Nanda Chandra vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

Heard Mr. Sandeep Kothari, learned Advocate for the petitioner and Mr. Vikas Pande, 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 Order dated 26.06.2019, whereby the petitioner was transferred on administrative grounds from the post of Deputy Education Officer, Augustmuni, Rudraprayag to the Directorate of Elementary Education of Uttarakhand, Dehradun. This order was passed on administrative grounds by the Secretary, Secondary Education Department. The said order records that the petitioner was negligent in the discharge of her duties; she was indisciplined, her behaviour was irresponsible; she was not obeying orders of higher authorities; and she was discharging duties as per her own wishes. The said order thereafter records the District Magistrate, Rudraprayag, by his letter dated 15.11.2018, 30.05.2018 and 16.02.2019 and in terms of the recommendation made by the Director, Elementary Education, to have recommended transfer of the petitioner with immediate effect; and, therefore, the petitioner was transferred on administrative grounds and was attached to the Directorate of Elementary Education, Dehradun.

This order of transfer dated 26.06.2019 is questioned in this writ petition on the following grounds:- Firstly, that, in compliance with the proviso to Section 18(4) of the Uttarakhand Annual Transfer For Public Servants Act, 2017, the authorities ought to have caused an enquiry; and they should have recorded their, prima facie, conclusion thereafter regarding the misbehaviour or negligence in the discharge of her duties by the petitioner; the impugned order does not record an enquiry having been caused; even otherwise, in terms of the proviso to Section 18(5) of the said Act, approval of an officer one rank higher than the competent authority should have been obtained; and since the competent authority, in the present case, is the Secretary, Secondary Education, approval of the Chief Secretary ought to have been obtained in compliance with the proviso to Section 18(5) of the Uttarakhand Annual Transfer For Public Servants Act, 2017 before effecting transfer of the petitioner.

While it is no doubt true that the proviso to Section 18(4) prohibits casual transfers on administrative grounds or as a routine, in the present case the impugned order records reasons why the petitioner was being transferred. A bare reading of the said order discloses that, on the recommendation of the Director, Elementary Education, the District Magistrate, Rudraprayag had, in turn, addressed a letter to the Secretary recommending transfer; and this resulted in the impugned order of transfer being passed. It is evident, therefore, that the petitioner's transfer was not made causally, but for germane reasons as is stipulated in the proviso to Section 18(4) of the Uttarakhand Annual Transfer For Public Servants Act, 2017.

While it is no doubt true that the proviso to Section 18(5) requires the approval of an officer, one rank higher than the competent authority, to be obtained, we see no reason to keep this writ petition pending on the file of this Court on this score, as the order of transfer, passed more than two months ago on 26.06.2019, is now sought to be questioned in this writ petition.

Suffice it, therefore, to permit the petitioner to submit a representation to the Secretary, seeking her retention at Rudgraprayag on all such grounds as are available to her in law, including that the impugned order had not been approved by an officer one rank higher than the competent authority. The petitioner's representation to the first respondent shall be considered in accordance with law, and a reasoned order shall be passed on her request at the earliest and, in any event, within four weeks from the date of production of a certified copy of this order. Suffice it to make it clear that the mere fact that the petitioner has submitted a representation would not justify her continuing at Rudgraprayag and she shall, in compliance with the transfer order, join at her new place of posting at Dehardun till a decision is taken by the first respondent on the representation submitted by her.

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