Parvinder Kumar vs State Of Uttarakhand And Others

Raghvendra Singh Chauhan, CJ

The appellant has challenged the legality of the order, dated 06.08.2021, passed by the learned Single Judge in Writ Petition (S/S) No. 990 of 2021, whereby the learned Single Judge has dismissed the writ petition filed by the appellant.

In the writ petition, the appellant had challenged the order, dated 11.10.2019 and the transfer order, dated 22.07.2021, passed by the District Education Officer (Madhyamik Shiksha) /, Haridwar, respondent No. 5, and the Additional Director (Mandal), Madhyamik Shiksha, Garhwal Mandal, Pauri, respondent No. 4, respectively.

Briefly, the facts of the case are that the appellant was appointed as a teacher on 10.06.2005; he was posted at the Government Inter College, Baraskund (Ghat), District Chamoli. He continued to work there till 09.11.2016. From 10.11.2016, he continued to work as an Assistant Teacher, Government Higher Secondary School, Inayatpur (Bhagwanpur), District Haridwar. The appellant further claims that his wife, Mrs. Rakhi, is also an Assistant Teacher; presently she is posted at the Government Primary School Mohammapur, Mohanpura block, Narsan, District Haridwar.

According to the appellant, on 26.05.2019, a parent of one of the students filed a complaint in the Police Station against the appellant's colleague, namely, Mr. Mohar Singh for having beaten his ward. Therefore, an FIR was registered for offence under Sections 323 and 506 I.P.C. against Mr. Mohar Singh. Due to the said complaint, a departmental enquiry was initiated against Mr. Mohan Singh on 27.05.2019.

Furthermore, according to the appellant, while concluding the inquiry against Mr. Mohar Singh, the Inquiry Officer gave his Inquiry Report on 11.10.2019 stating therein that there is a conflict within the staff members of the School, including the appellant. Therefore, not only the Principal, but also the other teaching staff deserve to be transferred from the said School in the interest of the students. Consequently, by order, dated 22.07.2021, the appellant was transferred from the Government Higher Secondary School, Inayatpur (Bhagwanpur), District-Haridwar, to the Government Inter College, Kathur, Hindoe (Bhilangna), District-Tehri Garhwal. Since the appellant was aggrieved by the said transfer order dated 22.07.2021, he filed a writ petition before the Hon'ble Single Judge. However, by the impugned order dated 06.08.2021, the learned Single Judge has dismissed the writ petition. Hence, the present Appeal before this Court.

Mr. Navnish Negi, the learned counsel for the appellant, has raised the following contentions before this Court:-

Firstly, the appellant has been transferred only on the basis of the recommendations made by the Inquiry Officer. Therefore, the transfer order is not legally sustainable.

Secondly, Section 18 of the Uttarakhand Annual Transfers for Public Servants Act, 2017 ("The Act" for short) permits transfers on administrative grounds. However, according to Section 18(4) of the Act, a transfer can be made on the ground of serious complaint of misconduct and misbehavior with senior officers, and lack of interest in work, and that too after necessary inquiry. However, in the present case, no complaint was lodged against the appellant. Yet, he is being transferred only on the basis of the recommendations made in the Inquiry Report.

Thirdly, the transfer from District-Haridwar to District-Tehri Garhwal casts an stigma upon the appellant. Therefore, the transfer order is vitiated. According to the learned counsel, these aspects of the case have been ignored by the learned Single Judge. Therefore, the impugned order, dated 06.08.2021, deserves to be set aside by this Court.

Heard Mr. Navnish Negi, the learned counsel for the appellant, perused the impugned order, and considered the records submitted by the appellant.

It is, indeed, trite to state that an employee cannot insist that he should be continued at a particular place of posting. Moreover, no employee can insist that he should not be transferred from his / her present place of posting. (Refer to Petition for Special Leave to Appeal (C) No. 36717/2017, Namrata Verma vs. The State of Uttar Pradesh & others, decided on 06.09.2021). For, transfer is merely an incident of service; a transfer is not a punishment.

Section 18 of the Act reads as under:-

"18. Procedure of Posting on Appointment/Promotion and other Transfer. - In addition to annual/general transfer, the procedure of posting in appointment/promotion and other transfers shall be in following conditions, as follows-

(1) At the time of first appointment, posting shall compulsorily be made in remote areas.

(2) At the time of promotion, the posting shall essentially he made in remote areas subject to the conditions of clause (d) of Section 7:

Provided that if the post of promotion does not exist/is not vacant in remote areas, the posting after promotion may be made against vacancy available in accessible areas;

(3) Mutual transfers of two employees shall be made on willingness for transfer in place of each other (accessible and remote or remote and remote or accessible and accessible for which no travelling allowance shall be allowed and mutual transfer shall not be admissible between two employees working in accessible places;

(4) On enquiry, on the grounds of serious complaints of misconduct, misbehaviour 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.

(5) The competent authority may issue posting/transfer orders besides the transfer to be made as per clause (1) to (4) aforesaid in separate and different period also and it shall not be necessary to bring such cases before the transfer committee:

Provided that on transfers made on administrative grounds the competent authority shall have to take approval from the one rank higher officer."

A bare perusal of Section 18 of the Act clearly reveals that Section 18(5) bestows a power upon employer to transfer an employee on the grounds, besides the grounds mentioned in Sub-Sections (1) to (4) of Section 18 of the Act. Therefore, if a particular case does not fall within the ambit and scope of Sub-Sections (1) to (4) of Section 18, the employer has ample power to transfer an employee under Section 18(5) of the Act.

According to the learned counsel for the appellant, admittedly, there was no complaint filed against the appellant. Therefore, obviously the case would not fall within the ambit of Sub-Sections (1) to (4) of Section 18 of the Act. Therefore, the contention raised by the learned counsel that the case of the appellant does fall within the ambit and scope of sub-section (4) of Section 18 of the Act is misplaced. Hence, the same is unacceptable.

It is well within the power of the employer to ensure that the atmosphere in School is a harmonious one, rather than a cantankerous one. If the Inquiry Officer was of the opinion that due to animosity that exists within the staff members, the staff members deserve to be transferred to ensure harmony in the School and to safeguard the interest of the students, the employer would be well within its power to transfer a teacher. Thus, the transfer of the appellant cannot be faulted.

The learned counsel has claimed that a stigma is being cast upon the appellant, as he is being transferred from District-Haridwar to District-Tehri Garhwal. In order to buttress this plea, the learned counsel has relied on Section 17(2)(c) of the Act.

Section 17(2)(c) of the Act reads as under:-

"17. Consideration on transfer proposals by transfer committee. -

(1) .....

(2) The transfer committee shall take decision by taking into consideration the following facts while considering on options given for transfer by the employees-

(a) ...

(b) ...

(c) Transfers on administrative ground shall not be made from accessible to accessible place/area and such employee shall not be posted again in that district/place before expiry of 5 years in any circumstances.

A bare perusal of the provision clearly reveals that it nowhere states that in case a person were to be transferred from an accessible area to another accessible place within a period of five years from the place of posting, it would lead to a stigma being cast upon the person. Even the said contention being raised by the learned counsel for the appellant is unacceptable.

A bare perusal of the impugned order passed by the learned Single Judge clearly reveals that the learned Single Judge is justified in claiming that the transfer is always done in the exigencies of public interest. Moreover, an employee cannot claim the right to be posted at a particular place. Apart from this, there was no contention raised by the learned counsel for the appellant before the learned Single Judge that the transfer is based on mala fide.

Since the learned Single Judge has given cogent and convincing reasons for dismissing the writ petition, this Court does not find any illegality or perversity in the impugned order.

For the reasons stated above, this Court does not find any merit in the present Appeal. It is, hereby, dismissed.

In sequel thereto, pending application, if any, stands disposed-of.

No order as to costs.