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2003 DIGILAW 118 (UTT)

Shailendra Kumar v. Alok Kumar Jain

2003-08-05

P.C.VERMA, S.H.KAPADIA

body2003
ORAL JUDGEMENT: [Per Hon'ble S.H. Kapadia, C.J.] 1. Rule. 2. Respondents waive service. By consent the writ petition is taken up for final hearing. 3. By this writ petition, the petitioner seeks to challenge the order of transfer-dated 10.07.2003 passed by the Secretary, Department of Medical & Health Services, Uttaranchal, Dehradun. 4. The petitioner was appointed to the post of medical officer on 13.04.1994 after being selected by the Public Service Commission. By the impugned order, he has been transferred from State Allopathic Dispensary. Devalthal, Distt. Pithoragarh to the post of E.N.T. Government Hospital Gopeshwar, district Chamoli. The petitioner's name stands at serial no. 70 of the transfer order. 5. The main ground of attack in the petition is that immediately before the creation of the State of Uttaranchal, the Department of Medical and Health Services, Government of U.P. had called upon the petitioner to exercise his option. The petitioner preferred his option for the State of U.P. as he was permanent resident of Patna. The petitioner accordingly filed his option papers opting for the State of U.P. This was in September-October, 2000. In the petition, it is contended that only Governor of Uttar Pradesh being the appointing authority had a right to transfer the petitioner and that the Secretary, Department of Medical and Health Services, Uttaranchal has no authority to transfer the petitioner and, therefore, the impugned order of transfer should be set aside. 6. Mr. CD. Bahuguna, learned counsel appearing on behalf of the petitioner vehemently argued that in view of section 73 of the U.P. Reorganisation Act, 2000, the petitioner was not liable to be transferred. He placed reliance on section 73 of the Act, which inter alia states that every person before 9.11.2000 being the appointed day who was serving in connection with the affairs of the existing State of Uttar Pradesh shall, on and from that day provisionally continue to serve in connection with the affairs of existing State of Uttar Pradesh unless he is required, by general or special order of the Central Government to serve provisionally in connection with the affairs of the State of Uttaranchal. 7. U.P. Reorganisation Act, 2000 provides for reorganization of existing State of U.P. The Act came into force with effect from 25th August 2000. State of Uttaranchal is a successor State under section 2(j). State of Uttaranchal is a transferred territory under section 2(k). 7. U.P. Reorganisation Act, 2000 provides for reorganization of existing State of U.P. The Act came into force with effect from 25th August 2000. State of Uttaranchal is a successor State under section 2(j). State of Uttaranchal is a transferred territory under section 2(k). State of Uttaranchal came into existence on 9th November 2000. Section 73 of the said Act states that every person before 9th November 2000 working in connection with the affairs of State of Uttar Pradesh, shall continue to work in connection with the affairs of State of Uttar Pradesh unless he is required by general or special order of Central Government to serve the State of Uttaranchal. Section 73 is a general provision. On the other hand, Section 75 states that every person who is discharging the duties of any post or office in connection with State of Uttar Pradesh, in any area falling within the State of Uttaranchal, shall be deemed to be appointed to the post or office by the Government of Uttaranchal. Therefore, Section 75 is a special provision. In this case, Section 75 operates. Section 75 is a proviso to Section 73. Therefore, the case of the petitioner falls under Section 75 of the Act. Therefore, Government of Uttaranchal was entitled to make inter district transfer of the petitioner within the State of Uttaranchal. 8. Before concluding, our attention was also invited to Annexure 5 of the paper book which refers to the office memo issued by Government of U. P. It was contended on behalf of the petitioner that this office memo indicates that the U.P. Government has ordered transfer of 208 medical officers. According to the petitioner, out of 208 medical officers, 96 medical officers have been relieved for the State of U.P. in two stages, but the name of the petitioner does not find place in the relevant order although he is appointee in the year 1994. In our view the office memo (annexure 5) indicates step-wise taking back of male medical officers. The relieving orders are required to be passed by the State of Uttaranchal depending upon the exigency of work. The relieving orders come under section 75(1) and not under section 73 of the Act, 2000. Hence, there is no merit in the argument. 9. For the above reasons, the writ petition is rejected.