S.S. Kandari vs Commissioner, Rural Development, Uttarakhand, Pauri Garhwal and others

Sharad Kumar Sharma, J.

The grievance of the petitioner in the present writ petition is against the order of transfer dated 6th June, 2018, passed by respondent No. 1, by virtue

of which the services of the petitioner had been transferred from **xjhch mUewyu {kerk fodkl ,oa jkstxkj izdks’B** peksyh to **xjhch mUewyu

{kerk fodkl ,oa jkstxkj izdks’B** { /keflag uxj. The said transfer purports to have been made under the Annual Transfer Policy as framed under

section 17 of Transfer Act 2017, by virtue of which the petitioner has been transferred from Durgam Kshetra to Sugam Kshetra.

The submission of the learned Senior Counsel for the petitioner is that under the scheme framed by the Government of India as back as in 1971,

various Rural Development Agencies were created in each Districts. Each District level development agency was grassroots level agency as

constituted by the Ministry of Rural Development, Government of India was named as DRDA. The Agency thus constituted was in the form of a

District level Government Society, which functioned independently in a District.

It has been argued that the State had issued the guidelines as directed by Government of India by constituting a District Level Governing Body in

each DRDA in each District.

The case of the petitioner is that he was appointed as Junior Accounts Clerk, in DRDA, Chamoli on 3rd December, 1985. The appointment of the

petitioner was made by the Chairman, DRDA. It was the power, which at that point of time was exercised by the District Magistrate.

The Rural Development Department to the Government of India issued a Government Order dated 17th March, 1994, laying down certain

rules/guidelines, pertaining to DRDA with regard to recruitment, promotion and transfer of the employees posted in DRDA. The case of the petitioner

is that as per the said Government Order dated 17th March, 1994, the post of Junior Clerk is contained in Appendix-A to the said Government Order

and as per the entry made at Sl. No. 10, the Appointing Authority of Junior Clerk is the Chairman, District Rural Development Authority. What he

tries to contend by virtue of this argument is that in terms of the Government Order dated 17th March, 1994, the appointing authority of the petitioner

happens to be a District Level Authority. As such, his transfer by virtue of the impugned order from District, Chamoli to Udham Singh Nagar ought

not to have been made since being contrary to sub Section (2) of Section 21 of the Transfer Act of 2017.

It is further the case of the petitioner that at a later stage by virtue of yet another Government Order No. D734/38-2-99-51LC/95 dated 19th June,

1999, the appointing authority of the Junior Clerks in the DRDA, which was the power initially exercised by the District Magistrate was vested to the

Chairman, Zila Panchayat.

Though, it is the case of the petitioner that by virtue of various Government Orders, in particular, by the Order dated 11th October, 2002, the

DRDA was absorbed in the Rural Development Department of the State and in pursuance to the Government Order dated 31st December, 2013, the

employees thus appointed at District level in the DRDA were absorbed into the State services. But the employees thus appointed in DRDA and who

were later absorbed by the State as its employees, still continued to work in District Cell created in each District, and same nature of work was to be

performed by them, that means that even after merger as State employees, they continue to the District cadre employees. Though, by virtue of the

Government Orders and subsequent directives issued, it was resolved that the Service Rules would be framed at a later stage; but argument of the

learned Senior Counsel for the petitioner is that till date no Rules have been framed, hence the Rules as applicable to the ministerial services called as

“The Uttar Pradesh Agricultural Production and Rural Development Department Ministerial Service Rules, 1980†will continue to apply. To this

argument no authentic reply has been extended by the learned Chief Standing Counsel regarding applicability of 1980 Rules.

Deriving his argument from the sub clause (i) of Clause (a) of Rule 3 of 1980 Rules, learned Senior Counsel for the petitioner submits that since the

post of junior clerk falls within the ambit of the post as covered under the Rules and the appointing authority since is being defined as to be the District

Magistrate, the post which the petitioner carries is a District level post.

In view of the above arguments, Mr. C.D. Bahuguna, learned Senior Counsel for the petitioner submits that no transfer of the petitioner could have

been made by the impugned order dated 6th June, 2018, for the reason that he carries a District level post and under sub section (2) of Section 21, it

creates a specific bar in the transfer of the employees from one District to the another, who belong to a District cadre post. Section 21(2) is quoted

hereunder:

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lfefr ¼ftyk vf/kdkjh vFkok muds }kjk ukfer vf/kdkjh dh v/;{krk esa½}kjk dh x;h laLrqfr ds vk/kkj ij fu;qfDr izkf/kdkjh }kjk fd;s tk;saxsA**

What has been said above and looking to the submission as made by the learned Senior Counsel for the petitioner, the notices on behalf of

respondent nos. 1 to 5 is accepted by the learned Chief Standing Counsel. He prays for and is granted three weeks’ time to file counter affidavit.

Considering the aspect of the matter, prima facie at this stage, to the effect that the appointing authority of the petitioner since happens to be a district

level authority, hence his transfer could not have been effected to.

In view of restrictions contained under sub-Section (2) of Section 21 of the Transfer Act, 2017, as such, transfer order so far it relates to the

petitioner would be kept in abeyance till the next date of listing.

List immediately after 4 weeks.