Uttarakhand High Court

WPSB/360/2023 on 2 August, 2023

             IN THE HIGH COURT OF UTTARAKHAND
                                  AT NAINITAL
                   HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
                                          AND
                      HON'BLE SRI JUSTICE RAKESH THAPLIYAL

                  WRIT PETITION (S/B) NO. 360 OF 2023
                             02ND AUGUST, 2023
BETWEEN:
Dr. Bikram Chand Shah                                          .....Petitioner.
And

State of Uttarakhand & others                                  ....Respondents.

Counsel for the Petitioner : Mr. S.S. Yadav, learned counsel.

Counsel for the Respondents : Mr. K.N. Joshi, learned Deputy Advocate General assisted by Mr. S.S. Chaudhary, learned Brief Holder.

The Court made the following:

JUDGMENT:(per Hon'ble The Chief Justice Sri Vipin Sanghi)

The petitioner has filed a supplementary-affidavit.

Along with the supplementary-affidavit, the petitioner has

placed on record the judgment dated 21.07.2023, rendered

by this Court in the petitioner's earlier writ petition, i.e. Writ

Petition (S/B) No.322 of 2023, whereby the said writ petition

was dismissed by this Court. The petitioner has also placed

on record certain other documents along with the

supplementary-affidavit, which have been referred to during

his submission by Mr. Yadav.

2. In the first round, the petitioner had primarily

challenged Section 7(d) and Section 17(2)(d) of the

Uttarakhand Annual Transfer for Public Servants Act, 2017,

and that challenge was rejected by us.

3. The petitioner has preferred the present writ

petition to seek the following reliefs:-

"i. Issue a writ or writs, order or orders, direction and directions particularly a writ in the nature of mandamus directing the respondent no.1 and 2 to place the matter of the petitioner under Section 27 of the Uttarakhand Annual Transfer for Public Servants Act, 2017 for proper consideration taking into account the public interest and administrative exigency and requirement of students in the institution.

ii. Issue a writ or writs, order or orders, direction and directions particularly a writ in the nature of mandamus directing the respondents to keep in abeyance the effect and operation of any order which is disturbing the present continuance of the petitioner in the institution till the disposal of the representation dated 21.07.2023 (Annexure No.9 to the writ petition) under Section 27 of the Uttarakhand Annual Transfer for Public Servants Act, 2017.

iii. Issue a writ or writs, order or orders, direction and directions particularly a writ in the nature of mandamus directing the respondents to not relieve the petitioner from present place of posting i.e. Government P.G. College, Chamoli, District Chamoli till the joining of any officer holding the vacant post of ANO in the Government P.G. College, Chamoli, District Chamoli".

4. The submission of Mr. Yadav is that the petitioner,

while serving in the substantive post of Professor (B.Ed.) at

Government P.G. College, Chamoli, District Chamoli, was

deployed for refresher course by the NCC on 16.05.2023. In

this regard, the communication issued by the NCC to the

Institution, where the petitioner was serving, has been placed

on record.

5. The case of the petitioner is that he has been

serving as Associate NCC Officer (ANO) at the Institution in

Chamoli. However, no appointment/ engagement order of the

petitioner as an ANO has been placed on record, either with

the writ petition, or with the supplementary-affidavit.

6. Pertinently, the NCC has also not been impleaded

as a party-respondent. This aspect becomes even more

relevant when one considers the submissions of Mr. Yadav.

7. Mr. Yadav submits that before transferring the

petitioner, the NCC has not been consulted. He submits that

the transfer order dated 23.06.2023 does not show any

application of mind by the respondents to the aspect that the

petitioner was rendering service also as an ANO, while

serving in substantive capacity of Professor (B.Ed.).

8. As aforesaid, no document has been placed on

record to show that the petitioner was ever appointed/

engaged as an ANO, or he was assigned any such duty

formally. Similarly, the petitioner places reliance on the

communication dated 18.01.2023, issued by the Secretary to

the Director General, School Education, which, inter alia,

reads as follows:-

"(2). थानां तरण स 2022-23 हे तु एन०सी०सी० के ऐसे िश क िजनकी पदो ित/ थानां तरण पर पद थापना की जानी हो को सुगम /दु गम की बा ता म िशिथलीकरण दे ते ए यथास व पद र रहने पर उसी िव ालय म अथवा ऐसे िव ालय जहां एन०सी०सी० संचािलत हो, म पद थािपत िकया जाय।"

9. Pertinently, this communication is addressed to the

Director General, School Education, whereas the petitioner is

not serving in a school, as he is serving in an institution of

higher education. Thus, this communication, in any event,

cannot be invoked by the petitioner.

10. As aforesaid, the petitioner has not been able to

show that he was ever appointed/ engaged to serve as an

ANO, or he was assigned any such additional duty. The

petitioner has also placed on record and placed reliance on

another communication dated 07.02.1997, issued by the

Director General, NCC, New Delhi, which, inter alia, provides

that "while transferring the ANos, the States/ UTs must

ensure that a successor who is also an ANO must be posted in

his place".

11. Even this communication is not relevant qua the

petitioner, since there is nothing to show that he was

appointed/ engaged to serve as an ANO.

12. Lastly, reliance is placed on the communication

dated 17.04.2014, issued by the NCC to the Secretary,

Higher Education, which reads as follows:-

"कृपया एन०सी०सी० िनदे शालय, उ राख दे हरादू न के प सं ा: 1325/17/पस (बी) िदनां क 04.04.2012 जो सिचव िव ालयी िश ा के साथ - साथ आपको भी संबोिधत है तथा उ की ित िनदे शक ािविधक िश ा/उ िश ा व कािमक िवभाग को भी पृ ां िकत है के संदभ म मुझे आपसे अनुरोध कर यह कहने की अपे ा की गई है िक एन०सी०सी० िवभाग उ राख म

ू ल/कालेजों म एन०सी०सी० िवभाग की गितिविधयों को संचािलत करने हे तु मा िमक िश ा िवभाग, उ िश ा िवभाग एवं ािविधक िश ा िवभाग से अंशकािलक प म तैनात िकये गये। इं र/ले रर को वष 2012-13 म एन०सी०सी० िवभाग की गितिविधयां / ि याकलाप सुचा प से संचािलत िकये जाने हे तु अ थाना रत ना िकया जाये। यिद पदो ित पर थाना रण करना अित आव क हो तो ऐसे ू ल/कालेजों म थाना रत िकया जाए जहां पर एन०सी०सी० उपल हो तथा िशि त एन०सी०सी० सहयोगी अिधका रयों की सेवा से लाभ उठाया जा सके। कृपया गत प् रकरण म अनुरोध करना है , उपरो ानुसार कायवाही हे तु अपने र से भी संबंिधत को िनदिशत करने का क कर।"

13. For the same reason, as aforesaid, namely, that the

petitioner has not been appointed/ engaged as an ANO, this

communication has not application in the petitioner's case.

14. The petitioner has placed reliance on the Transfer

Policy dated 08.04.1999 of the State of U.P., and, in

particular, on clause 10(4) thereof, which reads as follows:-

"10(4) उ राखंड एवं बु े लख े म तैनात कािमकों को उनके िनयं क ािधका रयों ारा तब तक अवमु न िकया जाय, जब तक िक उनके ित थानी कायभार हण न कर ल यह ितब आई.ए.एस., आई.पी.एस., पी.सी.एस. एवं पी.पी.एस. अिधका रयों पर लागू नहीं होगा।"

15. To claim that this policy also binds the State of

Uttarakhand, Mr. Yadav places reliance on Section 86 of the

U.P. Reorganization Act, 2000, which reads as follows:-

"86. Territorial extent of laws.-- The provisions of Part II shall not be deemed to have affected any change in the territories to which the Uttar Pradesh Imposition of Ceiling of Land Holding Act, 1961 (U.P. Act 1 of 1961) and any other law in force immediately before the appointed day, extends or applies, and territorial references in any such law to the State of Uttar Pradesh shall, until otherwise provided by a competent Legislature or other competent authority be

construed as meaning the territories within the existing State of Uttar Pradesh before the appointed day."

16. In our view, the said provision has absolutely no

relevance considering the fact that the State of Uttarakhand

has enacted its own Transfer Act, namely, the Uttarakhand

Annual Transfer for Public Servants Act, 2017, and it is the

said Act of the State, which shall prevail.

17. Therefore, the Transfer Policy dated 08.04.1999 of

the State of Uttar Pradesh cannot be relied upon by the

petitioner for any purpose, whatsoever.

18. For the aforesaid reasons, we do not find any merit

in this petitioner, and the same is, accordingly, dismissed.

19. In case the petitioner does not comply with the

transfer order within the next four working days, it shall be