Sobendra Singh Rawat vs State of Uttarakhand & Others

SHARAD SHARMA, J. (ORAL)

Admittedly the petitioner is a class-IV employee, who has attained the age of 57 years and is on the verge of retirement. It is specific case of the

petitioner that his appointing authority happens to be the Executive Engineer, who has passed the impugned order of transfer dated 13.06.2018. At the

admission stage when the Writ Petition was argued, the coordinate Bench of this Court vide its order dated 06.07.2018 had admitted the Writ Petition

and granted an interim order in favour of the petitioner. No counter affidavit has been filed till date. Hence this Court is constrained to decide this Writ

Petition on its merit as brought on record by the petitioner.

Learned counsel for the petitioner has continued his arguments and has raised two fold arguments:

(i) that the petitioner ought not to have been transferred because he has attained the age of 57 years and in view of Section 7(d) of the Act he ought

to be exempted from being transferred.

(ii) he submits that the transfer made is contrary to the time table as given under Section 23 of the Act.

This Court proceeds to deal with the two arguments extended by the learned counsel for the petitioner independently. First argument extended by

the learned counsel for the petitioner that there has to be exemption granted to the petitioner in view of the provisions contained under Section 7(d)

because the petitioner has attained the age of 57 years is not acceptable by this court for the reason that the exemption under Section 7 is only

contemplated where an employee is transferred from “Sugam†to “Durgamâ€, which is not the case at hand. In the case in hand by the

impugned order dated 13.06.2018 under challenge since the petitioner has been transferred from Durgam to Sugam, the said argument would not be

tenable. Section 7(d) is quoted hereunder:

“Norms of compulsory transfer from accessible area to remote area

There shall be following norms for compulsory transfer from accessible areas to remote areas; namely:-

(a) ……

(b) ……

(c) ……

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

(i) Senior employees;

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

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

(iv) Such spouse whose only son/daughter is included in definition of disability;

(v) Spouse of employee posted in military and Para military force.â€​

The second contention pertaining to the non-compliance of the time schedule given under Section 23, he submits that once the statute provides an

action to be taken within the specified time provided under Section 23 of the Act, it has got an object to be attained that in the absence of the same the

said transfer order would be bad and in violation of the statutory provision. Prima facie this argument of the learned counsel for the petitioner seems to

be holding some water and attractive and same is being sought to be opposed by the respondent Standing Counsel by contending thereof that the

provisions contained under Section 23 is not absolute provisions as under Section 21(3) carves out exception in following time schedule. In the

provisions contained under Section 21, there is an exemption carved out under the Act by sub section (3) of Section 21 itself. On close scrutiny of sub

section (3) of Section 21 it has a free play in applying time table under Section 23 for interpretation and its applicability to the petitioner who is a group

D employee. Sub section (3) of Section 21 is quoted hereunder:

“Providing powers for transfer 21(3) After the date indicated as per time table mentioned in Section 23 the transfer of officers of Group ‘A’

and Group ‘B’ transfers may be made with the approval of the Chief Minister and of employees of Group ‘C’ and Group ‘D’ shall

be made by the authority of one rank higher of the competent authority for making such transfers.â€​

If at all the transfer is required to be made in dereliction to time table. The transfer of Group D employee contrary to the time schedule given under

section 23 could only be made by an authority of one rank higher to the competent authority or atleast by a prior approval of the superior authority for

making such transfer. Sub section (3) of Section 21 when it carves out an exemption it uses the word ‘shall’ that before transfer of an

employee is made beyond the time schedule provided under Section 23, there has to be an approval atleast accorded by the authority who is superior

to the competent authority transferring the employee apparently on scrutiny of the impugned order under challenge it lacks any such approval having

been granted while passing the transfer order the order having being passed by superior authority hence the order is in contravention to the time

schedule provided under Section 23. As such on this count itself the transfer order cannot be sustained and hence the same is quashed.

The Writ Petition succeeds and is allowed. There would be no order as to costs.