Manoj Kumar vs State Of Uttarakhand & Others

Lok Pal Singh, J

Petitioner has approached this Court seeking the following reliefs:-

i) Issue a writ of certiorari quashing the impugned order dated 22.11.2019 passed by respondent no.4 (contained as Annexure no.1 to this writ

petition).

ii) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondents not to relieve the petitioner from Government

Primary School No.19, Block Bahadrabad District Haridwar to Government Primary School Mandoli, District Dehradun pursuant to the impugned

order dated 22.11.2019 (contained as Annexure no.1) passed by respondent no.4.

Petitioner is aggrieved by impugned order dated 22.11.2019, whereby he has been relieved for Government Primary School Mandoli from

Government Primary School No.19, Block Bahadrabad District Haridwar. In earlier round of litigation, petitioner filed the writ petition being WPSS

No.1001 of 2018 which was dismissed by a Coordinate Bench of this Court vide judgment dated 26.10.2018. However, liberty was granted to the

petitioner to make a representation before the competent authority and the competent authority was directed to take decision thereupon, in accordance

with law, promptly.

On a query by the Court, learned counsel for the petitioner submits that he is not aware about the fact whether representation was moved by the

petitioner or not. Learned counsel for the petitioner further submits that the impugned order of relieving has been passed in violation of Section 3 (D)

and Section 27 of Uttarakhand Annual Transfer for Public Servant Act, 2017. He would submit that the mother-in-law of the petitioner is suffering

from breast cancer and is under treatment from AIIMS, Rishikesh; she is fully dependent upon the petitioner and her daughter (petitioner’s wife),

and on this ground, impugned order is liable to be set aside.

I have heard learned counsel for the parties and have gone through the entire material available on file.

Petitioner is seeking exemption from transfer on the basis of illness of his mother-in-law. Section 3(d) of the Transfer Act defines “Serious

Patientâ€​, which is reproduced 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;

Section 13(4) and (5) of the Transfer Act provides for transfer on request in case of serious illness of the employee, spouse, or children. For

convenience, Section 13(4) and 13(5) of the Act is reproduced hereunder:-

“13. The following procedure shall be adopted for transfer on the basis of request; namely:â€" …

(4) The employees, on the basis of their own or spouse's (as applicable) serious illness/ disability shall be eligible to request for transfer to area/place

of their choice.

(5) Parents of mentally retarded children or suffering from such illness which has caused total dependance on others for care/routine activities, on the

basis of certificate from Medical Board, shall be eligible to apply for transfer on request from accessible to remote or remote to accessible area/place

for proper medical treatment of their child; andâ€​

Mother-in-law does not fall within the definition of expression “Familyâ€. That apart, a perusal of aforesaid Sections makes it abundantly clear

that the employee shall be eligible for transfer on his/her request on the basis of serious illness of his own or spouse or children. That being the

position, there is no arbitrariness or unreasonable on the part of respondent no.4 in passing the impugned order dated 22.11.2019. No interference is,

therefore, required. Writ petition fails and is hereby dismissed.

No order as to costs.