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2019 DIGILAW 327 (UTT)

DAULAT RAM SEMWAL v. STATE OF UTTARAKHAND

2019-05-10

ALOK SINGH, RAMESH RANGANATHAN

body2019
JUDGMENT Hon. Ramesh Ranganathan, C.J. (Oral) 1. This application is filed seeking modification of the Para 22.1 of the judgment and order of the Division Bench dated 18.06.2018 to bring it in consonance with Section 17.1 read with Section 3 (d) of the Uttarakhand Annual Transfer for Public Servants Act, 2017 by providing relaxation in transfer in favour of Government servants suffering from serious ailments. 2. WPPIL No. 164 of 2013 was filed in public interest highlighting the pathetic situation of higher education in the State, more particularly in the hilly areas thereof. A Division Bench of this Court, in its order dated 18.06.2018, noted that, while most of the schools in the plain areas of Uttarakhand i.e. in the three Districts of Dehradun, Haridwar and Udham Singh Nagar were largely filled up with teachers, several schools in the hilly parts of the State, i.e. in the other ten Districts, either had no teacher at all or were running with a single teacher. It is in such circumstances, and bearing in mind that the right to education included meaningful education, that the Division Bench had prohibited transfer/posting of Teachers and Lecturers to be made to the plain areas of Dehradun, Haridwar, Udham Singh Nagar, Nainital until 70% of the posts of teachers in all Primary Schools, Junior High Schools, Inter Colleges, Degree Colleges and Post Graduate Colleges were filled up. The Division Bench permitted the State Government to relax the Rules, regarding posting of teachers, to fulfill this obligation. 3. The present application is made by the State Government seeking relaxation of this condition to the limited extent that teachers, who either themselves or their spouses are suffering from serious ailments, be permitted to be transferred from the hilly regions to the plains. 4. Sri Pradeep Joshi, learned Standing Counsel appearing on behalf of the State of Uttarakhand, would submit that, in terms of Section 17.1 (b) (i) read with Section 3 (d) of the Uttarakhand Annual Transfer for Public Servants Act, requests made by seriously ill/ disabled employees, or requests made on the basis of the spouse's serious ailment/disability, shall be considered by the Transfer Committee. Section 3 (d) defines a “serious patient" to mean the spouse and family members of any employee suffering from serious diseases like cancer, blood cancer, AIDS, HIV positive, heart disease, by-pass surgery, angioplasty etc. 5. Sri. Section 3 (d) defines a “serious patient" to mean the spouse and family members of any employee suffering from serious diseases like cancer, blood cancer, AIDS, HIV positive, heart disease, by-pass surgery, angioplasty etc. 5. Sri. B. S. Adhikari, learned Amicus Curiae, while fairly stating that cases where employees or their spouses are suffering from serious ailments deserve sympathetic consideration, would express apprehension that, under the guise of effecting transfer on the ground of serious ailment, teachers working in hilly areas may be surreptitiously brought down to the plain area rendering schools, in the hilly areas of the State, empty. Learned Amicus Curiae would suggest that transfers, effected on grounds of serious ailments, should be made only with the prior approval of this Court. He would suggest that, alternatively, a condition be imposed that whenever an employee is sought to be transferred, from the hilly areas of the State to the plains on grounds of serious ailment, another teacher be transferred from the plains to the hilly areas of the State to ensure that the schools and colleges in the hilly areas are adequately manned. 6. Among the exceptions made by the 2017 Act, for compulsory transfer from the plains to the hilly areas of the State, is on the ground of serious ailment. Requests for transfer or retention on this ground should be carefully examined by the Transfer Committee and, only if it falls within the ambit of Section 3 (d), should such request be considered by them. As it would be wholly inappropriate for us to undertake such an exercise, as these are all matters for the Transfer Committee to examine, suffice it to observe that only such cases of serious ailments, which the Transfer Committee is satisfied would disable the employee from discharging his duties as a teacher in schools in the hilly areas of the State, should alone be considered, and not each and every request made on this ground. Further the Transfer Committee should, after considering the documentary evidence placed before it by the employee as proof of his or his spouse's serious ailment, record its satisfaction that the documents are genuine, and it is a fit case for effecting transfers on this ground. 7. The other suggestion of Mr. B.S. Adhikari, learned Amicus Curiae, in our view, deserves serious consideration. 7. The other suggestion of Mr. B.S. Adhikari, learned Amicus Curiae, in our view, deserves serious consideration. If several employees working in schools located in the hilly areas are transferred, even on serious medical grounds, to the plain areas of the State, it would result in acute faculty shortage in schools / colleges in the hilly parts of the State, thereby affecting the very functioning of these schools and colleges. While examining such requests for transfer, the Transfer Committee shall endeavour to transfer employee from the plain areas to the hilly areas, from where employees are being transferred to the plains on grounds of serious ailments. The Transfer Committee shall record reasons, in writing, regarding the efforts made by them to fill up the posts vacated by teachers who are transferred to the plain areas on grounds of serious ailment. 8. All these problems would stand resolved if the State Government takes necessary steps forthwith to fill up all the posts of teachers in the State of Uttarakhand, for it would then hardly matter whether an employee is posted in the hilly areas or in the plains, as all schools/colleges in the State, on all these posts being filled up, would have adequate number of teachers in them. 9. Mr. B.S. Adhikari, learned Amicus Curiae, would submit that the Division Bench, in its order in Writ Petition (PIL) No. 164 of 2013 dated 18.06.2018, has directed the State Government to fill up all the posts of Teachers, Lecturers and Ministerial staff in schools and colleges within 24 months from the date of order i.e. 18.06.2018. Hopefully, this problem would no longer persist after 18.06.2020. 10. The Modification application is, accordingly, disposed of.