HIGH COURT OF UTTARAKHAND, AT NAINITAL Special Appeal No.140 of 2006 Director, Birla Institute of Scientific Research, Bhimtal, District Nainital … Appellant Versus Sri Bhupal Singh Samant and another … Respondents Dated:- 29th October, 2009 Coram: Hon. Tarun Agarwala, A.C.J. Hon’ble V. K. Bist, J. Per:- Hon’ble Tarun Agarwala, A.C.J. Heard Sri M. C. Pandey, the learned counsel for the appellant and Sri I. P. Gairola, the learned counsel for the respondent no.1. The present Special Appeal arises against the judgment dated 12.10.2006 passed by the learned Single Judge quashing the transfer order dated 19.01.2000 issued by the appellant against the writ petitioner (now ‘Respondent no.1’ in Special Appeal). Brief facts, which has culled out is, that the writ petitioner was appointed as a Data Entry Operator in the Birla Institute of Scientific Research Centre, Bhimtal in the year 1991 and was transferred by an order dated 19th January, 2000 to the Birla Institute of Technology Extension Centre, Allahabad. The learned Single Judge after considering the matter found that the Birla Institute of Scientific Research Centre, Bhimtal and the Birla Institute of Technology Extension Centre, Allahabad are two different legal entities and, therefore, the Director, Birla Institute of Scientific Research, Bhimtal had no jurisdiction to transfer his employee to another unit which was a different entity. The learned counsel for the appellant submitted that both the Institutes were part and parcel of the Birla Institute of Scientific Research Centre and that the writ petitioner could be transferred from one institute to another institute. A submission was also made by learned counsel for the appellant that there was a financial crunch at the Scientific Research Centre, Bhimtal and instead of retrenching the employees at the Centre it was decided to adjust these employees, including the writ petitioner at other Centres of the appellant. The learned counsel for the appellant further submitted that the writ petition was not maintainable since the appellant is a society registered under the Societies Registration Act of West Bengal and is not a “State” within the meaning of Article 12 of the Constitution of India. The learned counsel for the appellant consequently submitted that the writ petition ought to have been dismissed on this ground itself. Having heard the learned counsel for the parties, we find that the impugned order does not require any interference. In the first 2 instance, the learned Single Judge has categorically held that the Birla Institute of Technology at Allahabad is a different entity. Nothing has been brought on record by the appellant to indicate that both the institutions are the units of Birla Institute of Scientific Research Centre and are governed by the same Article and Memorandum of Association of the Society. It has come on record that the Birla Institute of Technology at Allahabad is controlled by the Birla Institute of Technology at Ranchi. This Court further finds from the appointment letter of the writ petitioner that no such service condition was imposed that his service would be transferable from one unit of the employer to another unit of the employer. No service rules or regulations have been brought on record to indicate that there is a service condition, which would entitle the employer to transfer its employees from one unit to another unit. In the absence of any rules being brought on record, it can safely be assumed that the transfer was not a service condition of the writ petitioner. Subsequently, the decision taken by the appellant to transfer the writ petitioner appears to be without jurisdiction and in violation of the service conditions. In so far as the maintainability of the writ petition is concerned, this Court finds that a specific plea was raised by the appellant in the counter affidavit filed before the learned Single Judge. We have gone through the judgment of the learned Single Judge and we find that this aspect has not been dealt with by the learned Single Judge. We find from the memo of appeal that no such ground has been raised by the appellant to indicate that this point was specifically argued before the learned Single Judge and the same was not considered while delivering the judgment. Consequently, the Court is not inclined to entertain this objection at this stage. Even otherwise, we are of the opinion that since the order of transfer was without jurisdiction and against the service conditions, the learned Single Judge had rightly interfered and quashed the transfer order. In view of the aforesaid, we do not find any error in the judgment passed by the learned Single Judge. The appeal fails and is dismissed. In the circumstances of the case, the parties will bear their own cost. (V. K. Bist, J.) (Tarun Agarwala, A.C.J.) Dated 29.10.2009 LSR / Shiv