Rajendra Singh Parwal vs State Of Uttarakhand & Others

Vipin Sanghi, CJ

1) Issue notice.

Counsel for the respondents appears and accepts notice.

2) The special appeal is directed against the order passed by the learned Single Judge in Writ Petition (S/S) No. 539 of 2023, dated 06.04.2023, dismissing the petition preferred by the appellant / writ petitioner. The appellant had preferred the said writ petition to assail the rejection of his representation against his transfer from Nawadkhera, Haldwani to Pahadpani, Nainital, within the same district. The appellant had earlier preferred Writ Petition (S/S) No. 12 of 2023, against his said transfer. That writ petition was disposed of on 05.01.2023, permitting the appellant to make his representation to the Competent Authority with a direction to give an undertaking in his representation, that he will serve anywhere in the State once Board Examinations of his daughter is over. The Competent Authority was required to dispose of the representation within six weeks. Consequently, the Additional Director (Secondary Education) Nainital, who was the Competent Authority, rejected the representation made by the appellant on 17.03.2023. It was again assailed by the appellant in Writ Petition (S/S) No. 539 of 2023. The learned Single Judge has rejected the writ petition in view of the fact that the appellant had given the undertaking that he will proceed on transfer, in case, his representation is rejected. Learned Single Judge has also observed that transfer is an incidence of service, and in the absence of malice or violation of rules, interference with such an order would not be appropriate.

3) The submission is that the case of the appellant should be placed before the State Medical Board to consider, whether the petitioner is a serious patient, as defined in Section 3(d) of the Uttarakhand Annual Transfer for Public Servants Act, 2017.

4) Section 3(d) defines “serious patient” to mean – “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;”.

5) The petitioner has himself placed on record his medical report, which does not show that he is a serious patient. He is a patient of cervical spondylitis with lumbar spondylosis. He has been advised not to bend, or lift any heavy things, or go on a long walk, or turn his head. He has also been advised to take physiotherapy. The appellant is not suffering from any of the serious diseases enumerated in Section 3(d).

6) At this stage, counsel for the appellant has referred to the definition of disability, as contained in Section 3(e). The appellant is, certainly, not suffering from any disability, much less, disability of more than 40 per cent, and the same is not evidenced from any disability certificate.

7) For the aforesaid reasons, we find absolutely no merit in this appeal. The same is, accordingly, dismissed.