Madan Mohan Joshi vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

Heard Mr. Vijay Bhatt, 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.

The proceedings under challenge in this Writ Petition is the office memorandum dated 25.07.2019, whereby the petitioner was transferred, on administrative grounds, from Second Sub Division Betalghat, District Nainital to the Establishment Division, District Uttarkashi.

Transfers, in the State of Uttarakhand, are governed by the provisions of the Uttarakhand Annual Transfer for Public Servants Act, 2017 (for short "the 2017 Act"), which is an Act to determine a procedure for proper, impartial, objective and transparent annual transfers etc of Uttarakhand public servants. Section 6 of the 2017 Act provides for three kinds of annual transfer, namely, (a) compulsory transfer from accessible area to remote area; (b) compulsory transfer from remote area to accessible area; and (c) transfer on the basis of request. Section 18 of the 2017 Act provides that, in addition to annual/general transfer, the procedure of posting in appointment/promotion and other transfers shall be subject to the conditions stipulated therein. Section 18(4) of the 2017 Act provides for transfer on administrative grounds and, since the dispute in this Writ Petition relates to the scope of Section 18(4) and its proviso, it is useful to extract them in their entirety :

"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."

Transfer, on administrative grounds, is more an exception than the norm, and such orders can only be passed in cases of (a) an enquiry; (b) on grounds of serious complaints of misconduct; (c) misbehavior with senior officers; and (d) lack of interest in work. Such a conclusion must be arrived at after necessary enquiry and confirmation and, in such cases, transfer of an employee may be made on administrative grounds. In terms of the proviso thereto, transfer on administrative grounds shall not be made casually or on the basis of the complaints of a routine nature and, in the orders of such transfer, it shall be necessary to mention the "administrative grounds".

The requirement of the proviso, to Section 18(4) of the 2017 Act, is not merely for the transfer order to use the words "administrative grounds", but to specify the administrative grounds which warranted such a transfer. The administrative grounds can only be those which are specified in Section 18(4) of the 2017 Act, and no other. It is evident, from a bare reading of the impugned order dated 25.07.2019, that the petitioner's transfer, on administrative grounds, does not satisfy the requirements of Section 18(4) and its proviso. On this short ground, the impugned order of transfer must be and is, accordingly, set aside.

Needless to state that this order shall not disable the respondents from passing an order, strictly in compliance with Section 18(4) of the 2017 Act and its proviso, for effecting transfer of the petitioner on administrative grounds. It shall also not disable the respondents from effecting compulsory transfer of the petitioner in accordance with Section 17(1) of the 2017 Act. The petitioner's claim for arrears of salary shall also be considered, and an appropriate decision taken, in accordance with law with utmost expedition, and in any event within two months from today.

The Writ Petition is, accordingly, disposed of. No costs.

Let a certified copy of this order be issued to the parties, on payment of the prescribed charges, by 30.07.2019.