WPSS/20/2022
2022 Latest Caselaw 3314 UK

     IN THE HIGH COURT OF UTTARAKHAND
                   AT NAINITAL
     ON THE 13TH DAY OF OCTOBER, 2022
                        BEFORE:
     HON'BLE SHRI JUSTICE MANOJ K. TIWARI
     Writ Petition (S/S) No. 19 of 2022
BETWEEN:

Smt. Aparna Waldiya                    ... Petitioner

AND:

State of Uttarakhand & others          ... Respondents
     Petitioners
     (By Mr. B.M. Pingal and Mr. S.K. Mandal, Advocates)

     Respondents
     (By Mr. Rakesh Kunwar, learned Additional C.S.C.)

                             With
             Writ Petition (S/S) No. 20 of 2022
            Writ Petition (S/S) No. 1713 of 2021


                      JUDGMENT

1. Since common questions of fact and law are involved in these petitions, therefore, these petitions are clubbed together and are being heard & decided together. However, for the sake of brevity and convenience, facts of WPSS No. 19 of 2022 alone are being considered.

2. Petitioner is serving as Cooperative Inspector Group-II/Assistant Development Officer (Cooperative). She is aggrieved by her transfer from District Udham Singh Nagar to District Bageshwar, vide order dated 25.12.2021.

3. It is contended on behalf of petitioner that she has been transferred based on a motivated and

vexatious complaint made by office bearer of party in power in the State. Elaborating further, learned counsel points out that complainant's wife was elected as Chairman of a Primary Cooperative Society and petitioner, in her capacity as officer of Cooperative Department, had enquired against allegation of nepotism and favoritism made against her and had also submitted a report, due to which Mr. Mukesh Rana (complainant) had felt offended and was looking for an opportunity to harm the petitioner.

4. The complaint, based on which petitioner was transferred is Annexure No. 2 to the writ petition. From perusal of the complaint, it is revealed that complainant is office bearer of a political party. It is alleged that petitioner and few other employees of Cooperative Department are politically active and their presence in Udham Singh Nagar may adversely affect performance of his party in the impending elections. As per paragraph no. 5 of the counter affidavit filed by Mr. Tulsi Budiyal, District Assistant Registrar, Udham Singh Nagar, the complaint dated 29.11.2021, made by Mr. Mukesh Rana was forwarded by Chief Election Officer, Uttarakhand to Secretary, Cooperative Department vide letter dated 05.12.2021. Ultimately, Additional Registrar, Cooperative Societies passed the order transferring petitioner from Udham Singh Nagar to Bageshwar. Impugned transfer order dated 25.12.2021 is on record as Annexure No. 1 to the writ petition. It contains a recital that petitioner is being transferred pursuant to direction issued by Chief Election Officer and also the Secretary to State Government. The transfer order also mentions that petitioner is transferred on the basis of a complaint.

5. Learned counsel for petitioner submits that as per Government Policy, a complaint which is not supported by affidavit cannot be entertained, however, petitioner was transferred based on a complaint, which was not supported by affidavit. He further contends that petitioner was not informed about any complaint and she was transferred soon after receiving the complaint, without giving her opportunity to have her say in the matter. He further submits that petitioner was transferred by treating the allegation made in the complaint as gospel truth and even fact finding / preliminary enquiry was not held for forming an opinion that the allegation made in the complaint is prima facie true.

6. Learned counsel for the petitioner further contended that allegation made in the complaint is absolutely false and the complaint was made for extraneous reasons to wreak vengeance against the petitioner. He has drawn attention of this Court to the pleading made in paragraph no. 7 of the writ petition, which is reproduced below:

"7. That the reasoned behind moving the alleged complaint by Mukesh Rana (alleged complainant) against the petitioner is concerned the wife of Mukesh Rana, Smt. Pooja Rana is a Chairperson of Multipurpose Primary Agriculture Cooperative Society (in short 'M.P.A.C.') and her husband Mukesh Rana who made complaint is nominated member of Managing Committee of the society, both of them wanted to give appointment to their near relative Smt. Nikita Rana wife of Dan Singh and one Govnd Singh son of Ram Singh in the society, however, the other member of the Managing Committee passed the resolution against

them, thereafter a complaint was made by some publically spirited person that there is a favoritism and nepotism in the society while offering appointment to their choice person, upon such complaint the District Assistant Registrar Cooperative Societies, District Udham Singh Nagar (respondent no. 4) vide letter dated 19.08.2021 directed an enquiry into the matter pursuance to the resolution passed by Managing Committee of Nanakmatta Society on dated 09.03.2021, needless to say that at that relevant point of time the petitioner was having the Additional Charge of Cadre Secretary of Nanakmatta Society, the enquiry committee in compliance of the letter dated 19.08.2021 submitted an enquiry reported to the competent authority through their enquiry report dated 09.03.2021 against Mukesh Rana and his wife Pooja Rana who are the Chairman and member of the Managing Committee of M.P.A.C. Nanakmatta, District Udham Singh Nagar."

7. Learned counsel for the petitioner further contended that petitioner's transfer was made in the month of December, which is much after the deadline fixed in the Transfer Act, 2017. He further submits that as per provisions of the said Act, transfers are to be made before 10th June and transfers, if made after the said date have to comply with certain stringent conditions mentioned in the Act. He further submits that those conditions were not fulfilled while transferring the petitioners. Thus, he submits that the impugned order is passed in absolute disregard of the provisions contained in Transfer Act, 2017.

8. Learned State Counsel submits that petitioner's home district is Udham Singh Nagar; as she had completed three years in Udham Singh Nagar, therefore, she was due for transfer. He further submits that petitioner was transferred due to intervention by

the Election Commission, however, he fairly conceded that Election Commission had intervened in the matter in view of complaint made against the petitioner.

9. Hon'ble Supreme Court in the case of Somesh Vs. Union of India, reported in (2009) 2 SCC 592, while dealing with a case of transfer of a Government Servant based on complaint, has held as under:-

"16. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds--one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal."

10. From the stand taken in the counter affidavit filed on behalf of respondent nos. 2, 3 & 4, it is apparent that the complaint made by Mr. Mukesh Rana is the sole basis for passing the impugned order. It is also not in dispute that petitioner was not given notice or hearing in respect of the said complaint. Thus, it can be safely inferred that petitioner was transferred to Bageshwar as a measure of penalty, without verifying the allegations made against her in the complaint. Transfer is an incident of service, therefore, normally order of transfer should not be interfered with, unless it

is in violation of statutory provisions or is infected with malice.

11. Since petitioner is transferred on the basis of unverified complaint, therefore, the impugned transfer order cannot be sustained in the eyes of law.

12. Accordingly, the writ petitions stand allowed and the transfer orders impugned by the petitioners are quashed. However, this will not preclude the Competent Authority from passing order afresh, as per law.

(Manoj Kumar Tiwari, J.) Aswal