Ashutosh @ Ashutosh Kaushish vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

Heard Sri Parikshit Saini, learned counsel for the petitioner, Sri C.S. Rawat, learned Additional Chief Standing Counsel appearing on behalf of respondent nos. 1 & 2, and Sri M.C. Pant, learned counsel appearing on behalf of respondent no. 3.

In this writ petition, the petitioner questions the order of transfer, whereby he was transferred from Dehradun to Pithoragarh as a Superintending Engineer in the Rural Works Department. The petitioner, admittedly, worked in the State of Uttar Pradesh prior to the year 2009 when he was finally allotted to the State of Uttarakhand. Ever since he joined duty in the State of Uttarakhand, the petitioner has, except for a period of one year when he was posted in District Bageshwar, been working throughout in accessible areas. The 3rd respondent, on the other hand, throughout his service has worked for around twenty-six years only in remote areas. By the impugned proceedings dated 18.06.2019, the petitioner was transferred from District Bageshwar to District Pithoragarh and, in his place, the third respondent was transferred from District Pithoragarh to District Dehradun.

It is necessary to note that, while the petitioner is aged 58 years, the third respondent is aged 59 years, and is due to retire within the next one year.

The contention, urged on behalf of the petitioner by Sri Parikshit Saini, learned counsel, is that Section 7(d)(i) of the Uttarakhand Annual Transfer for Public Servants Act, 2017 (for short the 2017 Act) exempts 'senior employees' from compulsory transfer from accessible areas to remote areas; and, consequently, transfer of the petitioner from Dehradun to Pithoragarh is illegal.

The 2017 Act is an Act to determine a procedure for proper, impartial, objective and transparent annual transfers of the Uttarakhand public servants. Section 7(a) thereof prescribes norms for compulsory transfers from accessible areas to remote areas, and Section 7(d)(i) of the 2017 Act stipulates that senior employees shall be exempted from compulsory transfer from accessible areas to remote areas. Section 3(h) defines 'senior employee' to mean an employee of the age of 55 years and above when the age of retirement is 60 years. For Superintending Engineers, the age of retirement is 60 years, and, consequently, the petitioner, who is aged 58 years, is a "Senior employee" under Section 3(h) of the 2017 Act. Section 10 of the 2017 Act prescribes norms for compulsory transfer from remote areas to accessible areas, and the third respondent satisfies the requirements thereof to be transferred from a remote area in District Pithoragarh to an accessible area which, in the present case, is in Dehradun. Exempting the petitioner from transfer to a remote area would fall foul of Section 10 of the 2017 Act which requires persons working in remote areas to be compulsorily transferred to accessible areas, after the specified duration.

While we see no reason to interfere with the impugned order, since it is an order of transfer made in the exigencies of administration, more so as the petitioner satisfies the norms for compulsory transfer from an accessible area to a remote area in terms of Section 7(a) of the 2017 Act, and the third respondent, who has been working in remote areas for twenty-six years, is entitled, in terms of Section 10 of the 2017 Act, to be posted to an accessible area, it must be borne in mind that any employee, who has any personal difficulty and seeks his / her retention at a particular place, may make a representation to the competent authority requesting that he be retained, instead of being transferred; and if such a representation is made, the competent authority is required to consider the same in accordance with law.

While we may not be understood to have held that the petitioner should be retained at Dehradun, for these are all matters for the competent authority to examine, suffice it to permit the petitioner to make a representation to the competent authority within one week from today. If any such representation is made, the competent authority shall consider the same, and pass appropriate orders in accordance with law within two weeks thereafter.

We also make it clear that the mere submission of the representation would not mean that the impugned order of transfer has been kept in abeyance; and, as long as the order of transfer remains in force, both the petitioner and the third respondent must adhere to the said order, until it is set aside by the competent authority.

Subject to the aforesaid observations, the writ petition fails and is, accordingly, dismissed. No costs.

Let a certified copy of this order be furnished to the parties, on payment of prescribed charges, by 25.06.2019.