Ram Krishna Yadav vs State Of Uttarakhand And Another

Ramesh Ranganathan, CJ

The petitioner seeks a writ of certiorarified mandamus to quash the transfer order dated 08.06.2018, passed by the second respondent along with its effect and operation, after calling for the entire records from the respondents, and also to allow the petitioner to continue to work at his present place of posting in the Construction Division, P.W.D. Chinyalisaur, Uttarkashi, and to consider his request for optional transfer keeping in view the facts highlighted in the body of the writ petition.

The petitioner was transferred from the Construction Division, P.W.D. Chinyalisaur, Uttarkashi to PMGSY, Division Narendra Nagar in District Tehri Garhwal. The said order of transfer was challenged on the following grounds:- (1) the petitioner is aged 56 years, and employees aged 55 years and above are classified as senior citizens and are exempted from transfer; (2) the petitioner's wife is suffering from cancer and, even on the ground of medical ailment of the spouse, the petitioner is entitled to be exempted from transfer; (3) the Transfer Act requires the public servant to be given ten options, and for transfer to be effected on the basis of the options exercised by the employee concerned; and while the petitioner indicated ten places of his choice of posting, the respondent had, ignoring the options exercised by him for places 1 to 8, had instead transferred him to the place he had exercise as option No. 9 i.e. Narendra Nagar, thereby depriving him of his right to be given his preferential choice of posting; and (4) the petitioner had, among his options, sought to be posted at the Temporary Division in Rishikesh where the All India Institute of Medical Sciences is situated, and where his wife is undergoing treament.

Pursuant to the interim order passed by this Court on 26.06.2018, the petitioner continues to work at Uttarkashi till date.

The Uttarakhand Annual Transfer For Public Servants Act, 2017 is an Act to determine the procedure for proper, impartial, objective and transparent annual transfer of Uttarakhand Public Servants. Section 3(d) defines "Serious Patient" to mean the spouse and family of any employee suffering from a serious disease which includes Cancer; and the petitioner's wife would fall within the ambit of a "serious patient" under Section 3(d) of the Act. Section 3(h) defines "Senior Employee" to mean an employee aged 55 years and above when the age of retirement is 60 years, and the age of 60 years and above when the age of retirement is 65 year. Section 3(i) defines "Accessible and Remote areas" to mean the accessible and remote areas mentioned district wise under the Act as per Appendix 1, 2 and 3.

Section 7(d) of the Act exempts employees, under the following categories, from compulsory transfers from accessible areas to remote areas namely:- (i) Senior employees; (iii) employees seriously ill/disabled under Section 3, and who submit a certificate from the competent authority. The petitioner falls under both these heads i.e. he is a senior employee, and his wife is suffering from a serious ailment. While he may fall under clause (i) and (iii) of Section 7(d) of the Act, the exemption, in terms thereof, is from compulsory transfer from accessible areas to remote areas. It is not even the petitioner's case, in the affidavit filed in support of the writ petition, that he was being transferred from an accessible area to a remote area.

The petitioner's transfer is from Uttarkashi which, admittedly, involves a travelling time of more than 03 hours, and is located at a distance of around 170 Kms from Rishikesh. The distance from Narendra Nagar (the place to which the petitioner was transferred) is said to be, as per the counter affidavit, only 20 Kms away from Rishikesh. The petitioner's wife is said to be undergoing treatment in the All India Institute of Medical Sciences at Rishikesh, and his transfer from Uttarkashi to Narendra Nagar would, undoubtedly, enable him to stay in close proximity to the hospital where his wife is undergoing treatment. It does not stand to reason that the petitioner should seek retention at Uttarkashi,in the guise of providing better treatment to his wife at the All India Institute of Medical Sciences, Rishikesh, when Narendra Nagar (to which place he was transferred to) is far closer to Rishikesh than from Uttarakashi.

It is evident, therefore, that the petitioner seeks retention at Uttarkashi not on the ground of his wife's ailment, since he was being transferred to Narendra Nagar from where it would be far easier for him to have his wife properly treated at AIIMS, Rishikesh, than from Uttarkashi.

The petitioner's claim that he should have been given the choice of posting according to his first eight places of preference, instead of his 9th choice, can only be examined if the persons, who were posted to places which formed the petitioner's choices 1 to 8, were arrayed as respondents in the writ petition. In the affidavit, filed in support of the writ petition, the petitioner admits that, in the seniority list, his name is reflected at serial no.31. Whether public servants, above him in the seniority list, i.e. candidates at serial no.1 to 30, had exercised their option to any one of these eight places is not known. While the petitioner was retained in Uttarkashi, in the light of the interim order passed by this Court, all the other posts must have been filled up by now. Further, the annual transfer exercise for the year 2019-20 has also commenced. It would be impermissible for this Court to now direct that the clock be put back, even without hearing those who have been posted to these eight places which the petitioner had exercised his option for, to enable the petitioner to be transferred to one of those eight places.

Mr. Kishore Kumar, learned counsel for the petitioner, would then contend that no officer has been posted to Uttarkashi, even in the new transfer exercise, i.e. in the place where the petitioner has been retained. This contention, to say the least, defies logic. Having obtained an interim order from this Court, and thereby continuing to remain at Uttarkashi, the petitioner cannot now be heard to contend that nobody has been posted to Uttarkashi, since posting any officer at Uttarkashi would have resulted in the respondents violating the order passed by this Court.

While Mr. Kishore Kumar, learned counsel for the petitioner, would submit that the petitioner should be given time to file a rejoinder affidavit, to the counter affidavit filed by the State Government, we are satisfied that this case is not one where such indulgence should be shown, more so because the petitioner has continued to stay at Uttarkashi for the past more than one year pursuant to the interim order passed by this Court on 28.06.2018.

It must be borne in mind that transfer, from one place to another, is made in the exigencies of administration. While the employer has, undoubtedly, the power to effect transfers in administrative exigencies, transfers in the State of Uttarakhand are governed by the Uttarakhand Annual Transfer For Public Servants Act, 2017. In the absence of any prohibition under the 2017 Act, it would be wholly inappropriate for this Court to exercise its jurisdiction, under Article 226 of the Constitution of India, to interdict such orders of transfers.

Mr. Kishore Kumar, learned counsel for the petitioner, would then submit that the petitioner's request, to be transferred closer to Rishikesh, to enable his wife to get adequate treatment, be directed to be considered. As this request of the petitioner cannot be said to be without merit, suffice it to permit him to make a representation in this regard.

Mr. Kishore Kumar, learned Counsel for the petitioner, would submit that the petitioner would make such a representation within one week from today. The competent authority to effect transfers of officers, in the cadre to which the petitioner belongs, shall consider the said representation, in accordance with law and in terms of the Uttarakhand Annual Transfer For Public Servants Act, 2017, within two weeks thereafter and communicate his decision to the petitioner.

Subject to the aforesaid observations, the writ petition fails and is, accordingly dismissed. No costs.