IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/B) No. 87 of 2010 Subodh Kumar Srivastava ……… Petitioner. Versus State of Uttarakhand and others .………. Respondents. Mr. Deepak Sharma, Advocate for the petitioner. Mr. J.P. Joshi, Advocate for the respondents. Date of Judgment: 18.05.2010 JUDGMENT Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. J.S. KHEHAR, C. J. (Oral) Through the instant writ petition, the petitioner has impugned the order dated 04.05.2010, vide which the petitioner has been attached from the Government Degree College, Nainidanda, (District: Pauri Garhwal) to Government Post Graduate College, Dwarahat, (District: Almora). The petitioner is also aggrieved by the order dated 06.05.2010, vide which he has been relieved from Government Degree College, Nainidanda. 2. In order to assail the aforesaid orders, the first contention advanced by the learned counsel for the petitioner was, that the petitioner had leveled allegations against the Principal of the Government Degree College, Nainidanda to his superiors, asserting that the Principal of the college was persuading the petitioner to carry out, at his dictates, financial irregularities, as also irregularities in respect of holding of examinations. On the refusal of the petitioner to work at the dictates of the Principal, the petitioner has been victimized, resulting in the passing of the impugned orders dated 04.05.2010 and 06.05.2010. 3. It is not possible for us to accept the first contention advanced by the learned counsel for the petitioner. The petitioner has not placed any representation or complaint on the record of this case in order to depict, that he had leveled any allegation against the Principal of the Government 2 Degree College, Nainidanda, District: Pauri Garhwal. Oral assertions made at the hands of the learned counsel for the petitioner in the first instance through this petition are not acceptable, so as to draw any inference, as has been suggested by the learned counsel for the petitioner. 4. The second contention advanced by the learned counsel for the petitioner is, that the impugned orders have not been passed by the competent authority. It is the submission of the learned counsel for the petitioner, that the impugned orders have been passed by the Joint Director (Education), whereas the competent authority is the Director of Education. Since the impugned orders have been passed by the authorities, who have no jurisdiction, the same, according to the learned counsel for the petitioner, are liable to be set aside. 5. We have given our thoughtful consideration to the second contention advanced by the learned counsel for the petitioner. First and foremost, it would be pertinent to place on the record, that the petitioner has not invited our attention to any Government Order, instruction, rule or regulation, on the basis of which it can be inferred, that the Director of Education is the competent authority. Secondly, and more importantly, a perusal of the impugned orders reveal, that the same had been passed on the directions of the Government. Thus viewed, we are satisfied, that even the second contention advanced by the learned counsel for the petitioner has no legs to stand on. 6. Akin to the previous contention advanced by the learned counsel for the petitioner, it is submitted by the learned counsel for the petitioner, that the impugned order of transfer could have been rendered only after the approval of the Assistant Secretary of the Department of Education. It is, however, the contention of the learned counsel for the petitioner, that the aforesaid approval was not obtained, and as such, the impugned transfer order is liable to be set aside. 7. We have considered the instant contention advanced by the learned counsel for the petitioner. We, however, find no merit therein. As we have already concluded while recording our findings on the previous 3 submission, it is apparent from the impugned order, that the same had been passed as a consequence of directions issued by the State Government. It is, therefore, clear that the impugned order had been passed at the behest of the State Government and not by the authority who had issued the order. We, therefore, find no merit in this contention as well. 8. The fourth contention advanced by the learned counsel for the petitioner was, that the impugned orders have been passed in clear violation of the policy and guidelines issued by the State Government. In this behalf, it is pointed out that under the transfer policy, transfer should not ordinarily be made till an individual has remained at the place of his posting for about three years. It is, therefore, asserted that the impugned orders are liable to be set aside. 9. We have examined the fourth contention advanced by the learned counsel for the petitioner. Needless to mention, that policy instructions on the subject of transfer are merely guidelines, which are directory in nature. An employee cannot seek an adherence to the same, unless the violation of the policy guidelines is supported by allegations of mala fide, so as to contend that the violation of the guidelines is for extraneous considerations. In so far as the present controversy is concerned, the pleadings of this case do not reveal the mala fides have been alleged by the petitioner against any individual, in as much as no person in his private capacity has been arrayed as a party respondent. It is, therefore, not possible to accept the instant contention as well. 10. The fifth contention advanced by the learned counsel for the petitioner was, that the petitioner is being transferred to a station 450 kms. from the place of his present posting. It is, therefore, submitted that the action of the respondents in transferring the petitioner from Nainidanda to Dwarahat is clearly arbitrary and in violation of Article 14 of the Constitution of India. 11. We do not find any merit in the fifth contention advanced by the learned counsel for the petitioner. It is not the case of the petitioner, that 4 the petitioner is being transferred to a place of posting which is beyond the purview of his service. The petitioner was earlier posted at Government Degree College, Nainidanda, District: Pauri Garhwal. He has presently been posted at Government Post Graduate College, Dwarahat, District: Almora. The instant posting is within the cadre of employment of the petitioner. Thus viewed, we find no merit in the fourth contention advanced by the learned counsel for the petitioner. 12. The sixth contention advanced by the learned counsel for the petitioner is, that the impugned orders will have an adverse effect on the petitioner, in as much as the petitioner would lose his seniority in the cadre of lecturers. It is, therefore, submitted that the impugned orders have penal consequences, and as such, before passing the impugned orders, it was imperative for the respondents to afford an opportunity of hearing to the petitioner. 13. We have considered the sixth contention advanced by the learned counsel for the petitioner. The pleadings of the instant writ petition reveal, that the petitioner’s appointment is only on ad hoc basis. As such, we are satisfied, that the assertions made by the petitioner that he would lose his seniority by the impugned transfer order is wholly misconceived. No statutory rule has been brought to our notice, on the basis of which it can be assumed that the cadre to which the petitioner was earlier appointed at the Government Degree College, Nainidanda (District: Pauri) is different from the cadre of the Government Post Graduate College, Dwarahat (District: Almora). Thus viewed, it is not possible for us to accept, that the petitioner would lose seniority as a consequence of passing of the impugned orders. 14. The seventh contention advanced by the learned counsel for the petitioner was, that copies of the impugned orders were not served to the petitioner, and as such, the impugned orders should be set aside. 15. We have examined the seventh contention advanced by the learned counsel for the petitioner. The petitioner has appended to the instant writ petition copies of the impugned orders dated 04.05.2010 and 06.05.2010 5 (as annexures 1 and 2). It is, therefore, apparent that the petitioner is in possession of the impugned orders, and also that, the assertion made at the hands of the learned counsel for the petitioner, that he was not furnished copies of the impugned orders, is wholly unjustified. As such, we find no merit even in the instant contention. 16. The last contention advanced by the learned counsel for the petitioner is based on the averments made in paragraph 15 of the instant writ petition. Paragraph 15 of the instant writ petition is extracted hereunder: “15. That it is also pertinent to mention here that the proceedings of Departmental Promotional Committee are also going to be initiated in the Government Degree College, Nainidanda (Pauri Garhwal), which are kept in abeyance due to enforcement of Election Code of Conduct regarding the elections of District Planning Committee in State of Uttarakhand from 01.05.2010 till 20.05.2010.” 17. We have considered the aforesaid contention advanced by the learned counsel for the petitioner. The election of District Planning Committee neither has any nexus to the cadre to which the petitioner is employed, nor has any effect thereon. We are, therefore, satisfied that merely because of elections of District Planning Committee in the State of Uttarakhand were to be conducted from 01.05.2010 to 20.05.2010, the authority of competent authority to transfer the petitioner should have not passed the impugned orders. We, therefore, find no merit even in the instant contention advanced by the learned counsel for the petitioner. 18. No other contention was advanced at the hands of the learned counsel for the petitioner. 19. In view of the above, we find no merit in the instant writ petition and the same is accordingly dismissed. (Sudhanshu Dhulia, J.) (J.S. Khehar, C. J.) 18.05.2010 18.05.2010 Amit