Sanjeev Kumar Pathak vs State Of Uttarakhand And Others

Ramesh Ranganathan, C.J.

This Appeal is filed against the order passed by the learned Single Judge in Writ Petition (S/S) No. 1827 of 2018 dated 24.09.2018.

The appellant herein invoked the jurisdiction of this Court seeking a writ to quash the order passed by the third respondent dated 13.06.2018, whereby the appellant-writ petitioner was transferred from Rudrapur to Ramnagar. The appellant-writ petitioner is a Mandi Sahayak in the employment of the Uttarakhand Agricultural Produce Marketing Board. He is aggrieved by his order of transfer which he claims is in violation of the Uttarakhand Public Servant Yearly Transfer Act, 2017 (hereinafter referred to as the "2017 Act").

In the order under Appeal, the learned Single Judge has held that, in terms of Section 1(3) of the 2017 Act, it is only if a notification is issued, making the 2017 Act applicable to the Board, would the said Act apply; no such notification has been issued making the 2017 Act applicable to the Board; and while the appellant-writ petitioner was, no doubt, transferred from Gadarpur to Rudrapur after having worked thereat only for one year and two months, and had been transferred to Ramnagar thereafter, in his entire period of service, the appellant-writ petitioner had worked at Rudrapur for more than 19 years. In such circumstances, the learned Single Judge did not find any arbitrariness or illegality in the order passed by the competent Authority.

Before us Sri Mani Kumar, learned counsel for the appellant-writ petitioner, would contend that the Board themselves have understood that the 2017 Act is applicable to its employees; the proceedings issued by it indicated that the 2017 Act is applicable to the Board; the 2017 Act stipulates that the transfer should be effected only on exercise of options, that too only for 10 per cent of the cadre strength; no exercise was undertaken to determine whether transfer of an employee in the respondent Board is in compliance with the aforesaid provisions of the 2017 Act; the appellant-writ petitioner has two small children, one studying in the 8th Class and the other in UKG; and it would cause him extreme inconvenience, if the appellant-writ petitioner is transferred from Rudrapur to Ramnagar.

On the other hand Sri Vipul Sharma, learned counsel for the respondent Board, would submit that the 2017 Act has no application to the Board; the learned Single Judge has rightly held that, in absence of any notification being issued under Section 1(3) of the 2017 Act, the provisions of the said Act are not applicable to employees of the Board; the appellant-writ petitioner has worked at Rudrapur (Headquarters of the Board) for 19 of his 20 years of service; and, except for a short stay at Gadarpur and Laksar for a year, he has remained at the Headquarters at Rudrapur for the entire duration of his service.

The appellant-writ petitioner is an employee of the Uttarakhand Agricultural Produce Marketing Board constituted under Section 47(1) of the Uttarakhand Agricultural Produce Marketing (Development and Regulation) Act, 2011 (hereinafter referred to as "the 2011 Act"). Section 47 of the 2011 Act relates to establishment of the Board, and sub-section (1) thereof stipulates that the State Government shall by notification in the official gazette, and with effect from a date to be specified therein, constitute a Board by the name of the Uttarakhand Agricultural Produce Marketing Board, which shall have its headquarters at Rudrapur. Section 47(2) of the 2011 Act stipulates that the Board shall be a body corporate by the said name having perpetual succession and a common seal and shall sue or be sued by the said name and acquire, hold and dispose of property and enter into contracts. Section 47(3) of the 2011 Act provides that the Board shall, for all purposes, be deemed to be a local authority. Under Section 47(2), the respondent Board is a body corporate and, under Section 47(3), the Board is deemed to be a local authority.

Section 1(3) of the 2017 Act makes the provisions of the 2017 Act inapplicable to the following services:

(i) All India Services.

(ii) State Civil Service.

(iii) State Police Service.

(iv) Employees of the High Court.

While the 2017 Act is made applicable to all other Government servants, its application to statutory Corporations, Boards and Local Authorities is only if a notification is issued, making the Act applicable to it, by the State Government. It is not in dispute that no such notification has been issued by the State Government, under Section 1(3) of the 2017 Act, till date. Since the 2017 Act categorically makes the Act inapplicable to a Board or local Authority, save on a notification being issued in this regard by the State Government, the erroneous understanding of the Board, that the 2017 Act is applicable to its employees, notwithstanding, the said Act cannot be made applicable to employees of the respondent-Board, including the appellant-writ petitioner herein.

The learned Single Judge has, in our view, rightly held that the 2017 Act is not applicable to employees of the respondent-Board, including the appellant-writ petitioner. Since the 2017 Act has no application, the appellant-writ petitioner cannot be heard to contend that non-adherence to the provisions of the said Act would render his transfer illegal. We find no reason, therefore, to accept the submission of Sri Mani Kumar, learned counsel for the petitioner, that violation of the provisions of the 2017 Act would necessitate the appellant -writ petitioner's transfer order being set aside.

226 The other contention is one of difficulty. Transfer of an employee is in the exigencies of administration, and no employee can, save mala fides or violation of the statutory provision or rules, refuse to join and work at the place to which he is transferred. Any difficulty, which an employee may face, can only be addressed by the employer himself on a representation being made by the employee to him. In the exercise of its powers of judicial review, under Article of the Constitution of India, this Court would not, ordinarily, interdict the order of transfer of an employee from one place to another. In the present case, the petitioner had worked at Rudrapur (Headquarters of the Board) for over 19 years in his entire service of a little over 20 years. He cannot claim, as of right, that he should be continued in Rudrapur. While we find no error in the order passed by the learned Single Judge, suffice it to leave it open to the appellant - writ petitioner to make a representation to the competent Authority expressing his difficulties. We have no reason to doubt that, on such a representation being made, the Authority concerned will give such a request its due consideration.

Subject to the aforesaid observations, the Appeal fails and is accordingly dismissed.