WPSS/590/2009 of KRISHNA SINGH KANYAL Vs STATE OF UTTARAKHAND and OTHERS

HIGH COURT OF UTTARAKHAND, AT NAINITAL Writ Petition No. 590 (S/S) of 2009

Krishna Singh Kanyal S/o Sri Harak Singh Kanyal Junior Engineer, Watershed Management, Ranikhet District Almora

…Petitioner

Versus

State of Uttarakhand and others

…Respondents

Mr. B.D. Upadhyaya, Advocate for the petitioner. Mr. Ashish Joshi, Brief Holder for the respondents/State.

Per Hon’ble J.C.S. Rawat, J.

This writ petition under Article 226 of the Constitution of India has been filed by the petitioner for quashing the impugned orders dated 19/09/2008 and 25/05/2009 (Annexures-4 and 5 to the writ petition) passed by the respondent Nos. 2 & 3 – Joint Director and Assistant Director respectively. By the impugned order dated 19/09/2008, the petitioner has been transferred from Ranikhet to Haldwani whereas by the impugned order dated 25/05/2009, the petitioner has been relieved by the respondent No.3. Feeling aggrieved by the said orders, the present petition has been filed before this Court.

2. Heard learned counsel for the parities and perused the record.

3. Learned counsel for the petitioner has challenged the said transfer order on two grounds–firstly that the impugned order of transfer is not simple order of transfer but it emanates stigma on the petitioner, as such, the same is absolutely arbitrary, illegal and not sustainable in law. Secondly, the policy framed by the Govt. on 15[th] June, 2008 provides that the transfer should be made till 15[th] June,

2008. If the mid-term transfers are made either on the administrative ground or otherwise, approval of the next higher authority should be taken. But in the present case, no such approval has been taken.

4. The respondents has filed the counter affidavit in which it has been stated that Assistant Director, Watershed Management, Ranikhet, District Almora inspected the schemes, conducted and supervised by the petitioner, and found some irregularities in the schemes. The respondent No.2 passed the order on the basis of the Technical Audit Report conducted by Technical Audit Section, Directorate of Agriculture, Uttarakhand and the report dated 16th September, 2008 of the Assistant Director, Watershed Management, Ranikhet submitted after physical verification of some sites which prima facie disclosed the involvement of the petitioner in the irregularities committed by him during his posting as Junior Engineer at Ranikhet at Dwarahat and Tadikhet blocks. The respondents have filed the copies of the audit report as well as letter of the Assistant Director pursuant to which transfer has been made.

5. So far as the first point of the violation of the transfer policy is concerned, it is settled position of law while ordering the transfer there is no doubt that the authority should keep in mind the guidelines issued by the Government on the subject. If person makes any representation which affect his transfer, the appropriate authority may consider the same having regard to the exigencies of the administration and that of the policy laid down by the Government. Who should be transferred and where is the matter of appropriate authority to decide. Unless the order of transfer is vitiated by malafide or made in violation of any statutory provision, the

Court cannot interfere with the transfer. The guidelines, laid down by the statute or by the law, can only be enforced before the Court of law. The guidelines which have no statutory force or has not been made in pursuant to the direction of the statute conferred upon the competent authority to issue such direction, such guidelines did not confer upon the Government employee legally enforceable right. Thus, it cannot be taken into consideration by the authority. If the petitioner has no legally enforceable right, then no writ can be issued to the respondents. The Hon’ble Apex Court in the case of Major General J.K. Bansal Vs. Union of India and others reported in (2005) 7 SCC p/227) has held in paras 9, 10 and 11 as under:-

“9. In Mrs. Shilpi Bose and others vs. State of Bihar and others AIR 1991 SC 532, the appellants, who were lady teachers in primary schools, were transferred on their requests to places where their husbands were posted. The contesting respondents, who were displaced by the appellants, challenged the validity of the transfer orders before the High Court by filing writ petition under Article 226 of the Constitution, which was allowed and the transfer orders were quashed. This Court allowed the appeal and set aside the judgment of the High Court by observing as under: -

"In our opinion, the courts should not interfere with transfer order which are made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. Government servant holding transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issuedby the competent authority do not violate any ofhis legal rights. Even if transfer order is passedin violation of executive instructions or orders, theCourts ordinarily should not interfere with the orderinstead affected party should approach the higherauthorities in the Department."

10. In Union of India and others vs. S.L. Abbas AIR 1993 SC 2444, the respondent was working at Shillong in the office of Botanical Survey of India and his wife was also working there in Central Government office. He was transferred from Shillong to Pauri in the hills of U.P. (now in Uttaranchal). He challenged the transfer order before the Central Administrative Tribunal on medical ground and also on the ground of violation of guidelines contained in the Government of India OM dated 3.4.1986. The Tribunal allowed the petition and quashed the transfer order. In appeal this Court set aside the order of the Tribunal and observed as under:-

"Who should be transferred where, is matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. Theguidelines say that as far as possible, husband and wifemust be posted at the same place. The said guidelinehowever does not confer upon the Governmentemployee legally enforceable right."

11. Similar view has been taken in National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan and another (2001) 8 SCC 574, wherein it has been held that no Government servant or employee of public undertaking has any legal right to be posted forever at any one particular place since transfer of particular employee appointed to the class or category of transferable posts from one place to another is not only an incident, but condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown tobe an outcome of malafide exercise of power or statedto be in violation of statutory provisions prohibiting any

such transfer, the courts or the tribunals cannotinterfere with such orders, as though they were theappellate authorities substituting their own decision forthat of the management.”

6. In view of the above judgments, I am of the opinion that the policy whatever it has been formulated, if it has no statutory force, it cannot be enforced. Learned counsel for the petitioner could not demonstrate me that the policy which has been filed and alleged in the petition has been formulated under any of the statutes passed by the Statute.

7. The next point which has been raised by the learned counsel for the petitioner is that the transfer has been made on the basis of administrative ground and it casts stigma, as such, the order is liable to be quashed. The learned counsel for the petitioner tried to emphasize that before affecting the transfer, there should have been sufficient independent inquiry and only thereafter the petitioner could have been transferred from Ranikhet to Haldwani. The manner, nature and extent of exercise to be undertaken by the Courts in case to adjudicate whether the phraseology used in the transfer order casts stigma or constitutes punishment would depend upon the consequences flowing from the order and as to whether it adversely affect any service conditions – status, service prospects financially – and the same yardstick, norms or standards cannot be applied to all categories of cases. If the transfer orders did not involve any such adverse impact or did not visit the person concerned with penal consequences, they are not required to be entertained. Utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably essential to maintain quality of public service and matter untoward administrative exigencies to

ensure smooth functioning of the administration. In the report submitted it has been stated that financial irregularities had been committed. It does not change the status, service prospects and salary of the petitioner. As such, the transfer order is not violative on the ground that it incorporates in the order that the petitioner has committed the financial irregularity. I am fortified with the view taken by the Hon’ble Apex Court in the case of Union of India and others Vs. Janardhan Debanath and another reported in (2004) 4 SCC p/245.

8. In view of the above, I do not find any ground for interference. The writ petition is liable to be dismissed and is hereby dismissed accordingly.

(J.C.S.Rawat, J.)

11[th] August, 2009 Shiv