Himanshu Joshi vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

Heard Mr. Dushyant Mainali, learned counsel for the petitioner and Mr. B.S. Parihar, learned Standing Counsel for the State Government and, with their consent, the Writ Petition is disposed of at the stage of admission.

This is yet another case of transfer, whereby the petitioner was transferred from Haldwani to Ranikhet on administrative grounds. The petitioner's complaint in this writ petition is threefold. Firstly that the order of transfer is punitive in nature, since it was passed on the very same day on which a notice was issued to the petitioner calling upon him to show-cause as to why he had not taken approval from the Director before informing his next subordinate to issue the Government Order; secondly, the order is vitiated by malafides, since the third respondent was swayed by the fact that the petitioner had not obtained his approval; and thirdly that the order of transfer violates Sections 18(4) and (5) of the Uttarakhand Annual Transfer For Public Servants Act, 2017 (hereinafter called the "2017 Act").

A perusal of the impugned Office Memorandum dated 25.06.2019 makes it clear that the petitioner was transferred from the Directorate at Haldwani to Ranikhet, as per the recommendations of the Committee constituted under Section 16(1) of the 2017 Act, on administrative grounds. The said order stipulates certain conditions in terms of Section 22 of the 2017 Act. No reference is made in the order of transfer regarding any misconduct having been committed by the petitioner. It is difficult for us, therefore, to agree with the submission of Mr. Dushyant Mainali, learned counsel appearing on behalf of the petitioner, that the impugned order is either stigmatic or punitive in character.

With regards the plea of malafides, the petitioner claims that the third respondent was angered by the failure of the petitioner to obtain his approval, for which a notice has been issued to him. That, in our view, would not amount to malafides, since, according to the Director, the petitioner ought to have obtained his permission before directing his subordinates to release the Government Order. We may not be understood to have held that the Director's permission was required to be obtained by the petitioner before directing his subordinate to release the Government Order, for these are all matters for examination after the petitioner submits his reply to the show-cause notice. The observations aforementioned are only in the context of examining whether the impugned action, of transfer of the petitioner on administrative grounds, is vitiated by malafides. We are satisfied that it is not.

The only other ground of challenge, to the impugned order of transfer, is violation of Sections 18(4) and (5) of the 2017 Act. It is necessary, therefore, to briefly refer to certain provisions of the 2017 Act. The 2017 Act prescribes a procedure for proper, impartial, objective and transparent annual transfers etc. of Uttarakhand Public Servants. Section 16 of the 2017 Act requires a transfer committee to be constituted to transfer employees in each department at the Government level, head of the department, division and district level. Section 18(4) of the 2017 Act provides for transfer on administrative grounds and stipulates that, 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. Under the proviso thereto, 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.

Section 18(5) of the 2017 Act confers power on the competent authority to issue posting/transfer orders, besides the transfer to be made as per clauses (1) to (4) of Section 18, in separate and different period also; and it shall not be necessary to bring such cases before the transfer committee. The proviso thereto stipulates that, on transfers made on administrative grounds, the competent authority shall have to take approval from one rank higher officer. While Section 18(5) of the 2017 Act confers power to effect transfers, besides the transfers under clauses (1) to (4) of Section 18, the limitation placed on such administrative transfers is that, when transfers are made on administrative grounds, the competent authority should take approval of an officer one rank higher than him. While the petitioner claims that the approval of a higher rank officer was not obtained by the competent authority (Director), who effected the subject transfer on administrative grounds, we see no reason to keep the writ petition pending, on the file of this Court, on this ground.

Suffice it to direct that the impugned transfer order shall not be given effect to, till the Director obtains the approval, of an officer one rank higher than him, in terms of Section 18(5) of the 2017 Act. It is made clear that, after such approval is obtained, the impugned order of transfer may be given effect to.

The writ petition is, accordingly, disposed of. No costs.

Let a certified copy of this order be issued to the parties, on the payment of prescribed charges, by 03.07.2019.