Amarnath vs State Of Uttarakhand And Another

Ramesh Ranganathan, C.J.

Heard Sri Tapan Singh, learned counsel appearing on behalf of the appellant-writ petitioner, and Mr. B.S. Parihar, learned Standing Counsel appearing on behalf of the respondent State of Uttarakhand.

The appellant-writ petitioner was a peon in the Elementary Education Department, and was promoted from Class-IV to Class-III by order dated 03.07.2015. Thereafter, by order dated 25.06.2018, he was transferred as a Junior Assistant from District Haridwar to District Tehri Garhwal. This transfer order was subjected to challenge by the appellant-writ petitioner initially in Writ Petition (S/S) No. 2154 of 2018 and a learned Single Judge of this Court, by his order dated 12.07.2018, permitted the appellant-writ petitioner to make a representation, and directed the authorities to consider the said representation. Even in Writ Petition (S/S) No. 2154 of 2018 before the learned Single Judge, the appellant-writ petitioner had raised the contention that his transfer was contrary to the provisions of Section 23 of the Transfer Act, 2013 whereby the deadline for transfer is fixed as 10.06.2018, as his transfer was effected subsequent thereto on 25.06.2018. The learned Single Judge had observed that, since transfer is an incident of service, the appellant-writ petitioner was at liberty to make a representation.

The appellant-writ petitioner's representation was considered and rejected, questioning which he again invoked the jurisdiction of this Court. The learned Single Judge has, in the order under appeal, noted that, while the cut off date prescribed under Section 23 of the Transfer Act, 2013 was 10.06.2018, the appellant-writ petitioner was transferred on 25.06.2018; and the appellant-writ petitioner could not take the benefit of a minor technicality, as transfer was in the exigencies of service, and the appellant-writ petitioner was transferred from District Haridwar to District Tehri Garhwal for the first time.

It is settled law that transfer of an employee, effected in the exigencies of administration, is in the exclusive domain of the employer and this Court, save malafides or violation of a statutory provision, would not interfere in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. While Sri Tapan Singh, learned counsel for the appellant-writ petitioner, may be justified in his submission that transfer of the appellant-writ petitioner was effected after the cutoff date i.e. on 10.06.2018, the fact remains that, after his promotion as a Junior Assistant, this was the first transfer which was effected on the appellant-writ petitioner. While the cutoff date prescribed under the Transfer Act, 2013 is 10.06.2018, the petitioner was transferred just a fortnight thereafter on 25.06.2018. While, we may not be understood to have held that the respondents were not required to adhere to the statutory provisions of Section 23 of the Transfer Act, 2013, we cannot also lose sight of the fact that the learned Single Judge has held that the petitioner could not take the benefit of a minor technical violation. The learned Single Judge is not a Court subordinate. Unlike a Court of appeal, where the Appellate Court is entitled to re-appreciate the evidence on record to arrive at a different conclusion, the Division Bench, while hearing an intra-court appeal, exercises the very same jurisdiction as the learned Single Judge has i.e. the jurisdiction under Article 226 of the Constitution of India. A Division Bench, in an intra-court appeal, would not, ordinarily, interfere with the order under appeal, save in cases where the said order suffers from a patent error or illegality or the findings recorded therein are perverse. As the scope of enquiry in an intra-court appeal is extremely limited and we are satisfied that the exercise of discretion by the learned Single Judge, to refrain from interference, does not suffer from a patent error or illegality, we see no reason to interfere with the order under appeal to the extent the learned Single Judge refused to exercise discretion to interfere with the order of transfer.

We are however satisfied that, in a writ petition filed by the appellant-writ petitioner, the learned Single Judge ought not to have directed the appellant-writ petitioner to join the place of posting within a specified time frame; and in holding that, in case he did not, the disciplinary authority was at liberty to take action. While the disciplinary authority, undoubtedly, is entitled to take action in case its orders are not complied with, it is not for this Court to fix a time frame for an employee to join, more so in a writ petition filed by the employee himself. The observations made in paragraph no. 5 of the order under appeal, whereby certain directions have been issued by the learned Single Judge, are set aside. Suffice it to make it clear that the order now passed by us shall not be understood as preventing the respondents from taking action against the appellant-writ petitioner in case he does not comply with the order of transfer.

Subject to the aforesaid observations, the special appeal fails and is, accordingly, dismissed.