Sanjeev Kumar Pathak vs State of Uttarakhand and others

V.K. Bist, J.

By means of present petition, petitioner has challenged the transfer order dated 13.06.2018 passed by General Manager (Administration) whereby

the petitioner has been transferred from Rudrapur to Ramnagar and also the order dated 14.06.2018 by which he has been relieved.

Facts, as narrated in the writ petition, are that the petitioner was initially appointed as Mandi Sahayak on 16.05.2012 in Krishi Utpadan Mandi

Samiti, Rudrapur. He was transferred on 30.11.2015 from Rudrapur to Krishi Utpadan Mandi Samiti, Laksar in public interest. In pursuance of that

transfer order, the petitioner joined at Laksar. Thereafter, on the request of the petitioner, the petitioner was transferred from Mandi Samiti Laksar to

Mandi Samit, Gadarpur vide order dated 22.11.2016 and, thereafter, vide order dated 26.04.2017, petitioner was again transferred from Mandi Samiti

Gadarpur to Mandi Samiti, Rudrapur but on his request. Since 26. 04.2017, petitioner has been working at Mandi Samiti, Rudrapur without any

complaint against him. He worked at Rudrapur only for one year and two months. Thereafter, suddenly, vide order dated 13.06.2018; petitioner has

been transferred from Mandi Samiti, Rudrapur to Mandi Samiti, Ramnagar.

Learned Senior Counsel appearing for the petitioner referred to Clause 3 of the Government Order dated 25.05.2018, which provides that the

maximum limit for transferring the employees would be limited to only 10% of the total employees in a year. He submitted that there are total 57

Mandi Sahayaks in various Mandi Samitis and at the most 6 Mandi Sahayaks could be transferred, while respondents have transferred 10 Mandi

Sahayaks including the petitioner. He submitted that the action of the respondents transferring the petitioner is in violation of Government Order dated

25.05.2018 and, therefore, is illegal. It is also submitted by the learned Senior Counsel that vide Government Order dated 06.02.2018 directions were

issued to all the departments for doing the preliminary exercise before a transfer is effected. As per said directions/ guidelines, which are mandatory in

nature, the following steps were to be taken prior to transfer of an employee:

a) Categorization of the personnel may be done prior to the start of transfer session (into Village level, District level and State level) as per Section 7

of the Uttarakhand Public Servant Transfer Act, 2017 (for short ‘Transfer Act, 2017’).

b) As per Section 5 of the Transfer Act, the Office head/ Head of the Department, prior to the commencement of transfer session would notify/

earmark Sugam and Durgam postings, as per Village level, District level etc. on the basis of the parameters and general basic facilities like road,

electricity, water, education, medical facility, rail head and airplane facilities and height also.

c) As per Section 6 of the Transfer Act the annual transfer would be of three types:-

i) Compulsory transfer from Sugam to Durgam.

ii) Compulsory transfer from Durgam to Sugam.

iii) Transfer on request.

d) As per Section 9 of the Transfer Act the available and proposed vacancies for transfer would be calculated and a list of eligible personnel would be

prepared and options would be invited from the concerned personnel.

e) As per Section 16 of the Transfer Act, 2017, all the Departments have to constitute Transfer Committees at Government level, Head of

Department level, Division level and District level in which apart from the Officers of the Department, Officer from other Department would also be

nominated.

f) As per Section 17 of the Transfer Act, 2017, all the Departments have to constitute Transfer Committees at Government level, Head of

Department level, Division level and District level in which apart from the Officers of the Department, Officer from other Department would also be

nominated.

f) As per section 17 of the Transfer Act, 2017, the transfer Committee would dispose of the cases of compulsory transfer, transfer on request and

transfer from Durgam area to Sugam area. The guidelines provided in the said section provides that Officers of group A and B will not be posted in

their home Districts and employees of Group C and D could be posted in their home District.

g) As per Section 23 of the Transfer Act, 2017:

i) The Head of Department would compulsorily notify/ earmark as per parameter of work place upto 31st March of each year.

ii) All the Departments would constitute Transfer Committees at Government level, Head of Department level, Division level and District level prior to

1st of April of each year.

iii) For each cadre, list of work place of Sugam/ Durgam area, list of eligible employees and available/ possible vacancies would be published/

uploaded on website upto 15th April of each year.

iv) Option of ten places of choice would be invited from the eligible personnel for compulsory transfer upto 20th April, while application would be

invited for transfer on request upto 30th April of each year.

v) The last date for inviting choices/ application from eligible personnel of compulsory transfer would be 15th of May of each year and the received

option/ choice/ application would be shown/ exhibited in the website till 20th May.

vi) The period as prescribed for meeting of Transfer Committee and giving of recommendation to the prescribed authority would be from 25th May to

5th June of each year and the last date for issuing transfer order by competent authority would be 10th June of each year.

vii) It would be mandatory to exhibit the transfer order on the website within two days of the issuance of transfer order.

By referring the above provision of the Government Order dated 06.02.2018, learned Senior Counsel for the petitioner submitted that since the

respondents have not taken the requisite steps, as provided under Sections 4, 5 & 23 of the Transfer Act, 2017 as well as Government Order dated

06.02.2018, the transfer order is total arbitrary, illegal and is in utter defiance of the Transfer Act, 2017 as well as Government Order dated

06.02.2018. Learned Senior Counsel further submitted that the petitioner applied under the Right to Information Act as regards the compliance of the

provisions of Transfer Act, 2017 as well as Government Order dated 06.02.2018 and he has been provided information, in which it is stated that

neither any options were invited from the Mandi Sahayaks nor Transfer Committee was constituted nor the requisite information about the available

and proposed vacancies was provided in the website; nor the choices/ applications have been exhibited in the website; therefore, the order impugned is

bad in law and deserves to be set aside.

It is also submitted by learned Senior Counsel for the petitioner that petitioner has small children, who are studying at Rudrapur in U.K.G. & Class

VIII and in case petitioner is transferred; their studies would suffer greatly.

This matter was heard on 27.06.2017. On that day, following order was passed:

“Heard learned counsel for the parties.

It is the submission of learned counsel for the petitioner that yesterday the Coordinate

Bench of this Court directed the respondents counsel not to relieve the petitioner for one day and the matter was directed to be listed today. He

submitted that, in view of the oral order of the Court, petitioner is still working in the respondent department.

On the other hand, the learned senior counsel for the respondent nos.2 to 4 submitted that although the Court passed the oral order on 26.6.2018 at

around 12:00 p.m., but thereafter Mr. Vipul Sharma, Advocate for respondent nos.2 to 4 came to know that petitioner had already been relieved.

Let counter affidavit(s) be filed by the respondent(s) by 03.7.2018.

List this matter on 04.7.2018 immediately after fresh cases.

In the meantime, it is directed that in case petitioner was not relieved till 12:00 p.m. on 26.06.2018, then petitioner shall not be relieved till the next date

of listing. Stay Application (CLMA No.8716/2018) stands disposed of.â€​

It has been informed by the respondents counsel that petitioner was relieved on 14.06.2018 itself. Respondent nos. 2, 3 & 4 filed a common counter

affidavit. In the counter affidavit, it is stated that the provisions of the Uttarakhand Public Servant Transfer Act, 2017 are not applicable to the Mandi

Board, as the same has not been made applicable by the State Government to the Board. In the counter affidavit, it is also stated that although, in the

noting, made by the Section Officer, the Government Order dated 06.02.2018 has been mentioned; but, the fact of the matter is that there is no

notification under Section 1(3) of the Transfer Act, 2017, which makes the

Transfer Act applicable on the Board. Mere mention of the Act in a noting of Section Officer especially in the absence of notification under Section 1

(3) of the Act will not make the provision of Transfer Act, 2017 applicable in Uttarakhand Krishi Utpadan Mandi Board.

Learned counsel for respondents opposed the writ petition and submitted that total service of the petitioner is almost 21 years. Out of these 21

years, the petitioner was posted at Krishi Utpadan Mandi Samiti, Rudrapur for about 19.5 years. This fact has been stated in para 26 of the counter

affidavit. By referring this para, learned counsel for the respondents submitted that the contention of the petitioner that he has worked at the present

place of posting for only one year two months and has been transferred from Rudrapur to Ramnagar so early is totally incorrect. Learned counsel for

the respondents further submitted that transfer is an incident of service and employee can be transferred from one place to another place in public

interest. He submitted that it is for the employer to decide when, where and at what point of time, a public servant should be transferred from one

place to another place. He submitted that in the present case, petitioner has worked in Rudrapur for more than 19 years; therefore, he should not have

any grievance, in case petitioner is transferred to Ramnagar. It is also contended by the learned counsel for the respondents that Ramnager is hardly

26 kilometer from Rudrapur and is a plain area and petitioner should not feel any difficulty, at that place.

I have considered the submission advanced by the learned counsel for the parties.

Though, petitioner has referred to the Government Order dated 26.02.2018 and certain provision of the Transfer Act, 2017; but, counsel for the

petitioner is unable to show that the provisions of the Transfer Act, 2017 is applicable in the Mandi Samiti. It is stated by the respondents in clear term

that the Transfer Act, 2017 is not applicable to the Uttarakhand Krishi Vipran Board. As per Section 1(3) of the Act, the State Government is

required to issue specific notification for making the Transfer Act, 2017 applicable to a Nigam, Board and Local Bodies. But, no such notification has

been issued in respect of Uttarakhand Krishi Viparan Board.

In view of the fact that no notification has been issued for making the Transfer Act, 2017 applicable to the Mandi Board, this Court is of the view

that provisions of the Uttarakhand Public Servant Transfer Act, 2017 are not applicable in the matter of the petitioner.

Though, it is true that petitioner, after his last transfer from Gadarpur to Rudrapur, which is nearby place to Rudrapur, has worked in Rudrapur

only for one year two months and thereafter has been transferred to Ramnagar; but, if entire service period of the petitioner is taken into

consideration, then it is found that petitioner has worked in Rudrapur for more than 19 years.

In such circumstances, this Court does not find any arbitrariness and illegality in the order passed by respondent no. 3. Consequently, the writ

petition fails and is dismissed.

There will be no order as to costs.