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2019 DIGILAW 314 (UTT)

Pawan Kumar v. State of Uttarakhand

2019-05-07

N.S.DHANIK, RAMESH RANGANATHAN

body2019
JUDGMENT : Ramesh Ranganathan, J. This appeal is preferred against the order passed by the learned Single Judge in WPSS No. 873 of 2018 dated 15.04.2018. 2. The appellant herein filed WPSS No. 873 of 2018, seeking a writ of certiorari to quash the order dated 23.10.2017 passed by the second respondent, and the order dated 24.02.2018 passed by the third respondent; and a writ of mandamus directing the respondents to grant posting to the petitioner, as Lecturer (Geography), as per the amended Transfer Policy dated 23.12.2014, at an appropriate place where vacancies are available, as demanded by the petitioner. 3. Facts, to the limited extent necessary, are that the petitioner, an Assistant Teacher, L.T. Grade (General), working at the Government Inter College, Laxmanjhula, District Pauri Garhwal had a Post Graduate Degree in Geography, and was eligible to be promoted to the post of Lecturer. He was accordingly promoted as a Lecturer (Geography), and was posted at the Government Inter-College, Naughar, Palkot, District Tehri Garhwal on 10.05.2016. 4. It is his case that, in terms of the Transfer Policy dated 23.12.2014, cases of medical emergency, such as where both the kidneys of the spouse have failed, are required to be given preference in posting; and since the medical facilities, for treatment of his wife, are available only at Dehradun, he shall be posted in Dehradun alone, and not elsewhere. 5. In the order under appeal, the learned Single Judge observed that the appellant-writ petitioner’s wife was suffering from end stage renal disease, and she was on CAPD procedure/dialysis; the petitioner had made a representation on 17.05.2016 for change of the place of his posting; he had filed WPSS No. 2399 of 2017 which was disposed of on 24.08.2017, with a direction to the Director, School Education to consider his representation and pass a reasoned order; and the Director had rejected the petitioner’s representation on the ground that it was not possible to transfer the petitioner to the Government Inter College, IDPL, Rishikesh, as it has been given the status of a Model institution, and an examination had to be held to fill up the vacancies of Lecturers thereat. 6. 6. The learned Single Judge, thereafter, noted the submission urged on behalf of the appellant-writ petitioner that his case was covered by Rule 9 (1) of the 2013 Transfer Rules; and in view of the medical condition of his wife, his claim for posting anywhere in Dehradun should be considered by the Competent Authority. The writ petition was disposed of with liberty to the petitioner to make a fresh representation to the Director, School Education, within two weeks; and the Director was called upon to examine the petitioner’s claim, and take an appropriate decision within eight weeks from the date of receipt of the representation. Aggrieved thereby, the present appeal. 7. Sri Tapan Singh, learned counsel for the appellant-writ petitioner, would submit that, since the appellant-writ petitioner’s wife is undergoing treatment for her renal disease and she is also undergoing dialysis, he should be posted at Dehradun, where adequate medical facilities are available for such treatment; failure of the respondents in considering his request favorably, justified a mandamus being issued by this Court directing that he be posted at Dehradun; in its order in WPSS No. 873 of 2018 dated 22.11.2018, a learned Single Judge had recorded the submission of the Director of Education, Dehradun, who was then present in the Court, that the post of Lecturer (Geography) was vacant in the Government Inter-College, Garhi Shyampur, Rishikesh, Dehradun, and the petitioner could be considered for promotion to the said post; and, in the light of the submission made by the Director before this Court on 22.11.2018, he should have been posted atleast in the vacancy of Lecturer (Geography) in the Government Inter- College, Garhi Shyampur in Rishikesh, Dehradun District. 8. The orders impugned in the writ petition are the order dated 23.10.2017 and the order dated 24.02.2018. By the order dated 23.10.2017, the petitioner’s request, that he be posted as a Lecturer (Geography) in IDPL, Rishikesh, was rejected on the ground that the said Institution was identified as a Model College, wherein the posts of lecturer were required to be filled up by a process involving a written examination; and two candidates had already participated in the written examination. By the subsequent order dated 24.02.2018, those two candidates, who had appeared in the written examination for selection to the post of Lecturer (Geography) in the Government Inter College, IDPL, Rishikesh, were appointed to the said posts. 9. By the subsequent order dated 24.02.2018, those two candidates, who had appeared in the written examination for selection to the post of Lecturer (Geography) in the Government Inter College, IDPL, Rishikesh, were appointed to the said posts. 9. Since the appellant-writ petitioner, admittedly, did not appear in the written examination held to fill up the post of Lecturer (Geography) in the said institute, the impugned orders, whereby his claim was rejected and two other candidates were appointed, cannot be faulted. In any event, the two selected candidates have not even been arrayed as respondents in the writ petition, and it would be wholly inappropriate for us to examine the validity of the order dated 24.02.2018 behind their back. 10. The only other relief sought by the petitioner is for a mandamus directing the respondents to post him as a Lecturer (Geography) at an appropriate place, where vacancies are available, as demanded by him. Transfers are made, and postings are given, based on the exigencies of administration and no employee can claim that he be posted at a place as “demanded” by him. All of that the appellant-writ petitioner can seek is to be permitted to make a representation for his request to be transferred to another place, on medical grounds, to be considered by the competent authorities. It has not been disputed before us that transfer of lecturers are governed by the provisions of the Uttarakhand Annual Transfer for Public Servants Act, 2017. Even in terms thereof, cases where spouses of employees suffer from serious ailments are required to be given preference while effecting transfers or postings. It does appear from the material placed on record that the appellant-writ petitioner’s wife is suffering from a renal disorder and is undergoing dialyses; and posting of the petitioner, in a college in proximity to hospitals where such medical facilities are available, would not be in violation of the provisions of the Uttarakhand Annual Transfer for Public Servants Act, 2017. While the appellant-writ petitioner is, undoubtedly, not entitled to claim that he should be posted at a particular place, the respondent-authorities are obligated to consider the appellant-writ petitioner request that he be posted at a place in proximity to hospitals where such medical facilities are available in view of the serious ailment which his wife is suffering from. 11. While the appellant-writ petitioner is, undoubtedly, not entitled to claim that he should be posted at a particular place, the respondent-authorities are obligated to consider the appellant-writ petitioner request that he be posted at a place in proximity to hospitals where such medical facilities are available in view of the serious ailment which his wife is suffering from. 11. We consider it appropriate, in such circumstances, to modify the order under appeal, and direct the Director, School Education (respondent no. 2) to consider the appellant-writ petitioner’s request to be posted as a Lecturer (Geography) in a Government Inter-College in close proximity to places where adequate medical facilities are available for treatment of patients with renal disorder, and who are undergoing dialysis. The petitioner shall submit a representation, making such a request, within one week from today. The second respondent shall consider his representation, in the light of the observations made hereinabove, within two weeks thereafter. 12. With these modifications, the Special Appeal is disposed of. No costs. 13. Let a certified copy of this order be furnished to the learned counsel for the parties by 08.05.2019 on payment of usual charges.