Ms. Julekha vs State Of Uttarakhand And Another

Ramesh Ranganathan, CJ

This is the second round of litigation. The petitioner was transferred from Jaspur, District Udham Singh Nagar to Bhilangana, District Tehri Garhwal by proceedings dated 07.08.2019 on administrative grounds.

The said transfer order was subjected to challenge in WPSB No. 401 of 2019 and we had, in our order dated 27.08.2019, held that the respondents had an obligation, under Section 18(4) and (5) of the Uttarakhand Annual Transfer for Public Servants Act, 2017 (in short the "2017 Act"), to state the administrative grounds for which the transfer was effected. The impugned transfer order was quashed, leaving it open to the authorities to comply with the proviso to Section 18(4) and (5), and pass an order afresh in accordance with law.

The impugned order dated 11.09.2019 was passed thereafter assigning elaborate reasons as to why the petitioner's continuance in Jaspur was not conducive to proper administration. The petitioner is said to have been entrusted with the additional charge of the Child Development Project in Jaspur village; and an enquiry revealed that the petitioner, who was holding the substantive post of Child Development Project Officer in Jaspur City, and additional charge in Jaspur Village, District Udham Singh Nagar had allotted the work of the Child Development Project to outsiders instead of having the work undertaken by people from within the locality.

Mr. T.P.S. Takuli, learned counsel for the petitioner, would submit that the petitioner was assaulted earlier, and she had herself requested for transfer; her grievance is mainly that, though she had served for 19 years in the remote areas of the State of Uttarakhand, and she is a senior employee on the verge of the retirement in January 2020, she is again being transferred to a remote area, and not to an accessible area as required under the 2017 Act.

Section 3(h) of the 2017 Act defines a "Senior employee" to mean an employee of the age of 55 years and above when the age of retirement is 60 years. The petitioner satisfies the definition of a "senior employee" as she is aged more than 59 years. In terms of Section 7(d)(i), a senior employee is exempt from compulsory transfer from an accessible area to a remote area. The prohibition under Section 7(d)(i) is for compulsory transfer of senior employees from accessible area to remote areas, and not for transfers effected on administrative grounds. While Section 7(d)(i) may not be attracted to transfers under Sections 18(4) and 18(5), we are satisfied that the petitioner, who is due to retire within four months i.e. by the end of January, 2020, should be shown some indulgence.

It would be inappropriate for us to issue a mandamus to the respondents to post her in an accessible area. Suffice it, in such circumstances, to permit the petitioner to make a representation, requesting that she be transferred to an accessible area, within two weeks from today. On such a representation being made, the second respondent shall consider the petitioner's representation and pass appropriate orders thereupon, in accordance with law, within three weeks' from the date of receipt of the petitioner's representation. That does not, however, mean that the petitioner can continue in the present place of posting. She shall report and join duty at the new place of posting pending consideration of her representation by the respondent-authorities.

The writ petition is, accordingly, disposed of. No costs.