Uttarakhand High Court
WPSB/37/2022 on 20 October, 2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
AND
THE HON'BLE SRI JUSTICE RAMESH CHANDRA KHULBE
WRIT PETITION (S/B) NO. 37 OF 2022
20th OCTOBER, 2022
Between:
Rakesh Kumar Patel ...... Petitioner
and
State of Uttarakhand & others ...... Respondents
Counsel for the petitioner : Mr. Sanjay Bhatt, learned counsel
Counsel for the respondents : Mr. J.C. Pande, learned Standing
Counsel for the State of
Uttarakhand / respondent No. 1
: Mr. A.S. Rawat, learned Senior
Counsel assisted by Mr. Prasanna
Karnatak, learned counsel for
respondent No. 2
: Mr. Shobhit Saharia, learned
counsel for respondent No. 3
The Court made the following:
JUDGMENT: (per Hon'ble The Chief Justice Sri Vipin Sanghi)
The petitioner has preferred the present writ
petition to assail the order dated 07.01.2022, passed by
respondent No. 1, i.e. the State of Uttarakhand through
Secretary Minor Irrigation, Government of Uttarakhand.
By the impugned order, the respondent No. 1 amended
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the earlier Office Order No. 450 dated 31.03.2021. By
the impugned order, the petitioner was transferred from
his place of posting, i.e., Minor Irrigation Sub Division
Haldwani, District Nainital, to Minor Irrigation Sub
Division Nainital, District Nainital. Simultaneously,
respondent No. 2, who was then posted at Minor
Irrigation Sub Division Nainital, District Nainital, was
transferred to Minor Irrigation Sub Division Haldwani,
District Nainital.
2) A brief background of facts is that the
petitioner was promoted to the post of Assistant
Engineer on 27.08.2021. The petitioner was then posted
at Rudrapur. On 12.10.2021, the petitioner was
transferred from Minor Irrigation Division, Rudrapur to
Minor Irrigation Division, Nainital, where he was given
posting in Sub Division, Bhimtal. On 31.12.2021, the
State issued a general transfer order involving five
officers. Respondent No. 2, who was then serving in
Minor Irrigation Sub Division, Haldwani Division, was
transferred to Minor Irrigation Sub Division Nainital,
District Nainital. Simultaneously, the petitioner was
transferred from Minor Irrigation Sub Division Nainital,
District Nainital, to Minor Irrigation Sub Division
Haldwani, District Nainital. In pursuance to this transfer
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order, the petitioner proceeded to join at his transferred
post on 01.01.2022. The petitioner states that within
seven days of his joining, the impugned order was
issued by respondent No. 1 on 07.01.2022, once again
reversing his transfer, as also that of respondent No. 2,
in whose place he had joined at Haldwani. The
petitioner submits that the general transfer order dated
31.12.2021 was effected, keeping in view the long
tenure that respondent No. 2 had served for at
Haldwani. He submits that the Election Code became
operative on 08.01.2022 with the announcement of the
election programme by the Election Commission of
India.
3) According to the petitioner, the impugned
order was issued subsequent to 08.01.2022, when the
Election Code was in operation, and the same has been
antedated. In this regard he submits that the dispatch
number put on the impugned order dated 07.01.2022
raises doubt about its actually been issued on
07.01.2022. The same was antedated, according to the
petitioner, only with a view to avoid the concurrence of
the Election Commission of India, before issuing the said
transfer order.
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4) The petitioner further submits that respondent
No. 2 has continuously served at Haldwani since
06.12.2017, upto 31.12.2021, i.e., he had served in
excess of four years at Haldwani, when he was
transferred vide order dated 31.12.2021.
5) When the writ petition came up before this
Court on 13.01.2022, this Court stayed the operation of
the order dated 07.01.2022. The said interim order is
continuing to operate till date.
6) Counter-affidavits have been filed by
respondent No. 1 and by respondent No. 2, as well.
7) In so far as the justification for issuance of the
impugned order dated 07.01.2022 is concerned, all that
is stated in his counter-affidavit by respondent No. 1 in
paragraph 14, while dealing with para 10 of the writ
petition, is that "the State Government in its wisdom
modified the order of transfer dated 31.12.2021 vide its
subsequent order dated 07.01.2022 whereby place of
posting of petitioner and respondent No. 2 were
interchanged which has not been challenged by the
petitioner".
8) Apart from stating that the impugned order
dated 07.01.2022 was issued by the State Government
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"in its wisdom", there is nothing placed on record to
show as to on what material the said so called "wisdom"
is founded. Respondent No. 1 has further disclosed that
respondent No. 2 has remained posted at Haldwani for
the following periods :
Between 01.01.2003 to 30.09.2015 12 years 09 months
Between 06.12.2017 to 17.08.2020 02 years 08 months
Between 18.08.2020 to 31.12.2021 01 year 04 months
Total 16 years 09 months
Thus, respondent No. 2 has served at
Haldwani for 16 years and 09 months. Respondent No.
1 has further disclosed that respondent No. 2 did not
comply with the transfer order dated 31.12.2021, and
despite being aware of the said transfer order, he failed
to join at Nainital.
9) The counter-affidavit states that in pursuance
of the interim order passed by this Court on 13.01.2022,
the petitioner is working at Sub Division Haldwani
whereas, in spite of several letters, reminders and
direction issued by the Department to respondent No. 2,
he has failed to join his place of posting, i.e., Sub
Division Nainital. On 10.01.2022, respondent No. 2 sent
his "Unacceptable joining through Whatsapp" at Sub
Division Haldwani, which has not been accepted by the
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Executive Engineer, Minor Irrigation Division, Nainital.
Respondent no. 1 has also placed on record the
communications issued to respondent No. 2 from time to
time, including on 31.01.2022, wherein respondent No.
2 was informed as follows:
"vkidh rSukrh dh xEHkhjrk dks ns[krs gq, bl i= ls ek/;e ls
vkidks vfUre ckj iqu% lqfpr fd;k tkrk gS vki rRdky fdlh izdkj
dk foyEc fd;s fcuk y?kq flpkbZ mi[k.M] UkSuhrky dk dk;ZHkkj xzg.k
djsa] vU;Fkk mDr fLFkfr dk vadu vkids foHkkxh; O;fDrxr vfHkys[kks
es djrs gq, vkidk ekg tuojh] 2022 lfgr vkxkeh ekgksa dk osru
vkgfjr fd;k tkuk lEHko ugha gks ik;sxkA ftlds fy, vki Lo;a
ftEesnkj gksasxsA"
10) Respondent No. 2 has also filed his counter-
affidavit to oppose the petition. Learned Senior Counsel
for respondent No. 2 states that respondent No. 2 has
rendered service in remote areas aggregating to 16
years 05 months and 12 days, in all. Therefore, the
petitioner cannot be posted in a remote area. Learned
Senior Counsel for respondent No. 2 submits that his
posting is at Bhimtal, which includes some remote areas
of Dhari etc. Mr. Rawat further submits that respondent
No. 2 is at the fag end of his career, and he has physical
ailments which prevent him from serving in remote
areas.
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11) Respondent No. 1 has placed on record the
chart showing the places of posting of respondent No. 2
from time to time. As per the same, Up Khand Nainital
is classified as "Sugam", i.e., accessible posting. Thus,
the submission of Mr. Rawat that the posting of
respondent no. 2 at Sub Division Nainital, is a posting in
remote area, cannot be accepted.
12) Since there is no justification offered by
respondent No. 1 for sudden cancellation of the transfer
of the petitioner which took effect on 01.01.2022-
merely after seven days on 07.01.2022, and the only
justification offered is the so called "wisdom" of the
Government, which is not substantiated on the record,
we quash the impugned order dated 07.01.2022.
13) The writ petition stands disposed of in the
aforesaid terms.
14) All pending applications also stands disposed
of.
________________
VIPIN SANGHI, C.J.
___________
R.C. KHULBE, J.
Dt: 20th OCTOBER, 2022
Negi
