National Park, Purola, Uttarkashi. Consequently, the

petitioner joined the said post. Just after eight

months, the petitioner has been transferred by the

impugned order dated 29.06.2021, as mentioned

hereinabove. Aggrieved by the transfer dated

29.06.2021, on 30.06.2021, the petitioner submitted a

representation to the Secretary, Forests. So far, the

said representation has not been decided. Hence, the

present petition before this Court.

3. Mr. Vinay Kumar, the learned counsel for

the petitioner, has raised the following contentions

before this Court:-

(A) According to the impugned order, the

petitioner is being transferred to the

Uttarkhand Biodiversity Board, which is an

independent body. Thus, the petitioner is

being sent outside the Forest Department,

and outside his cadre.

(B) Even if such a transfer were deemed

to be a deputation from the State

Department to the Board, the petitioner's

consent has not been sought by the

Secretary, Forests.

the terms and conditions of being sent on

deputation. Therefore, the transfer order

stands vitiated.

(D) According       to     Section      18       of     the

Uttarakhand       Annual    Transfer       for    Public

Servants Act, 2017 ("the Act" for short), an

employee can be transferred only on certain

grounds. According to Section 18(4) of the

Act, an employee can be transferred only

on the grounds of serious complaints of

misconduct, misbehavior with senior

officers, and lack of interest in work.

However, the case of the petitioner does

not fall under Section 18(4) of the Act.

Therefore, he could not be transferred for

there was no allegation levelled against the

petitioner either of misconduct, or with

regard to misbehavior with senior officers,

or with regard to lack of interest in his

work. Moreover, even if these grounds do

exist, the transfer could not have been

made until and unless there are is a

necessary inquiry, and confirmation of the

same.


(E)    Section 18 of the Act requires that

even    if   a   transfer   is   being   made   on

administrative      grounds,      the    competent

authority has to take approval from an

officer one rank higher than the officer, who

is transferring the employee. However, in

this case, there is no indication in the

transfer order that such an approval was

sought and given by an officer higher in

rank than the officer, who is transferring

the petitioner.

(F) Section 26 of the Act prescribes a

mandatory condition that the transfer order

must mention the relevant Section, under

which the employee is being transferred.

However, the impugned order dated

29.06.2021 does not indicate any relevant

Section. It merely states that the petitioner

is being transferred "on administrative

grounds".

(F) According to Section 22(4) of the Act,

if an employee is aggrieved by any transfer

order, he may file a representation. The

representation must be decided within a

period of one week. Despite the fact that

the petitioner has submitted a

representation on 30.06.2021, till date the

representation has gone unheeded.

(G) Rule 15 of the U.P. Fundamental Rules

(as adopted in the State of Uttarakhand),

also prescribes that a Government servant

may be transferred from one post to

another, except on account of inefficiency,

or misbehavour, or on his own request.

Since there is no allegation of inefficiency or

misbehavior, and since the petitioner has

never requested for his transfer, the

impugned transfer order is against the

tenor of Rule 15 of the Fundamental Rules.

Therefore, the impugned order deserves to

be set aside by this Court.

4. Heard Mr. Vinay Kumar, the learned counsel for

the petitioner, and perused the record.

5. A bare perusal of the impugned order dated

29.06.2021 clearly indicates that the petitioner is being

transferred on "administrative grounds". It further

indicates that the petitioner is being transferred to an

independent Organisation, namely, the Uttarakhand

Biodiversity Board.

6. Despite the fact that Mr. Vinay Kumar, the

learned counsel for the petitioner, has pleaded that in

the case of deputation, the consent of the employee

needs to be taken before the employee is transferred,

he has not been able to show us either a law, or a case

law on this point. Therefore, his contention that the

consent of the petitioner needs to be taken prior to

being transferred on deputation is highly misplaced.

7. There is no requirement of law that in case

an employee is sent on deputation, the conditions of

deputation, or the terms of deputation need to be spelt

out in the transfer order. Therefore, even this

contention raised by the learned counsel that the

terms and conditions of deputation need to be stated

in the transfer order is a contention, which is without

any substance.

8. The learned counsel has heavily relied on

Section 18 of the Act. Section 18 of the Act is as

under:-

"18. 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:

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."

9. A bare perusal of the said Section clearly

reveals that the said Section begins with the word "In

addition to annual/general transfer". Moreover,

Section 18(4) of the Act specifically deals with the

transfers, which are based on certain reasons or

causes.

10. Even Section 18(5) of the Act makes it

abundantly clear that the competent authority may

issue a transfer order, besides the transfer to be made

as per Clauses (1) to (4) mentioned hereinabove.

Hence, Section 18 of the Act itself recognizes the

inherent power of an employer to pass a general

transfer order, which is distinct and separate from the

transfer order being passed under Section 18(4) of the

Act.

11. It is, indeed, trite to state that the inherent

power always lies with the employer to transfer an

employee, where the employer is of the opinion that

the services of the employee can be used for the best

purpose, and in the interest of the Organisation, and in

the public interest. It does not lie in the mouth of an

employee to claim that the transfer is neither "on the

ground of administrative reasons", nor "in public

interest". For, it is not for the employee to say what is

"administrative ground" and what is "in the public

interest". That arena is exclusively the domain of the

employer.

12. It is, indeed, trite to state that in case the

petitioner pleads that there has been a violation of the

procedure, he must substantiate his allegations with

substantial evidence. Although the learned counsel for

the petitioner claims that no approval was taken from

a higher officer while passing the impugned order,

there is no evidence to establish the same. Moreover,

there is a presumption under law that any act done by

a public officer is indeed done in accordance with law.

Therefore, the contention raised by the learned counsel

that the prior approval of the higher officer has not

been taken is unacceptable.

13. Section 26 of the Act is as under:-

"26. In the 'Transfer order' to be made in pursuance of this Act, it shall be necessary to mention the relevant section and procedure of transfer of the concerned employee. It shall also be displayed on the website of Uttarakhand after the issue of transfer orders."

14. Section 26 is merely a procedural law,

which prescribes that the transfer order should mention

relevant Section, under which an employee is being

transferred. However, if there is violation of Section 26

of the Act, it would not vitiate the transfer order.

Therefore, the learned counsel is not justified in claiming

that Section 26 of the Act is mandatory, and its violation

has vitiated the transfer order.

15. The learned counsel has relied on Rule 15

of the Fundamental Rules, which is as under:-

"15. (a) a government servant may be transferred from one post to another; provided that, except--

             (1)  on    account     of     inefficiency   or
             misbehaviour, or
             (2) on his written request,

a government servant shall not be transferred substantively to, or, except in a case covered by rule 49, appointed to officiate in, a post carrying less pay than the pay of the permanent post on which he holds a lien, or would hold a lien had his lien not been suspended under rule 14.

(b) Notwithstanding anything to the contrary contained in these Rules, the Governor may in the public interest transfer a government servant

to a post in another cadre or to an ex-cadre post.

(c) Nothing contained in clause (a) of this rule or in clause (13) of rule 9 shall operate to prevent the retransfer of a government servant to the post on which he would hold a lien, had it not been suspended in accordance with the provisions of clause (a) of rule 14."

16. Even Rule 15(b) of the Fundamental Rules

permits an employee to be sent to another cadre or to

an ex-cadre post. Moreover, once the Transfer Act has

been enacted by the Legislature, and since the Transfer

Act is a specific one, it will override and take precedence

over the Fundamental Rules, which are general in its

nature. Therefore, the argument based on Rule 15 of

the Fundamental Rules is unsustainable.

17. For the reasons stated above, this Court

does not find any merit in the present writ petition. It is,

hereby, dismissed.

18. In sequel thereto, pending application, if