Uttarakhand High Court

WPSB/174/2023 on 3 May, 2023

       IN THE HIGH COURT OF UTTARAKHAND
                  AT NAINITAL

                      SRI JUSTICE VIPIN SANGHI, C.J.
                                  AND
                    SRI JUSTICE RAKESH THAPLIYAL, J.

3RD MAY, 2023 WRIT PETITION (S/B) No. 174 OF 2023 Between:

Dr. (Ltd. Col.) Ajay Kumar .......Petitioner and State of Uttarakhand and others. ....Respondents

Counsel for the petitioner : Mr. Rajendra Dobhal, learned Senior Counsel assisted by Mr. Devang Dobhal.

Counsel for the respondents : Mr. C.S. Rawat, learned Chief Standing Counsel assisted by Mr. Gajendra Tripathi.

Upon hearing the learned Counsel, the Court made the following

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

The petitioner has preferred the present writ

petition to seek quashing of the order dated 26.04.2023

issued by respondent No. 2, whereby the petitioner has

been transferred from the post of Medical Officer in the

office of the Chief Medical Officer, Dehradun to the same

post in the Community Health Centre, Munsyari, District

Pithoragarh.

2. The petitioner, who is an ex-army officer, after

taking voluntary retirement joined as a Medial Officer in the

Medical Health and Family Welfare Department of the State

of Uttarakhand on 16.02.2021. His first posting was at

Dehradun, which, we notice, was contrary to Section 18(1)

of the Uttarakhand Annual Transfer for Public Servants Act, 2017 (hereinafter referred to as the 'Act'). The petitioner

continued to serve while being posted at Dehradun. While

so serving at Dehradun, he was also attached with National

Health Mission, Dehradun. He was relieved from the said

attachment on 10.11.2022.

3. The petitioner was sought to be transferred by

respondent No. 2 on 05.04.2023 under Section 18(5) of the

Act, i.e. on administrative ground to the post of Medical

Officer to District Hospital, Pithoragarh. The petitioner

assailed the said transfer order by preferring a writ petition,

being Writ Petition (S/B) No. 154 of 2023. The petitioner

pointed out that the said transfer had not been made in

compliance of Section 18 of the Act, inasmuch, as, the case

of the petitioner had not been done with the approval of the

one rank higher officer. In the light of the said infirmity, the

respondents withdrew the said transfer order while

reserving the right to pass a fresh transfer order in

accordance with law. Consequently, the writ petition was

disposed of in the aforesaid terms on 20.04.2023.

4. Thereafter, the respondents have passed the

impugned transfer order dated 26.04.2023. The petitioner

has placed on record the translation of the said transfer

order, which reads as follows:-

"Government of Uttarakhand Medical Health and Medical Education Section-1

Number- 547/XXVIII-1/2023/1 (8)/18TC Dehradun, Date: April 26, 2023

Office Order By Government Order No. 88/XXVIII-1/21-01 (14) / 2018 dated 21.01.2021. Dr. (Lt. Col.) Ajay Kumar was appointed to the post of Ordinary Grade Medical Officer and Office Memorandum No. 252/XXVIII-1 /21 -

01 (55) /2016 dated 24.03.2021 Dr. (Lieutenant Colonel) Ajay Kumar was posted under the Chief Medical Officer, Dehradun on the first appointment, was attached to NHM (National Health Mission) under the national program, but Dr. (Lt. Col.) Ajay Kumar's work in NHM was not good, as a result of office order No. 79/V.N.R.S.P. deputed under the Chief Medical Officer, Dehradun, for qualitative improvement in the work, ending the affiliation. But in view of lack of improvement in the work of Dr. (Lt. Col.) Ajay Kumar, through office order No. 112519/XXVIII-1/2023/E- 48251 dated 05.04.2023, was transferred to District Hospital, Pithoragarh on administrative grounds.

2- In compliance of the order dated 20.04.2023 passed by the Hon'ble High Court, Nainital in Writ Petition No. 154/SB/2023 Ajay Kumar vs. State of Uttarakhand and others, against the said office order dated 05.04.2023, Hon'ble High Court, Nainital according to the provisions of Section 16 of the Annual Transfer Act, 2017 for Uttarakhand Public Servants, canceled the transfer order dated 05.04.2023 by which Dr. (Lt. Col. Ajay Kumar, Medical Officer, Under Chief Medical Officer, District Hospital, Pithoragarh, Dehradun) on administrative grounds and as per Section of Annual Transfer Act, 2017 for Uttarakhand Public Servants in order of the recommendation made in the meeting held on 25.04.2023 by the Transfer Committee constituted for the transfer of doctors of PMHS and Dental Cadre under Medical Health and Medical Education Department, Uttarakhand and according to the provision of 18 (1) and 18 (5), by improving the posting / order of Dr. (Lt. Col.) Ajay Kumar, Medical Officer in the public interest the Hon'ble Governor is pleased to approve the transfer to remote area Community Health Center in Munsiyari, Pithoragarh district rather than the approachable area i.e Chief Medical Officer, Dehradun.

3- This order will be effective immediately.

(Dr. R. Rajesh Kumar) Secretary"

5. The first submission of Mr. Dobhal, learned Senior

Counsel for the petitioner is that the said transfer is mala

fide. He submits that the earlier transfer had been made

to Pithoragarh, which was withdrawn by the respondents.

On the ground of public interest, the petitioner has again

been transferred to Munsyari in Pithoragarh district, which is

further 150 KMs away and a remote area.

6. We do not find merit in this submission. It is not

for the petitioner to decide as to where he should be posted.

The petitioner is required to serve in the transferred post,

he cannot object to the same. Being a government Medical

Officer, he can also be required to serve at Munsyari. The

petitioner's transfer was considered by the Transfer

Committee in its meeting dated 25.04.2023, and they have

decided to transfer the petitioner to Munsyari in Pithorarh

district. The allegation of mala fides are vague and non-

specific.

7. The second submission of Mr. Dobhal is that the

transfer order is stigmatic, inasmuch, as, it records that the

petitioner's work was not good, and there was lack of

improvement in his work.

8. In our view, the aforesaid observation made in the

transfer order is, firstly, not stigmatic and secondly it is not

necessary that a full fledged inquiry should be held to

establish the administrative ground on which the transfer is

made by resort to Section 18(5) of the Act. We have

already interpreted the said provision in our judgment dated

10.04.2023 passed in Writ Petition (S/B) No. 125 of 2023

titled "Smt. Nirmala Singh vs. State of Uttarakhand and

others". Relevant portion of the said judgment reads as

follows:-

"9. Mr. Bhatia submits that her transfer has been made on administrative grounds. He further submits that the case of the petitioner was not placed before the Transfer Committee for consideration of her transfer, as required under Section 17(2)(c) of the Uttarakhand Annual Transfer for Public Servants Act, 2017. He submits that no enquiry has been conducted, by grant of any opportunity to the petitioner, on the alleged grounds of serious complaints of misconduct, misbehavior with senior officers and lack of interest in work, etc. Section 18, insofar as it is relevant, reads as follows :-

"Procedure of Posting on Appointment/ Promotion and other Transfer

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) ......

(2) ......

(3) ......

(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."

10. In our view, the words "on enquiry" does not contemplate a disciplinary enquiry into the conduct of the employee concerned. The enquiry referred to in Section 18(4) is an enquiry, which the department undertakes for the purpose of transfer, in which the participation of the employee is not necessary, since transfer is an incident of service, and it is for the employer to effect the transfer. All that is required, is that the grounds of serious complaints of misconduct, misbehavior with senior officers and lack of interest in work, etc. should form part of the record when the transfer, on administrative grounds, is made under Section 18(4) of the aforesaid Act. If the said provision is read to mean that a full fledged enquiry should first be held before such a transfer can be made on administrative grounds, it would defeat the very purpose for which the said provision is enacted, and it would also mean that the employee concerned will have to remain till such full fledged enquiry is completed, which could prolong for months, if not years.

11. Mr. K.N. Joshi submits that the senior officers have complained that the petitioner is not taking the responsibilities given to her, and is shirking her responsibilities by stating that the work given to her may be assigned to other officers.

12. Reliance placed on Section 17(2)(c) is misplaced, inasmuch as, Section 18(5) itself records that, in case of administrative transfers, the matter need not be placed before the Transfer Committee. It is not in dispute that the approval of the officer, who is one rank higher than the competent authority, has been obtained in the present case." (emphasis supplied)

9. The third submission of Mr. Dobhal is that the

petitioner has not completed four years of posting, and,

therefore, his transfer, before expiry of the period of four

years, is contrary to Section 7(a) of the Act. This

submission of learned counsel for the petitioner is also

meritless. The petitioner's transfer has been made under

Section 18(5) of the Act, which is a separate ground for

transfer, and it does not require completion of four years at

a particular posting, before the transfer could be made.

10. Lastly the submission of Mr. Dobhal is that by the

impugned order, the initial order of posting of the petitioner

has been modified, and the same could not have been done.