Uttarakhand High Court
WPSS/1923/2023 on 20 October, 2023
Office Notes, reports,
orders or proceedings
SL.
Date or directions and COURT'S OR JUDGES'S ORDERS
No
Registrar's order with
Signatures
WPSS No. 1923 of 2023
Hon'ble Pankaj Purohit, J.
Mr. K.K. Tiwari, Advocate for the petitioner.
2. Mr. C.S. Rawat, C.S.C. alongwith Mr. P.C.
Bisht, Addl. C.S.C. and Mr. Gajendra Tripathi,
Standing Counsel for the State.
3. By means of the present writ petition, the
petitioner, feeling aggrieved by the order dated
12.09.2023 as well as her ex-parte relieving order
dated 13.09.2023 (Annexure-1 to the writ petition),
has come up before this Court by filing this writ
petition.
4. It is the case of the petitioner that the petitioner
is posted as Constable Woman at Police Station
Pulbhatta, District Udham Singh Nagar and she has
been transferred from Udham Singh Nagar to District
Almora. It is the contention of the petitioner that the
petitioner who was in casual leave during that period
subsequently, proceeded on medical leave was not
served with the impugned transfer order. It was only
when, she got some information from the department
colleagues regarding her relieving order, she
approached this Court.
5. It is submitted by the learned counsel for the
petitioner that from the relieving order, which is
annexed as Annexure-1 to the writ petition, it is
reflected that the petitioner's transfer was made on
administrative ground but there is no whisper of any
kind of fact finding inquiry done by the respondent
before passing the transfer order and even the
complaint have not been supplied to the petitioner for
transferring her on administrative ground and,
therefore, this transfer order is arbitrary and against
the principle of natural justice.
6. The learned Chief Standing Counsel raised the
preliminary objection in the present writ petition that
the services of the Police Personnel are not within the
ambit of the Uttarakhand Annual Transfer for Public
Servants Act, 2017 (Uttarakhand Act No. 01 of 2018)
(hereinafter referred to as "the Act") and therefore, it
is not open to the petitioner to challenge the said
order on the ground that being a order passed on
administrative ground, any inquiry is needed as
prescribed under Section 18 of the Act.
7. Learned Chief Standing Counsel further argued
that the transfer being made on administrative ground
without inquiry will not come to any rescue to the
petitioner for the reason that in the Government Order
dated 20.12.2020, which is supplied at the time of
argument, it has been clearly prescribed in clause 6
that the Police Personnel can be transferred by the
Competent Authority on administrative or
compassionate ground at any time and it is only
required that in the transfer order, the
administrative/compassionate ground should have
been mentioned.
8. So far as the argument of the learned Chief
Standing Counsel is concerned regarding the
applicability of the provisions of the Act, this Court is
of the opinion that the said aspect is to be gone into
by this Court in detail only after filing of the counter
affidavit in support of the said contention.
9. From perusal of the provision Section 1(3) of
the Act, there is no manner of doubt in the mind of
this Court that the only members of State Police
Service are made out of the sweep of the Act and not
the subordinate members of the Police Service. In
order to remove the difficulty in application of the
Act, the power is given under Section 27 of the Act
and under the provisions of Section 27 of the Act, a
High Level Committee is required to be constituted
and after recommendation of the Committee for
approval of the Chief Minister regarding the difficulty
arising in application of this Act or such unforeseen
matters, which are not included in this Act, the State
Government may make rule, as required.
10. Learned Chief Standing Counsel relied upon
Government Order dated 06.06.2018 as well as the
subsequent Government Order dated 25.06.2018 in
order to substantiate his argument that the provisions
of the Act, 2017 will not be applicable I am afraid,
that such a change could be made by Government
Orders, when Section 27 provides the mechanism to
remove the difficulty as stated above.
11. I have gone through both the Government
orders and I am of the view that without framing any
rules regarding the non-applicability of the Act,
regarding Police Personnels, it cannot be said that the
Act will not be applicable to Police Personnels. So far
as the another argument advanced on behalf of the
petitioner regarding the transfer being on
administrative ground and without giving any kind of
fact finding inquiry and without supplying the
complaint, if any, to the petitioner, she could not have
been transferred, the learned counsel for the petitioner
relied upon the Full Bench judgment of this Court,
which is rendered in the case of Smt. Damyanti Bisht
Vs. State of Uttarakhand and Others, 2008 (2) UD
517, wherein, it has been observed that whenever a
transfer order is passed on the basis of some
administrative ground, it is essential that prima facie,
satisfaction of the competent authority must be
arrived at in respect of the existence or truthfulness of
certain allegations levelled against the employee, but,
the learned Chief Standing Counsel failed to produce
any document in support thereof as to whether before
passing this transfer order, which is based on
administrative ground, any such fact finding inquiry
for, prima facie, satisfaction has even initiated or not.
12. Having heard the learned counsel for the
parties and going through the document supplied by
the learned Chief Standing Counsel and case law
referred, this Court is of the view that, the impugned
transfer order (which is supplied by respondents
during argument and was taken on record) and
relieving order dated 13.09.2023 (Annexure-1) are
hereby stayed.
13. The respondents pray for and are granted six
weeks' time to file counter affidavit.
14. Two weeks thereafter is granted to the
petitioner to file rejoinder affidavit.
15. List this matter on 22.12.2023.
(Pankaj Purohit, J.)
20.10.2023
Ujjwal
