Hem Singh vs State Of Uttarakhand And Another

Ramesh Ranganathan, CJ

Heard Mr. Parikshit Saini, learned counsel appearing on behalf of the appellant-writ petitioner and Mr. C.S. Rawat, learned Additional Chief Standing Counsel appearing on behalf of the State Government and, with their consent, the Special Appeal is disposed of at the stage of admission.

This appeal is preferred against the order passed by the learned Single Judge in Writ Petition (S/S) No. 1886 of 2018 dated 03.05.2019. The appellant herein filed Writ Petition (S/S) No. 1886 of 2018 questioning his transfer from Haridwar to Kotdwar in Pauri District. He sought a writ of certiorari to quash the order dated 08.06.2018 issued by the second respondent; and a writ of mandamus directing the second respondent to conduct the transfer exercise for Junior Engineers/ Additional Assistant Engineers of the Rural Works Department de novo by adhering to the Transfer Act in letter and spirit.

The petitioner was transferred, from Haridwar in a Sugam area to Kotdwar in a Durgam area, by the order dated 08.06.2018. In the order under appeal, the learned Single Judge noted the submission, urged on behalf of learned counsel for the appellant-writ petitioner, that the appellant-writ petitioner had served at various Durgam places i.e. Tehri Garhwal, Pauri and Ghansali for more than 10 years; he was, therefore, entitled to be posted at a Sugam place in terms of the Annual Transfer Act, 2017; his transfer from Haridwar to Kotdwar was unjust and illegal; and, by the impugned order, the competent authority had passed transfer orders in excess of the ceiling limit of 10 percent, which is violative of the Annual Transfer Act, 2017. The learned Single Judge, thereafter, noted the submission, urged on behalf of the State Government, that the appellant-writ petitioner stood at Sl. No. 6 in the list of 10 percent Junior Engineers/Additional Assistant Engineers, who fall within the purview of compulsory transfer; the appellant-writ petitioner was posted in a Sugam area for more than 10 years; his total service in a Durgam area was only two years; and the appellant-writ petitioner was rightly transferred in accordance with the provisions of the Annual Transfer Act, 2017.

The learned Single Judge, thereafter, observed that transfer is an incidence of service; the appellant-writ petitioner holds a transferable post, and could not therefore contend that he should be posted in a Sugam place or at a place of his choice; it was not the case of the appellant-writ petitioner that the impugned transfer order was actuated with malice or was in violation of the statutory provisions; and there was no scope for interference with the impugned order.

After taking note of the submission, urged by the learned counsel for the appellant-writ petitioner, that he had certain family problems and, therefore, his transfer to Kotdwar would cause great inconvenience to his family, the learned Single Judge granted the appellant-writ petitioner liberty to make a representation to the third respondent within two weeks from the date of the order; and observed that, if such a representation was made, the third respondent should consider the same and pass appropriate orders, in accordance with law, within a period of four weeks from the date of making such a representation along with a certified copy of this order. The learned Single Judge further observed that till 14.06.2019, or till a decision on the representation of the appellant-writ petitioner was taken, whichever was earlier, status quo shall be maintained regarding posting of the appellant-writ petitioner. The writ petition was, accordingly, dismissed. Aggrieved thereby, the present appeal.

Mr. Parikshit Saini, learned counsel for the appellant-writ petitioner, would submit that the exercise, undertaken by the Rural Works Department, in classifying Sugam and Durgam areas, is wholly irrational and arbitrary; while Uttarkashi District, where the appellant-writ petitioner had served earlier, is classified by the Rural Works Department (in which department the appellant-writ petitioner is working) as a Sugam area, the very same District is classified as a Durgam area by the Public Works Department; since this classification is irrational, it is liable to be struck down; in any event, while the learned Single Judge had granted the appellant-writ petitioner time of two weeks to make a representation from the date of the order, which period expired on 17.05.2019, the representation was required to be accompanied with a certified copy of the order; and if the two weeks period was computed, from the date on which a certified copy was delivered to the appellant-writ petitioner (i.e. on 14.05.2019), it would then expire only on 28.05.2019.

Transfer of a public servant from one place to another is made in the exigencies of administration, and no right is conferred on the employee to claim that he should be continued to be posted at a particular place, and should not be transferred therefrom. The Uttarakhand Annual Transfer for Public Servants Act, 2017 (for short "2017 Act") was enacted to determine a procedure for proper, impartial, objective and transparent annual transfers of Uttarakhand Public Servants. Section 3(i) of the 2017 Act defines accessible and remote areas to mean the accessible and remote areas mentioned district-wise under the said Act as per Appendix 1, 2 and 3. Section 4 of the 2017 Act classifies employees into three different categories with respect to their posting and, since the appellant-writ petitioner holds a State level post, it is Section 4(iii) which is applicable; thereunder, the Head of the Department is entitled to transfer an employee to any of the posts, equivalent to the post which the employee held earlier, in the entire State. Section 6(a) of the 2017 Act provides for compulsory transfer from an accessible area to a remote area. Section 7(a) stipulates that employees, who are posted for 4 years or more at their present place of posting in an accessible area, shall be compulsorily transferred, subject to the number of vacancies available and anticipated under Section 10, to a remote area.

Appendix-2 defines "accessible and remote areas" and stipulates that for personnel, who are posted in the district headquarters, Tehsil headquarters, Block Development headquarter, Municipal Corporation/Municipal Board/Nagar Panchayat, identification of accessible and remote areas, district wise, shall be made, as per the requirement of the department, by the committee constituted under the Chairmanship of the commissioners; and, thereunder, accessible and remote areas are required to be identified on the basis of the general infrastructure facilities, such as Roads, Electricity, Water, Education, Medical, Train and Aeroplane in the District headquarters, Municipal Corporations, Municipal Boards, Nagar Panchayat area, and Development block headquarters. In terms of the proviso thereto, if the work place is located at a height of more than 7000 feet, one year's posting thereat shall be deemed equivalent to two years' posting in a remote area.

As is evident from Appendix II, identification and classification of remote areas is required to be undertaken department wise; and, since he is working in the Rural Works Department, which is a department distinct from that of the Public Works Department, the appellant-writ petitioner cannot rely on the classification exercise undertaken by the Public Works Department, or contend that the norms prescribed by the said department should also be followed by the Rural Works Department.

The exercise of classification is required to be undertaken by the Executive or the Legislature and since the Legislature has, in the present case, conferred the power to classify areas, into accessible or remote areas, to each department of the Government of Uttarakhand, such a power, in the present case, lies only with the Rural Works Department. As the appellant-writ petitioner claims that this classification is irrational, the burden lies heavily on him to satisfy this Court that the classification of transferable areas, as Sugam and Durgam, is so unreasonable and arbitrary as to violate Article 14 of the Constitution of India (State Of Jammu & Kashmir Vs. Triloki Nath Khosa & Ors : AIR 1974 SC 1). What is necessary, to satisfy the requirements of Articles 14 and 16 of the Constitution of India, is that the classification should be based on an intelligible differentia and must have a reasonable nexus with the object sought to be achieved. Since the task of undertaking such classification is entrusted separately to each department of the Government of Uttarakhand, this Court would not sit in appeal over their judgment in making such a classification. It is only if the classification is held to be so irrational and arbitrary, as to violate Articles 14 and 16 of the Constitution of India, would interference be justified.

A classification, to be valid under Articles 14 and 16, need not necessarily fall within an exact or a scientific formula for exclusion or inclusion of persons or things. There is no requirement of mathematical exactness for determining the validity, as long as it is not palpably arbitrary. (State of Maharashtra Vs. Indian Hotel & Restaurants Assn. : (2013) 8 SCC 519; Ram Krishna Dalmia Vs.Shri Justice S.R. Tendolkar : (1959) SCR 279; Welfare Association, A.R.P. Vs. Ranjit P. Gohili : (2003) 9 SCC 358; Shashikant Laxman Kale Vs. Union of India : (1990) 4 SCC 366). A complaint, of violation of Articles 14 and 16 of the Constitution, cannot be judged by adopting a doctrinaire approach. It is not prudent or pragmatic to insist on mathematical accuracy in view of the inherent complexities involved. (State of Karnataka v. Mangalore University Non-Teaching Employees Association : (2002) 3 SCC 302).

The Executive enjoys considerable latitude, and exercise their power enriched by experience, and taking into consideration myriad circumstances. (Ombalika Das v. Hulisa Shaw : (2002) 4 SCC 539). Precision and arithmetical accuracy will not exist in any categorisation, and such precision and accuracy is not what Articles 14 and 16 contemplate. As long as the broad features of the categorisation are identifiable and distinguishable, and the categorisation is reasonably connected with the object targeted, Articles 14 and 16 do not forbid such a course of action. (Subramanian Swamy v. Raju : (2014) 8 SCC 390; Murthy Match Works v. CCE : (1974) 4 SCC 428; Roop Chand Adlakha v. DDA : 1989 Suppl. (1) SCC 116; Kartar Singh v. State of Punjab : (1994) 3 SCC 569; Basheer v. State of Kerala :(2004) 3 SCC 609; State of Madhya Pradesh v. Gopal D. Tirthani : (2003) 7 SCC 83; B. Manmad Reddy v. Chandra Prakash Reddy :(2010) 3 SCC 314 and Transport and Dock Workers Union v.Mumbai Port Trust : (2011) 2 SCC 575).

The test ought not to be what would be a 'better' basis for the categorization, for that would introduce subjectivity in the process. The test is whether categorization, on the basis adopted, results in hostile discrimination and adoption of the criteria has no reasonable nexus with the object sought to be achieved. (Samaj Parivartana Samudaya v. State of Karnataka : (2013) 8 SCC 154). It is only where the provision is shown to be irrational, or as manifestly wrong, that the Court would reach out its lethal arm and strike down the provision. (Mohd. Shujat Ali v. Union of India : AIR 1974 SC 1631).

As long as the classification broadly satisfies the test of a valid classification under Articles 14 and 16, this Court would not examine the validity of the classification with a microscope or sit in judgment over the exercise undertaken by the Executive in classifying areas into Sugam and Durgam. The endeavour of the Legislature, in enacting the 2017 Act, is to ensure that all public servants are treated alike, and none of them are given preferential treatment in matters of transfer and posting. It does not stand to reason that we should be called upon to examine the validity of the classification at the behest of the appellant-writ petitioner, who has not even sought the relief of the classification exercise, undertaken by the Rural Works Department, to be quashed. It would be wholly inappropriate for this Court to sit in judgment over the exercise undertaken by the Rural Works Department in classifying areas as accessible or remote, or to strike it down, even in the absence of any relief being sought for in this regard. We see no reason, therefore, to accept the submission, urged on behalf of the appellant-writ petitioner by Mr. Parikshit Saini, learned counsel appearing on his behalf. Suffice it to observe that the validity of the classification of areas, into Sugam and Durgam, by the Rural Works Department does not necessitate interference.

We, however, find force in the submission of Mr. Parikshit Saini, learned counsel for the appellant-writ petitioner, that the appellant-writ petitioner was in no position to submit a representation within two weeks from the date of the order passed by the learned Single Judge, since he was required to enclose a certified copy of the order along with his representation; while the order under appeal was passed on 03.05.2019, an application to make available a certified copy of the said order was made on 04.05.2019, and the certified copy was made available only on 14.05.2019; and, even if the two weeks' period is computed from 14.05.2019, it would expire only on 28.05.2019.

Suffice it, in such circumstances, to modify the order passed by the learned Single Judge to the limited extent that, in case the appellant-writ petitioner submits his representation on or before 28.05.2019, the said representation shall be considered by the respondents; and an order shall be passed, in terms of the order under appeal, on or before 14.06.2019.

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

Let a certified copy of this order be issued to the parties, on payment of prescribed charges, within two days.