WPSB/298/2015 of Vinai Kumar Singh Vs State Of Uttarakhand AND OTHERS

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION (SB) No. 298 of 2015

Vinai Kumar Singh ……..Petitioner

Versus

State of Uttarakhand and Others .…Respondents

Mr. Rakesh Thapliyal & Mr. Sanjay Bhatt, Advocates for the petitioner. Mr. P.C. Bisht, Standing Counsel for the State of Uttarakhand / respondent nos. 1 and 2. Mr. C.S. Rawat, Advocate for respondent no.3.

Coram : Hon’ble K.M. Joseph, C.J. Hon’ble V.K. Bist, J.

JUDGMENT

K.M. Joseph, C.J. (Oral)

Date: 8th September, 2015

Petitioner challenges the order dated 31.07.2015, whereunder he stands transferred from Minor Irrigation Division, Udham Singh Nagar to Minor Irrigation Division, Almora. He further seeks direction in the nature of mandamus not to interfere with the peaceful posting of the petitioner in the Minor Irrigation Division, Udham Singh Nagar.

2. Briefly put, the case of the petitioner is as follows:

Petitioner was given posting in district Champawat on 06.12.1999 and he served there for more than five years. On 17.07.2006, he was transferred from Champawat to Sub Division Haldwani, where he served for three years and, again, petitioner, by order dated 24.10.2008, was transferred to Tehri, where he served for almost eight months. From 27.06.2009, he was transferred to Almora, where he served till 06.07.2011 for almost two years. By order dated 07.07.2011, he joined at Nainital Division, where he served till 06.08.2012. On 07.08.2012, he was transferred to Bageshwar, where he served for one year and three months. On

28.11.2013, he was transferred to Udham Singh Nagar, where he is posted; it is while so he is confronted with the impugned order.

3. Counter affidavit has been filed. Pleadings have been exchanged.

4. We have heard Sri Rakesh Thapliyal, along with Mr. Sanjay Bhatt, Advocates for the petitioner, Sri C.S. Rawat, learned counsel appearing on behalf of the third respondent and Sri P.C. Bisht, Standing Counsel for the State of Uttarakhand / respondent nos. 1 and 2.

5. An order of transfer can be impugned on essentially two grounds; (1) if there is violation of statutory provision; or (2) if there is malafide proved. In this case, admittedly, there is no statute involved. What is alleged, on the other hand, is malafides. According to the petitioner, this is case, where the third respondent was able to exert influence on Minister in the Government and the Minister’s hand is visible having regard to the letter, which he has written, to which letter, reference is made in paragraph 18, which reads as follows:

“18. That Petitioner has been informed that one senior most Hon’ble Cabinet Minister is interested to adjust the Executive Engineer who is posted in Almora Division and he has written letter to the Government to adjust his person in Udham Singh Nagar therefore in order to adjust his man Petitioner is being disturbed. The recommendation of Hon’ble Minister has been recorded in the proceedings and has been kept in the file of Government but it has not been supplied to the Petitioner therefore in order to verify this fact the file may be summoned. Not only this, the committee did not recommend for transfer of Petitioner and it was decided in the meeting that transfer would be effected after the result of DPC scheduled to be held on 06-08-2015 but the impugned transfer order has been passed on the direction and approval of the Hon’ble Minister therefore there has been violation of transfer policy as well as directions issued by this Hon’ble Court.”

6. The case of the petitioner is that he has been transferred as many as six times in the last seven years for no just reason.

7. Sri C.S. Rawat, learned counsel for the third respondent, on the other hand, would build his case around compassion. It is his short case that his father is ailing; his presence near his father was necessary. The Minister, Revenue & Irrigation, who is referred to by the petitioner, is actually the MLA of the constituency of Bazpur. The Minister for Revenue was, no doubt, approached by the father of the third respondent citing the compassionate ground. There is nothing wrong in it, he submits. He would further submit that this is not case of political influence exerted by Minister as is sought to be made out by the petitioner. In this context, he draws our attention, in fact, to the judgment of the learned Single Judge of the Allahabad High Court in the case of Sanjay Nath Tiwari vs. State of U.P. and others, which is reported in 2014 DGLS(AHC) 6536. We will refer to the said judgment at the appropriate place.

8. Learned Standing Counsel would submit that the norms relate to annual transfer and this is not case of annual transfer as such. He would also submit that there is no ground made out.

9. Learned counsel for the petitioner Sri Rakesh Thapliyal would point out that the father of the third respondent being relative could not possibly have made representation in the matter as it is tabooed by Rule 24 of The Uttaranchal Government Servants’ Conduct Rules, 2002. Rule 24 of the said Rules reads as follows:

“24. Canvassing of non-official or other outside influence – No Government servant shall bring or attempt to bring whether himself personally or through member of his family, any political or other outside influence to bear upon any question relating to him interest in respect of matters pertaining to his service.”

10. He would next submit that actually, the request of the third respondent was for being considered for being posted at Dehradun, Tehri and Pauri at the time of annual transfer.

11. We must immediately say that the learned counsel for the third respondent submits that the request was made by the father of the third respondent for consideration of the third respondent for being transferred to Nainital / Udham Singh Nagar.

12. Learned counsel for the petitioner would submit that this is clear case of political interference. Therefore, he drew our attention to the judgment of the Hon’ble Apex Court in the case of B. Varadha Rao vs. State of Karnataka and others reported in AIR 1986 SC 1955 and other decisions of the Hon’ble Apex Court.

13. It is apposite that we first refer to the state of the case law in this regard.

14. In the case of Prabhakar Singh and others vs. U.P. Power Corporation Limited and others reported in (2005) 13 SCC 173, no doubt, the Hon’ble Apex Court was dealing with the case, which arose from the State of Uttar Pradesh, which showed frequent transfers being made in the Electricity Board, at the instance of the political leaders, which became an autonomous body. Thereupon, the Hon’ble Apex Court constituted Committee and the Court also directed that no Minister of the State nor any officer of the State shall interfere with the transfers and postings of the officers in the Corporations.

15. We may notice the judgment, which is relied on by Sri Rakesh Thapliyal, i.e. AIR 1986 SC 1955. Therein, the Hon’ble Apex Court has, inter alia, held as follows:

“We agree with the view expressed by the learned Judges that transfer is always understood and construed as an incident of service. The words 'or other conditions of service' in juxtaposition to the preceding words 'denies or varies to his disadvantage his pay, allowances, pension'

in Rule 19(1)(a) must be construed ejusdem generis. Any alteration in the conditions of service must result in prejudice to the Government servant and some disadvantage touching his pay, allowances, pension, seniority, promotion, leave etc. It is well understood that transfer of Government servant who is appointed to particular cadre of transferable posts from one place to another is an ordinary incident of service and therefore does not result in any alteration of any of the conditions of service to his disadvantage. That Government servant is liable to be transferred to similar post in the same cadre is normal feature and incident of Government service and no Government servant can claim to remain in particular place or in particular post unless, of course, his appointment itself is to specified, non-transferable post. As the learned Judges rightly observe :

The norms enunciated by Government for the guidance of its officers in the matter of regulating transfers are more in the nature of guidelines to the officers who order transfers in the exigencies of administration than vesting of any immunity from transfer in the Government servants.

5. It is no doubt true that if the power of transfer is abused, the exercise of the power is vitiated. But it is one thing to say that an order of transfer which is not made in public interest but for collateral purposes and with oblique motives is vitiated by abuse of powers, and an altogether different thing to say that such an order per se made in the exigencies of service varies any condition of service, express or implied to the disadvantage of the concerned Government servant. The petitioner who appeared in person placed reliance, as he did in the High Court, on the decision of the Bombay High Court in Seshrao Nagorao Umap v. State of Maharashtra and Ors. (1985)2 LLJ 73. We do not see how the decision can be of any avail to the question at issue. The learned Judges were dealing with petition under Article 226 of the Constitution by which Medical Officer challenged his order of transfer on the ground that it was not only mala fide but was issued in colourable exercise of power and therefore wholly illegal and void. It was contended by the petitioner that he was being transferred contrary to the Government policy with view to accommodate one Dr. Section 4P. Patil because of the political influence he wielded. In allowing the writ petition, the learned Judges observed that it was no doubt true that the Government

has power to transfer its employees employed in transferable post but this power has to be exercised bona fide to meet the exigencies of the administration. If the power is exercised mala fide, then obviously the order of transfer is liable to be struck down. They relied on the observations made by this Court in E.P. Royappa v. State of Tamil Nadu and Anr. for the positivistic view that 'equality is antithetic to arbitrariness and held that the observations equally apply to the policy regarding the transfer of public servants. It was observed :

It is an accepted principle that in public service transfer is an incident of service. It is also an implied condition of service and appointing authority has wide discretion in the matter. The Government is the best judge to decide how to distribute and utilise the services of its employees. However, this power must be exercised honestly, bona fide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power. Frequent transfers, without sufficient reasons to justify such; transfers, cannot, but be held as mala fide. transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose, than is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration, that even administrative actions should be just and fair.

The observation that transfer is also an implied condition of service is just an observation in passing. It certainly cannot be relied upon in support of the contention that an order of transfer ipso facto varies to the disadvantage of Government service, any of his conditions of service making the impugned order appealable under Rule 19(1)(a) of the Rules.

6. One cannot but deprecate that frequent, unscheduled and unreasonable transfers can uproot family, cause irreparable harm to Govern-ment servant and drive him to desperation. It disrupts the education of his children and leads to numerous other complications and problems and results in hardship and demoralisation. It therefore follows that the policy of transfer should be reasonable and fair and should apply to everybody equally. But, at the same time, it cannot be forgotten that so far as

superior or more responsible posts are concerned, continued posting at one station or in one department of the Government is not conductive to good administration. It creates vested interest and therefore we find that even from the British times the general policy has been to restrict the period of posting for definite period. We wish to add that the position of Class III and Class IV employees stand on different footing. We trust that the Government will keep these considerations in view while making an order of transfer.

16. The judgment relied on by the learned counsel for the third respondent Sri C.S. Rawat, namely, 2014 (9) A.D.J. 173actually related to transfer order issued pursuant to the decision taken by the Police Establishment Board. There were several public complaints about the misbehaviour of the petitioner with the public and the Board expressed its views that it is not proper to retain the petitioner at Raebareli. He challenged the order. The learned Single Judge has adverted to the case law on the point and further held, inter alia, as follows:

“6. Mr. Kalia also drew attention of this court towards the judgment of the Hon’ble Supreme Court, rendered in the case of Prakash Singh and others versus Union of India and others, reported in (2006) 8 SCC 1, in which the Hon’ble Supreme Court has discussed the problems of the police. After considering the hazardical background as to why the police functioning has caused so much disenchantment and dissatisfaction the Hon’ble Supreme Court provided that there shall be Police Establishment Board in each State, which shall decide all transfers, postings, promotions and other service related matters of officers of and below the rank of Deputy Superintendent of Police. The State Government has been empowered to interfere with the decision of the Board in exceptional cases, only after recording its reasons for doing so. The Board has also been authorized to make appropriate recommendations to the State Government regarding the postings and transfers of officers and above the rank of Superintendent of Police. 7. On the matter of transfer the Hon’ble Supreme Court has provided that the police officers on operational duties in the field like the Inspector General of Police in-charge Zone, Deputy Inspector General of

Police in-charge Range, Superintendent of Police in-charge District and Station House Officer in-charge of the Police Station shall also have prescribed minimum tenure of two years unless it is found necessary to remove them prematurely following disciplinary proceedings against them or their conviction in criminal offence or in case of corruption or if the incumbent is otherwise incapacitated from discharging his responsibilities. This would be subject to promotion and retirement of the officer. 10. He further submitted that the order of petitioners transfer suffers from malice in law.”

17. At once, it is necessary to deal with the said decision. That is case, which is related to the Police Officer being transferred on the basis of the decision of the Establishment Board on the basis of complaint received about the misbehaviour of the Police Officer. As has been set out in Paragraph 10 of the judgment, in certain circumstances, be it Minister or MLA, he must, on the principle of accountability, necessarily come across complaints from his constituents regarding functioning of public officers. There is nothing wrong, if grievances are placed before them regarding the irregular, arbitrary and corrupt functioning of officers. If action is taken honestly and bonafide on such complaints being brought, which may ultimately result in transfer of such persons, then it may not be proper affair to clothe the Court with power to undo transfer which would certainly pass muster as being done in public interest, but is that the situation present in the facts of this case.

18. Learned counsel for the third respondent has also referred us to the decision of the Hon’ble Apex Court in the case of State of U.P. and others vs. Gobardhan Lal reported in AIR 2004 SC 2165, where the Hon’ble Apex Court held as follows:

“9. challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of

the situation concerned. This is for the reason that Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer.”

19. Also, the learned counsel for the third respondent referred us to decision of the Allahabad High Court Full Bench judgment in the case of Tara Prasad Misra Vs. State of U.P. and other reported in (1990) 2UPLBEC 905. The facts are, no doubt, set out in Paragraphs 1 and 2, which read as follows:

The facts are, no doubt,

“1. The facts leading to this reference are that the petitioner to the writ petition who was posted at Government Hospital, Shohratgarh, Basti under the Administrative Control of Chief Medical Officer, Basti was transferred under his order to Primary Health Centre, Mohan Kala, Basti which was local transfer. On the representation of the wife of the petitioner to the Health Minister through the Chairman, U.P. Export Corporation Ltd. who forwarded the same to the Minister with his recommendatory letter, the Minister gave certain directions to the Additional Director, Gorakhpur to take steps for cancellation of transfer order. The Additional Director, Gorakhpur vide letter dated 27-5-1989 asked the Chief Medical Officer (hereinafter referred to as the C.M.O.) to cancel the transfer order. In the meantime, district Basti was bifurcated and new district Siddharth Nagar was carved out and Sohratgardh fell in district Siddharth Nagar. Copy of said letter was also endorsed to the C.M.O. Siddharth Nagar inviting his attention to the Additional Director’s letter and requested him to deal with the matter at his level as the petitioner was posted under him.

2. On the representation of the petitioner, the C.M.O., Siddharth Nagar required him to take charge at the transferred place. Again the petitioner’s wife made representation to the Director General, Medical, Health and Family Welfare (for short D.G.) mentioning

therein that the petitioner is to retire within period of two years. On 15-7-1989 letter issued from the office of the D.G. addressed to C.M.O. Siddharth Nagar in which the later was required to ensure compliance of orders dated 11-5-1989 and 27-5-1989 of the Minister and the Additional Director respectively. The C.M.O. did not cancel the transfer order and asked him to join at the transferred place as condition whereafter his letters will be considered and compliance report may be sent. The transfer order was implemented. On behalf of the petitioner reliance was placed on two decisions of this court, one decided on the date it was presented and another after hearing learned counsel for the parties. The first case Dr. Bipin Behari Dube v. Additional Director was decided on 12-8-1987 and another Ram Gopal Gupta v. Additional Director was decided on 12-1-1987. In Ram Gopal’s case the Division Bench has justified the court’s interference by stating that if the subordinate officer flouts the orders of the Superior Officer, it would lead to administrative anarchy. In the first case it was held that the Additional Director was bound to carry out directions. In the latter case it was held that the Additional Director is bound by the orders of the superior authority and he shall obey the order of the Minister as communicated to him by the Director. He shall not act upon the order of transfer passed earlier. While in the first case it was also held that so long as the order dated 9-9-1986 passed by Joint Director has not been varied, revoked or rescinded, the Additional Director is bound by the order of the superior officer. It will lead to administrative anarchy if the orders passed by the superior authorities are flouted by the subordinate authorities. The Division Bench expressed the view that if the superior officer himself is satisfied and does not care for implementation and is not serious about it, the implementation can be brought about by taking disciplinary action against the erring officer and the courts hardly have the means to fathom the reasons for the superior officer’s disinclination to enforce compliance of his own order. If the superior officer himself is not willing to get his order enforced, then the High Court should not interfere with the same. No writ of mandamus can be issued for enforcement of department manuals or instructions not having any statutory force, or concession. Such departmental manual or instructions do not create any legal right in favour of the petitioner.”

20.Thereafter, in (1990) 2UPLBEC 905, the Court took the view as follows:

“6.Normally, all executive actions in the State are taken in the name of the Governor but every executive decision is not required to be expressed formally particularly in case when superior officer directs subordinate to act in particular way. In this view if direction is given by Minister, it will be an executive action of the Minister. The direction issued by the Minister in respect of conduct of government business or in respect of transfer will be direction or order by the State Government. If in exercise of executive powers, the Minister issues particular direction, the subordinates are duly-bound to obey it. If direction is issued to subordinate to convey it to his subordinates in fact who is to act, the subordinate will be duty bound to act in country governed by rule of law. The State Government has got powers to transfer Class III employees out of district. In democratic country where rule of law prevails, the work of the Government is carried on through civil servants having hierarchy. The hierarchy is also bound by norms and discipline and violation of directions of the superiors will amount to insubordination and misconduct. No government can function in case indiscipline and insubordination are given up because it will lead to anarchy and disaster to the entire and democratic structure and the rule of law. 7. It can hardly be disputed that Government servant has sufficient interest in the matter of transfer from one place to another during service tenure which may not even result in dislocation of his family life but may have certain social and financial problems and may adversely affect him and his family in various ways. Regarding transfers the State Government has laid down executive instructions and through the same may be directory in nature but as far as possible these directions are to be complied with but if transfer order is passed, it is an incident of service and no interference is call for with the same. But if the transfer order is not passed in public interest and is passed in colourable exercise of powers, it is open to challenge being wholly illegal and mandamus at the interest of Government servant can be issued as has been observed in the case of B. Vardha Rao, (supra).”21. Under the norms of transfer, petitioner would have three years tenure and that will come to an end only in 2016. Normally, in such cases, this Court would be loathe to interfere with for mere allegation of violation of norms, but there is something more in this case as is made out by the admitted circumstances, which we set out hereinafter. The father of the third respondent had admittedly written letter to the Minister of the Revenue. The Department, in which the petitioner and the third respondent work, comes under the Minister of Minor Irrigation. Acting upon the letter, the Minister for Revenue sent letter to the Minister for Minor Irrigation Division. request is made also to the Minister for Minor Irrigation in writing. Under the norms, there is Committee. According to the learned counsel for the petitioner Sri Rakesh Thapliyal, that Committee can recommend for changes in the norms in suitable cases, as for instance, where the transfer is sought on compassionate ground. He is not able to make out as to whether the case of compassion was before the Committee. According to the petitioner, the Committee did not make recommendation. At any rate, we find that Clause (31) provides authority with the Chief Minister to approve deviations from the norms. The File relating to their transfer is made available to us. What we notice is that the Minister for Minor Irrigation has approved the transfer, but the name of the Chief Minister or the words ‘Chief Minister’ are written thereafter in the File, but the signature of the Chief Minister is conspicuous by its absence. We asked the learned Standing Counsel as to whether the Chief Minister has actually approved it by appending his signature to the same. He would submit that he is unable to submit before the Court that any such approval is discernible from the File. Therefore, we can safely proceed on the basis that though the Minister in the Ministry concerned has approved it, the Chief Minister has not approved the File as such. We must, at this point of time, indicate the following as the final result of this litigation should not lead anyone to believe

that we have laid down the law that the norms cannot be deviated from at all. We are not for moment saying that the norms, which have been laid down by executive orders, cannot be deviated from in suitable cases as provided in the norms. While the norms are not at first place enforceable in Article 226 proceedings, in that, the Court will not normally interfere on the mere allegation of violation of norms and will relegate the party to represent his grievance before the Authority, it is not to be understood that the Authorities can act with impunity and violate the norms. The norms are meant to be observed. Political influence is to be kept at bay as has been indicated by this Bench speaking through one of us, but at the same time, both in public interest and also in appropriate cases, where interest of justice is required as for instance medical reasons, where the norms may have to be relaxed, it may be open to the Authorities to act in terms of the norms and relax the requirements. Transfer is an incident of service of every government employee and he cannot raise the argument based on his term under the norms to resist the transfer, which is made bona fide in public interest even if it has the effect of cutting down the length of his term at particular place. No doubt, as deprecated by the Hon’ble Apex Court, frequent transfers leave the public servant with sense of deep frustration, particularly, when it is unaccompanied by any public interest element and it is motivated for collateral reasons.22. This is case for the petitioner that, actually, the father of the third respondent is at Noida near Delhi and the request was made by the father of the third respondent for being considered for transfer of his son, namely, the third respondent to Nainital / Udham Singh Nagar; whereas the third respondent made request for Dehradun, Tehri and Pauri. The father of the third respondent is, admittedly, at Noida. His reason for seeking transfer of the third respondent is that he may receive the attention of the third respondent, but he seeks transfer of the third respondent to Nainital /

Udham Singh Nagar. Learned counsel for the petitioner has case that there are persons working in Dehradun, who have completed three years and the third respondent could have been transferred to Dehradun.

23. We must also, at this juncture, refer to the argument of the petitioner based on Rule 24, which we have already extracted. We must, however, notice that members of the family are defined in Rule 2 (c) of the Uttaranchal Government Servants’ Conduct Rules, 2002. Rule 2 (c) of the said Rules is extracted hereunder:

“2 (c) “Member of the family” in relation to government servant, includes.

(i) The wife, son, step-son, unmarried daughter, or unmarried step-daughters of such government servant whether residing with him or not, and, in relation to government servant who is woman, the husband residing with her dependent on her, and

(ii) Any other person related, whether by blood or by marriage, to the government servant or to such government servant’s wife or her husband, and wholly dependent on such government servant;

But does not include wife or husband legally separated from the government servant or son, step-son, unmarried daughter or unmarried step-daughter who is no longer, in any way dependent upon him or her, or of whose custody, the government servant has been deprived by law.” “

24. We notice that the third respondent is unable to make out that the father is Member of the family within the meaning of Rule 2(c) read with Rule 24 and, therefore, we cannot, on the said ground, rely on Rule 24.

25. But, we must notice, at this juncture, another circumstance also. In the order of transfer what is stated is that there has been mutual transfer of the petitioner with the third respondent. Petitioner complains that the use of the words ‘mutual transfer’ is mischievous for the reason that the petitioner has not given his consent for mutual transfer. This is sought to be met by the learned

Standing Counsel that it is actually meant to be understood as ‘ikjLifjd transfer’, which means ‘transfer in each other’s place’. In other words, he does not dispute that the petitioner has not given his consent for mutual transfer. In Oxford Hindi-English Dictionary, ‘ikjLifjd’ has been defined as follows:

“mutual; reciprocal.”

26. Therefore, ‘ikjLifjd’ is defined as mutual transfer. Therefore, on the face of it, when the petitioner has not given his consent or asked for mutual transfer, it could not possibly have been treated as mutual transfer. In the totality of the circumstances present in this case, we would think that the petitioner has been able to make out case for interference in Article 226 of the Constitution on the ground that there is mala fide and on the said ground, we are constrained to allow the writ petition by issuing writ of certiorari. We notice that the Committee, which has been constituted has turned down the request on the ground that there are going to be promotions in the month of June and the case of the third respondent can be considered. Therefore, we allow the writ petition and quash the impugned order.

27. We make it clear that this will not stand in the way of third respondent making representation citing the grounds of medical illness of the father of the third respondent and it being considered in accordance with law.

(V.K. Bist, J.) (K.M. Joseph, C.J.)

08.09.2015 Rathour

08.09.2015