Puran Singh Sajwan vs State of Uttarakhand & Others

Sharad Kumar Sharma, J.

The petitioner was appointed as Assistant Teacher in Primary School and ultimately at the time when the controversy pertaining to the transfer has

reached he was working as the Head Master. Initially the petitioner was transferred by virtue of an order dated 25.06.2018 from Government Primary

School Devtadhar, Block Jakhnidhar, District Tehri Garhwal to Government Primary School Gaja, Block Chamba, District Tehri Garhwal as against

the vacant post. Against this transfer order the petitioner has submitted a statutory representation within the specified time period as provided under

sub-section (4) of Section 22 of the Transfer Act.

The respondent no. 2 while considering the representation has passed a fresh order in modification of the earlier order of transfer dated 25.06.2018,

whereby, the petitioner has been transferred from Government Primary School, Devtadhar, Block Jakhnidhar, District Tehri Garwal to Government

Primary School, Gaja, Block Chamba, District Tehri Garhwal against the vacant post. It is this order dated 06.09.2018, which is under challenge

before this Court by virtue of which petitioner has been transferred from Government Primary School, Devtadhar, Block Jakhnidhar, District Tehri

Garhwal to Government Primary School, Ghati Block Bhilangana, District Tehri Garhwal.

There are four fold arguments, which have been raised by the petitioner:

(i) That he is a senior employee having attained the age of 59 years, hence, he would be exempted from the transfer in view of the provisions

contained under Section 7(d) of the Act. At this stage itself, it would be appropriate to deal with the said argument. The same would not be available

to the petitioner, the reason being though the senior employee has been defined to be employee who has attained the age of 55 years as against the

post which carries the age to be 60 years, but looking to Section 7 it grants an exemption from transfer only when a transfer is proposed to be made

from accessible area to remote area. Admittedly, in the present case the changed place of transfer in pursuant to the transfer order dated 06.09.2018

is not remote area where the petitioner has been proposed to be transferred, rather according to the petitioner himself it is an accessible area, hence,

the argument in relation to being a senior employee is not available.

(ii) The second argument extended by the learned counsel for the petitioner is non compliance of the provisions contained under Section 23 of the Act,

which contemplates that the transfer proceedings have to be taken within the specified time schedule. There is no doubt about that there is a time

schedule provided to be followed, but as it has already been held by this Court that the time schedule under Section 23 is not mandatory but rather

directory in nature owing to the fact that a latitude of variance is contemplated under sub-section (3) of Section 21 of the Act. Only requirement is that

there has to be fulfillment of conditions contained under Section 21(3) of the Act. The petitioner herein has filed a representation. The impugned order

which is under challenge before this Court dated 06.09.2017 has been passed on the representation filed by the petitioner, the scope of following the

time does not include time involved in deciding the representation, hence, the time period consumed in deciding the representation is not a period which

is covered by Section 23 of the Act. As such this argument too of the petitioner is not tenable.

(iii) The third argument raised by the learned counsel for the petitioner as regards to the implication of Section 11, 12 & 13 of the Act contending

thereof that Section 13(1) has to be followed prior to making a transfer on the basis of request. This Court is not in agreement yet again with the

argument extended by the learned counsel for the petitioner because the sub-section

(1) only contemplates a request for transfer from accessible area to remote area which is not the case at hand.

(iv) Lastly, the learned counsel for the petitioner had submitted that the petitioner has met with an accident recently on 06.05.2018, which has resulted

into hampering his mobility, hence, the transfer order would create a difficulty in rendering his services. Under the Transfer Act the disability and

serious ailment is provided under sub-section (d) of Section 3 and sub- section (e) of Section 3 respectively. The exemption in relation thereto on

sufferance of Sections 3(d) and 3(e) is provided under Section 7(d)(iii). A very fine distinction, which has to be carved out at this stage is that for an

exemption under Section 7(d)(i) first of all there has to be an ailment defined under the Act itself. It is not the case, which would be covered by the

nature of ailment defined under Section 7(3) of the Act. If a person has suffered an accident and there is an injury caused to him its gravity could only

be settled when he is determined as to be disabled under Section 3(e) of the Act. In the absence of there being any such stand established by the

petitioner to have fallen to be within the purview of the person disabled defined under Section 3(e) this argument of the learned counsel for the

petitioner is also not accepted.

In view of the above, I do not find any error in the impugned order of transfer. Accordingly, the Writ Petition is dismissed. There will be no order as

to cost.