11TH FEBRUARY, 2025 Pankaj Kumar Sharma … v. State of Uttarakhand & another

Judgment

(per Hon’ble The Chief Justice Sri G. Narendar) Heard the learned counsel for the petitioner and learned Additional Chief Standing Counsel appearing for the State. 2) The petitioner is before this Court being aggrieved by the order whereby he was promoted to the post of Joint Director and had been transferred on the 1 post of In-charge Chief Medical Superintendent, District Hospital, Pauri. 3) It is the case of the petitioner that since his appointment, he has served 60% of his service period in remote areas, and only 03 years are remaining for his retirement; that the transferred post is a remote area with minimal infrastructure and minimal medical facilities. 4) It is the case of the petitioner that he suffered a heart attack in the year 2019, and that the transferred post at District Hospital, Pauri is situated at about 6000 feet above MSL (Mean Sea Level), and Gangotri is about 9000 feet above MSL. That the petitioner has undergone surgery for dilated cardio myopathy (heart condition) and two stents have been implanted. This fact is not denied by the State. 5) Per contra learned counsel for the State would contend that the modification of the transfer order is required to be addressed under the provisions of Section 27 of the Uttarakhand Annual Transfer for Public Servants Act, 2017. Section 27 of the said Act reads as under : “27. (1) After the promulgation of this Act, this Act shall have overriding effect on Acts/Annual Transfer Policies of other departments: Provided that if any change in any provision of this Act, to any specific is required by any department due 2 relaxation indispensable, circumstances of the department or any deviation is necessary the proposal of such changes/deviations/relaxations shall be submitted with reasons before Chairmanship of Chief Secretary and consisting the following members :- the committee constituted under (a) Additional Chief Secretary / Principal Secretary Forest and Infrastructure Development Commissioner; (b) Additional Chief Secretary / Principal Secretary Agricultural Production Commissioner; and (c) Principal Secretary, Personnel as its member and shall be changes/deviations/relaxations necessary allowed after the approval of the Chief Minister on recommendations made by this committee (2) This committee shall submit its recommendations for the approval of Chief Minister regarding the difficulties arising in application of this Act or such unforeseen matters which are not included in this Act, thereafter the State Government may make rules as required.” 6) A bare reading of the provisions of Section 27 would clearly reveal that the provision would relate to a request from any department which comes within the ambit of the Act, which as a matter of policy, on account of inherent service or working conditions, may send a proposal for such change or deviation or relaxation. The language clearly indicates that the provision relates to a policy decision and does not appear to apply to cases of individuals. 7) We have perused Section 7 of the Uttarakhand Annual Transfer for Public Servants Act, 2017. Section 7 reads as under : “7. There shall be following norms for compulsory transfer from accessible areas to remote areas; namely: - 3 (a) The employees, who is posted for 04 years or more at present place of posting in accessible area shall be compulsorily transferred subject to the number of vacancies available and anticipated under section 10 in remote area; (b) The employees, who are working for less than 04 years at present place of posting in accessible area but during whole service period have served in accessible area for more than 10 years, shall also be compulsorily transferred from accessible area to remote area subject to availability of vacancies / posts in remote area as above: Provided that for the counting of total service period in accessible area the proviso of definition of accessible area given in Appendix specified in section 3 of this Act shall also be taken into consideration; (c) The employee being transferred to remote areas from accessible areas compulsorily be transferred to accessible area again on completion of minimum period prescribed for posting in remote areas and the date of their reliving from remote areas shall be clearly mentioned in their transfer order also; (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 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 employees posted in military and Para military force.” 8) A reading of Section 7 of the Act, more particularly, Section 7(d)(i), (ii) & (iii) makes it clear that any employee in the employment of State, who is a Senior Employee or has put in a minimum of 10 years of service in remote areas or who is badly ill or disabled and submits a certificate from the competent authority, are exempted 4 from the rigors of Section 6 and Section 7 of the Act, which mandate a compulsory transfer of employees, who have been continuously posted/ working in an accessible area for 04 years or more. 9) We have further examined the scope and ambit of the Act of 2017, and we have found that the exercise has been carried out without compliance with the provisions of the Act. Section 5 requires the Transfer Committee to identify the post. Sub-section (1) of Section 5 mandates that the Head of the Office or Head of the Department shall identify the place of postings, both under the accessible and remote areas, in accordance with Section 4. Sub-section (2) of Section 5 requires the Departments to pre-determine the norms and thereafter place proposals, in view of the special circumstances of the department, for consideration by the Committee constituted under Section 27 of the Act. Sub-section (2) further fortifies our opinion that the exemptions etc. deviations/ relaxations envisaged in Section 27 department-wise, and does not involve cases of individuals. 10) Section 8 provides for enumerating employees, who are eligible to be transferred. Section 9 provides for inviting options from such employees, who are eligible to 5 be transferred compulsorily. Section 10 provides for the norms for compulsory transfer. Section 11 compliments Section 10. Section 12 mandates the drawing up of a list of all the available vacancies, and the list of eligible employees, and invite them to exercise their choices. Section 13 provides for request transfers, which is not pertinent to the issue at hand. 11) Section 16 is of relevance and importance to the case on hand. Section 16 begins with the heading ‘Constitution of Transfer Committee and Duties of the Committee’. Sub-section (1) of Section 16 mandates the constitution of a Permanent Transfer Committee. The members of the Committee, apart from the officers of the Department, would also include the officer/s from another Department. Sub-section (2) deals with the transfers at the district level. It is pertinent to note Sub-section (4). It mandates that the Committee shall prepare the minutes, regarding each employee(emphasis by this court). It further calls upon the Committee to assign reasons, as to why certain employee/ employees’ compulsory transfer is not possible, as per the provisions of this Act. Sub-section (5) is even more crucial for the determination of the issue at hand. It mandates that the transfer orders shall be issued, as per 6 recommendations of the Transfer Committee i.e. the Committee constituted under Sub-section (1). 12) We have perused Section 3. Neither is Transfer Committee, nor the Competent Authority defined. Section 27 begins with the heading ‘Removal of difficulties in the application of the Act’. The Committee is neither defined, nor described, as the Competent Authority or the Transfer Committee. The only provision, which deals with the Transfer Committee is Section 16, and there is no ambiguity in the language, as it clearly mandates the formation of a Permanent Transfer Committee. The proviso to Sub-section (1) of Section 27 is also categorical, and speaks of the requirement of the Department, for specific circumstances, to seek for deviation or relaxation of the applicability of the Act. 13) The discussions above clearly demonstrates that the contention of the Government Counsel, that transfer of the petitioner is required to be considered by the Committee constituted under Section 27, is erroneous. The onus was on the Permanent Transfer Committee, constituted under Sub-section (1) of Section 16, to consider and prepare a list of employees eligible for being compulsorily transferred. Sub-section (3) casts such a duty on the Committee. To quote Sub-section (4) 7 “………The Committee shall give in its minutes, with reason, a separate list of employees whose transfer could not possible to be recommended as per the provisions of this Act.” This further obviates any detailed discussion, and Sub-section (5) mandates that the transfer orders shall be as per the recommendations of the Transfer Committee referred to in Sub-section (1). 14) That being the case, the failure of the Transfer Committee to assess the eligibility of the employee, in terms of Section 7, cannot be put against the petitioner. Section 7 details the exempted class of employees. Sub- clause (d)(i) refers to ‘senior employees’, and ‘senior employee’ is defined under clause (h) of Section 3, as a person, who is aged about 55 years, when the age of retirement is 60 years, and is of the age of 60 years, when the age of retirement is 65 years, as on the 31st day of May of the relevant year. 15) It is not in dispute that the petitioner is aged more than 55 years, and would qualify to be among the exempted class. Clause (d)(ii) of Section 7 provides exemption for employees, who have completed minimum 10 years of service in remote areas. 8 16) In paragraph no. 3 of the Writ Petition, the petitioner has contended that he was appointed as a Medical Officer on 12.03.2003, and was posted at Allopathic Dispensary Gangotri, District Uttarkashi, and thereafter between 01.09.2004 to 04.01.2020, he served as a Medical Officer at T.B. Clinic at Uttarkashi district, i.e. more than six years, and again between 01.07.2017 to

10.01.2022, he served as a Senior Medical Officer in District Hospital, Pauri. Thus, it is apparent that the petitioner has put in considerable length of service in hilly areas also. Clause (d)(iii) of Section 7 exempts employees, who are seriously ill or disabled and would submit a certificate from the Competent Authority. 17) In the instant case, such a certificate has also been produced. Thus, it is apparent that the Permanent Transfer Committee has abdicated its duties cast upon it under Section 16, and has erroneously recommended the name of the petitioner, as an employee eligible to be compulsorily transferred. 18) On the previous hearing date, i.e., 09.01.2025, when the matter was heard, this Court after hearing the parties passed an order directing the petitioner to submit himself for medical checkup by the Medical Board. 9 19) Pursuant to the same, during the course of hearing yesterday, the petitioner counsel has placed on record the Health Examination Certificate, issued by the Medical Board. The health examination certificate issued by the Medical Board records as under : “After examination patient was found suffering from Coronary Artery disease – PTCA / stenty LAD / RCA with Dilated Cardio myopaty (ER 35%). Patient comes under serious type of disease. Patient should avoid high altitude and exertion. Patient needs life time follow up and treatment by Cardiologist” 20) A reading of the health examination certificate would clearly demonstrate that the petitioner comes within the exempted category of employees, i.e., persons who are seriously ill/ disabled. In fact, the health examination certificate records that the petitioner require life time follow-up with a cardiologist, and he should avoid high altitude and exertion, and the aliment is described as a serious type of disease. 21) It is common knowledge that in high altitude areas the oxygen content is less than in the plains. Insufficient oxygen or low oxygen levels can have a deleterious effect on persons with heart condition. In that view of the matter, the order under challenge, in our 10 considered opinion, is unsustainable and requires to be interfered. 22) Accordingly, the writ petition is allowed. The order dated 26.11.2024 (Annexure-2 to the petition), insofar as it relates to the petitioner, is quashed. A direction is being issued to the second respondent, directing him to issue posting order of the petitioner in an accessible area, where the medical facilities relating to ailment of the petitioner are available. Posting order shall be issued within 15 days from the receipt of the copy of this order. 23) Registry to e-mail copy of this order to the second respondent. 24) Writ petition stands ordered accordingly. There

shall be no order as to costs. ________________ G. NARENDAR, C.J. _______________ ASHISH NAITHANI, J. Dt: 11TH FEBRUARY, 2025 Negi 11