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2010 Supreme(UK) 196
2010 (2) UAD 393
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice Tarun Agarwala
Writ Petition No. 70 of 2010 (S/S)
ISHWARI SINGH RAUTELA – Petitioner
Versus
STATE OF UTTARAKHAND & ORS. – Respondents
Decided on : 17.04.2010
For the Respdts. No. 2 & 3 :Mr. D.S. Patni and Mr. A.S. Bisht, Advocates
For the Respdts. No. 1 & 4 : Mr. Subhash Upadhyay, Brief Holder
Headnote:(A) U.P. Palika Centralization Service Rules, 1966, Rule 25 — U/R 25, the Commissioner has powers to transfer the petitioner, from one district to another district, but the transfer order was based on motivated ground, which remained unsubstantiated — Since the same was passed on administrative ground and was punitive in nature — Also, neither the petitioner was informed with the grounds thereof and nor his reply was called for order being against the principles of natural justice — Impugned transfer order quashed. (Paras 12, 14)
(B) Service Matter — Transfers on administrative ground should not be effected on motivated complaints — Not transfers could be ordered in a casual manner and that the Competent Authjority seeking to effect the transfer on administrative ground is required to verify and confirm the existence as well as the truthfulness of the aforesaid grounjds of transfer — And only after arriving at and recording its satisfaction about the existence and truthfulness of the grounds that the incumbent could be transferred. (Para 10)
(C) Service Matter — Public interest — Tranfer on administrative ground — Such transfer order is based on a complaints, is not passed in public interest, but is based on adminsitrative ground — Also, if the transfer order based on adminstrative ground is being punitive in nature — Therefore, before transferring an employee on administrative ground, he is required to be put forth the grounds and a reply is essential before taking action on such administrative grounds. (Paras 11, 12)
¼v½ mRrj izns'k ikfydk dsUæhdj.k fu;ekoyh] 1966] fu;e 25 & /kkjk 25 ds vUrxZr ;kph dks ,d tuin ls nwljs tuin esa LFkkukUrfjr djus dk vf/kdkj vk;qDr dks gS ijUrq ;g LFkkukUrj.k vkns'k vfHkizsj.kk ds vk/kkj ij Fkk tks vokLrfod vk/kkj ij Fkk & ih MCY;w fd mDr vkns'k iz'kklfud dkj.kksa ls ikfjr fd;k x;k Fkk tks n.Muh; izdfr dk Fkk & ;kph dks uk rks mlds vk/kkj ds ckjs esa lwfpr fd;k x;k Fkk uk gh mldk mRrj ekaxk x;k Fkk & vkns'k izkdfrd U;k; ds fl)kUrksa ds foijhr gksus ds dkj.k [kf.Mr fd;k x;kA ¼izLrj 12] 14½
¼c½ lsok dk ekeyk & iz'kklfud vk/kkj ij fd;k x;k LFkkukUrj.k vfHkizsfjr f'kdk;rksa ls izHkkfor ugha gksuk pkfg, rFkk fdlh LFkkukUrj.k vkns'k dks vkdfLed :i ls ikfjr ugha fd;k tk ldsxk & vkSj l{ke vf/kdkjh tks LFkkukUrj.k iz'kklfud vk/kkj ij djuk pkgrk gS LFkkukUrj.k ds vk/kkjksa dh lPpkbZ dh iqf"V fd;s tkus ds fy, ck/; gS & og viuh larqf"V ds vk/kkjksa dks ntZ djus ds i'pkr vkSj ifj.kke fudkyus ds i'pkr fd vH;kFkhZ dk LFkkukUrj.k fd;k tk ldrk Fkk & vkns'k ikfjr djsxkA ¼izLrj 10½
¼l½ lsok dk ekeyk & tufgr esa iz'kklfud vk/kkj ij fd;k x;k LFkkukUrj.k & ,slk LFkkukUrj.k vkns'k tks f'kdk;rksa ij vk/kkfjr gS tufgr esa ikfjr ugha fd;k tkrk gS ijUrq og iz'kklfud vk/kkj ij gksrk gS & ;fn LFkkukUrj.k vkns'k iz'kklfud vk/kkj ij gS rks og izdfr esa n.Muh; Hkh gksrk gS & blfy, fdlh deZpkjh dk LFkkukUrj.k iz'kklfud vk/kkj ij djus ls iwoZ mls mu vk/kkjksa dk voxr djk;k tkuk vkSj mu dk mRrj fy;k tkuk vko';d gSA ¼izLrj 11] 12½
Heard Mr. Sharad Sharma, the learned Senior Counsel duly assisted by Ms. Indu Sharma, the learned counsel for the petitioner, Mr. D.S. Patni and Sri A.S. Bisht, the learned counsel for the respondent no. 2 and 3, i.e., the Municipal Board, Nainital and its Chairman and Subhash Upadhyay, the learned brief holder for the respondent No. 1 and 4, i.e., State of Uttarakhand and the Commissioner, Kumaon Division, Nainital.
2. The petitioner is a Junior Enginer in the Municipal Board, Nainital, recently posted on 2nd January, 2009 and by the impugned order dated 1st February, 2010, the petitioner has been transferred to Bageshwar in the same capacity and, by the order of 2nd February, 2010, the petitioner is alleged to have been relieved from Nainital. The petitioner, being aggrieved by the said orders, has filed the present writ petition.
3. The controversy raised in the present petition lies in a narrow compass. The submission raised by the learned Senior Counsel for the petitioner is, that the Commissioner was not the competent authority to transfer the petitioner under Rule 25 of the U.P. Palika Centralization Service Rules, 1966 (hereinafter referred to as the Rules of 1966) which is applicable to the petitioner. Further, the petitioner has been transferred in mid session and, that too, after one year of being posted at Nainital and the last ground raised is, that the transfer order is not based in public interest but is based on a complaint made by the Chairman by the Municipal Board and therefore, the transfer is based on administrative grounds, which is punitive in nature, which has been passed in violation of the principles of natural justice. In support of his submission, the learned counsel for the petitioner has placed reliance upon a decision of a Supreme Court in the case of Nabi Ahmad Khan Vs. State of U.P. and others (1996) 2 UPLBEC 12020 in which it has been held that the transfer order, based on a complaint, is liable to be quashed. Similar view was taken in Pradeep Goyal Vs. Regional Manager, Region IInd, State Bank of India, Zonal Office, Meerut and other reported in (1992) 1 UPLBEC 223 and in the matter of Sheshmani Tripathi Vs. Inspector General of Prisons, U.P., Lucknow and another reported in 1991 2 UPLBEC 1302.
4. On the other hand, Mr. D.S. Patni, the learned counsel for the Municipal Board submitted that the charges levelled against the petitioner was serious and there were also several complaints against the petitioner. The petitioner was not taking interest in work and was absenting himself and consequently, the Chairman of the Municipal Board recommended that instead of initiating a disciplinary action against him, he should be transferred to Bageshwar. The learned counsel for the Municipal Board submitted that the transfer order was made in public interest and not on the administrative ground and that the transfer order does not suffer from any error of law. In support of his submission, the learned counsel for the Municipal Board placed reliance upon a decision of the Division Bench of this court in the case of S.K. Goel Vs. State of Uttaranchal and another reported in 2005 (2) U.D., 11 and also relied upon a decision of Full Bench of this court in the case of Smt. Damyanti Bisht Vs. State of Uttarakhand and others reported in 2008(2) U.D., 517, in which it was held that the transfer on administrative ground, which was punitive in nature, should not be interfered in a writ jurisdiction.
5. The impugned transfer order dated 1st February, 2010 issued by the Commissioner is based on the basis of a report of the Chairman, Nagar Palika. The Transfer order further states that the petitioner is being transferred in public interest. The report of the Chairman is not on the record of the writ petition and consequently, the Municipal Board as well as the Commissioner were directed to produce the original record, which they have produced today and the court has perused the record of the Commissioner, whi
