Pet it ioner v. St at e of Ut t arakhand Ot her s

Pet it ioners challenged t he cancellat ion orders by filing writ pet it ions. The m ain ground of challenge was t hat since t he order of t ransfer was passed by Secret ary, t herefore, Direct or, Panchayat i Raj , who is subordinat e t o Secret ary cannot cancel t he order passed by his superior aut horit y. I nt erim orders were passed in t he writ pet it ions filed by pet it ioners challenging Direct or’s order and on t he st rengt h of t hose int erim orders, pet it ioners cont inued t o serve at t he places where t hey were t ransferred. During pendency of t he writ pet it ion, Secret ary, Panchayat i Raj passed anot her order on

21.2.2025, whereby t he earlier orders of t ransfer, passed in Novem ber 2023, were cancelled. Pet it ioners t hereaft er filed anot her set of writ pet it ions challenging t he order passed by t he Secret ary on 21.2.2025. 2

3. Learned Counsel for t he pet it ioners cont end t hat t he order passed by Secret ary on 21.2.2025 is in t eet h of t he int erim orders passed favour of pet it ioners in t he earlier round of lit igat ion. I t is furt her cont ended t hat t he Secret ary, while cancelling earlier t ransfer orders, applied his m ind independent ly, as he has relied solely on t he opinion of t he Direct or, Panchayat i Raj fact s circum st ances of each case are also not considered. I t is furt her cont ended t hat t he Secret ary has relied upon cert ain provisions of The Ut t arakhand Annual Transfer For Public Servant s Act , 2017 including Sect ion 17( 2) ( e) and Sect ion 27, which however are not at t ract ed in t he present case. Pet it ioners cont end t hat since it is not a case of annual or rout ine t ransfer and pet it ioners were t ransferred out side t heir cadre, t herefore, provisions of The Ut t arakhand Annual Transfer For Public Servant s Act , 2017 have no applicat ion t o t he case, t hus, reliance on Sect ion 17( 2) ( e) and Sect ion 27 of t he Act for support ing t he cancellat ion orders, is m isplaced.

4. Per cont ra, learned St at e Counsel subm it s t hat Village Panchayat Developm ent Officers are m em ber of dist rict cadre post and t heir services are not t ransferable out side t he dist rict . He subm it s t hat persons, who were appoint ed in hill dist rict s, were desperat ely seeking t ransfer t o plain dist rict s and because of repeat ed represent at ions m ade by such persons, St at e Governm ent had t o issue inst ruct ions on 10.5.2023 asking t he dist rict level aut horit ies not t o forward request for change of cadre/ t ransfer out side 3 t he cadre, unless t he case is covered by proviso t o Sect ion 17( 2) ( e) of The Ut t arakhand Annual Transfer For Public Servant s Act , 2017. He subm it s t hat Sect ion 17( 2) ( e) of t he Act perm it s cadre change/ out of cadre t ransfer of an em ployee only in case of m arriage bet ween t wo em ployees or displacem ent of em ployee t o acquisit ion of propert ies for developm ent proj ect s/ nat ural calam it y. Learned St at e Counsel t hus subm it s t hat since pet it ioners’ case was not covered by proviso t o Sect ion 17( 2) ( e) of The Ut t arakhand Annual Transfer For Public Servant s Act , t herefore, t he orders of t ransfer passed in t heir favour by t he t hen Secret ary were legally unsust ainable, t herefore t he com pet ent aut horit y was j ust ified in cancelling t he t ransfer orders.

5. St at e placed reliance upon The Ut t arakhand Annual Transfer for Public Servant s Act , 2017 ( Ut t arakhand Act No. 01 of 2018) . Sect ion 6 of t he said Act enum erat es t hree kinds of annual t ransfer, which are as follows: - ( a) Com pulsory t ransfer from accessible area t o rem ot e area; ( b) Com pulsory t ransfer from rem ot e area t o accessible area; and ( c) Transfer on t he basis of request .

6. Careful perusal of Sect ion 6 of t he Annual Transfer Act would reveal t hat only t hree kinds of t ransfer, enum erat ed in Sect ion 6 would qualify t o be covered by t he expression ‘annual t ransfer’. Thus, t he said Act , a Governm ent Servant , aft er com plet ing prescribed lengt h of service in accessible 4 area, m ay be t ransferred t o a rem ot e area or from rem ot e area t o a accessible area wit hin t he cadre, as per condit ions of his service. Sim ilarly, a Governm ent servant serving in a st at e level cadre m ay be t ransferred on request from one dist rict t o anot her, as per condit ions of his service. Sect ion 6 do not cont em plat e cadre change/ out of cadre t ransfer of a Governm ent servant .

7. Adm it t edly, pet it ioners were appoint ed as Village Panchayat Developm ent Officer, which is a dist rict cadre post and anyone appoint ed in one dist rict is not liable t o be t ransferred out side t hat dist rict , as per t he condit ions of service applicable t o him . Thus, t he orders of t ransfer passed respect of t he pet it ioners were not as per t he service condit ions applicable t o t he of Village Panchayat Developm ent Officer. The t ransfer orders were passed by t he St at e Governm ent under it s inherent powers, which are available t o every em ployer. Alt hough, proviso t o Sect ion 17 ( 2) ( e) of t he Transfer Act perm it s cadre change/ out of cadre t ransfer, however, it is perm issible only in case of ( i) m arriage bet ween t wo em ployees; ( ii) displacem ent of em ployee due t o acquisit ion of propert ies for developm ent proj ect s; and ( iii) displacem ent of em ployee due t o nat ural calam it y, and provides t hat t he em ployee, who is perm it t ed cadre change/ t ransfer out of cadre, shall be t reat ed as j unior m ost in t he new cadre. Proviso t o Sect ion 17( 2) ( e) furt her provides t hat approval of t he com m it t ee headed by Chief Secret ary const it ut ed under proviso t o Sect ion 27( 1) of t he Transfer Act would be necessary. 5

8. From t he schem e of t he Transfer Act , it is apparent t hat t he Act deals wit h annual or rout ine t ransfers, which are perm issible under t he applicable Rules t o governm ent em ployees concerned. The only except ion t o t his is Sect ion 17( 2) ( e) , which perm it s cadre change in t hree cont ingencies.

9. Since t he case of t he pet it ioners is not covered by t he cont ingencies m ent ioned in proviso t o Sect ion 17 ( 2) ( e) nor t he t ransfers are referable t o Sect ion 6, t herefore, t his Court has no hesit at ion in holding t hat pet it ioners were t ransferred by t he Secret ary, Panchayat i Raj , by exercising t he inherent powers of t he St at e Governm ent , which are available t o every em ployer. The Transfer Act , 2017 alt hough covers t he field, however, it does not t ake away t he right available as em ployer t o t he St at e Governm ent , of t ransferring a public servant in public int erest or adm inist rat ive exigency, out of his cadre. The Secret ary, Panchayat i Raj exercised t hat right on behalf of t he St at e Governm ent , t herefore, t he t ransfer orders passed by Secret ary cannot be fault ed only on t he ground t hat t hey were passed dehors t he provisions of Annual Transfer Act .

10. Having regard t o t he fact s and circum st ances of t he case and also t he provisions of t he Transfer Act , 2017, t his Court is of t he considered opinion t hat provisions of Annual Transfer Act cannot be invoked for cancelling t he t ransfer orders passed in respect of t he pet it ioners, as t he t ransfer orders were passed not under t he power available in t he Transfer Act , but 6 t he inherent powers available t o t he St at e Governm ent .

11. Learned St at e Counsel also placed reliance upon Sect ion 27( 1) of t he Transfer Act and subm it t ed t hat wit hout approval of t he com m it t ee headed by t he Chief Secret ary, cadre change or out of cadre t ransfer, cannot be m ade. The said subm ission is bereft of m erit . Proviso t o Sect ion 17( 2) ( e) perm it s cadre change only in t hree cont ingencies and t he com m it t ee headed by Chief Secret ary can grant approval for change, only when any of t he t hree cont ingencies m ent ioned in proviso t o Sect ion 17 ( 2) ( e) is exist ing. Exist ence of one of t he t hree cont ingencies is a condit ion precedent for exercise of power and t he com m it t ee headed by t he Chief Secret ary also cannot grant approval for cadre change if t hat condit ion precedent is not fulfilled.

12. Having regard t o t he aforesaid legal posit ion, t his Court has no hesit at ion in holding t hat t he orders of t ransfer passed in respect of t he pet it ioners by t he t hen Secret ary cannot be t erm ed as violat ive of provisions of Transfer Act . As discussed above, provisions of Annual Transfer Act are not at t ract ed in case of cadre change/ out of cadre t ransfer and t he Transfer Act do not prohibit t he St at e Governm ent from t ransferring public servant s out side t he cadre under it s inherent powers as em ployer.

13. This Court , however, finds subst ance in t he subm ission m ade by learned St at e Counsel t hat 7 despit e inst ruct ions issued by St at e Governm ent on

10.05.2023, t he proposal for t ransferring t he Village Panchayat Developm ent Officers from one dist rict t o anot her was not only ent ert ained but allowed by Secret ary, Panchayat i Raj , which according t o learned St at e Counsel is a serious m at t er and am ount s t o defiance of Governm ent Policy. St at e Counsel furt her subm it s t hat due t o t hese int er dist rict t ransfers, acut e short age of Village Panchayat Developm ent Officers is being faced in hill dist rict s, as m aj orit y of t hem have gone on t ransfer t o plain dist rict s and t he represent at ion on t he post given t o reserved cat egory persons in different dist rict s has also becom e skewed; in som e dist rict s reservat ion in excess of prescribed quot a is available t o cert ain cat egory persons, while in ot her dist rict s reserved cat egory candidat es are not adequat ely represent ed. He subm it s t hat t here are various ot her pract ical difficult ies, which have arisen on account of int er dist rict t ransfer of Village Panchayat Developm ent Officers and if St at e perm it t ed t o adopt rem edial m easures, it will lead t o m any m ore com plicat ions in fut ure.

14. The orders of t ransfer passed by Secret ary on request m ade by pet it ioners alt hough cannot be legally fault ed on t he t ouchst one of Transfer Act , 2017, however, t his Court finds subst ance in t he subm ission m ade by learned St at e Counsel t hat t he proposal for t ransfer should not have been ent ert ained by t he Secret ary in t he first place, in view of t he direct ive issued by t he St at e Governm ent on 10.05.2023. The pract ical difficult ies faced by t he St at e Governm ent 8 due t o large scale int er dist rict t ransfer also cannot be lost sight of, as Village Panchayat Developm ent Officers serve at t he ground level and any discrepancy in t heir cadre is bound t o adversely affect efficiency of adm inist rat ion.

15. I n view of t he aforesaid discussion, t he writ pet it ions are allowed. The order dat ed 03.07.2024 passed by Direct or, Panchayat i Raj and also t he order dat ed 21.02.2025 passed by Secret ary, Panchayat i Raj are quashed and set aside. However, it shall be open t o t he Secret ary, Panchayat i Raj t o re- visit t he issue of int er dist rict t ransfer of t he pet it ioners and pass necessary orders t o st rengt hen adm inist rat ive efficiency in Panchayat i Raj Depart m ent wit hin t hree m ont hs, aft er providing reasonable opport unit y of hearing t o t he pet it ioners. 1 9 .1 2 .2 0 2 5 ( M a n o j Ku m a r Ti w ar i , J.) Navin NAVEEN CHANDRA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3be23325146e76a0642bdf4943fb9046f487df006da82a131bb4e4403d3c0a15, postalCode=263001, st=UTTARAKHAND, serialNumber=18167EEFB5CA8CFFD421A103819DA875643AF56D653D095C6ED9A86DAAB2 1CE5, cn=NAVEEN CHANDRA 9