Manmohan Singh Aeri & Others vs State Of Uttarakhand & Others

Ramesh Ranganathan, CJ

In these two Writ Petitions, the relief sought for is for a mandamus commanding the respondents to treat the service period of the petitioner, rendered in the Irrigation Department, as service in inaccessible area and to modify the final eligibility list dated 27.05.2019.

While the petitioner in Writ Petition (S/B) No.224 of 2019, had earlier worked for a period of one year ten months and twelve days in the Irrigation Department, he has been, for the past five years nine months and four days, working in the Public Works Department, Kashipur. It is his case that the period spent by him on duty. in the Irrigation Department, should be excluded, since the Irrigation Department has classified the entire Almora district as a remote area, whereas the Public Works Department has classified District Headquarter Almora as an accessible area, and the other parts of Almora district as inaccessible/remote areas.

In so far as the petitioner in Writ Petition (S/B) No.225 of 2019 is concerned, while he initially worked for one year ten months and sixteen days in the Irrigation Department at District Headquarters Almora, he has been working for five years nine months and one day in the Public Works Department also at the District Headquarters, Almora. It is his case that, since the Irrigation Department has classified the entire district of Almora as a remote area, the period of duty in the Irrigation Department earlier, should be excluded in computing the period of service rendered by him in an accessible area, in while transferring him now to a remote area.

The contention urged by Mr. B.N. Molakhi, learned counsel appearing on behalf of the petitioner, is that since the Uttarakhand Annual Transfer for Public Servants Act, 2017 (for short "the Act") requires each department to classify areas into accessible and remote areas, and since the Irrigation Department has classified the entire district of Almora as a remote area, the mere fact that the Public Works Department has classified District Headquarters at Almora as an accessible area would not justify the services, rendered by them in District Headquarters, Almora in the Irrigation Department, as services rendered in an accessible area.

The Act was notified on 05.01.2018, and came into force from that day. The services rendered by both the petitioners in the Irrigation Department was during the years 2011-13, long before the Act came into force. Section 4 of the Act classifies employees into different categories for the purpose of posting. Both the petitioners fall within the ambit of Section 4(3) which relates to employees for whom there is a provision to be posted at State level, and their posting is to be done by the State Government and Head of the Department. Section 6 relates to different kinds of annual transfers and Section 6(a) relates to compulsory transfer from an accessible area to a remote area. Section 7(a) stipulates that an employee, who is posted for 04 years or more at the present place of posting in an accessible area, shall be compulsorily transferred subject to the number of vacancies available and anticipated under Section10 in the remote area. Section 8 provides for the maximum ceiling of compulsory transfers, from accessible areas to remote areas; and, thereunder, compulsory transfer from an accessible area to a remote area shall be made upto the limit of availability of vacancies in remote areas in the concerned cadre; counting of eligible employees for such transfers shall be done in the order of the total service rendered in accessible area during the whole service period; and such employees who have completed more than 04 years of posting in an accessible area, or whose total service in accessible area during the whole service period is more than 10 years, and who do not fall under any exemption, shall be identified for transfer, upto the limit of availability of vacancies in remote areas of the concerned cadre, by placing them in a descending order according to their total period of posting in accessible areas.

It is only because of Section 8 of the Act, that the petitioners have now invoked the jurisdiction of this Court for, if the period of service rendered by them in the Irrigation Department at District Headquarters, Almora is excluded, would they then fall lower in the order of employees referred to in Section 8 and may thereby avoid transfer from an accessible area to a remote area.

As noted hereinabove, the Act came into force on 05.01.2018; and it is only, thereafter, that the Irrigation Department had classified areas into remote and accessible areas by its proceedings dated 28.02.2018. Likewise the Public Works Department had also undertaken the exercise of delineating remote and accessible areas by its proceedings dated 03.03.2018.

The proceedings issued by both the Irrigation and Public Works Departments in February/March, 2018 was long after the petitioners joined the Public Works Department in the year 2013. Section 3(i) defines "Accessible and Remote areas" to mean that accessible and remote areas mentioned district wise under the Act as per Appendix 1, 2 and 3. Appendix 3 contains the definition of Accessible and Remote areas and, thereunder, persons who are posted only in the district headquarters/directorate headquarters and are transferred from the Government level or from the Head of the Department level, the identification of accessible or remote areas for them, according to the requirement of the department, shall be made on the basis of connectivity of the road, electricity, water, education, medical, train and aeroplane as per the general infrastructure of each department according to the said norms.

When the Act came into force on 05.01.2018, both the writ petitioners were working in the Public Works Department. As the exercise of classifying areas, into the accessible and remote areas, could only have been undertaken by the different departments after the 2017 Act came into force on 05.01.2018 and was, in fact, classified by both the departments Irrigation/Public Works Department only in February/March, 2018, the petitioners cannot place reliance on the classification exercise undertaken by the Irrigation Department on 28.02.2018, when they were working in the Public Works Department to contend that the service rendered by them in the Irrigation Department during the years 2011-13 should be excluded, since the Irrigation Department has now (in February, 2018) classified District Headquarter Almora as a remote area, though the Public Works Department has classified it as an accessible area.

The petitioner are, presently, working in the Public Works Department; and their transfer, from one place to another, is also within the Public Works Department, and not in the Irrigation Department.They cannot, therefore, rely on the classification exercise undertaken by the Irrigation Department on 28.02.2018, and seek that such an exercise of classification should be made application to them though they are working in the Public Works Department ever since the years 2013.

The Writ Petitions, as filed, are wholly misconceived and are, accordingly, dismissed. No costs.