Neeraj Kumar Singh vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

Heard Mr. S.S. Yadav, learned counsel appearing on behalf of the appellant-writ petitioner and Ms. Pooja Banga, learned Brief Holder appearing on behalf of the State Government-respondents and, with their consent, the Special Appeal is disposed of at the stage of admission.

This appeal is preferred against the order passed by the learned Single Judge in Writ Petition (S/S) No. 869 of 2019 dated 12.04.2019, whereby the writ petition, filed by the appellant herein, was dismissed.

The appellant herein filed Writ Petition (S/S) No. 869 of 2019 seeking a writ of certiorari to quash the transfer orders dated 12.12.2017 and 29.01.2019; and a writ of mandamus directing respondents 1 to 4 to pass suitable posting orders cancelling the transfer order dated 12.12.2017 withdrawing the further enquiry order dated 29.01.2019 in favour of the petitioner, as early as possible, within two weeks.

Facts, to the limited extent necessary, are that the appellant-writ petitioner was appointed as a Lecturer (Biology) in the Government Inter College Pandukeshwar, Chamoli; he joined the said post on 18.08.2006, and worked thereat till the year 2009 when he was transferred to the Government Inter College BHEL, Haridwar; he worked in the said Inter College at Haridwar from 2009, till an order of transfer was passed on 12.12.2017 (i.e. for a period of eight years); and by proceedings dated 12.12.2017 he was transferred from the Government Inter College, BHEL, Haridwar to the Government Inter College, Masu, Thailisain, Pauri Garhwal.

The transfer, of the appellant-writ petitioner, was on administrative grounds. While several other contentions are raised by the appellant-writ petitioner, including that he was absolved in an inquiry held against him for acts of misconduct and, therefore, he should not be transferred from his existing place of posting, the fact remains that the impugned order of transfer states that the transfer was being made on administrative grounds.

While the appellant-writ petitioner claims to have made a representation against the order of transfer on 07.02.2018, the fact remains that he, on his own accord and without approval of the Government, chose not to join the transferred place of posting on the ground that an inquiry, initiated against him, was pending. It is his case that the transfer order dated 12.12.2017 should be rescinded in view of his being absolved in the departmental inquiry. On the ground that no action was being taken to cancel the earlier order of transfer dated 12.12.2017, the appellant-writ petitioner invoked the jurisdiction of this Court.

In the order under appeal, the learned Single Judge observed that transfer is an incidence of service, and no Government employee can claim transfer to a place of his choice, as a matter of right; in the absence of allegations of malafides or violation of the Rules, there was no scope for interference with the order of transfer; there was no infirmity in the decision taken by the In-charge Additional Director, Secondary Education, Garhwal Region, Pauri; and there was no scope for interference, with the order under challenge, under Article 226 of the Constitution of India. The writ petition was, accordingly, dismissed.

As has been rightly held by the learned Single Judge, transfer is an incidence of service and is made in the exigencies of administration. It is for the competent authority to decide as to when and where an employee should be transferred. The appellant-writ petitioner has been working at the Government Inter College, BHEL, Haridwar ever since 2009 till he was transferred in December, 2017 i.e. for a period of more than eight years. The appellant-writ petitioner cannot claim, as a matter of right, that he should be retained at the Government Inter College, BHEL, Haridwar, and should not be transferred to the Government Inter College, Masu, Thailisain, Pauri Garhwal.

When we asked Mr. S.S. Yadav, learned counsel for the appellant-writ petitioner, whether the appellant-writ petitioner had joined duty at his transferred place of posting since more than 15 months had elapsed from the date of his transfer on 12.12.2017, learned counsel would submit that the appellant-writ petitioner had not. The reason given by the appellant-writ petitioner, for not joining duty at the transferred place of posting, is that, since he was absolved in an inquiry initiated against him for acts of misconduct, he was expecting the Government to cancel the order of transfer.

No interference is called for, with the order of transfer. As the appellant-writ petitioner appears to have unilaterally decided not to join at the new place of posting, we see no reason to interfere with the order of the learned Single Judge refusing to interdict the order of transfer.

Since Mr. S.S. Yadav, learned counsel for the appellant-writ petitioner, would submit that the Government had, by its letter dated 26.12.2018, instructed the Director, Education to take a decision, and as it is always open to an employee to submit a representation to the competent authority seeking his retention, and for the competent authority to consider such a request, we permit the appellant-writ petitioner to make a fresh representation to the fourth respondent within ten days from today. On such a representation being made, the Director, Education shall consider the said representation, in accordance with law, and pass an order within one month thereafter.

Subject to the aforesaid observations, the Special Appeal fails and is, accordingly, dismissed. No costs.