Jawahar Lal & Others vs State Of Uttarakhand And Others

Sharad Kumar Sharma, J

The challenge in this writ petition is given to the order dated 30.11.2019 passed by respondent no.4 by virtue of order impugned as passed by

respondent no.4, the respondent no.4 has passed the impugned order by virtue of which petitioners have been repatriated to the principal cadre and the

place of posting, which they were otherwise earlier holding, prior to the arrangement which was made to the place from where they have now been

sought to be sent back i.e. to their respective the principal place of posting.

By the impugned order following directions were issued:-

“ , 00

(05)/14337/152(1)/2019-20 22.10.2019.

â€

This order, which has been challenged by the petitioners it is under the pretext, that the order of drawing the provisions contained under

Uttarakhand Annual Transfer for Public Servants Act, 2017, extracting the reasoning and law as given therein, he submits that the transfer would be

bad in view of the provisions contained under Section 15 being a mid session transfer. Secondly he submits that the impugned order of transfer dated

30.11.2019 being bad on account of the violation of the provisions contained under Section 17 of the Act, with regards to the ailment and lastly he

argues that the Coordinate Bench of this Court has already admitted one of the writ petition against a common cause and an interim order has been

passed, he claims parity of it.

This Court feels it to be necessary to answer the three questions as raised by the petitioners as against the impugned order under challenge before

this Court. In order to attract the implications of the provisions contained under the Transfer Act, 2017, the pre ingredient which is to be satisfied is

that the action challenged has had to fall within the ambit of a strict interpretation of the term transfer as contemplated under the Service

Jurisprudence. “Transfer†and “Repatriation†cannot be placed on common pedestal. Transfer is as a consequence of an administrative

decision depending upon the work exigency of the employer by placing a person at a particular place and as per the departmental need according to its

suitability and that has to be resorted to on an annual basis, whereas as per opinion of this Court a “repatriationâ€​/ which is

an issue involved in the present case is as a consequence of the follow up of the earlier order of posting, by virtue of the petitioners’ work place at

their present place of posting is as a consequence of administrative arrangement from the principal post over which they had their lien or have entitled

to hold, only with a condition that they could be repatriated to the principal post.

“Repatriate. Restore or return to one’s country of origin,â€​

I am of the opinion that the present order impugned is not a transfer as contemplated under Service Jurisprudence based upon on an administrative

exigency, but rather its repatriation which would be governed by the terms and conditions under which an employee is posted other than the post of his

actual lien, which was accepted by the petitioners when they were earlier posted to their present place of posting which they now been directed to

occupy i.e. from the post of the cadre where they have lien and hence they are bound to adhere to the said conditions.

But, since the argument has been raised, this Court is dealing with the first argument to the effect that the petitioners in support of the writ petition

while giving challenge to the order had submitted that the impugned order would be suffering from the vices of non fulfillment of the provisions

contained under Section 17 of the Act by which the transfer is to be restricted in those cases where the employee and the family members are

suffering from a “serious ailmentâ€. The term serious ailment has been vividly described under Section 3(d) of the Act, which is extracted

hereunder:-

3(d) ""Serious Patient"" means the spouse and family (which includes the children of the age up to 18 years and parents) of any employee suffering

from a serious diseases and it includes Cancer, Blood Cancer, AIDS/HIV (positive), Heart disease (Having Bypass surgery or Angioplasty done)

Kidney disease (dependent on the dialyses due to failure of both the kidneys or kidney transplanted or one kidney removed), Tuberculosis (both the

lungs infected or one lung fully damaged), SARS (third stage), epilepsy, mental disease and any such other disease for which State Medical Board

doesn't recommend for posting in any particular place/area and the committee constituted under Section 27 of the Act gives its approval thereon;â€​

which has specifically given the nature of the serious diseases, which an employee or the spouse or the family members should be suffering from in

order to attract the protection contained under Section 17 of the Act. In these writ petitions, where the decision of the Medical Board has been placed

on record, none of the diseases as pointed out therein, falls to be within the scope of serious ailments as defined under Sub Section (d) of Section 3 of

the Act, hence, the said ground is not attracted for the purposes of giving challenge to the impugned order.

The second argument of the learned counsel for the petitioners is that it is a mid session transfer in view of the provisions contained under Section

15 of the Act. The said argument too is not acceptable for the reason that since it is not a transfer at all, and admittedly since it is only repatriation

under an undertaking already given by the petitioners, as the condition under which the petitioners have been posted to the present place, the said

provision will not be attracted. Thirdly, he submits that as against the impugned order he had submitted a representation in pursuance to the

Government Orders issued by the State and hence, the representation ought to be considered. The said argument is not acceptable for the reason

being:-

The argument of writ petitioners were confined from the view point of attracting the provisions contained under the Transfer Act, which in itself is a

self contained, Act providing with the provisions for a statutory representation as against the action of transfer as provided under Section 3(d) of the

Act. Once a statute contemplates a statutory representation and particularly those statutes, which has been framed by the State while exercising its

powers under Article 309 of the Constitution of India the said provisions of statutory transfer cannot be overridden by any administrative directions or

guidelines issued by the Government Order providing for a representation. Particularly when in these cases petitioners themselves, place their cases as

if it’s governed by the Transfer Act.

Hence, the said concept of seeking a direction for deciding the representation is not available to the petitioners because first of all it is not

permissible under the Statute and secondly, the representation being sought for is under the Government Order that will not be attracted to override

the effects of the statutory provisions.

Lastly, he submits that involving an identical issue, the Coordinate Bench of this Court has granted an interim order by an order dated 04.12.2019.

The interim orders do not have a binding precedent as its not deciding a list on merits, laying down a ratio of law, and as such this Court is not inclined

to grant parity as claimed by the petitioners in pursuance to the interim order passed by this Court. Consequently, for the reasons given above, this

Court is not inclined to interfere in the impugned order, thus, the writ petition lacks merit and the same is accordingly, dismissed.