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2018 DIGILAW 405 (UTT)

SIMRANJEET KAUR v. STATE OF UTTARAKHAND

2018-07-24

K.M.JOSEPH, SHARAD KUMAR SHARMA

body2018
JUDGMENT K.M. Joseph, C.J. (Oral) By the impugned order dated 08.06.2018 (Annexure-8), petitioner, who is working as Homeopathic Medical Officer at Haldwani, has been transferred to Bageshwar. 2. We have heard Mr. Rajendra Dobhal, Senior Advocate assisted by Mr. Shubhang Dobhal, Advocate on behalf of the petitioner, Mr. Amar Shukla, Advocate on behalf of the party respondent and also Mr. R.S. Bisht, Brief Holder for the State/respondent nos. 1 to 3. 3. Essentially, three grounds are pressed before us by the learned senior counsel. Firstly, he would submit that the petitioner is suffering from acute Bronchitis Asthma. He would submit that this is a serious ailment, which entitles her to be considered for being exempt under Section 7 of the Uttarakhand Annual Transfer for Public Servants Act, 2017 from compulsory transfer. Secondly, he would submit that in the order, by which she is transferred, the date of relieving is not mentioned, which is contrary to Section 7(c) of the Uttarakhand Annual Transfer for Public Servants Act, 2017. Thirdly, he would point out that options were not considered. 4. Per contra, the case of the official respondents is that the petitioner has served for a period of over twelve years in the Sugam area and as such she was liable to be compulsorily transferred. As far as the options are concerned, the answer is given in paragraph-7 of the counter affidavit, which reads as follows: “7. That the petitioner was asked to submit 10 options and in furtherance of same the petitioner submitted 9 options in her option paper. Nine places, which the petitioner opted all were at the height of 5000-6000 feet. Out of 9 places which the petitioner opted, 8 places are not vacant, whereas the only place, which was vacant i.e. Government Homeopathic Hospital, Champawat, which is situated at high altitude place, as the petitioner is avert that she is Asthmatic patient, therefore, keeping in view her health she was transferred to Government Homeopathic Hospital, Baijnath, District Bageshwar, which is at the height of 3700 feet." 5. The case of serious illness is sought to be rebutted by the respondents by pointing out that it is not a serious illness falling within the meaning of serious illness as defined under Section 3(d) of the Act. The case of serious illness is sought to be rebutted by the respondents by pointing out that it is not a serious illness falling within the meaning of serious illness as defined under Section 3(d) of the Act. It is also pointed out that there is no certificate obtained from the State Medical Board treating Bronchitis Asthama as any other such disease, which could be categorized as serious illness. 6. Learned counsel for the petitioner would submit that the petitioner has already moved the Authority by filing an application and it is for them to move the Medical Board and, thereafter, it is for the Medical Board to recommend after considering the nature of disease. It is also submitted that the petitioner's children are studying at Rudrapur and the husband of the petitioner too has now been transferred to Bageshwar by the same impugned order. 7. As far as the case of the petitioner that she is suffering from serious illness is concerned and the matter falls to be considered within the ambit of Section 3(d) of the Act, reads as follows: “3. In this Act, unless there is anything repugnant in the subject or context- (d) “Serious Patient" means the spouse and family (which includes the children of the age up to 18 years and parents) of 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 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." 8. Quite clearly, the petitioner suffers from none of the specifically enumerated diseases. A perusal of the said diseases as covered under Section 3 (d) of the Act would show that they are fairly serious diseases. It is true that under Section 3 (d) apart from the diseases mentioned in it, it covers any such other disease, for which the State Medical Board does not recommend for posting in any particular place or area and, for which, the Committee also gives its approval, could be classified as a serious illness. It is true that under Section 3 (d) apart from the diseases mentioned in it, it covers any such other disease, for which the State Medical Board does not recommend for posting in any particular place or area and, for which, the Committee also gives its approval, could be classified as a serious illness. The use of words by legislature as “such other disease" would have to be read with the seriousness of the disease covered under Section 3 (d), meaning that the disease alleged to be suffered from should be of the same magnitude and covering same risk, at least if not more, which is not the case at hand. There is no case for the petitioner that the Medical Board has recommended the case of the petitioner for not being posted or that she has ever approached the Board. The case of the petitioner is that it is not being followed up. But, taking the things as they stand, as of now, we do not see any ground is being made out by the petitioner for bringing her case under Section 3(d) of the Act. 9. As far as the options are concerned, we have noted the manner, in which it has been dealt with going by what is stated in paragraph-7 of the counter affidavit. 10. Mr. Amar Shukla, Advocate for the party respondent would also point out that, in fact, Bageshwar is located at lower elevation than the other places mentioned in the option given by the petitioner. He further submits that the party respondent has already joined at Haldwani. Therefore, we do not see any merit in the case of the petitioner regarding consideration of the option looking to the option submitted by her and admittedly the diseases which she alleges to be suffering from. 11. Regarding the case that the date of relieving is not recited in the order, the relevant provision is contained in Section 7(c) of the Act, which reads as follows: “Norms of compulsory transfer from accessible area to remote area 7. 11. Regarding the case that the date of relieving is not recited in the order, the relevant provision is contained in Section 7(c) of the Act, which reads as follows: “Norms of compulsory transfer from accessible area to remote area 7. There shall be following norms for compulsory transfer from accessible areas to remote areas; namely:- (c) The employee being transferred to remote areas from accessible areas shall compulsorily be transferred to accessible area again on completion of minimum period prescribed for posting in remote areas and the date of their relieving from remote areas shall be clearly mentioned in their transfer order also." 12. Mr. R.S. Bisht, learned Brief Holder, in our view, correctly points out that the date of relieving is to be mentioned when the petitioner is relieved from the remote area after serving there for the minimum period. Therefore, non-mention of the date of relieving in the impugned transfer order cannot avail the petitioner, as that is not what is intended by under Section 7 (c). Rather Section 7 (c) mandates altogether a different situation where it contemplates a situation of transferring an employee after serving for the requisite period in remote area. 13. In such circumstances, we do not think any of the grounds, which have been urged before us, suffice for invalidating the order of transfer. 14. As far as the case of the petitioner regarding the State Medical Board not dealing with the matter relating to the alleged serious illness of the petitioner is concerned, we leave it open to the petitioner to pursue the remedy available to her under law and as per law before the Medical Board. 15. Subject to the above observations, the Writ Petition will stand dismissed. No order as to costs.