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N.S. Bora v. U.P. Power Corporation Ltd. Thru' M.D. And Others - WRIT - A No. 61791 of 2005  RD-AH 2975 (16 September 2005)
Civil Misc. Writ Petition No .61791 of 2005
N.S. Bora Versus U.P. Power Corporation Ltd.
Hon'ble Rakesh Tiwari,J.
Heard counsel for the parties and perused the record.
The petitioner is working on the post of Assistant-III in the office of the Electricity Urban Distribution Division-I, Noida, District Gautam Budh Nagar.
This writ petition has been filed for quashing the impugned transfer order dated 1.9.2005 passed by respondent no.2, Managing Director, Paschimanchal Vidyut Vitran Nigam Ltd. Victoria Park, Meerut by which the petitioner was transferred from Noida to Baghpat.
The counsel for the petitioner has assailed the impugned transfer order on the ground that it has been passed in contravention of the clause-1 of the Office Memorandum of the U.P. Power Corporation Ltd. dated 14.6.2004 which provides guiding principles for transfer only up to 20.6.2004 whereas the petitioner has been transferred in mid session i.e. on 1.9.2005.He has further relied upon clause-2 of the Office Memorandum dated 30.5.2005 which provides the policy for transfer of Assistant Engineers and Clerks for the year 2005-2006 shall be the same as was for the year 2004-2005. He further submits that in view of the Office Memorandum dated 14.6.2004 and 30.5.2005 the transfer order passed by respondent no. 2 is not sustainable in law.
The submission of the counsel for the petitioner is that if the petitioner is transferred in mid session, he will face difficulty as his children are studying in Noida and in this regard he has also made a representation dated 6.9.2005 to respondent no.2. He has relied upon an interim order dated 17.8.2005 passed by this Court in Civil Misc. Writ Petition No. 55835 of 2005 wherein the order of transfer was kept in abeyance as the son of petitioner Devendra Kumar Sharma was studying in class X at Noida.
It is then submitted by the counsel for the petitioner that the circle in which the petitioner is working was established in June, 1992 and according to the policy of the Government and that of the U.P. Power Corporation Ltd. the employees is not to be transferred from one circle to another circle before completion of 15 years of its establishment, hence the impugned transfer order is unsustainable on this score also.
The counsel for the respondents submits that the Hon'ble Supreme Court by interim order dated 24.2.2005 in Writ (Civil) No. 97 of 1997, Suresh Chandra Sharma Vs. Chairman, UPSEB and others has constituted a High Level Independent Committee to approve orders of transfer in order to remove the arbitrariness and unfairness in the order of transfer passed by the U.P. Power Corporation. The aforesaid writ petition of Suresh Sharma before the Hon'ble Supreme Court was treated as PIL and the approval of transfer by the High Level Committee reports to the Hon'ble Supreme Court which are regularly monitored by it.
On perusal of the order of transfer dated 1.9.2005 it appears that the petitioner has been transferred in exigency of work as well as in public interest. It has also been mentioned that the order of transfer has been passed after approval has been accorded by the High Level Independent Committee constituted by the Hon'ble Supreme Court aforesaid.
On specific query made by the Court to the counsel for the petitioner whether there is any bar or any provision that any employee who has been posted in a circle can not be transferred out before completion of 15 years of its establishment, he has replied that there is no such bar or basis. Hence, the first contention of the counsel for the petitioner that the petitioner cannot be transferred out because of the fact that the circle, which was established in June, 1992 has not completed 15 years of its establishment has no force and the impugned order of transfer can not be said to be unsustainable on this score. As regards question of transfer in mid session against the guide lines of the Government is concerned, the guide lines relied upon by the petitioner are not statutory. The petitioner has been transferred from Noida to Baraut , district Baghpat Nowadays people do not get jobs nearly. They have to go to the place of their working daily which may be even at a distance of about 100 to 200 kms. It is the petitioner who has to go to the place of working and not the children. Baraut is quite near from Noida. The petitioner has been transferred in exigency of work and in public interest, hence the impugned order cannot be said to be illegal and erroneous. The interim order relied upon by the counsel for the petitioner is not a precedent. The power exercised by the Court is discretionary and depends upon the facts and circumstances/pleadings in each case.
The contention of the counsel for the petitioner that the impugned order of transfer dated 1.9.2005 has been passed to harass the petitioner without there being any valid reasons for passing the same is without basis and is therefore, not acceptable.
It is submitted that the Board of Directors or Chairman-cum-Managing Director of the Corporation do not have any powers to transfer the officers/staff of the Corporation holding positions above Class III and Class IV posts unless such transfers/postings are scrutinized on merit by the High Powered Independent Committee and approved by it.
From the records produced by the learned counsel for the respondent-Corporation it appears that individual cases of the employees have neither been considered nor appear to have been placed before the High Powered Committee along with their record and grievances against their transfer (if any) by placing the list only before the High Powered Committee containing the names and places of postings etc. of the employees for approval and the respondent-Corporation is still indulging in arbitrary and pick and choose methods of transfers circumventing the orders of Hon'ble Supreme Court with impunity taking shelter by stating that the impugned order of transfer has been approved by the High Powered Committee constituted under the interim order dated 24.2.2005 passed by the Hon'ble Supreme Court in Writ Petition (Civil) No.79 of 1997 (Suresh Chandra Sharma Vs Chairman, U.P. State Electricity Board & Others) as the petitioner has moved a representation before the High Powered Independent Committee, inter alia, stating that his transfer has been made without considering the guide-lines.
Since the transfers in the Corporation are being monitored by the Hon'ble Supreme Court, the petition in the circumstances is disposed of with the direction that the papers of the petitioner along with his representation shall be placed before the High Powered Committee who will decide the representation of the petitioner by a reasoned and speaking order in accordance with law within two weeks from the date of production of a certified copy of this order along with a copy of the said representation.
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