Reserved Judgment THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/S) No. 121 of 2010. Bhupendra Kumar Kukreti, aged about 42 years, S/O Late Sri Malukh Ram Kukreti, presently posted as Assistant Teacher in Govt. Intermediate College, Kuwane, Chakrata, District Dehradun. … Petitioner. Vs. 1. State of Uttarakhand through its Secretary School Education, Uttarakhand, Nanurkhera, Dehradun, District Dehradun. 2. Director of School Education, Uttarakhand, Dehradun, District Dehradun. 3. Additional Director of Education, Garhwal Mandal, Pauri, District Pauri Garhwal. 4. Sri Narendra Singh Gausain, Principal on deputation, Govt. Intermediate College, Kuwane, Chakrata, District Dehradun. …Respondents. Mr. Rakesh Thapliyal, Advocate, learned counsel for the petitioner. Mr. K.P.Upadhyay, learned Addl. C.S.C. for the respondent nos. 1 to 3. Date June 17, 2010. Hon’ble B.S.Verma, J. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the order dated 17th December, 2009 passed by the Additional Director of Education, Garhwal Mandal, Pauri whereby the petitioner has been transferred from the present place of posting, i.e. Government Intermediate College, Kwanu Dehradun, to Government Inter College, Bhatad, Dehradun. 2. Relevant facts giving rise to the present writ petition, according to the petitioner, are that the petitioner is an Assistant Teacher in the Government Intermediate College, Kwanu, Chakrata, District Dehradun. On 18-9-2009, he submitted an application under the Right to Information Act, whereby certain information was sought, but no information was supplied to the petitioner within the stipulated period as provided under the Act. Then an appeal was preferred by the 2 petitioner before the appellate authority, i.e. Regional Joint Director of Education, Garhwal Mandal Pauri on 19-4-2009, which was decided on 4-5-2009, whereby the appellate authority directed the Information Officer to supply the information to the petitioner and a compliance report should also be furnished before the Public Information Officer, i.e. District Education Officer, Dehradun. Despite the order of the appellate authority dated 4-5-2009, the information sought by the petitioner was not supplied. 3. Further aggrieved by the inaction on the part of the authority concerned, the petitioner preferred second appeal before the Chief Information Commissioner. The appeal was decided on 25-8- 2009 showing the presence of the petitioner, while he was on medical leave. Ultimately the Chief Information Commissioner Uttarakhand by his order dated 25-8-2009 decided the appeal no. A- 1693/2009, Bhupendra Kumar Kukreti Vs. District Education Officer Dehradun and another thereby recommendations were made to initiate administrative proceedings against the petitioner and by the consequential order passed by the Additional Director of Education, Garhwal Mandal, Pauri dated 7th October 2009, the petitioner has been placed under suspension. Aggrieved by these orders, the petitioner preferred Writ Petition (M/S) No. 1858 of 2009, Bhupendra Kumar Kukreti Vs. State of Uttarakhand and others. By interim order dated 11-11-2009, the operation of the orders impugned in that writ petition was stayed by this Court. 4. After the interim order was granted in favour of the petitioner, the petitioner reported his joining on 17th November 2009 in the college. It appears that an enquiry was conducted against the petitioner and on the basis of the recommendation made in the enquiry report, the Additional Director of Education, Garhwal Mandal, Pauri by an order dated 17th December 2009 transferred the petitioner on administrative ground to Government Inter College Bhatad, Dehradun. 3 In that order an endorsement has been made of the letter dated 27-10- 2009 of the Director, School Education. The transfer order has been annexed as Annexure-8 to the petition. 5. The grievance of the petitioner is that the transfer order of the petitioner is the outcome of malice of the authority concerned and since the transfer of the petitioner is a sort of punishment and has been passed without application of mind, the same cannot be sustained in the eye of law. 6. On behalf of the respondent nos. 2 and 3 counter affidavit has been filed. The affidavit has been sworn in by Mr. B.R.Paneru, who is Incharge Additional Director of Education, Garhwal Mandal, Pauri. It is stated in the counter affidavit that there were complaints against the work and conduct of the petitioner and recommendations were made by the District Education Officer Dehradun for transferring him to some other institute. It is also stated that on the report of Principal of the College concerned, an enquiry was conducted by the Block Education Officer, Chakrata, who ultimately made recommendation to transfer the petitioner from the present college. The transfer order has been passed as a matter of policy. It is also stated that the petitioner is holding a transferable post, therefore, there is no illegality in the transfer order. 7. The petitioner has filed rejoinder affidavit wherein the counter version of the respondent nos. 2 and 3 has been controverted. 8. I have heard learned counsel for the parties and perused the entire material placed before this Court. 9. Learned counsel for the petitioner has vehemently argued that the transfer order passed by the respondent no.3 is not tenable in the eye of law as the same is a punitive transfer and is a result of malice and bias against the petitioner. In support of his contention, the 4 learned counsel for the petitioner has placed reliance upon the case of Somesh Tiwari Vs. Union of India and others [(2009) 2 Supreme Court Cases, 592]. The Apex Court in paragraph no. 16 of the judgment has observed as under:- “16. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds-one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal”. 10. In reply, the learned Additional Chief Standing Counsel for the respondent nos. 1 to 3 has submitted that transfer on administrative ground does not amount to any punishment and the order of transfer of petitioner is not punitive in nature. Learned Additional Chief Standing Counsel has placed reliance upon a Full Bench decision of this Court in the case of Smt. Damyanti Bisht Vs. State of Uttarakhand and others [2008(2) U.D., 517]. In para no. 6 and 7, the following observations were made:- “6. Communication No. 545/XXIV(1)/2008-20/2008 dated 5th June, 2008 was issued by the Government of Uttarakhand addressed to Director, School Education, in which certain guidelines were issued relating to Transfers. Para 4 of this Communication dealt with and related to the transfers on administrative grounds. In this 5 Para, it has been laid down that transfers on administrative grounds can be effected only in case of the following situations” i. If there are serious complaints against the person sought to be transferred; or ii. If the person sought to be transferred has misbehaved with superior officers; or iii. If the person sought to be transferred has not been taking interest in the work.” “7. Para 4, after laying down the aforesaid three stipulations being grounds for effecting transfers on administrative reasons, goes on to further stipulate and lay down that transfers on administrative grounds should not be effected on “motivated” complaints nor should these be ordered in a “casual” manner and the Competent Authority, seeking to effect the transfers on administrative grounds, is required to verify/confirm the existence as well as truthfulness of the aforesaid grounds (of transfer) and only after arriving at and recording its satisfaction about the existence and truthfulness of the grounds, should the transfer be effected.” 11. In paragraph 10 of the Full Bench judgment of this Court, it has been observed inter alia that “In other words, even though holding of a departmental inquiry before issuing a transfer order with respect to the allegations of misbehaviour or misconduct etc. was not required, it was essential that the prima facie satisfaction of the Competent Authority must be arrived at with respect to the existence or truthfulness of such an allegation.” 12. In paragraph No. 11, the following observations were made:- “11. Transfer on administrative ground does not amount to any punishment nor is it punitive in nature because by transferring a person from one place to another, no penalty as such is imposed, which is either minor or major in character or extent. All that happens is that the person transferred is removed from one place and 6 post to another place and post. The status of the person transferred does not undergo any change nor his service prospects, in any manner, get financially adversely affected. The transfer does not visit the person transfer with any penal consequences.” 13. The only controversy to be resolved in this writ petition is whether the Authority competent to transfer the petitioner has prima facie arrived at a conclusion that there existed some material of misbehaviour and misconduct against the petitioner. 14. In the case at hand, indisputably there is a positive inquiry report of Block Education Officer Chakrata addressed to District Education Officer, Dehradun, wherein the inquiry officer has clearly mentioned that the conduct of the petitioner is not befitting to the status of a teacher and it affects the respect of the Principal of the college adversely and the conduct of the petitioner conveys a wrong message amongst other staff members and teachers. The respondents have annexed the copy of the inquiry report of Block Education Officer as Annexure CA-1 to the counter affidavit. 15. Thus, the impugned transfer order of the petitioner is not an outcome of malice against the petitioner, rather the authority concerned has prima facie arrived at the conclusion that there are materials of misconduct and misbehaviour against the petitioner, therefore, in view of the Full Bench judgment of this Court in the case of Smt. Damyanti Bisht Vs. State of Uttarakhand and others (supra), I hold that the transfer order (Annexure-8) thereby transferring the petitioner from Government Inter College Kwanu Dehradun to Government Inter College Bhatad, Dehradun on administrate ground does not suffer from any illegality. The contention of the petitioner that the petitioner has been transferred on account of malice or bias on the part of the Authority concerned is not acceptable. The impugned transfer order does not call for any interference by this Court in writ jurisdiction. 7 16. For the reasons and discussion above, the writ petition is devoid of merit and is liable to be dismissed outright. 17. The writ petition is dismissed. No order as to costs. (B.S.Verma,J.) RCP