Ragini Gupta vs State of Uttarakhand & others

Sharad Kumar Sharma, J.

The petitioner has questioned the orders dated 25th June, 2018, passed by respondent No. 2 as well as the order dated 13th July, 2018, passed by

respondent No. 3 in compliance of the High Court’s order rendered in Writ Petition No. 1962 of 2018, by virtue of which, the direction was issued

to decide the representation of the petitioner which has been rejected.

Brief facts leading to the filing of the present Writ Petition are that the petitioner contends that she was inducted as Assistant Teacher in Government

Primary School Sanglie, District Uttarkashi way back in 1992. Thereafter, she was transferred to various institutions and, ultimately, she was posted

on 13th July, 2018 in the institution, called as Government Junior High School Gajiwali, District Haridwar from where she is now sought to be

transferred by virtue of the impugned order of transfer contained in Annexure-1 to the Writ Petition, i.e. 25th June, 2018, wherein, she has been

transferred to Government Junior High School Balwali, i.e. a durgam area. Initially, when the petitioner filed this Writ Petition against the impugned

order of transfer, since there was statutory remedy available to her under the Act itself, the Writ Petition was disposed of with the direction to the

competent authorities to consider and decide the representation within ten days from the date of service of the order and filing of the representation

and till the decision was taken, as an interim order was granted in favour of the petitioner, the transfer order was kept in abeyance.

By the impugned order dated 13.07.2018, her representation has been rejected and thereby confirmed the transfer order dated 25.06.2018. What is

reflected from the impugned order is that in her representation, which she has submitted before the Authorities, she has contended that she ought not

to be transferred for the reason being that since she being a senior employee and having attained the age of 54 years, she will be falling outside the

purview of transfer as contemplated under Section 7 of the Act. Section 3 (G) of the Act reads as under :-

“ofj""B dkfeZd ls izR;sd o’kZ dh vk/kkj frfFk 31 ebZ dks tgkW lasokfuo`fRr dh vk;q 60 o’kZ ogkW 55 o’kZ rFkk tgkW lsokfuo`Rr dh

vk;q 65 o’kZ ogkW 60 o’kZ dh vk;q vFkok mlls vf/kd vk;q iw.kZ djus okys dkfeZd vfHkizsr gSAâ€​.

The argument of the learned counsel for the petitioner is that so far as the female employees are concerned, their upper age limit to bring them within

the ambit of senior employee is 50 years so as to seek exemption from transfer under Section 7 (gha) (1) but there is no material brought by the

petitioner on record nor pointed from Act or Statutes to show that the said cut-off in case of female has been made applicable. Hence, this argument

of the learned counsel for the petitioner is not acceptable by this Court.

The second argument which has been raised by the petitioner is that her married daughter is suffering from mental ailment due to which since she will

be falling within the definition of family, hence, she ought to be exempted from the transfer in view of the provisions contained under Section 7 (gha)

(3) read with 3 (gha) since the ailment would be the ailment as defined under Sub-section (d) of Section 3 of the Act. Ailment, though, no doubt, may

be falling within the category of ailments defined therein but the applicability of the exemption Clause is only made in relation to the spouse and family

members which includes children up to the age of 18 years only. Obviously, once it is admitted case, the daughter who is suffering from mental

ailment is married daughter, she is bound to be beyond upper age limit as provided therein under Sub-section (d) of Section 3 of the Act. She must be

beyond 18 years, hence, the protection granted under Section 7 (gha) (3) would not be available to the petitioner.

The third argument, which has been extended by the petitioner is that since she being a divorcee, she ought to be exempted from the transfer in view

of Sub-section (6) of Section 13 of the Act. Sub-section (6) reads as under :-

“fo/kok]fo/kqj]l{ke U;k;k;y ds vkns’k ls ?kksf""kr ifjR;Drk ,oa rykdâ€kqnk rFkk ofj""B dkfeZd vuqjks/k ds vk/kkj ij ,sfPNd {ks= esa

LFkkukUrj.k gsrq vkosnu djus ds ik= gksaxsA

fVIi.kh & vuqjks/k ds vk/kkj ij LFkkukUrj.k gsrq vkosnu /kkjk 12 ds v/khu izdkfâ€kr fjfDr;ksa ds lkis{k gh fd;k tk ldsxkk vkSj Hkjs gq, inkas

@dk;ZLFkyksa ds fy, vuqjks/k vuqeU; u gksxkAâ€​

Sub-section (6) of Section 13 of the Act is not contemplating an exemption from transfer but only provides for procedure of the transfer. The

procedure of transfer provided therein means that a divorce can only make a request for being retained at a place, in case, if she falls within the

definition of category of widow, divorce, widower, etc. as given therein. Admittedly, here, in the instant case, no doubt, she has described her status of

being a divorcee of 1989, even much prior to the induction of her into the services, but, there is nothing on record to show that the petitioner has ever

made a request from the respondents to avail the benefit to the said effect to avail the benefit of Section 13 (6) of the Act.

Lastly, the argument, which has been extended by the learned counsel for the petitioner is that there was no occasion for her to make a request for

the reason being that initially when the list was published, her name was not included in the said list as amongst the probable employees who are

supposed to be transferred, hence, there was no occasion for her to make request for exemption from transfer. This argument which has been

extended by the learned counsel for the petitioner is not a defence which has been taken before the authority concerned in the representation dated

11.07.2018 submitted by her in compliance of the order passed by this Court on 02.07.2018. In response to it, the answer of the learned counsel for

the petitioner is that this ground has been pleaded in the representation but has not been considered by the respondent No. 3 while passing to the

impugned order dated 13th July, 2018. Mere pleadings in the representation may not suffice the purpose because once the petitioner was granted an

opportunity to press her statutory remedy of representation, it was expected that she was supposed to press all the grounds taken therein and on

scrutiny of the impugned order, it does not reflect that said argument was ever pleaded before the Education Officer so as to get the finding return by

the said Authority.

In view of the aforesaid reasons, since the petitioner would not be falling within the exemption Clauses as provided under the Transfer Act, this Court

does not find any merit in the Writ Petition. Accordingly, the Writ Petition is dismissed.