Uttarakhand High Court
WPSB/94/2021 on 8 March, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN
AND
THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA
WRIT PETITION (S/B) NO.94 OF 2021
8th March, 2021
Between:
Sher Singh. .......Petitioner
and
State of Uttarakhand and others. .......Respondents
Counsel for the : Mr. Ajay Veer Pundir, learned
petitioner counsel.
Counsel for respondents : Mr. Pradeep Joshi, learned
Additional Chief Standing Counsel
assisted by Mr. S.S. Chaudhary,
learned Brief Holder for the State.
The Court made the following:
JUDGMENT: (per Hon'ble The Chief Justice Sri Raghvendra Singh Chauhan)
The petitioner has challenged the legality of
the transfer order dated 24.06.2019, whereby the
petitioner was transferred to Ranikhet in District
Almora; the petitioner has also challenged the legality
of order dated 11.02.2021, whereby the petitioner
has been kept awaiting posting orders by the
respondents.
2. Briefly, the facts of the case are that,
according to the petitioner, he had joined the
Agriculture Department as an Assistant Agriculture
Officer Class-I. During his course of service spanning
from 1986 till present, he has put in twenty-four
years of service in remote areas of the State;
according to him, he served in the Development
Blocks Kot Khirsu and Rikhnikhal in District Pauri
Garhwal, from 15.09.1986 to 31.07.2002. He had
further served in the Development Blocks of
Bhikyasain and Salt in District Almora, from
01.08.2002 to 31.07.2010. Presently, he is serving in
District Haridwar in the Development Block Narsan as
an Assistant Agriculture Officer Class-I.
3. According to the petitioner, in the year
2017, the Uttarakhand Annual Transfer For Public
Servants Act was enacted. According to Section 7(d),
the transfer of employees who fall under certain
categories was prohibited. One of the provisions is
that "senior employees" whose age is above 55 years,
or those who have completed minimum of ten years
of service in remote areas, could not be transferred.
However, despite the said bar, by transfer order,
dated 24.06.2019, the petitioner was transferred to
Ranikhet, District Almora. However, since the
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petitioner was aggrieved by the said transfer order,
he filed a representation. But the said representation
has not illicit any response so far. Meanwhile, by
order dated 11.02.2021, the petitioner has been kept
awaiting posting orders. Hence, the present petition
before this Court.
4. Mr. Ajay Veer Pundir, the learned counsel
for the petitioner, has vehemently contended that the
original transfer order dated 24.06.2019 was contrary
to the Transfer Act. For, the petitioner had already
spent 24 years of service in "remote areas" of the
State. Therefore, he could not be transferred to
Ranikhet, Distict Almora. Secondly, by the impugned
order dated 11.02.2021, he is being kept awaiting
posting orders. There is no valid reason, why he
should be kept awaiting posting orders. In fact, he
should be permitted to continue to serve the State.
Therefore, according to the learned counsel for the
petitioner, both the impugned orders deserve to be
set aside by this Court.
5. This Court has asked a pointed query to the
learned counsel with regard to the age of the
petitioner on 24.06.2019. The learned counsel for the
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petitioner has frankly conceded that on 24.06.2019,
the petitioner was about 54 years old.
6. Section 7 (d) of the Act is as under:-
"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 employees posted in military
and Para military force."
7. A bare perusal of Section 7(d) clearly
reveals that employee who falls within the categories
specified therein cannot be compulsorily be
transferred from "accessible area" to the "remote
area". Section 3(h) defines the term "senior
employees" as meaning those who are above the age
of 55 years, when the age of superannuation is about
60 years. Admittedly, the petitioner would retire at
the age of 60. However, on the date when the original
transfer order was passed i.e. on 24.06.2019, the
petitioner was about 54 years old. Therefore, he
cannot claim that he should not have been treated as
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he was a senior employee. Obviously, since the
petitioner was fifty-four years old at the time of
original transfer order, he does not fall in the category
of "senior employee."
8. Furthermore, although the petitioner may
have completed twenty-four years of service in
remote areas, the petitioner cannot claim that his
transfer to Ranikhet is a transfer from an "accessible
area" to a "remote area". After all, being close to the
District Headquarter of Almora. Ranikhet does not fall
within the "remote areas" of the State. Ranikhet, in
fact, falls within the "accessible area" of the State.
Therefore, the learned counsel for the petitioner is
unjustified in claiming that having served twenty-four
years in the "remote areas", the petitioner could be
transferred to Ranikhet, which is also a "remote
area."
9. Needless to say, the transfer is but an
incident of service. Therefore, the employer is free to
transfer the employees on the basis of administrative
exigencies. It is for the employer to decide as to
where an employee can render best service for the
institution. Hence, ordinarily employees are not
permitted to challenge the transfer order.
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10. As far as the impugned order dated
11.02.2021 is concerned, a bare perusal of the
impugned order clearly reveals that since the
representation filed by the petitioner is yet to be
decided by the concerned authority, the respondent
had no other option but to keep the petitioner
"awaiting posting order". Therefore, while keeping the
petitioner awaiting positing order, the petitioner
cannot be aggrieved by the said order. After all, such
an order does not deny his rightful salary to the
petitioner; it is not a punishment by the farthest
stretch of imagination. Moreover, the employer is well
within his powers to keep an employee awaiting
further orders. Therefore, this Court does not find any
illegality in both the impugned orders.
11. For the reasons stated above, this Court
does not find any merit in the present petition; it is,
hereby, dismissed. No order as to costs.
_____________________________
RAGHVENDRA SINGH CHAUHAN, C.J.
___________________
ALOK KUMAR VERMA, J.
Dt:08th March, 2021
Pant/Neha
