Smt. Asha Gangola vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

Heard Mr. Bhupesh Kandpal, learned Counsel for the petitioner, and Mr. Paresh Tripathi, learned Chief Standing Counsel for the State of Uttarakhand.

The petitioner seeks a writ of certiorari to quash the Government Order No. 741 dated 22.11.2018 as well as G.O. No. 742 dated 22.11.2018, in so far as the petitioner is concerned; and the letter dated 22.11.2018 issued by the Director, Medical Education. She also seeks a writ of mandamus to direct the respondents to consider her representation as per the recommendation dated 12.01.2018 whereby the petitioner was recommended to be absorbed in the post of Associate Professor, as she fulfilled the requisite qualifications as per the 2015 Rules, and the 2016 Regulations.

Facts, to the extent necessary, are that the petitioner was initially appointed as a Staff Nurse at the Base Hospital Almora on 20.06.1989, in which post she worked till June, 2003. In the month of July, 2003 she was transferred from the Base Hospital, Almora to Haldwani where she worked for three years till she was transferred to the ANM Training Centre at Almora on 06.01.2006 where she worked for seven years. On 08.04.2013, the petitioner was transferred from Almora and was posted at the State College of Nursing, Dehradun as an Assistant Professor as she had B.Sc. and M.Sc. Nursing qualifications. She was made the in-charge Principal, and the Registrar, of the Nursing Council Uttarakhand, as both the posts of Principal and Registrar were vacant consequent on the incumbents having retired from service.

An exercise of merger was undertaken, pursuant to the 2016 Regulations, whereby posts in the Medical and Health Department were merged with posts in the Medical Education Department. Consequent thereto, the petitioner was absorbed in the Medical Education Department as an Assistant Professor vide G.O. No. 741 dated 22.11.2018.

Under the Uttarakhand Nursing College Teacher Service Regulations, 2015 promotion to the post of Associate Professor is from the feeder category of Assistant Professors. While 40% posts of Associate Professors are to be filled up by promotion from eligible Assistant Professors, the remaining 60% posts of Associate Professors are required to be filled up by direct recruitment. Under Rule 8 (d) of the 2015 Rules, those Assistant Professors, who have completed eight years of service, are eligible to be considered for appointment to the post of Associate Professors.

The petitioner's case for absorption, as an Associate Professor, appears to have been recommended by the then Principal, State College of Nursing, Dehradun. Subsequently, by G.O. No. 741 dated 22.11.2018, three Assistant Professors were absorbed as Assistant Professors in the Medical Education Department, and were posted in the newly established Govt. Nursing Colleges at Almora, Pithoragarh and Chamoli. The petitioner was posted as an Assistant Professor at the Govt. Nursing College, Almora. She has invoked the jurisdiction of this Court contending that her absorption as an Assistant Professor in the Medical Education Department is contrary to the 2015 Rules, and the 2016 Regulations; and her transfer, from Dehradun to Almora, contravenes the provisions of the Uttarakhand Annual Transfer for Public Servant Act, 2017 (hereinafter called the 2017 Act), as her husband suffers from a mental illness, she has already put in more than ten years service in remote areas, and her transfer again to Almora (a remote area) would violate Sections 7(d), 10 (b) and 23 of the 2017 Act.

With regards the petitioner's claim, for absorption in the Medical Education Department as an Associate Professor, Rule 4 of the 2016 Rules stipulates that the person who holds, or is discharging the functions of a higher post, and possesses the requisite educational qualification to be appointed to the higher post, shall be absorbed in the higher post. While the petitioner appears to possess the prescribed educational qualification for being appointed as an Associate Professor, the fact remains that she never discharged the functions of an Associate Professor; and since one of the two conditions, for absorption in the higher post of Associate Professor, has not been fulfilled, her claim for absorption, as an Associate Professor, is not tenable.

The petitioner's claim for promotion, from the post of Assistant Professor to that of Associate Professor, is in terms of the 2015 Rules. As noted hereinabove while the 2015 Rules prescribes a quota of 40% of the posts of Associate Professor to be filled up by promotion from the feeder cadre of Assistant Professors, Rule 8 of the 2015 Rules prescribes the eligible educational qualifications for appointment to the post of Associate Professor, and requires the candidate to have put in eight years of service as an Assistant Professor. While the petitioner may be eligible to be considered for promotion to the post of Associate Professor, it is only if and when the Government decides to fill up the said posts, would the petitioner be entitled to be considered, along with all other eligible candidates, for promotion to the post of Associate Professor. The petitioner's claim for absorption as an Associate Professor, or for promotion to the said post, is therefore not tenable.

The actual grievance of the petitioner appears to relate to her transfer from Dehradun to Almora. As noted hereinabove, the petitioner was not singled out for transfer and, on the other hand, three Assistant Professors, including the petitioner herein, were transferred to the newly established Government Nursing Colleges at Pithoragarh, Chamoli and Almora, consequent on their absorption as Assistant Professors under the 2016 Rules.

As the petitioner contends that the provisions of the 2017 Act have been violated, it is necessary for us to consider the contentions urged in this regard. The first contention is that the petitioner's husband is a "serious patient" falling within the ambit of Section 3(d) of the 2017 Act, as he suffers from the mental disease of "schizophrenia".

Section 7 of the 2017 Act stipulates that the following norms shall be followed for compulsory transfer from accessible areas to remote areas; namely:-

(a).....

(b).....

(d) The employees under the following categories shall be free from compulsory transfer from accessible area to remote area; namely:-

(i)...

(ii) Such employees who have already completed minimum 10 years service in the remote areas, and;

(iii) The employees seriously ill/disabled under Section 3 and who submit a certificate from the competent authority.

Section 23 of the 2017 Act provides for general transfers each year. Section 27 stipulates that, for any change in any of the provisions of this Act, the proposal should be submitted to the Committee headed by the Chief Secretary.

The submission of Mr. Bhupesh Kandpal, learned Counsel for the petitioner, regarding the transfer of the petitioner being illegal, is three-fold; firstly, the petitioner's husband is suffering from schizophrenia ever since 1997-98; secondly, the petitioner has already served for more than 22 years, out of her total 30 years' of service, in the remote areas of District Almora; thirdly, transfer under the 2017 Act could only have been effected before the 10th of June; and, the impugned transfer order dated 22.11.2018, effected more than five months thereafter in November, is illegal and is contrary to the provisions of the 2017 Act.

With regards the petitioner's contention that schizophrenia is a mental disease, it is necessary to note that Section 3(d) of the 2017 Act defines a 'serious patient' to mean the spouse and family (which includes the children of upto 18 years of age, and parents) of any employee suffering from, among others, a mental disease. The meaning of "schizophrenia" was considered by the Supreme Court, albeit in a different context, in 'Ram Narain Gupta v. Smt. Rameshwari Gupta' (1988) 4 SCC 247, wherein "Schizophrenia" has been described thus: -

"A severe mental disorder (or group of disorders) charac-terized by a disintegration of the process of thinking, of contact with reality, and of emotional responsiveness. Delusions and hallucinations (especially of voices) are usual features, and the patient usually feels that his thoughts, sensations, and actions are controlled by, or shared with, others. He becomes socially withdrawn and loses energy and initiative. The main types of schizophrenia are simple, in which increasing social withdrawal and personal ineffectiveness are the major changes; hebephrenic, which starts in adolescence or young adulthood (see hebephrenia); paranoid; characterized by prominent delusion; and catatonic, with marked motor disturbances (See catatonia).

Schizophrenia commonly--but not inevitably--runs a progressive course. The prognosis has been improved in recent years with drugs such as phenothiazines and by vigorous psychological and social management and rehabilitation. There are strong genetic factors in the causation, and environmental stress can precipitate illness."

But the point to note and emphasise is that the personality-disintegration that characterises this illness may be of varying degrees. Not all schzophrenics are characterised by the same intensity of the disease. F.C. Redlich & Daniel X. Freedman in "The Theory and Practice of Psychiatry" ( 1966 Edn.) say:

"............... Some schizophrenic reactions, which we call psychoses, may be relatively mild and transient; others may not interfere too seriously with many aspects of everyday living ......." (p.252)

"Are the characteristic remissions and relapses expressions of endogenous processes, or are they responses to psychosocial variables, or both? Some patients recover, apparently completely, when such recovery occurs without treatment we speak of spontaneous remission. The term need not imply an indpendent endogenous process; it is just as likely that the spontaneous remission is a response to nondeliberate but none-the-less favourable psychosocial stimuli other than specific therapeutic activity . ......"

(p. 465) (Emphasis Supplied)

Schizophrenia can be of different kinds. They may be relatively mild and transient; some others may not interfere too seriously with many aspects of everyday living. The very expression used in Section 3(d) of the 2017 Act is a 'serious patient' which would mean that the mental disease must be of such a serious nature which would hamper the daily functions of the said individual. Even according to the petitioner, her husband has been suffering from "schizophrenia" ever since 1997-98, and she had served thereafter at Almora. Her posting at Almora cannot, therefore, be held to be a proceeding which would disable her spouse from getting adequate medical treatment. Further, Section 7(d)(iii) only refers to employees who are seriously ill/disabled under Section 3, and who submit a certificate from the competent authority. The illness, which the petitioner claims, is not hers but that of her spouse. It is evident, therefore, that the provisions of Section 7(d)(iii) of the 2017 Act are not attracted.

With regards the petitioner's claim, that she has served in a remote area of District Almora ever since her initial appointment for a period exceeding 22 years, it is no doubt true that Section 10(b) stipulates that, if an employee is working for less than 3 years at the present place of posting but has served in a remote area during the whole service period for more than 10 years, she shall be compulsorily transferred from a remote area to an accessible area. Mr. Paresh Tripathi, learned Chief Standing Counsel for the State of Uttarakhand, would submit that the petitioner has been working in the present place of posting for more than three years; and the newly established Government Nursing Colleges, in these three districts of Almora, Pithoragarh and Chamoli, are located in accessible areas, and not in remote areas. He would rely on Appendix-2 to the 2017 Act whereunder accessible and remote areas are defined. In terms of Appendix-2 transfer of personnel, who are posted in the district headquarters, Tehsil headquarters, Block Development headquarters, Municipal Corporation/Municipal Board/Nagar Panchayat, identification of accessible and remote areas district-wise shall be made as per the requirement of the Department by the Committee constituted under the Chairmanship of the Commissioners in which the accessible and remote areas shall be identified on the basis of general infrastructure facilities such as road, electricity, water, education, medical, train and aero plane in the district headquarters etc.

The question whether the place, to which the petitioner is posted in Almora District, is an accessible area or a remote area must be decided in terms of Appendix 2 to the 2017 Act. We see no reason, in proceedings under Article 226 of the Constitution of India, to undertake the exercise of determining whether the place to which the petitioner is posted, and the places at which she worked earlier, are remote areas falling under the prohibition u/s 7(d)(ii) and 10(b) of the 2017 Act, as these are all matters for the Medical Education Department, in which the petitioner has been absorbed, to decide.

Section 23 of the 2017 Act relates to general transfers, and requires a prescribed time table to be observed in this regard. As noted hereinabove, the petitioner was transferred, vide G.O. No.742 dated 22. 11.2018, because of the urgent need to post Assistant Professors at the newly established Government Nursing Colleges in the three locations mentioned hereinabove. The petitioner's posting at Almora is not pursuant to an exercise of general transfer being undertaken by the State Government. Section 23 of the Act of 2017 has no application. Transfer of the petitioner, from Dehradun to Almora, is made in the exigencies of administration, and such transfers are not prohibited under the 2017 Act. The question of seeking approval of the Committee, constituted under Section 27 of the 2017 Act, would arise only if there is a requirement to change any of the provisions of the 2017 Act, or where a deviation is necessary or relaxation is inevitable. As no provision of the 2017 Act, which prohibits transfers in genuine cases of administrative exigencies, has been brought to our notice, we are satisfied that Section 27 of the 2017 Act has no application.

While we see no reason to interdict the transfer, since the aforesaid government order shows that the services of the petitioner, along with others, are urgently needed as Assistant Professors in the newly established Nursing Colleges in three different districts, suffice it to direct the respondents to consider the petitioner's representation, and examine whether her claim to have worked in remote areas for more than 22 years and her now being posted again in a remote area, is justified in the light of Section 7(2)(d), and Section 10(b) and Appendix-2 of the 2017 Act. The entire exercise, culminating in an order being passed and communicated to the petitioner, shall be completed within a period of two months.

The writ petition is, accordingly, disposed of.