Bhupal Singh Bisht vs State of Uttarakhand & Others

K.M. JOSEPH, C.J. (ORAL)

SHARAD KUMAR SHARMA, J.

Exemption Application (CLMA No. 11073 of 2018) stands allowed.

Appellant is the petitioner in the writ petition. On his being promoted as Personal Officer by order dated 22.06.2018, he stood transferred by the

order dated 20.07.2018 from Minor Irrigation Circle; Udham Singh Nagar to Minor Irrigation Circle, Pauri, which is impugned in the writ petition

which is an area which is classified as Durgam. Section 18(2) of the Uttarakhand Annual Transfer for Public Servants Act, 2017 (Uttarakhand Act

No. 1 of 2018) reads as follows:

“18. In addition to annual/general transfer, the procedure of posting in appointment/promotion and other transfers shall be in following

conditions, as follows:-

(1) ……………..

(2) At the time of promotion, the posting shall essentially be made in remote areas subject to the condition of clause (d) of section 7:

Provided that if the post of promotion does not exist/is not vacant in remote areas, the posting after promotion may be made against

vacancy available in accessible areas;â€​

The appellant, admittedly, is not a senior citizen as he has yet to complete 55 years as essential for exemption under Section 7(d)(1) read with under

Section 3(Ja). Also, though, according to the appellant, he has served for a number of years in durgam area, but it does not add-up to the tenure, which

is mandatory in the statute. Therefore, he does not come in any of the exceptional circumstances, which are provided in Section 7 (d) of the Act.

Thus, the order of transfer on the appellant being promoted is well within the four walls of Section 18(2) of the Act of 2017.

The learned Single Judge has taken note of these facts and while dismissing writ petition had repelled the case of the writ  petitioner. However,

the learned Single Judge has further proceeded to make following directions in the impugned judgment, also to hold as follows:-

“Consequently, the writ petition has no merit and the same is dismissed. However, it is observed that the Secretary, Minor Irrigation Department,

Government of Uttarakhand will look into the matter regarding posting of respondent nos. 4 & 5. The Secretary, Minor Irrigation shall seek

explanation from the persons who have posted respondent nos. 4 & 5 in Dehradun and Haldwani against the provisions

of Section 18 (1) & (2) of the Uttarakhand Annual Transfer for Public Servants Act, 2017 and shall take further action as per law.â€​

Mr. Amar Shukla, learned counsel for the appellant, no doubt, does not dispute the fact as regards the non-availability of the protection under

Section 7(d) of the Act that a person under the order of promotion is bound to be promoted in durgam area subject to the provision of Section 18(2) of

the Act. Faced with this obstacle, he would point out that as far as respondent Nos. 4 and 5 are concerned, respondent No. 4 has served far less in

the durgam area and respondent No. 5 has not served even for a single day in

durgam area. We have, in fact, noticed what the learned Single Judge has done. We are also not in a position to record the findings as to whether

respondent Nos. 4 and 5 are covered by any of the elements of Section 7(d) of the Act. At any rate, the appellant cannot be protected from transfer

to durgam area on promotion as it is squarely covered under Section 18(2) of the Act. Having regard to what is provided in the Act, facts and also

what is contained in the impugned judgment, we see no reason to interfere with the judgment of the learned Single Judge. The Appeal fails and the

same is dismissed. No order as to costs.