Keshar Singh Chauhan vs State of Uttarakhand and Others

J.S. Khehar, C.J.—The petitioner has assailed an order dated 17.12.2009, vide which he has been transferred from district Nainital to district Pithoragarh. When this case came up for hearing on 15.01.2010, an ex parte ad interim order was passed in favour of the petitioner, staying the operation of the impugned order dated 17.12.2009. Thereafter, counter affidavits have been filed on behalf of the respondents. In fact, two counter affidavits have been filed, one on behalf of respondents Nos. 1 & 3, and the other, on behalf of respondents Nos. 2 & 4.

It is the vehement contention of the learned Counsel for the petitioner, that the impugned transfer order has been passed at the behest of the Forest Minister, Sri Bishan Singh Chufal. Despite having named the aforesaid Minister, as being responsible for his transfer, Sri Bishan Singh Chufal has not been impleaded as a party respondent. But then, there was possibly no necessity of doing so on account of the fact, that no allegations of mala fide have been levelled by the petitioner, in the instant writ petition, against the aforesaid Minister. Even if such allegations had been levelled against him, in the absence of his being impleaded as a party respondent, the same were liable to be ignored.

It is also the vehement contention of the learned Counsel for the petitioner, that had it not been for the aforesaid Forest Minister Sri Bishan Singh Chufal, the petitioner would not have been transferred. In order to demonstrate the veracity of the instant contention, learned Counsel for the petitioner first invited our attention to Annexure No. 4, a communication dated 07.07.2009, addressed by the Forest Minister to the Chief Minister, requiring the Chief Minister to transfer the petitioner. In the aforesaid communication, reference was made to agitations against the petitioner at the hands of the members of the Bar Association, as also of the Uttarakhand Dev Bhumi Traders'' Association. On account of the fact, that the petitioner was not transferred on the basis of the communication dated 07.07.2009, addressed by Sri Bishan Singh Chufal, he addressed another letter dated 05.11.2009 (Annexure No. 6), again to the Chief Minister, informing him that the petitioner had remained posted in district Nainital ever since his promotion against the post of Prosecution Officer, and as such, in terms of the transfer guidelines issued by the State Government, he should be transferred from district Nainital forthwith, as he had rendered many years'' service, more than the prescribed upper limit of 5 years, within the district of Nainital. According to the learned Counsel for the petitioner, consequent upon the receipt of the aforesaid communications, comments of the Director, Prosecution, were sought. The Director, Prosecution, vide his letter dated 08.10.2009 (Annexure No. 5), inspite of acknowledging the pendency of an inquiry against the petitioner, suggested that the petitioner''s transfer should not be effected mid-session, but should be made at the time of annual transfers.

Besides inviting this Court''s attention to the factual position relating to Sri Bishan Singh Chufal, learned Counsel for the petitioner invited this Court''s attention to a communication, which the petitioner addressed to his superiors dated 07.05.2009 (Annexure No. 1 with the supplementary affidavit filed by the petitioner), wherein he asserted, that he had been threatened, that he would be transferred because he was not pursuing a particular case suitably. It is also pointed out, that the accused in the case (mentioned in his communication dated 07.05.2009) had factually represented to the court by moving an application on 26.05.2009, praying for the transfer of the case from the petitioner. It is submitted, that the aforesaid issue was considered by the Presiding Judge, and the request of the accused, for the transfer of the case from the petitioner was declined, by an order dated 26.05.2009.

Based on the sequence of facts narrated in the foregoing paragraphs, it is the submission of the learned Counsel for the petitioner, that his transfer is as a matter of punishment, and that, while a transfer in administrative exigency is permissible, a transfer as a matter of punishment is liable to be set aside.

We have considered the different pleas advanced by the learned Counsel for the petitioner. First and foremost, for the reasons already recorded by us herein above, it is imperative for us to record, that no allegations of mala fide have been levelled by the petitioner against Sri Bishan Singh Chufal, the Forest Minister, who stated to has repeatedly addressed communications to the Chief Minister soliciting the transfer of the petitioner. Thus viewed, while examining the aforesaid communications, it will be imperative for us to keep in mind, that the aforesaid communications were not as a matter of ill will or prejudice against the petitioner. A perusal of two communications dated 07.07.2009 and 05.11.2009, referred to by the petitioner, depict the following reasons (recorded by the Forest Minister) for the transfer of the petitioner:

(i) The Bar Association was raising agitations against the petitioner, demanding the transfer of the petitioner.

(ii) The Uttarakhand Dev Bhumi Traders'' Association was also seeking the transfer of the petitioner.

(iii) The petitioner had been rendering service in Nainital, almost uninterruptedly, from the very moment he was promoted as a Prosecution Officer from 2001 to 2009, i.e. practically for a period of 9 years, whereas the policy guidelines issued by the State of Uttarakhand stipulate an upper limit of 5 years.

In the sequence of facts, expressed in the communications addressed by the Forest Minister to the Chief Minister, there is not the slightest indication of any motive or malice. It seems to us, that the aforesaid transfer was sought in administrative exigency, not only in terms of the policy instructions issued by the State Government, but also on account of the dissatisfaction of the members of the Bar Association, as also the Uttarakhand Dev Bhumi Traders'' Association. In fact, as a representative of the people, it was the Forest Minister''s bounden duty to bring the aforesaid factual position to the notice of the Chief Minister. Secondly, even if the petitioner has been transferred on the basis of the communications addressed by the aforesaid Minister, the same cannot be treated as arbitrary, nor can the same be held to be based on mala fides.

In the two counter affidavits filed on behalf of the respondents, it is reiterated, that the petitioner has been serving in district Nainital from the year 2001 till date, except for a period of 8 months from 17.06.2008 to 12.02.2009. The communication addressed by the Director, Prosecution, dated 08.10.2009 also reveals, that an inquiry is pending against the petitioner.

In the facts and circumstances noticed herein above, there is hardly any basis for us to set aside the impugned order of transfer dated 17.12.2009. Our action in doing so, will amount to transgressing into the functions of the executive. Unless vitiated for reasons of mala fide or on account of non-compliance of any statutory or other provision, it would not be justified for us to interfere therewith. We, therefore, would be well advised to refrain from doing so.

For the reasons recorded herein above, we find no merit in this writ petition and the same is accordingly dismissed. Needless to mention, that the interim order passed by this Court dated 15.01.2010 shall be deemed to have been automatically vacated with the disposal of this writ petition.