WPSS/648/2009 of PREM KUMAR BAHUGUNA Vs UTTARAKHAND TRANSPORT CORPORATION LTD and OTHERS

HIGH COURT OF UTTARAKHAND, ATNAINITAL

Writ Petition No.648 (S/S) of 2009

Prem Kumar Bahuguna, S/o Late Shri Basant Kumar Bahuguna

……Petitioner

Versus

Uttarakhand Transport Corporation Limited,

Dehradun through its Commissioner &

ors.

……Respondents

Dated :- 14[th] September, 2009

Mr. Narayan Singh Negi, Advocate for the petitioner. Mr. N.P. Sah, Standing Counsel for the State.

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 the following reliefs:-

(i) issue writ, order or direction in

the nature of certiorari to quash the order dated 18-6-2009 and 19-6-2009 passed by the respondent no.2 and 3 filed as (Annexure 1 & 3).

(ii) issue writ, order or direction in the nature of mandamus directing the respondents not to interfere in the working of the petitioner on the post of Transport Tax Officer Grade II at Kodiya Check Post, Kotdwar, District Pauri Garhwal.

(iii) Issue suitable writ, order or direction, which this Hon’ble Court may deem fit and proper in the circumstances of the case. (iv) Award the costs of the writ petition to the petitioner.

2. The brief facts of the case are that the petitioner was appointed on 24-7-1973 in the UPSRTC now as Uttarakhand Transport Corporation and at present the petitioner is working as Transport Tax Officer Grade II in Kodiya Check Post, Kotdwar, District Pauri Garhwal. Vide impugned orders dated 18-6-2009 and 19-6-2009 passed by the respondents the petitioner had been transferred from Kodiya Check Post, Kotdwar, District Pauri Garhwal to the Office of the Deputy Regional Transport Office, Tehri, District Tehri Garhwal.

3. Feeling aggrieved by the impugned transfer orders, the present petition has been filed by the petitioner.

4.Learned Counsel for the petitioner has challenged the said transfer order on the ground that the petitioner has completed more than 36 years of satisfactory service in the transport department and he would be retiring from service after attaining the age of superannuation at the age of 60 years and only one year is left for retirement of the petitioner. Learned Counsel for the

petitioner further contended that as per the transfer policy of the government the transfer of the employees who would be retiring within stipulated period would be posted to the home district at the time of his retirement as such the transfer order is violative to the policy. Learned Standing Counsel for the State refuted the contention and contended that the transfer policy, which has not been framed under the statute cannot be enforced in the Court of law as such the petition is not maintainable.

5. I have heard the learned counsel for the parties and perused the record.

6. It is admitted to the parties that the transfer policy, which has been stated in this petition has not been formulated under any of the statute. It is also well settled position of law that the transfer can only be interfered by the Court if it has been made against the statutory rules or actuated by the malice. The transfer policy which had no statutory force cannot be enforced in the Court of law. I am fortified to take this view as has been laid down by 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 issued by the competent authority do not violate any of his legal rights. Even if transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department." 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 issued by the competent authority do not violate any of his legal rights. Even if transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities 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. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee 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.

7. In the case in hand, the transfer policy has not been framed under any statute and thus, the transfer policy cannot be enforced by the Court of law. On the basis of the transfer policy the transfer order cannot be interfered by the Court. The petitioner has not taken any ground of malice and has not proved any such ground before me.

8. In view of the foregoing discussions, I am of the view that this petition is liable to be dismissed. The writ petition is dismissed in limine. The stay granted by this Court vide order dated 09-07-2009 is herby vacated.

Dated 14.09.2009 Bhaskar

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