WPSB/98/2023
2023 Latest Caselaw 911 UK

       IN THE HIGH COURT OF UTTARAKHAND
                  AT NAINITAL

                      SRI JUSTICE VIPIN SANGHI, C.J.
                                  AND
                    SRI JUSTICE ALOK KUMAR VERMA, J.

3RD APRIL, 2023 WRIT PETITION (S/B) NO. 98 OF 2023

Between:

Rajiv Bhartari ........Petitioner.

and

Union of India and others. ....Respondents

Counsel for the petitioner : Mr. Abhijay Negi and Ms. Snigdha Tiwari.

Counsel for the respondents : Mr. Karan Anand, learned Standing Counsel for the Union of India / respondent No. 1.

Mr. S.N. Babulkar, learned Advocate General with Mr. C.S. Rawat, learned Chief Standing Counsel and Mr. Pradeep Joshi, learned Additional Chief Standing Counsel for the State of Uttarakhand/respondent Nos. 2 & 3.

Mr. Rahul Gupta, Mr. Aman Rab and Mr. Shiv Pande, learned counsel for respondent No. 4.

Upon hearing the learned Counsel, the Court made the following

ORDER : (per Sri Vipin Sanghi, C.J.)

The respondents are served.

2. Counter-affidavit stands filed on behalf of

respondent Nos. 2 & 3.

3. Learned counsel for respondent No. 4 seeks time

to file a counter-affidavit. Let the same be filed within ten

days.

4. Rejoinder, if any, be filed before the next date.

5. Mr. Abhijay Negi has pressed for an urgent interim

relief. Mr. Negi points out that the relief sought in the writ

petition is for a writ of quo-warranto against respondent No.

4, to say, that he has no authority to hold the post of

Principal Chief Conservator of Forest/ Head of Forest Force

(hereinafter referred to as 'PCCF/HoFF') in the State of

Uttarakhand after the order of the CAT dated 24.02.2023, in

the light of the specific condition in his Appointment Order

dated 17.05.2022. The petitioner has also sought a

direction to restrain respondent No. 4 from functioning as

PCCF/HoFF, in view of the aforesaid judgment of the CAT,

Allahabad (Circuit Bench, Nainital). The petitioner also

seeks a direction to restore him to the post of PCCF/HoFF

with immediate effect, as directed by the Tribunal under the

aforesaid order. Further reliefs have also been sought by the

petitioner.

6. The appointment order of respondent No. 4, upon

transfer of the petitioner from the said post, has been

placed on record. The same specifically states that the

appointment of respondent No. 4 to the post of PCCF/HoFF

is subject to the order passed in Writ Petition (S/B) No. 98

of 2022.

7. In Paragraph-8 of the order dated 18.04.2022,

the Court has directed that the record of the said writ

petition be transferred to CAT, Allahabad, and it was hoped

that the Tribunal shall endeavour to decide the matter early.

The said writ petition had been preferred by the petitioner to

assail his transfer to the post of Chairman, Uttarakhand

Biodiversity Board, Dehradun. Since the petitioner was

aggrieved by the order passed in the aforesaid writ petition,

the petitioner had approached the Supreme Court, and the

Supreme Court vide order dated 12.12.2022, while declining

to interfere with the impugned order passed by this Court,

requested the CAT to take up the matter, pending before it,

for hearing on the day it was scheduled to be listed, i.e. on

20.02.2023, and dispose of the same expeditiously.

8. In pursuance of the said direction of the Supreme

Court, the CAT has allowed the Transfer Application (post

the transfer of the aforesaid writ petition) in favour of the

petitioner herein. The pertinent findings returned by the

Tribunal are as follows:-

"21. If the facts and circumstances of the present case are taken into consideration in the light of the arguments advanced by the learned counsel for the parties, certainly no CSB meeting was held in the present matter in case of pre-mature transfer, which is mandatory to conduct the CSB meeting. Thereafter, competent authority may accept or reject the board's recommendation.

Although in the present matter, applicant himself was one of the member of the CSB Board but CSB meeting could be held in his absence. If the law

laid down in cases of Shri Ishwar Chandra (supra) and Talluri Srinivasa (supra) are taken with Ernakulam Bench decision, the ratio laid down in the case of Ernakulam Bench cannot be relied upon as Hon'ble Apex court has clearly held in the case of Shri Ishwar Chandra (supra) and Talluri Srinivasa (supra) that in absence of one of the member of the committee, meeting of the board /committee cannot be held to be invalid. Thus, if applicant himself was one of the members of the Board/committee, and he could not participate in the board meeting, being under consideration zone, then also other committee members could conduct the board meeting. Applicant's transfer has been made in this matter on the basis of simply note prepared by the concerned minister. No such procedure has been prescribed in any statutory law, rule or regulation to transfer the cadre post officer only on the basis of note prepared by the concerned minister without recommendation of the CSB, which is not justifiable and Court is of the opinion that injustice has been done to the applicant and therefore he is entitled for relief claimed in the instant OA. It is worth mentioning that there was interim direction of the Hon'ble High Court to the effect that DPC resolution be not given effect to and respondent No. 4 appointment has been made subject to the out come of the present O.A. Thus, applicant plea cannot be defeated on the aforesaid ground. Applicant's plea can also not be rejected on the ground that he has to retire from service within few months. Nothing is on record to show that there was recommendation of CSB for transfer of the applicant prematurely. Transfer order is not bonafide one. Except to assertion in the pleading, nothing is on record to show that applicant career was blemish or any charge sheet had been served upon him at the time of impugned transfer order. If for the sake of argument this fact that applicant was not performing his duty very: well on the post of PCCF (HOFF) is taken into consideration, then also at least procedure prescribed for transfer should have been followed.

22. Hon'ble Apex Court in catena of judgments has observed that when an order of transfer is passed in lieu of punishment the same is liable to be set aside being wholly illegal.

23. The Hon'ble Apex Court in the matter of Arvind Dattatraya Dhande vs State of Maharashtra, AIR 1997 SC 3067, has held in the matter of an appellant who had conducted raid on toddy shops at various places and samples were taken from the toddy for analysis; consequently offences were registered on the basis of the analyses report which revealed that the toddy was adulterated; aggrieved by this, the toddy contractor later lodged complaint against the appellant and action was taken against the officer by way of transfer. In this matter it was held that

-

"..the transfer is not in public interest but is a case of victimization of an honest officer at the behest to the aggrieved complainants carrying on the business in liquour and toddy. Under these circumstances the transfer of the appellant is nothing but mala fide exercise of the power to demoralize honest officers who would efficiently discharge the duties of a public officer". The appeal was accordingly allowed.

24. The Hon'ble Apex Court has in the case of Somesh Tiwari vs Union of India and others decided on 16th December, 2008 in Civil Appeal No. 7308 of 2008 (Arising out of SLP (Civil) No. 3516 of 2007) in para-20 observed as follows:-

"20. 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 ie 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..."

25. Thus, on the basis of aforesaid discussion, the O.A. is liable to be allowed. Accordingly, the OA is

allowed. Impugned order dated 25.11.2021 is quashed." Respondents are directed to restore the applicant to the post of PCCF (HOFF) forthwith."

9. Mr. Negi submits that despite the direction issued

by the Tribunal on 24.02.2023 quashing the transfer of the

petitioner from the post of PCCF /HoFF, and directing

restoration of the petitioner in the said position, the

respondents have not complied with the said order till date.

He submits that the petitioner is due to retire on

30.04.2023, and it is absolutely essential for the petitioner

who is an officer of the State and his honour that he is

restored to his position as PCCF/HoFF forthwith.

10. Mr. Negi has also referred to the findings returned

by the Tribunal. The Tribunal found that the petitioner's

transfer from the post of PCCF/HoFF was merely on the

basis of a Note prepared by the concerned Minister without

following the procedure of placing the matter with regard to

the transfer of the petitioner before CSB and undertaking to

transfer the petitioner under the recommendations of the

CSB. The transfer of the petitioner has been found to be

mala fide by the Tribunal.

11. On the other hand, Mr. C.S. Rawat, learned Chief

Standing Counsel for the State of Uttarakhand, who appears

for the respondent Authorities, submits that the respondents

have prepared a writ petition to challenge the order of the

Tribunal before this Court, which would be filed very shortly.

12. Mr. Gupta, who appears on behalf of respondent

No. 4, submits that a charge-sheet making serious

allegations against the petitioner has been issued in the

meantime. Mr. Negi, in reply to the same, points out that

the charge-sheet has been issued after the order of the

Tribunal dated 24.02.2023.

13. Despite the Tribunal allowing the Transfer

Application of the petitioner on 24.02.2023 quashing the

petitioner's transfer and directing restoration in the post of

PCCF/HoFF, the said order was neither immediately assailed

by the Government, nor even by respondent No. 4. They

have taken their own sweet time, while the date of

retirement is fast approaching, and today Mr. Rawat submits

that the writ petition will be filed shortly.

14. Looking to the fact that the Tribunal has found, on

the basis of the record, that the transfer of the petitioner

was made merely on the basis of a Note prepared by the

concerned Minister and without following the statutory

procedure, we are of the view that the order of the Tribunal

dated 24.02.2023 should be implemented forthwith.

Pertinently, even after the petitioner was transferred out

and respondent No. 4 has been brought-in as PCCF/HoFF,

the matter was not placed before the CSB for post facto

approval. Merely because the Minister concerned is one of

the members of the CSB that itself does not authorize him

to unilaterally take a decision to transfer the petitioner in

the manner that he did.

15. We, therefore, direct that respondent No. 4 shall

forthwith stand divested of his duties as PCCF/HoFF, and the

writ petitioner shall forthwith be restored to the said post.

He shall be permitted to take-over charge at 10:00 AM

tomorrow i.e. on 04.04.2023. However, since there are

allegations made against the petitioner and he has been

issued a charge-sheet, we restrain him from taking any

decision on any matter concerning the charge-sheet issued

to him, and he shall not deal with any file or matter relating

to the charge-sheet.

16. It is made clear that this order shall not prejudice

the rights of the respondents to assail the order dated

24.02.2023, and it shall be subject to further orders in this

writ petition, or in the petition preferred by the respondents

against the impugned order dated 24.02.2023.

17. List on 24.04.2023.

________________ VIPIN SANGHI, C.J.

____________________ ALOK KUMAR VERMA, J.

Dt: 3RD APRIL, 2023 Rathour