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2019 DIGILAW 329 (UTT)

Pratap Narain Negi v. State of Uttarakhand

2019-05-13

N.S.DHANIK, RAMESH RANGANATHAN

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JUDGMENT : Ramesh Ranganathan, J. 1. The petitioners, five in number, have invoked the jurisdiction of this Court seeking a writ of certiorari to quash the order dated 02.04.2019; and a writ of mandamus commanding the respondents to proceed with transfers, for the posts held by the petitioners, only after proper categorization of Sugam and Durgam areas as per the spirit of the Annual Transfer Act, and as per the guidelines issued from time to time for determination of Sugam and Durgam areas. 2. The petitioners are presently posted as Sub-Treasury Officers and Accountants in different Treasuries of Udham Singh Nagar district of the State of Uttarakhand. Their grievance, in this writ petition, relates to classification of Durgam and Sugam areas. They claim that, since the classification made by the State Government of Durgam and Sugam areas is irrational and is in violation of Article 14 of the Constitution of India, no transfers should be effected based on such a classification till the State Government undertakes an exercise afresh to reclassify areas all over again as Durgam and Sugam. 3. Ms. They claim that, since the classification made by the State Government of Durgam and Sugam areas is irrational and is in violation of Article 14 of the Constitution of India, no transfers should be effected based on such a classification till the State Government undertakes an exercise afresh to reclassify areas all over again as Durgam and Sugam. 3. Ms. Menka Tripathi, learned counsel appearing on behalf of the petitioners, would submit that, in terms of Section 4 of the Uttarakhand Annual Transfer for Public Servants Act, 2017 (for short “2017 Act”), employees are classified on the basis of the posts which they hold; for district level posts, transfer is from one place to another within the same district; Section 4(2) of the 2017 Act relates to employees who are to be posted at the divisional level; such transfers are effected within the divisions (i.e. either the Garhwal Division or the Kumaon Division); employees, who hold State level posts, are liable to be transferred to any place within the State; the very fact that an entire district has been classified as Sugam, though a part of the district may well satisfy the requirement of being a Durgam area, shows that the classification is irrational; the criteria for classification of areas into Durgam and Sugam has been stipulated in Appendix-3 of the 2017 Act; the said criteria has not been strictly followed while undertaking the exercise of classifying transferable areas as Durgam and Sugam; while the petitioners are ready and willing to be transferred to any place, they are aggrieved by the irrational classification of areas as Durgam and Sugam; and the State Government be directed to undertake the exercise of reclassification of areas, as Durgam and Sugam, afresh, more so since they have themselves invited suggestions, for such re-classification, by the letter of the Additional Chief Secretary dated 03.07.2018. 4. Ms. Menka Tripathi, learned counsel appearing on behalf of the petitioners, would, by way of illustration, submit that Chakrata in District-Dehradun, which is located at an altitude of more than 7000 feet, has been categorized as a Sugam area; consequently, employees working in Chakrata would be treated as having worked in a Sugam area, and would be liable to be transferred to a Durgam area in the State, though it is widely acknowledged that classification of Chakrata, as a Sugam area, is irrational. She would also draw our attention to the contents of the writ affidavit in support of her submission that several areas in the districts, classified as Sugam, are in fact Durgam areas; and, instead of district-wise classification, location of the Office should form the basis for treating it as either Durgam or Sugam, and not the district as a whole. 5. When the writ petition came up before us for admission on 09.05.2019, we had noted that, by way of an interim prayer, the petitioners have sought a direction to the second respondent to proceed with transfers, for the posts held by them, only after proper categorization of the areas into Sugam and Durgam; in effect, the petitioners sought an interim order that they be retained in Udham Singh Nagar District where they are working as at present; and, in order to ascertain their bonafides, it was but appropriate to call upon them to file an affidavit furnishing details of the places in which, and the period for which, they were posted ever since they joined service in the State of Uttarakhand. 6. Today, an affidavit is filed furnishing details of the places where the petitioners have been posted at. While the first petitioner has been working in Udham Singh Nagar district for the past 21 years, the second petitioner has been working in the very same district for the past 20 years, and the third and fourth petitioners have again been working in the very same district of Udham Singh Nagar for the past 21 years; and the fifth petitioner was posted at Udham Singh Nagar district nearly two years ago on his promotion as an Assistant Treasury Officer. 7. The interim prayer, sought for by the petitioners, is to direct the respondents not to effect transfers of the employees in the cadre of Assistant Treasury Officers, (to which cadre all the petitioners belong), till proper categorization of Sugam and Durgam areas is made. Though they have couched their prayer differently, the petitioners, in fact, seek retention in Udham Singh Nagar district which is, undoubtedly, in the plains, and has been classified as a Sugam area. It is not even contended before us by Ms. Though they have couched their prayer differently, the petitioners, in fact, seek retention in Udham Singh Nagar district which is, undoubtedly, in the plains, and has been classified as a Sugam area. It is not even contended before us by Ms. Menka Tripathi, learned counsel appearing on behalf of the petitioners, that any part of Udham Singh Nagar district should have been classified as a Durgam area, or that the petitioners are working in that part of Udham Singh Nagar district which should have been classified as such. The submission of Ms. Menka Tripathi, learned counsel for the petitioner, notwithstanding, it is evident that the petitioners, by way of the interim relief sought for in the writ petition, seek their retention in Udham Singh Nagar district, and not to be transferred therefrom, at least till the exercise of reclassifying areas, as Sugam and Durgam, is completed. 8. Ms. Menka Tripathi, learned counsel for the petitioners, would draw our attention to the affidavit filed today (affidavit verified on 12.05.2019) to contend that the petitioners are willing to be transferred to any place of their choice, as required by the Department, provided there is proper categorization of Durgam and Sugam areas. Even this averment discloses that, till the State Government undertakes an exercise of reclassification, the petitioners wish to be retained in Udham Singh Nagar district. 9. Transfer of a public servant from one place to another is made in the exigencies of administration, and no right is conferred on the employee to claim that he should be continued to be posted at a particular place, and should not be transferred thereform. The 2017 Act was enacted to determine a procedure for proper, impartial, objective and transparent annual transfers of Uttarakhand Public Servants. Section 4 of the 2017 Act classifies employees into three different categories with respect to their posting. Under clause (1) thereof, are employees for whom there is a provision to be posted from the district Headquarter to the village level. This is, evidently, because employees working in a particular district, in a post which is a district level post, can only be transferred within a district and not beyond. In case of such employees, the 2017 Act makes a provision for their transfer from the district headquarter to the village level and vice-versa. This is, evidently, because employees working in a particular district, in a post which is a district level post, can only be transferred within a district and not beyond. In case of such employees, the 2017 Act makes a provision for their transfer from the district headquarter to the village level and vice-versa. The second category is, in terms of Section 4(2) of the 2017 Act, where an employee is required to be posted at the Division level i.e. either in Garhwal Division or in Kumaon Division. The third category, as enumerated in Section 4(3), is for posts at the State level and, thereunder, the Head of the Department is entitled to transfer an employee to any of the posts, equivalent to the post which the employee held earlier, in the entire State. It has not been disputed before us that the post of Assistant Treasury Officer (post held by the petitioners), is a State level post; and the petitioners are, therefore, liable to be transferred anywhere in the State of Uttarakhand. 10. Section 3(i) of the 2017 Act defines accessible and remote areas to mean the accessible and remote areas mentioned district-wise under the said Act as per Appendix 1, 2 and 3. Appendix-1 prescribes the norms for accessible and remote areas to be stipulated on the basis of district level places for employees to be posted from the district headquarters to the village level. Appendix-2 defines “accessible and remote areas” at the Divisional level and, thereunder, accessible and remote areas shall be identified on the basis of general infrastructure facilities, such as Road, Electricity, Water, Education, Medical, Train and Aeroplane in the District headquarters, Municipal Corporation, Municipal Board, Nagar Panchayat area, and Development block headquarters. In terms of the proviso thereto, if the working place is located at a height of more than 7000 feet, one year’s posting thereat shall be deemed equivalent to two years’ posting in a remote area. Appendix-3 stipulates that personnel who are posted only in the district headquarters/directorate headquarters, and are transferred from the Government level or from the Head of Department level, identification of accessible or remote areas for them shall be made according to the requirement of the department on the basis of connectivity of the Road, Electricity, Water, Education, Medical, Train and Aeroplane as per the general infrastructure of each department according to the said norms. Under the proviso thereto, if a work place, is located at a height of more than 7000 feet, one year’s posting thereat shall be deemed equivalent to two years’ posting in a remote area. 11. Section 5 of the 2017 Act confers power on the Head of the Department to proceed to identify the place of postings, under accessible and remote areas, in accordance with the classification provided in Section 4, and take such measures for its disclosure, including display in the website of Uttarakhand, as may be necessary for wide circulation and publication. Section 5(2) stipulates that each such department, where all the work places are classified as per determined norms in terms of Section 5(1) in the Appendix of the 2017 Act, may predetermine the norms by placing proposals in this regard before the committee constituted under Section 27 of the Act. Section 6(a) of the 2017 Act provides for compulsory transfer from an accessible area to a remote area, and Section 6(b) provides for compulsory transfer from a remote area to an accessible area. The third category specified in Section 6(c) relates to transfers made on the basis of request, with which we are not concerned in these writ proceedings. Section 7 prescribes the norms for compulsory transfer from accessible areas to remote areas. Section 8 prescribes the maximum ceiling of compulsory transfer from accessible areas to remote areas, and Section 9 requires a list of eligible employees to be prepared for compulsory transfer to remote areas from accessible areas, and for inviting options. 12. Section 27 provides for the constitution of a Committee under the Chairmanship of the Chief Secretary consisting of (a) Additional Chief Secretary/Principal Secretary Forest and Infrastructure Development Commissioner; (b) Additional Chief Secretary/Principal Secretary Agricultural Production Commissioner; and (c) Principal Secretary, Personnel as its members. Section 27(2) enables the State Government to make rules, on the basis of the recommendations submitted by the Committee, regarding the difficulties in application of the 2017 Act. 13. The proceedings, impugned in this writ petition, is the order dated 02.04.2019 whereby the Director of Treasury, Pension and Entitlement Uttarakhand, informed all Chief/Senior/Treasury Officers/Sub-Treasury Officers/Assistant Treasury Officers that, in terms of the 2017 Act and the Government Order dated 14.04.2018, the districts of the State had been ascertained as Sugam/Durgam. 13. The proceedings, impugned in this writ petition, is the order dated 02.04.2019 whereby the Director of Treasury, Pension and Entitlement Uttarakhand, informed all Chief/Senior/Treasury Officers/Sub-Treasury Officers/Assistant Treasury Officers that, in terms of the 2017 Act and the Government Order dated 14.04.2018, the districts of the State had been ascertained as Sugam/Durgam. While 6 districts of the State, namely, Dehradun, Haridwar, Udham Singh Nagar, Nianital, Almora and Tehri have been identified as Sugam districts, the other seven districts, namely, Pauri, Uttarkashi, Chamoli, Rudraprayag, Champawat, Bageshwar and Pithoragarh have been classified as Durgam districts. 14. As the petitioners claim that this classification is irrational, the burden lies heavily on them to satisfy this Court that the classification of transferable areas, as Sugam and Durgam, is so unreasonable and arbitrary as to violate Article 14 of the Constitution of India (State Of Jammu & Kashmir Vs. Triloki Nath Khosa & Ors : AIR 1974 SC 1 ). What is necessary, to satisfy the requirements of Articles 14 and 16 of the Constitution of India, is that the classification should be based on an intelligible differentia and must have a reasonable nexus with the object sought to be achieved. Since the task of undertaking such classification is entrusted to the Legislature while making a law, and the Executive while making rules and in framing policies, this Court would not sit in appeal over their judgment in making such a classification, and it is only if the classification is held to be so irrational and arbitrary, as to violate Article 14, would interference be justified. 15. It is not in dispute that some parts of the districts, classified as Sugam areas, may not strictly fall within the definition of a “Sugam area” as, for instance, Chakrata in Dehradun district which is said to be located at an altitude of more than 7000 feet, and may well fall within the ambit of a “Durgam area” even though it is located in Dehradun district which is largely based in the plains, and has been classified as a Sugam area. However a classification, to be valid under Article 14, need not necessarily fall within an exact or a scientific formula for exclusion or inclusion of persons or things. There is no requirement of mathematical exactness for determining the validity, as long as it is not palpably arbitrary. (State of Maharashtra Vs. Indian Hotel & Restaurants Assn. However a classification, to be valid under Article 14, need not necessarily fall within an exact or a scientific formula for exclusion or inclusion of persons or things. There is no requirement of mathematical exactness for determining the validity, as long as it is not palpably arbitrary. (State of Maharashtra Vs. Indian Hotel & Restaurants Assn. : (2013) 8 SCC 519 ; Ram Krishna Dalmia Vs. Shri Justice S.R. Tendolkar : (1959) SCR 279; Welfare Association, A.R.P. Vs. Ranjit P. Gohili : (2003) 9 SCC 358 ; Shashikant Laxman Kale Vs. Union of India : (1990) 4 SCC 366 ). A complaint, of violation of Article 14 of the Constitution, cannot be judged by adopting a doctrinaire approach. It is not prudent or pragmatic to insist on mathematical accuracy in view of the inherent complexities involved. (State of Karnataka v. Mangalore University Non-Teaching Employees Association : (2002) 3 SCC 302 ). There is no requirement of mathematical exactness for determining the validity, as long as it is not palpably arbitrary. (State of Maharashtra v. Indian Hotel & Restaurants Assn. : (2013) 8 SCC 519 ; Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar : (1959) SCR 279; Welfare Association, A.R.P. v. Ranjit P. Gohili : (2003) 9 SCC 358 ; Shashikant Laxman Kale v. Union of India : (1990) 4 SCC 366 ). 16. The Legislature or the Rule making authority, or for that matter the Executive while making a policy, enjoy considerable latitude, and exercise their power enriched by experience, and taking into consideration myriad circumstances. (Ombalika Das v. Hulisa Shaw : (2002) 4 SCC 539 ). Precision and arithmetical accuracy will not exist in any categorisation, and such precision and accuracy is not what Article 14 contemplates. As long as the broad features of the categorisation are identifiable and distinguishable, and the categorisation is reasonably connected with the object targeted, Article 14 does not forbid such a course of action. (Subramanian Swamy v. Raju : (2014) 8 SCC 390 ; Murthy Match Works v. CCE : (1974) 4 SCC 428 ; Roop Chand Adlakha v. DDA : 1989 Suppl. (Subramanian Swamy v. Raju : (2014) 8 SCC 390 ; Murthy Match Works v. CCE : (1974) 4 SCC 428 ; Roop Chand Adlakha v. DDA : 1989 Suppl. (1) SCC 116; Kartar Singh v. State of Punjab : (1994) 3 SCC 569 ; Basheer v. State of Kerala : (2004) 3 SCC 609 ; State of Madhya Pradesh v. Gopal D. Tirthani : (2003) 7 SCC 83 ; B. Manmad Reddy v. Chandra Prakash Reddy : (2010) 3 SCC 314 and Transport and Dock Workers Union v. Mumbai Port Trust : (2011) 2 SCC 575 ). 17. The test ought not to be what would be a ‘better’ basis for the categorization, for that would introduce subjectivity in the process. The test is whether categorization, on the basis adopted, results in hostile discrimination and adoption of the criteria has no reasonable nexus with the object sought to be achieved. (Samaj Parivartana Samudaya v. State of Karnataka : (2013) 8 SCC 154 ). It is only where the provision is shown to be irrational, or as manifestly wrong, that the Court would reach out its lethal arm and strike down the provision. (Mohd. Shujat Ali v. Union of India : AIR 1974 SC 1 631). 18. As long as the classification broadly satisfies the test of Articles 14 and 16, this Court would not examine the validity of the classification with a microscope, and sit in judgment over the exercise undertaken by the Executive in classifying areas into Sugam and Durgam. The twin tests of a valid classification are broadly satisfied by the exercise undertaken by the Government. The Sugam districts are largely in the plains, whereas the Durgam districts are largely in the hills. The said classification is, therefore, based on an intelligible differentia. The object sought to be achieved by such a classification is to ensure that employees working in the plains do not have the advantage of serving thereat throughout their career, and those working in Durgam areas are not made to suffer with a posting in the Durgam areas throughout their career. The object sought to be achieved is to ensure that all public servants of the State of Uttarakhand, working in Durgam areas have a reasonable opportunity of working in the plains, and those working in the plains are made to work in the hills. 19. The object sought to be achieved is to ensure that all public servants of the State of Uttarakhand, working in Durgam areas have a reasonable opportunity of working in the plains, and those working in the plains are made to work in the hills. 19. The endeavour of the Legislature is to ensure that all public servants are treated alike, and none of them are given preferential treatment in matters of transfer and posting. It does not stand to reason that we should be called upon to examine the validity of the classification at the behest of the petitioners, who have been working in Udham Singh Nagar district (which is, undoubtedly, in the plains) for the past more than two decades. 20. The persuasive submissions of Ms. Menka Tripathi, learned counsel appearing on behalf of the petitioners, notwithstanding, it is evident that the petitioners, under the guise of the reliefs sought for in this writ petition, seek to have their posting continued in the plains in perpetuity. They have been working in Udham Singh Nagar district (undoubtedly a plain area) for the past more than two decades. While the submissions now put forth, on behalf of the petitioners, can possibly be examined when an employee, say for instance one who is working at Chakrata in Dehradun district for several years, complains that the place where he is working is actually a Durgam area, and has nonetheless been classified as a Sugam area, which would require him to now be posted in another Durgam area, we see no reason to undertake any such examination at the behest of the petitioners who have had the benefit of being posted in Udham Singh Nagar district for more than twenty years. 21. Though the 2017 Act came into force on 05.01.2018, it is indeed disconcerting that the State Government has permitted petitioners 1 to 4 to continue to work in Udham Singh Nagar district, though they have been working thereat for more than twenty years. While the action of the State Government, in showing undue indulgence to the petitioners, may not be justified, we refrain from examining why the petitioners were retained in Udham Singh Nagar district, for the past two decades, in a writ petition filed by them. 22. While the action of the State Government, in showing undue indulgence to the petitioners, may not be justified, we refrain from examining why the petitioners were retained in Udham Singh Nagar district, for the past two decades, in a writ petition filed by them. 22. Suffice it to observe that the validity of the classification of areas into Sugam and Durgam does not necessitate interference in a writ petition filed by the petitioners, who have been working in the plain areas for the past two decades and have avoided a posting in the hilly areas (Durgam areas) of the State. 23. Even otherwise, since the Additional Chief Secretary had, by his letter dated 03.07.2018, invited suggestions regarding classification of Sugam and Durgam areas in terms of the 2017 Act, nothing prevented the petitioners from putting forth their suggestions to the State Government. That would not, however, mean that, under the guise of having made such suggestions, the petitioners can have their transfers/postings to Durgam areas interdicted. As long as the proceedings dated 02.04.2019 continues to remain in force, the petitioners, like all other employees, are liable to be transferred in terms of the classification made thereunder, and in terms of the provisions of the 2017 Act. 24. The writ petition, as filed, is wholly misconceived and is, accordingly, dismissed. No costs.