Uttarakhand High Court
SPA/80/2023 on 18 April, 2023
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
AND
THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA
SPECIAL APPEAL NO. 80 OF 2023
18th APRIL, 2023
Between:
Rajendra Singh Parwal ...... Appellant
and
State of Uttarakhand & others ...... Respondents
Counsel for the appellant : Mr. S.K. Mandal, learned counsel
Counsel for the respondents : Mr. Pradeep Joshi, learned Additional
Chief Standing Counsel for the State
The Court made the following:
JUDGMENT: (per Hon'ble The Chief Justice Sri Vipin Sanghi)
Issue notice.
Counsel for the respondents appears and accepts
notice.
2) The special appeal is directed against the order
passed by the learned Single Judge in Writ Petition (S/S) No.
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539 of 2023, dated 06.04.2023, dismissing the petition
preferred by the appellant / writ petitioner. The appellant
had preferred the said writ petition to assail the rejection of
his representation against his transfer from Nawadkhera,
Haldwani to Pahadpani, Nainital, within the same district.
The appellant had earlier preferred Writ Petition (S/S) No. 12
of 2023, against his said transfer. That writ petition was
disposed of on 05.01.2023, permitting the appellant to make
his representation to the Competent Authority with a
direction to give an undertaking in his representation, that
he will serve anywhere in the State once Board Examinations
of his daughter is over. The Competent Authority was
required to dispose of the representation within six weeks.
Consequently, the Additional Director (Secondary Education)
Nainital, who was the Competent Authority, rejected the
representation made by the appellant on 17.03.2023. It was
again assailed by the appellant in Writ Petition (S/S) No. 539
of 2023. The learned Single Judge has rejected the writ
petition in view of the fact that the appellant had given the
undertaking that he will proceed on transfer, in case, his
representation is rejected. Learned Single Judge has also
observed that transfer is an incidence of service, and in the
absence of malice or violation of rules, interference with
such an order would not be appropriate.
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3) The submission is that the case of the appellant
should be placed before the State Medical Board to consider,
whether the petitioner is a serious patient, as defined in
Section 3(d) of the Uttarakhand Annual Transfer for Public
Servants Act, 2017.
4) Section 3(d) defines "serious patient" to mean -
"any employee suffering from a serious diseases and it
includes Cancer, Blood Cancer, AIDS/HIV (positive), Heart
disease (having Bypass surgery or Angioplasty done) Kidney
disease (dependent on the dialyses due to failure of both the
kidneys or kidney transplanted or one kidney removed),
Tuberculosis (both the lungs infected or one lung fully
damaged), SARS (third stage), epilepsy, mental disease and
any such other disease for which State Medical Board doesn't
recommend for posting in any particular place / area and the
committee constituted under section 27 of the Act gives its
approval thereon;".
5) The petitioner has himself placed on record his
medical report, which does not show that he is a serious
patient. He is a patient of cervical spondylitis with lumbar
spondylosis. He has been advised not to bend, or lift any
heavy things, or go on a long walk, or turn his head. He has
also been advised to take physiotherapy. The appellant is
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not suffering from any of the serious diseases enumerated in
Section 3(d).
6) At this stage, counsel for the appellant has
referred to the definition of disability, as contained in Section
3(e). The appellant is, certainly, not suffering from any
disability, much less, disability of more than 40 per cent, and
the same is not evidenced from any disability certificate.
7) For the aforesaid reasons, we find absolutely no
merit in this appeal. The same is, accordingly, dismissed.
_________________
VIPIN SANGHI, C.J.
_________________
ALOK KUMAR VERMA, J.
Dt: 18th APRIL, 2023
Negi
