1. Heard Sri Sandeep Dixit, learned Senior Advocate, assisted by Sri Vijay Dixit, learned counsel for the petitioner and Dr. L.P. Misra, learned Advocate, assisted by Sri Manish Jauhari, learned counsel for the opposite parties.
2. By means of this petition, the petitioner has assailed the validity of the order dated 22.7.2019 by means of which the representation of the petitioner against the transfer order has been rejected by opposite party no.2 purportedly in compliance of the judgment and order dated 4.7.2019 passed by this Court in Service Single No.18237 of 2019.
3. Learned counsel for the petitioner has assailed the aforesaid order on the ground that while passing the impugned order dated 22.7.2019, the direction so given by this Court on 4.7.2019 in earlier writ petition of the petitioner i.e. Service Single No.18237 of 2019 has not been considered properly.
4. The petitioner has also assailed the order dated 25.6.2019 passed by opposite party no.2 transferring the petitioner, who is serving on the post of Superintending Engineer from Electricity Distribution Division, Dhampur to Purvanchal Vidyut Vitran Nigam Ltd.
5. Since this Court has considered the facts and circumstances of the issue in question in earlier writ petition i.e. Service Single No.18237 of 2019, which was finally disposed of on 4.7.2019, therefore, it would be apt to indicate the order dated 4.7.2019 for the convenience herein below:-
"Heard Sri Sandeep Dixit, learned Senior Advocate assisted by Sri Vijay Dixit, learned counsel for the petitioner and Sri Manish Jauhari, learned counsel for the opposite parties.
By means of this writ petition, the petitioner has assailed the transfer order dated 25.06.2019 passed by the opposite party No.2 transferring the petitioner from the post of Superintending Engineer, Electricity Distribution Division, Dhampur to Purvanchal Vidyut Vitran Nigam Ltd.
The submission of learned counsel for the petitioner is that the aforesaid transfer order has been issued contrary to the transfer policy issued by the opposite parties themselves and also ignoring the fact that the petitioner has been transferred on his own request after taking into consideration his compelling circumstances on 30.06.2017.
Learned counsel for the petitioner has drawn attention of this Court towards Annexure No.8 to the writ petition, which is a performance report of the officers for the financial year 2018-19 vide letter dated 14.06.2019 wherein the performance of the petitioner appears to be excellent and it has been recommended that the petitioner should be awarded/given an appreciation letter.
Learned counsel for the petitioner has further submitted that family condition of the petitioner is such a peculiar that his father aged about 87 years of age is a cancer survivor and also suffering from so many diseases and the petitioner is to look-after him as there is nobody in his family to look-after him. Not only the above, learned counsel for the petitioner has submitted that his married sister, who has been deserted by her husband, has been suffering from Schizophrenia and it is the petitioner who is to look after her also. As per learned counsel for the petitioner, on his own request on the basis of the aforesaid compelling circumstances of his family, the petitioner was transferred at Paschimanchal Vidyut Vitran Nigam Ltd. on 30.06.2017.
Learned counsel for the petitioner also drawn attention of this Court towards Annexure No.9 to the writ petition, which is a transfer policy dated 03.06.2019 and para-1 (ga) of the aforesaid transfer policy categorically provides that the request of the employee, if it relates to the education of the children or any special conditions are there, the same may be considered sympathetically if there is no otherwise administrative objection. He has further referred para-8 (v) of the said transfer policy which provides that if any employee has achieved any target exemplary then while transferring him, an option should be called from him. Further, para-8 (vi) of the said transfer policy provides that if any employee or the family member is having disability or handicapped, she/ he should be exempted from regular transfer unless there is any administrative exigency to that effect.
Learned counsel for the petitioner has also drawn attention of this Court towards Annexure No.10 to the writ petition, which is a letter dated 06.06.2019 wherein it has been indicated that before transferring any employee an option shall be called within a period of three days and as per the transfer policy the reasons have been indicated in the letter dated 06.06.2019 itself vide paras-1 and 3 thereof as discussed above. Precisely, there may be a personal reason e.g. medical reason, or education of the children etc. and if such employee is meritorious while discharging his duties option may be called. In compliance of the aforesaid letter dated 06.06.2019 the petitioner preferred representation to the Competent Authority apprising his tenure of service at Paschimanchal Discom which reads that the petitioner has completed about 14 years, 5 months and 11 days services at Paschimanchal Discom whereas the policy says that if any employee has completed more than 15 years of service at a particular Discom, he may be transferred.
Since the case of the petitioner is squarely covered, as per learned counsel for the petitioner, with the transfer policy and he is having valid reasons rather compelling and peculiar family circumstances that he should be retained at Paschimanchal Discom, the petitioner preferred a representation dated 14.06.2019 to the Managing Director, U.P. Power Corporation Ltd. Lucknow (Annexure No.12 to the writ petition), which is still pending for disposal.
Learned counsel for the petitioner has referred the judgment of Hon'ble Apex Court in re: Virender S. Hooda and others vs. State of Haryana and another reported in (1999) 3 Supreme Court Cases 696 placing reliance in para-4 thereof, which is reproduced here-in-below:-
"4. The view taken by the High Court that the administrative instructions cannot be enforced by the appellants and that vacancies became available after the initiation of the process of recruitment would be looking at the matter from a narrow and wrong angle. When a policy has been declare by the State as to the manner of filling up the post and that policy is declared in terms of rules and instructions issued to the Public Service Commission from time to time and so long as these instructions are not contrary to the rules, the respondents ought to follow the same."
Learned counsel for the petitioner has submitted that the Hon'ble Apex Court has held that if there is any policy of the department, that policy should be followed first, therefore, the authorities ought to follow the same.
Learned counsel for the petitioner has also placed reliance upon the Division Bench judgment of this court in re: Deepa Vashistha vs. State of U.P and others reported in 1996 (1) LBESR 104 referring last two lines of para-20,which are being reproduced here-in-below:-
"If any policy has been framed and still operative, the executive actions are expected to be in conformity with the same and not to negate it."
Learned counsel for the petitioner has also placed reliance upon the judgment of this Court rendered in the case of Sarvendra Singh vs. State of U.P. and Ors. reported in 2005 (6) AWC 6116 (Alld) referring para-18 thereof, which is being reproduced here-in-below:-
"18. The respondents have also made an attempt to state that the transfer policy had no statutory force and, therefore, no reliance can be taken on this policy by the petitioner. In my view, the submission raised by the respondents is totally erroneous. Even though the transfer policy has no statutory force, nonetheless, it is binding upon the authorities. In Virender S. Hooda and Ors. v. State of Haryana and Ors., the Supreme Court held:-
'The view taken by the High Court that the administrative instructions cannot be enforced by the appellants and that vacancies became available after the initiation of the process of recruitment would be looking at the matter from a narrow and wrong angle. When a policy has been declare by the State as to the manner of filling up the post and that policy is declared in terms of rules and instructions issued to the Public Service Commission from time to time and so long as these instructions are not contrary to the rules, the respondents ought to follow the same'."
Therefore, on the strength of the aforesaid dictums of Hon'ble Apex Court and of this Court, learned Senior Advocate has submitted with vehemence that when there is a transfer policy of the department itself then the conditions thereof should be adhered to by them otherwise the purpose of circulating any policy would be frustrated.
On the other hand, Shri Mohit Jauhari, learned counsel for the opposite parties has submitted that however he has received some instruction in the matter to the effect that the tenure of the petitioner at Paschimanchal Discom would be completed in the end of this year, therefore, he has been transferred prior to completion of that period inasmuch as in the next transfer policy he would be exceeding 15 years of his tenure.
Shri Jauhari has further submitted that while passing the impugned transfer order dated 25.06.2019, the competent authority has taken care of each and every aspects of the issue including the direction of transfer order, however, the same has not been indicated specifically in the transfer order.
The aforesaid submission of Shri Mohit Jauhari is not carrying so much weight inasmuch as if the petitioner has been transferred prior to six months before completion of his tenure at Paschimanchal, he could have been transferred after the completion of that period in the next transfer policy.
This observations may not be treated as direction inasmuch as while transferring the petitioner the condition of transfer policy should be adhered to, which includes the compassion of the employee.
Therefore in view of the above, considering the rival submissions of learned counsel for the parties, the present writ petition is being decided finally at the admission stage directing the Managing Director, Uttar Pradesh Power Corporation Limited, Shakti Bhawan Lucknow to consider and decide the representation of the petitioner dated 14.06.2019 (Annexure No.12 to the writ petition) strictly in accordance of law/in terms of transfer policy by speaking and reasoned order with expedition preferably within a period of three months from the date of production of the certified copy of this order.
However, it is provided that till the representation of the petitioner is decided, the operation, implementation and enforcement of the impugned transfer order dated 25.06.2019 (Annexure No. 1 to the writ petition), so far as it relates to the petitioner, shall remain stayed and the petitioner shall be permitted to discharge his duties at the place where he is discharging his duty and he shall be paid his regular salary as and when it falls due.
Liberty is granted to the petitioner to prefer a fresh representation, if he so chooses, while producing the certified copy of this order before the competent authority.
In view of the aforesaid terms writ petition is disposed of finally. "
6. The precise submission of learned counsel for the petitioner to assail the transfer order dated 25.6.2019 is that it has been passed in violation of its own policy, which permits that compassion of the employee would be considered if it relates to the education of children or any special condition relating to disability or handicap of one of the family members. The policy of the department further reveals that the employee can be transferred if he has been retained in a particular DISCOM for about fifteen years and in the present case, the term of the petitioner at Paschimanchal DISCOM was only 14 years 5 months and 11 days, therefore, he should not have been transferred to any other DISCOM.
7. Learned counsel for the petitioner has also submitted that during his tenure at Paschimanchal DISCOM, the petitioner was transfer to several posts in various districts from July, 2003 to September, 2007. On 5.7.2016, the petitioner was transferred to Dakshinanchal DISCOM at Agra from where he was posted at Firozabad. While working at Firozabad, wife of the petitioner submitted representation before the Chairman of the U.P. Power Corporation Ltd., Lucknow requesting the transfer of the petitioner near Moradabad indicating therein the hardship being faced by the petitioner and the family of the petitioner as the petitioner is only son of his ailing old parents aged about 85 years and 83 years respectively and the petitioner is also taking care of his mentally ill divorced sister, who resides with the petitioner. Considering such compassion of the petitioner, the petitioner was transferred to Paschimanchal DISCOM on 30.6.2017 and thereby he submitted his joining at Meerut on 27.7.2017. Since the petitioner was aggrieved from endorsement of the transfer order dated 30.6.2017 at Paschimanchal DISCOM, therefore, he filed a writ petition and after disposal of that writ petition, transfer order of the petitioner dated 30.6.2017 was modified and accordingly, the petitioner was posted at Dhampur on 25.6.2018 in a capacity of Superintending Engineer. Submission of learned counsel for the petitioner is that practically compassion of the petitioner was considered on 25.6.2018 when he was posted at Dhampur, which is near to Moradabad and therefore, transferring the petitioner within a period of one year from 25.6.2018 vide transfer order dated 25.6.2019 is unwarranted and uncalled for.
8. It appears that in compliance of the order dated 4.7.2019 passed by this Court in earlier writ petition of the petitioner, the Managing Director has passed the order dated 22.7.2019 thereby rejecting the representation of the petitioner. As per learned counsel for the petitioner, vide paras-1, 2 & 3 of the impugned order dated 22.7.2019, which provides the facts of the issue in question and vide paras-4 & 5, the grievance of the petitioner is said to have been considered. Para-4 of the impugned order clearly says that as per the current transfer policy in the year 2019-20, no employee may be permitted to continue at particular DISCOM if the employee has completed 15 years of service and since the petitioner has been discharging his duties at Paschimanchal DISCOM for more than 19 years, therefore, the petitioner may not be retained at Paschimanchal DISCOM. Para-5 of the impugned order provides that so far as the illness and ailment of the family members of the petitioner is concerned, there are world class medical facilities available at Varanasi and Gorakhpur where the petitioner has been transferred.
9. Learned counsel for the petitioner has assailed the aforesaid order by submitting that earlier, learned counsel for the opposite parties had given statement before the Court that the petitioner had not completed 15 years terms at Paschimanchal DISCOM but now the impugned order provides otherwise. Secondly, since the transfer policy itself provides that certain conditions of the transfer policy would not be applicable on such employees, who are having peculiar facts and circumstances relating to the ailment of family members etc., therefore, considering such grievance of the petitioner, the transfer order should have been withdrawn by the opposite parties permitting the petitioner to serve at any place at Paschimanchal DISCOM.
10. Per contra, Dr. L.P. Misra, learned Advocate, assisted by Sri Manish Jauhari, learned counsel for the opposite parties has defended the impugned orders dated 22.7.2019 and 25.6.2019 by submitting that the U.P. State Electricity Board was constituted under the provisions of the Electricity (Supply) Act, 1948 and the petitioner was employee of the said Board, which presently known as Uttar Pradesh Power Corporation Ltd. (hereinafter referred to as "UPPCL"). The petitioner was initially appointed on the post of Assistant Engineer in the year 1987. Sri Misra has submitted that the period of service of the petitioner at Paschimanchal DISCOM may be less than 15 years but the entire period of service of the petitioner at the area of Paschimanchal DISCOM is more than 15 years, to be more precise, it is more than 19 years inasmuch as when the DISCOMs were not created, even then the petitioner was discharging his duties at the area, which later on included in Paschimanchal DISCOM. Sri Misra has further submitted that there are serious complaints against the petitioner at Paschimanchal DISCOM and he has been awarded couple of punishment and warnings while serving at Paschimanchal DISCOM. As a matter of fact, Dr. L.P. Misra has submitted that work and conduct of the petitioner is not being appreciated at Paschimanchal DISCOM, therefore, his request regarding his retention at Paschimanchal DISCOM on the basis of his peculiar facts and circumstances may not be accepted. While filing counter affidavit, some adverse material against the petitioner has been brought on record but Dr. L.P. Misra has submitted that if the petitioner submits his joining at Purvanchal DISCOM pursuant to the transfer order dated 25.6.2019 and thereafter prefers any representation, the same may be considered by the competent authority but not for the Paschimanchal DISCOM.
11. Sri Sandeep Dixit, learned Senior Advocate, appearing on behalf of the petitioner has drawn attention of this Court towards the judgment of this Court in re; Ram Bharat Verma Vs. State of U.P. and others, reported in [2008 (116) FLR 106], referring para-7 thereof, which is being reproduced herein below:-
"7. Learned Counsel has placed reliance on the judgment of this Court passed by one of us sitting singly in Wasif Akhtar v. State of U.P. and Ors. 2001 (19) LCD 1275, wherein the Court has held that once an order of transfer is passed for personal reasons on compassionate grounds to a particular place then unless there are very strong and exceptional reasons for accommodating another person, such order be not cancelled."
12. Sri Dixit has also placed reliance upon the judgment of this Court in re; Wasif Akhtar Vs. State of U.P and others, 2001 (19) LCD 1275 by saying that if the petitioner was posted at Paschimanchal DISCOM considering the compassion of the petitioner in the year 2018, he should have not been transferred within a short span of time i.e. within a period of one year.
13. Per contra, Dr. L.P. Misra, has submitted that the transfer being an exigency of service and no employee can claim as a matter of right to be retained at a particular place, therefore, the present writ petition may be dismissed. He has further submitted that the petitioner has also served more than 19 years of his service at Paschimanchal DISCOM and the area of Paschimanchal DISCOM, therefore, as per the transfer policy, the petitioner may not be retained at Paschimanchal DISCOM. Sri Misra has further submitted that since there are couple of complaints against the petitioner from Paschimanchal DISCOM, therefore, he cannot be retained at Paschimanchal DISCOM in the interest of administration also. Sri Misra has reiterated that if the petitioner submits his joining at Purvanchal DISCOM and prefers a representation seeking his choice posting either at Purvanchal DISCOM or at any DISCOM except Paschimanchal DISCOM, his representation may be considered strictly as per the transfer policy and law.
14. Having heard rival contentions of the learned counsel for the parties and having perused the relevant material available on record, I am of the considered opinion that since the transfer order dated 25.6.2019 as contained in Annexure No.2 to the writ petition has been passed as per the transfer policy, therefore, it cannot be interfered with. Likewise, in the order dated 22.7.2019, which is contained in Annexure No.1 to the writ petition, passed by the Managing Director has been passed in compliance of the order dated 4.7.2019 passed by this Court in Service Single No.18237 of 2019 considering the grievance of the petitioner, I do not find any infirmity or illegality, therefore, cannot be interfered with.
15. Submission of Dr. L.P. Misra, learned counsel for the opposite parties that firstly, the petitioner should submit his joining at the transferred place and thereafter he may prefer his representation taking all pleas and ground, which are available to him seeking his choice posting appears to be appropriate.
16. Therefore, the present writ petition is being decided finally without interfering the transfer order dated 25.6.2019, which is contained in Annexure No.2 to the writ petition and the order dated 22.7.2019, which is contained in Annexure No.1 to the writ petition, permitting the petitioner to prefer a fresh representation taking all pleas and grounds, which are available to him, enclosing therewith the copies of relevant documents, which are necessary for disposal of the representation of the petitioner within period of fifteen days after submitting his joining at Purvanchal DISCOM pursuant to the transfer order dated 25.6.2019 and if such representation is preferred by the petitioner within the aforesaid stipulated time, the competent authority shall consider and decide the same strictly in accordance with law and as per the transfer policy, with expedition, preferably within a period of one month from the date of receipt of the representation.
17. The writ petition is accordingly disposed of.
[Rajesh Singh Chauhan, J.] Order Date :- 27.9.2019 RBS/-