Dismissed

Mahendra Prasad Dwivedi v. State of Uttarakhand

Uttarakhand HC2 May 2023SPA/63/2023

Case brief

AI extract

What is this about?

This special appeal challenged a transfer order based on allegations of misconduct. Upholding the High Court's earlier dismissal, the single judge held that transfers on administrative grounds under the 2017 Act do not require a full-fledged disciplinary enquiry, provided serious complaints are on record. The appeal was dismissed without addressing the delay in filing.

What did the court decide?

The special appeal was dismissed upholding the transfer order on administrative grounds.

Mahendra Prasad Dwivedi Vs State of… — Pension and Retirement Benefits | Uttarakhand HC (2023)

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IN THE HIGH COURT OF UTTARAKHAND

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AT NAINITAL

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HON’BLE THE CHIEF JUSTICE SRI VIPIN SANGHI

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AND

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HON’BLE SRI JUSTICE RAKESH THAPLIYAL

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SPECIAL APPEAL NO. 63 OF 2023

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02^ND MAY, 2023

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BETWEEN :

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Mahendra Prasad Dwivedi …..Appellant.

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And

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State of Uttarakhand & others	….Respon	dents.
Counsel for the Appellant :	Mr. M.S. Bhandari, counsel.	learned
Counsel for the State :	Mr. K.N. Joshi, learned Advocate General.	Deputy

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The Court made the following:

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JUDGMENT:(per Hon’ble The Chief Justice Sri Vipin Sanghi)

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The present special appeal is directed against the order dated 05.12.2022, passed by the learned Single Judge, dismissing the appellant’s writ petition, i.e. Writ Petition (S/S) No.2274 of 2022.

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The appellant had preferred the said writ petition to assail his transfer from Government Inter College, Kothdidhang, Kotdwar, District Pauri Garhwal to Government Higher Secondary School, Torti Deval, District Chamoli, vide order dated 18.11.2022.

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The appellant assailed his transfer alleging that the same was in violation of the Uttarakhand Annual Transfer for Public Servants Act, 2017. The same was based on a

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complaint, and the appellant contended that he was not afforded an opportunity of hearing.

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The impugned order shows that the respondents reported instructions by producing a letter dated 03.12.2022, issued by the Regional Additional Director, Secondary Education, Pauri, which was taken on record. From the same, it appears that there were serious complaints against the appellant involving his character. An inquiry was ordered, which was held by the Block Education Officer, Dugadda, and in the said inquiry, the allegations levelled against the appellant were found to be correct. The inquiry report reveals that the appellant did not bear a good moral character, and the students of the concerned school had also given statements against the appellant, which were the basis of the findings returned.

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The submission of learned counsel for the appellant is that he was not granted a copy of the inquiry report. He further submits that it had not been established that the appellant had indulged in misconduct, involving moral turpitude.

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In the case of Nirmala Singh vs. State of Uttarakhand & others, Writ Petition (S/B) No.124 of 2023 , we had occasion to interpret the true scope and

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meaning of Section 18 of the Uttarakhand Annual Transfer for

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Public Servants Act, 2017. We had observed as follows:-

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“9. Mr. Bhatia submits that her transfer has been made on administrative grounds. He further submits that the case of the petitioner was not placed before the Transfer Committee for consideration of her transfer, as required under Section 17(2)(c) of the Uttarakhand Annual Transfer for Public Servants Act, 2017. He submits that no enquiry has been conducted, by grant of any opportunity to the petitioner, on the alleged grounds of serious complaints of misconduct, misbehavior with senior officers and lack of interest in work, etc. Section 18, insofar as it is relevant, reads as follows :-

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“Procedure of Posting on Appointment/ Promotion and other Transfer

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18. In addition to annual/general transfer, the procedure of posting in appointment/promotion and other transfers shall be in following conditions, as follows—

(1) ……

(2) ……

(3) ……

(4) On enquiry, on the grounds of serious complaints of misconduct, misbehavior with senior officers and lack of interest in work, etc. after necessary enquiry and confirmation, transfer of such employee may be made on administrative grounds:

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Provided that the transfer on administrative grounds shall not be made casually or on the basis of complaints of routine nature and in the orders of such transfer it shall be necessary to mention Administrative Grounds.”

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10. In our view, the words “on enquiry” does not contemplate a disciplinary enquiry into the conduct of the employee concerned. The enquiry referred to in Section 18(4) is an enquiry, which the department undertakes for the purpose of transfer, in which the participation of the employee is not necessary, since transfer is an incident of service, and it is for the employer to effect the transfer. All that is required, is that the grounds of serious complaints of misconduct, misbehavior with senior officers and lack of interest in work, etc. should form part of the record when the transfer, on administrative grounds, is made under Section 18(4) of the aforesaid Act. If the said provision is read to mean that a full fledged enquiry should first be held before such a transfer can be made on administrative

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grounds, it would defeat the very purpose for which the said provision is enacted, and it would also mean that the employee concerned will have to remain till such full fledged enquiry is completed, which could prolong for months, if not years.

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11. Mr. K.N. Joshi submits that the senior officers have complained that the petitioner is not taking the responsibilities given to her, and is shirking her responsibilities by stating that the work given to her may be assigned to other officers.

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12. Reliance placed on Section 17(2)(c) is misplaced, inasmuch as, Section 18(5) itself records that, in case of administrative transfers, the matter need not be placed before the Transfer Committee. It is not in dispute that the approval of the officer, who is one rank higher than the competent authority, has been obtained in the present case.”

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In the light of the aforesaid, we do not find any merit in the submission of learned counsel for the appellant.

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The appeal is accordingly dismissed.

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Since we have examined the appeal on its merits,

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we are not going into the issue of delay of 72 days in preferring the special appeal.

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Pending application, if any, also stands disposed of.

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(VIPIN SANGHI, C.J.)

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(RAKESH THAPLIYAL, J.)

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Dated: 02^nd May, 2023 NISHANT

Mahendra Prasad Dwivedi v. State of Uttarakhand

Case brief

What is this about?

What did the court decide?

Mahendra Prasad Dwivedi v. State of Uttarakhand

Case brief

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What did the court decide?

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