Punjab-Haryana High Court
Asish Bala vs State Of Haryana And Another on 7 May, 2022
CWP No. 15099 of 2021 (O&M) and other connected matters -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
(1).
CWP No. 15099 of 2021 (O&M)
Date of Decision: May 07, 2022
ASHISH BALA Petitioner(s)
Versus
STATE OF HARYANA AND ANOTHER Respondent(s)
(2). CWP No. 15195 of 2021 (O&M)
SATISH KUMAR Petitioner(s)
Versus
STATE OF HARYANA AND OTHERS Respondent(s)
(3). CWP No. 15234 of 2021 (O&M)
POONAM RANI Petitioner(s)
Versus
STATE OF HARYANA AND ANOTHER Respondent(s)
(4). CWP No. 16032 of 2021 (O&M)
JASBIR SINGH Petitioner(s)
Versus
STATE OF HARYANA AND ANOTHER Respondent(s)
(5). CWP No. 15844 of 2021 (O&M)
MANISHA SINGH AND ANOTHER Petitioner(s)
Versus
STATE OF HARYANA AND OTHERS Respondent(s)
(6). CWP No. 15380 of 2021 (O&M)
RAKESH KUMAR Petitioner(s)
Versus
STATE OF HARYANA AND OTHERS Respondent(s)
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(7). CWP No. 15952 of 2021 (O&M)
KASHMIR SINGH Petitioner(s)
Versus
STATE OF HARYANA AND OTHERS Respondent(s)
(8). CWP No. 15249 of 2021 (O&M)
SHIV KUMAR Petitioner(s)
Versus
STATE OF HARYANA AND ANOTHER Respondent(s)
(9). CWP No. 20337 of 2021 (O&M)
PRIYANKA Petitioner(s)
Versus
STATE OF HARYANA AND OTHERS Respondent(s)
CORAM:- HON'BLE MRS. JUSTICE LISA GILL
Present: Mr. Sajjan Singh, Advocate,
Mr. Anurag Goyal, Advocate,
Mr. Jasbir Mor, Advocate,
Mr. D.K. Tuteja, Advocate,
Mr. Ashok Bhardwaj, Advocate,
Mr. Jawahar Lal Goyal, Advocate,
Mr. Parth Goyal, Advocate and
Mr. Anil Kumar Sharma, Advocate
for the petitioner(s).
Mr. Baldev Raj Mahajan, Advocate General, Haryana with
Mr. Harish Nain, AAG, Haryana.
***
LISA GILL, J.
This order shall dispose of CWP-15099-2021, CWP-15195-
2021, CWP-20337-2021, CWP-15234-2021, CWP-15249-2021, CWP-
15380-2021, CWP-15844-2021, CWP-15952-2021, and CWP-16032-2021,
as an identical question arises for consideration in all these nine writ
petitions, which have been taken up together for hearing and decision with
consent of learned counsel for the parties.
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Petitioners in all these writ petitions are Teachers/Principals
serving the State of Haryana. They are aggrieved of being made to
participate in the transfer drive mandatorily despite their not having
completed five years on the post on which they are working. Said act is
stated to be in violation of the Teachers Transfer Policy, 2016 as amended.
Brief facts as pleaded in each of the writ petitions are
mentioned as here under:-
CWP-15099-2021
ASHISH BALA
VS.
STATE OF HARYANA AND ANOTHER
Prayer in this writ petition is for quashing of MIS status of
petitioner whereby she is not permitted to fill in the option of not
participating in the transfer drive to be carried out pursuant to notice dated
15.07.2021 with a further prayer to direct the respondents to carry out
necessary changes in the MIS portal to enable the petitioner to opt out of the
transfer drive. Petitioner in this case (PGT Hindi), it is stated was offered
appointment and posted at Government High School Risalu, Block Panipat,
District Panipat on 31.01.2019 and was forced to participate in the transfer
drive in 2019. She was transferred to Government Senior Secondary School,
Fatehpur Tagga, Block Ballabgarh, District Faridabad, vide order dated
22.08.2019. However, on recommendations of District Level Committee,
she was transferred from Government Senior Secondary School, Fatehpur
Tagga to Government Senior Secondary School, Malikpur, District Sonepat
against a vacant post on medical ground vide order dated 28.05.2020. It is
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stated that petitioner opted not to participate in the transfer drive subsequent
to notice dated 25.06.2021. However, subsequent to notice dated
15.07.2021, petitioner could not opt in the negative. Hence, aggrieved writ
petition has been filed.
CWP No. 15195 of 2021
SATISH KUMAR
Versus
STATE OF HARYANA AND OTHERS
Prayer in this writ petition is for not compelling the petitioner to
mandatorily participate in the transfer drive pursuant to notice dated
25.06.2021 and 15.07.2021. It is stated that petitioner (TGT Master Maths)
joined service on 07.11.2008. He was promoted to the post of PGT/Lecturer
Maths on 14.11.2013. It is further stated that petitioner was transferred from
Government Senior Secondary School, Sarhaul, District Gurugram to
Government Senior Secondary School, Mouri, District Charkhi Dadri on
03.08.2017. Petitioner represented before the authorities for being
transferred to a station which has proper facilities for care of his mentally
retarded child (97%). It is averred that such facility is available only at
Chandimandir (Panchkula), Gurugram and Hisar. Looking to the
circumstances of petitioner, he was transferred to Panchkula on 21.12.2018
with a rider that he would participate in the next transfer drive. It is
submitted that petitioner secured admission of his mentally retarded child in
the Asha School at Chandimandir, Panchkula, therefore, he should not be
forced to participate in the transfer drive in the given circumstances.
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CWP No. 15234 of 2021
POONAM RANI
Versus
STATE OF HARYANA AND ANOTHER
Petitioner is aggrieved of not having an option to opt out of
participation in the transfer drive to be carried out pursuant to notice dated
25.06.2021 and 15.07.2021. It is stated that petitioner joined service as
Lecturer Hindi at Government Girls Senior Secondary School, Behlaba,
District Rohtak on 22.08.2012. She was transferred to Government Senior
Secondary School, Padhana, Block Nilokheri, District Karnal on
21.12.2016, thereafter to Government Model Sanskriti Senior Secondary
School, Chhachhrauli at Yamuna Nagar and then to Government High
School, Sandeel, Block Alewa, District Jind on 04.12.2017. Petitioner, it is
submitted, was again transferred to Government Senior Secondary School,
Gharora, District Faridabad on 22.08.2019 and yet again to Government
Girls High School, Abubshahar, Block Dabwali, District Sirsa on
13.09.2019. A representation was submitted by petitioner, on which she was
transferred to Government Girls Senior Secondary School, Meham, District
Rohtak on 18.09.2019. It is, thus, submitted that petitioner should now not
be forced to participate in the transfer drive.
CWP No. 16032 of 2021
JASBIR SINGH
Versus
STATE OF HARYANA AND ANOTHER
Petitioner in this case is also aggrieved of not being provided
an option of not participating in the transfer drive pursuant to notice dated
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25.06.2021/15.07.2021 Petitioner (PGT/Lecturer Hindi) is stated to have
joined service on 16.12.2015. It is stated that petitioner was transferred
from Government Senior Secondary School, Rasina, District Kaithal to
Government Senior Secondary School, Khizrabad, District Yamuna Nagar,
vide order dated 22.08.2019 against one Mrs. Renu Rani, Lecturer in
English, wrongly showing her post to be that of Lecturer in Hindi. When
petitioner went to join at Government Senior Secondary School, Khizrabad,
it was revealed that there was wrong updation of data on the MIS profile of
Mrs. Renu Rani (a Lecturer in English), who had been transferred to
Government Senior Secondary School, Ledi, against the post of Lecturer
Hindi. Consequently, order dated 05.11.2019 was issued wherein petitioner
was transferred from Government Senior Secondary School, Khizrabad
(Partap Nagar, Yamuna Nagar) to Government Senior Secondary School,
Mirzapur, District Kurukshetra. In this situation, it is submitted, petitioner
be not forced to participate in the transfer drive.
CWP No. 15844 of 2021
MANISHA SINGH AND ANOTHER
Versus
STATE OF HARYANA AND OTHERS
Petitioners Manisha Singh and Kusum Lata in this writ petition
are aggrieved of being asked to participate mandatorily in the transfer drive.
They also seek setting aside of the note appended in their transfer order to
the effect that they shall participate in the next transfer drive compulsorily.
It is stated that petitioner no.1 - PGT (Biology) and petitioner no.2 - PGT
(Political Science) had been transferred on 22.08.2019 in the transfer drive
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in 2019. Petitioner no.1 was transferred from Government Senior Secondary
School, Mohammed Pur Ahir, Block Taoru District Nuh to Government
Senior Secondary School, Rajgarh Dobhi, Block Narwana, District Jind and
petitioner no.2 was transferred from Government Senior Secondary School,
MP Ahir, District Nuh to Government Senior Secondary School, Panchgaon,
Mewat. Since the said transfer was stated to be in violation of the terms and
conditions of the Transfer Policy, 2016, petitioners filed CWP-31895-2019
being aggrieved thereof. Said writ petition was disposed of on 04.11.2019
directing the respondents to decide the objections submitted by petitioners
within a period of one month. Considering the objections of petitioners,
petitioner no.1 was transferred from Government Senior Secondary School,
Rajgarh Dhobi, District Jind to Government Senior Secondary School, Khor
Basai, Nuh (Mewat) and petitioner no.2 was transferred to Government
Senior Secondary School, Panchgaon, Mewat to Government Senior
Secondary School, Bissar Akbarpur, Nuh (Mewat). Petitioners, it is stated,
joined at the said schools after passing of order dated 20.10.2020 endorsed
on 03.11.2020. Therefore, petitioners should not be made to participate
compulsorily in the transfer drive.
CWP No. 15380 of 2021
RAKESH KUMAR
Versus
STATE OF HARYANA AND OTHERS
Petitioner in this case is also aggrieved of compulsory
participation in the transfer drive pursuant to notice dated 15.07.2021. It is
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stated that petitioner who had joined as TGT Social Study, on adhoc basis
on 26.02.1996 with his services being regularized w.e.f. 01.10.2003, was
promoted as Principal on 28.04.2012. He served at Government Senior
Secondary School, Alipur, District Ambala as Principal till 22.08.2019 and
was transferred to Government Senior Secondary School, Cheeka, District
Kaithal on 22.08.2019. Pursuant to petitioner's participation in the
Grievance Redressal Transfer drive, he was transferred to Government
Model Sanskriti Senior Secondary School, Shahpur Nurad, District Ambala
on 13.09.2019. It is, thus, prayed that he should not be forced to
compulsorily participate in the transfer drive.
CWP No. 15952 of 2021
KASHMIR SINGH
Versus
STATE OF HARYANA AND OTHERS
Petitioner in this case is stated to have joined service as
Science Master on regular basis on 14.09.1993 and posted in Zone-7 from
1993 till 31.01.2008. He was selected and appointed as Head Master High
School and he joined at Government High School, Lohar Majra, District
Kurukshetra on 31.01.2008 and remained posted there upto 15.01.2014. It
is stated that petitioner was promoted as Principal and posted at Government
Senior Secondary School, Bodhni, District Kurukshetra (Zone-6) w.e.f.
15.04.2014 to 24.08.2019. Petitioner was then transferred to Government
Model Sanskriti Senior Secondary School, Thana, District Kurukshetra on
22.08.2019. One Mr. Om Parkash, Principal was, however, allotted
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Government Model Sanskriti Senior Secondary School, Thana, due to which
petitioner was relieved and petitioner adjusted at Government Senior
Secondary School, Balahi, District Kurukshetra vide order dated
23/27.07.2021 wherein it is mentioned that petitioner would compulsorily
participate in the next transfer drive. It is submitted that though petitioner
was allotted Government Senior Secondary School, Balahi, District
Kurukshetra, in July 2021 itself, he should not be forced to participate in the
transfer drive pursuant to notice dated 27.07.2021.
CWP No. 15249 of 2021
SHIV KUMAR
Versus
STATE OF HARYANA AND ANOTHER
Petitioner in this case is stated to have been promoted to the
post of Principal on 31.05.2017 and posted at Government Senior Secondary
School, Kalayat, District Kaithal in the transfer drive in June, 2017.
Petitioner was allotted Government Model Sanskriti Senior Secondary
School, Hodal, District Palwal. It is stated that petitioner alongwith other
promoted Principals represented before the authorities and on their request
one Online Grievance Transfer Drive was started, in which petitioner again
participated online and was allotted Government Senior Secondary School,
Patti Kalyana, District Panipat. Petitioner is again stated to have been put to
transfer drive in the month of August, 2019 and allotted Government Model
Sanskriti Senior Secondary School, Radaur, District Yamuna Nagar.
However, vide order dated 02.07.2021, one Devender Kumar who was
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working at Karnal, was transferred against petitioner and petitioner was
ordered to be adjusted after 21 days at Shaheed Naveen Vaidh Government
Senior Secondary School, Model Town, Rohtak vide order dated
23.07.2021. In these circumstances, petitioner it is stated, should not be
made to participate compulsorily in the transfer drive pursuant to notice
dated 25.06.2021.
CWP No. 20337 of 2021
PRIYANKA
Versus
STATE OF HARYANA AND OTHERS
Petitioner working as PGT (English), it is submitted, was
transferred even before completion of her five years in the Government
Senior Secondary School, Khedi Sadh, District Rohtak to Government
Senior Secondary School, Anwali, Block Gohana, District Sonipat on
08.03.2019. It is submitted that petitioner has merely completed 2½ years at
the School in question, therefore, she should not be forced to participate in
the transfer drive.
Brief facts necessary for adjudication of all the matters are that
to regulate transfers of Teachers in the State of Haryana, Teachers Transfer
Policy, 2016 was formulated by the State. This policy is stated to be framed
with a vision to ensure equitable demand based distribution of
Teachers/Heads to protect academic interest of the students and optimize job
satisfaction amongst its employees in a fair and transparent manner. Apart
from providing for the time schedule, zoning and categorisation of the Core
and Non-Core posts, Merit Criteria for allotment of the posts has been
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provided. Said policy has been amended from time to time. Clause 6 of the
Policy as amended in 2017 and as it stands as of now reads as under:-
"6. Basic Principles:
The option once availed and confirmed shall be final and
can be changed only under the provisions of this policy.
Unless protected under a provision of this policy, every
teacher completing 5 years stay/tenure in a particular
school/zone of any district(s), whether independently in a
district or cumulatively of more than one district, of the
State shall be transferred."
A detailed merit criteria for allotment of posts is provided as
under:-
7. Merit criteria for allotment of posts:
(i) Decision of allotment to a vacancy shall be based on the total composite
score of points earned by a teacher, out of 80 points as described below. The
teacher earning highest points shall be entitled to be transferred against a
particular vacancy.
(ii) Age shall be the prime factor for deciding the claim of the teachers
against a vacancy since it shall have weightage of 60 points, out of total 80
points.
(iii) However, to take care of categories like women, women headed
households, widows, widowers, differently abled persons, serious ailment,
and teachers showing improvement in results, a privilege of maximum 20
points can be availed by the teachers of these categories (hereinafter to be
referred as Special Category). The division of points shall be as given in
para 7(iii)(a) and 7(iii)(b) below:-
a) Age:
SN Major Sub-Factor Max. Criteria for
Factor Points calculation
1 Age (Present Eldest person 60 Age in number of days ÷ 365
date minus shall get (maximum four decimal points only)
Date of birth) maximum
points
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b) The Second Set of merit points will come from the special factors
enumerated hereinafter:
SN Major Sub-factor Max. Explanation
Factor points
1. Gender Female 10 10 points shall be given
to all female teachers
2. Special Widow/ divorced/ 10 All female of this
Category separated/ unmarried female category shall be
female teacher more than given 10 marks
teachers 40 years of age/ wife of only.
serving Military personal/
Paramilitary personal working
outside the State
3. Special Widower who has 5 Eligible widowers
Category not re-married shall be given 5
male and has one or points only.
teachers more minor
children and/ or
unmarried
daughter(s)
4. Differently Vision 20 40% to 60% disability =
persons Locomotors 20 Marks.
Above 60% to 80% =
Deaf and Dumb 20 15 Marks
Above 80%=20
Marks
5. Diseases of Self 10 Valid certificate
"Debilitating issued during last
Disorders" Spouse/ one year by AIIMS
unmarried 10 (Including its
Children branches in
Haryana), PGI
Rohtak, PGI,
Khanpur Kalan,
Kalpana Chawla
Medical College,
Karnal, PGI
Chandigarh or Duly
Constituted
Medical Board
only.
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6. Differently Men/Women 10 Men/Women teachers
abled or having Mentally having mentally
mentally challenged or challenged or 100%
challenged 100% differently differently abled
children abled child children shall be
providedmaximum 10
points.
7. Couple Only female 5 Employees'
case spouse spouses working
in state govt.,
center Govt, PSUs
created under
acts or rules.
8. State State awardee 5 To recognize
Award / /National awardee academic
National teachers contribution of
Award State/ National
Awardee Teachers
9. Academic Teachers giving 5 For results,
performance good results in following shall be
the last board the criteria for
exam. entitlement of
points:
75% to 80 % = 1
80% to 85% = 2
85% to 90% = 3
90% to 95% = 4
95% to 100% = 5
A detailed circular containing guidelines for measuring academic performance shall be
issued by the competent authority from time to time.
Note:
(i) Cap of maximum points for age factor will be removed
however teachers claiming merit points under "Special.
Category" shall be entitled to maximum 20 points only,
depending upon the factors such teachers belong to.
(ii) Only notified diseases shall be considered for merit points
under the category of "Diseases of Debilitating Disorders".
(iii) For teachers teaching both 10th and 12th classes, average
of the two pass percentages will be taken for calculation of the
privilege points.
(iv) If husband and wife, both are working in School Education
Department, the benefit of 10 points under para 7(iii)(6) above
can be claimed by only anyone of them.
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Clause 8, which provides definition of vacant posts as amended
in 2017 reads as under:-
"8. Definition of vacant posts:
(i) There shall be two types of vacancies as under:
a) Actual Vacancy: A post not occupied by any teacher
whether serving in regular capacity or by a temporarily
employed teacher like a guest teacher.
b) Deemed Vacancy:
(i) Involuntary deemed vacancy:
A post of any cadre (whether teaching or non-teaching), held
by a teacher previously or presently in the school education
department in a regular capacity for a period of five years or
more on the qualifying date in present zone of posting; or
A post occupied by a teacher given temporary manual
posting due to non-availability of online transfer drive or
technical problems or compulsions of administrative or
litigational nature. However, it will not include the posts
occupied by teachers who become duly posted as an outcome
of the grievance redressal mechanism of a general transfer
drive.
(ii) Voluntary deemed vacancy: A post occupied by such
teacher who has been adjudged eligible and allowed to
participate in general transfer drive even if he is not eligible
otherwise on the minimum tenure criteria.
(iii) Some vacancies of all categories of teachers may remain
unfilled at any given point of time due to shortage of
teachers in the department. To avoid disproportionate
concentration of teachers in some schools, the department
may block some actual vacant posts to be kept vacant in the
transfer drive."
Government of Haryana then approved the following
amendment in Clause 8(i)(b)(ii) as notified on 10.11.2020:-
8(i)(b)(ii) (ii) Voluntary deemed vacancy: a post 'Teacher' may be
occupied by such teacher who has substituted with
been adjudged eligible and allowed to "regular/adhoc teacher".
participate in general transfer drive
even if he is ot eligible otherwise on
the minimum tenure criteria.
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An amendment was again carried out in Clause 8(i)(b)(i) on
28.06.2021 and the provision would read as under:-
8(i)(b) Deemed Vacancy:
(i)Involuntary deemed vacancy: A post of any cadre
(whether teaching or non-teaching), held by a teacher
previously or presently in the school education
department in a regular capacity for a period of five
years or more on the qualifying date in present zone of
posting; or
(ii)A post occupied by a guest/contractual/adhoc
teacher.
Some of the present writ petitions were filed at this stage.
Corrigendum dated 25.08.2021 was issued with the
clarification, which reads as under:-
"In continuation of this office memo No. 8/2-2020 CO-I(2)
dated 28.06.2021 on the subject cited above.
It is clarified that the para No. 8(i)(b)(i) may be read as
under:-
Involuntary deemed vacancy: A post of any cadre (whether
teaching or non-teaching), held by a teacher previously or
presently in the School Education Department in a regular
capacity for a period of five years or more on the qualifying
date in the present zone of posting; or
A post occupied by a teacher given temporary manual posting
due to non-availability of online transfer drive or technical
problems or compulsion of administrative or litigational nature
or on new appointment or on promotion or otherwise."
Provisions regarding Involuntary Deemed Vacancy to include a
post occupied by a teacher given manual posting was included again in
Clause 8 (i)(b)(i) of the Policy by way of this corrigendum.
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Controversy in these petitions revolves around the issue,
whether a post occupied by a teacher given manual posting whether due to
non-availability of online transfer drive or technical problems or any of the
eventualities as stated in the clause notified in the corrigendum can be
termed Involuntary Deemed Vacancy.
Learned counsel for the petitioners had vehemently argued that
in view of specific provisions regarding deemed vacancy in the Transfer
Policy as amended on 28.06.2021, before issuance of corrigendum, there is
no question of petitioners being made to participate mandatorily in the
transfer drive. It was argued that issuance of corrigendum with amendment
being carried out during pendency of these writ petitions is absolutely illegal,
arbitrary and not in accordance with provisions of law as it has not been
carried out by a competent authority. Learned counsel for the petitioners
submitted that merely because petitioners were posted pursuant to manual
transfer, cannot be a reason for forcing them to participate compulsorily in
the transfer drive. It was further contended that once posting by way of
manual transfer is an outcome of a grievance redressal mechanism,
compelling the petitioners to participate yet again in the subsequent transfer
drive is a totally contradictory step which negates the earlier redressal of
their grievance. Learned counsel delienated on the individual grievances of
the petitioners in all the petitions as have been described in the foregoing
paras. It is, thus prayed that these writ petitions be allowed.
Learned Advocate General, Haryana, while refuting the
arguments raised on behalf of petitioners submits that matter regarding
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participation of employees who were posted through manual transfers is
squarely covered by a decision of this Court in Manish Kumar Vs. State of
Haryana and others, in CWP-28707-2019, which has been upheld by a
Division Bench in LPA-247-2020. Learned Advocate General, however,
submits that case of petitioners in CWP Nos.15099, 15234, 15844, 15380,
15195 and 16032 of 2021, who have pleaded individual genuine hardship
and having been earlier accommodated by manual transfers, shall be
considered as a one time measure to resolve the issue, though not to be
treated as a precedent. Nevertheless said petitioners are required to
participate in the online transfer drive as per provisions of Clause 8 of
applicable Teachers Transfer Policy. However, in case they do not get
posting at the same station, they may submit applications within 15 days of
their transfer which shall be considered and petitioners therein shall be
accommodated in the same district where they are presently posted. Their
applications shall be decided within a stipulated period of time.
In respect to petitioners in remaining three cases (CWP
No.15249 of 2021, CWP No.15952 of 2021, CWP No. and CWP No. 20337
of 2021), it is submitted that no ground for any interference is made out and
all the writ petitions should be dismissed. Petitioner Shiv Kumar (in CWP-
15249-2021) is stated to have participated voluntarily in the transfer drive
and he was ultimately allotted Government Model Sanskriti Senior
Secondary School, Radaur, District Yamuna Nagar on 22.08.2019.
Thereafter, Government of Haryana took a decision that the Model Sanskriti
Schools shall be affiliated with the Central Board of Secondary Education
and a procedure was developed for appointment of the candidates.
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Applications of eligible Principals were invited along with their preference
of choice from willing candidates through online portal of the Department.
Candidates were then screened by the specially constituted Committees on
the basis of the result of the Board/non-Board classes etc. Mr. Devender
Kumar, Principal was selected and posted as Principal of the Government
Model Sanskriti Senior Secondary School as a result of this exercise.
Petitioner, it is submitted did not participate in the selection process.
Therefore, after appointment of Devender Kumar, petitioner was adjusted at
Shaheed Naveen Vaidh Government Senior Secondary School, Model
Town, Rohtak vide order dated 23.07.2021, subject to the condition that he
would participate in the next transfer drive. It is further submitted that as per
the MIS profile of petitioner, he had served for more than 14 years at
District Yamuna Nagar.
Similarly in the case of petitioner Kashmir Singh (in CWP-
15952-2021) it is submitted that Government Senior Secondary School
Thana, Kurukshetra, where he was serving as Principal was converted to
Government Model Sanskriti Senior Secondary School. After the screening
process Mr. Om Parkash was posted as Principal at the said Sanskriti School
with the petitioner not even having participated in the selection process.
Petitioner was adjusted at Government Senior Secondary School, Balahi
subject to the condition that he would participate in the next general transfer
drive. Moreover, the petitioner, it is stated has remained in District
Kurukshetra for 15 years of his service and for 13 years in adjoining districts
of Kurukshetra. Reference is made to the table regarding the service record
as contained in para no.11 of the affidavit dated 17.12.2021 of respondent
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no.2 in the said writ petition. In respect to petitioner Priyanka (in CWP-
20337-2021), it is pointed out that petitioner was transferred from
Government Senior Secondary School, Khedi Sadh, Rohtak to Government
Senior Secondary School, Anwali, District Sonipat through manual mode
and a condition was specifically imposed that she would participate in the
next transfer drive compulsorily.
Learned Advocate General, Haryana submits that once
petitioners were transferred through the manual mode, condition was
specifically imposed that they would have to participate in the next transfer
drive compulsorily. This condition was accepted by the petitioners and
never challenged by them. Therefore, present writ petitions it was submitted
should be dismissed as transfer being an incidence of service, an employee
does not have any vested right for being transferred to or not being
transferred from a particular place.
I have heard learned counsel for the parties at length and have
gone through the files with their able assistance.
In so far as question of petitioners being asked to participate in
the general transfer drive compulsorily, despite not having completed a
period of five years on the transferred post merely on the ground that their
appointment was through manual mode indeed stands conclusively settled
vide decision dated 17.01.2020 in CWP-28707-2019, titled Manish Kumar
Vs. State of Haryana and others and other connected matters. Petitioners in
CWP-28707-2019 and other connected writ petitions had raised this very
question that they were being forced to participate in the transfer drive
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despite not having completed five years of service at the school in question.
Co-ordinate Bench while considering the facts and circumstances held that
in view of Clause 8 (i)(b) & (ii) of the Transfer Policy dated 05.06.2017,
even if the employee had not completed five years service in a particular
school, he was rightly asked to participate in the general transfer drive and
the vacancy on which such employee was posted temporarily, would be
taken to be a Involuntary Deemed Vacancy as he had been adjusted thereon
through the manual mode.
Decision dated 17.01.2020 was upheld by a Division Bench of
this Court on 24.02.2020 in LPA-247-2020, titled Nisha Vs. State of
Haryana. Division Bench of this Court while referring to judgments of the
Hon'ble Supreme Court in Mrs. Shilpi Bose and others Vs. State of Bihar
and others, AIR 1991 Supreme Court 532; Union of India and others
Vs. S.L Abbas, AIR 1993 Supreme Court 2444, and National
Hydroelectric Power Corporation Ltd. Vs. Shri Bhagwan and another,
AIR 2001 Supreme Court 3309, held that a transfer policy is not
enforceable and an order of transfer in violation thereof cannot be assailed
on that ground.
In the present cases much stress has been laid by learned
counsel for the petitioners on the fact that as per the Teachers Transfer
Policy, 2016 as amended in June, 2021, Involuntary Deemed Vacancy
included only a post of any cadre (whether teaching or non-teaching), held
by a teacher previously or presently in the school education department in a
regular capacity for a period of five years or more on the qualifying date in
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the present zone of posting; or a post occupied by a guest/contractual/adhoc
teacher. It is submitted that this Clause did not include the post occupied by
a Teacher given temporary manual posting due to non-availability of online
transfer drive or technical problems or compulsion on administrative or
litigational nature or on new appointment or on promotion or otherwise. It
was argued that this amendment has been brought about in an illegal manner
during pendency of these writ petitions and is not applicable.
Though attractive at first flush, a close perusal and
consideration reveals no merit in this argument. Clause 8(i)(b)(i) as it stood
in the amended policy of 2017 and then notified in June, 2021 as well as
corrigendum issued on 25.06.2021 has been reproduced in the foregoing
paras and is not being reproduced again for the sake of brevity. It is
succinctly explained in the affidavit dated 30.09.2021, filed in CWP-15099-
2021 (as well as the reply/written statements filed in other writ petitions)
that provision regarding posts occupied by teachers through manual posting
in Clause 8(i)(b)(i) which was there in the Teachers Transfer Policy notified
earlier was somehow left out due to an inadvertent mistake while carrying
out the amendment in June, 2021. Same was incorporated again by issuance
of a corrigendum. During the course of hearing photocopies of the record
were produced in Court to indicate movement of the file for rectification up
to the Worthy Chief Minister of the State prior to issuance of the
corrigendum. Reference has been made to the manner and method of
amendment carried out in June, 2021 relied upon by the petitioners and that
of the corrigendum. Learned counsel for the petitioners are unable to point
out any infirmity or illegality therein.
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It is a matter of record that Clause 8 (i)(b) of the policy as
amended in 2017 while defining Deemed Vacancy included a post occupied
by a teacher given temporary manual posting due to non-availability of
online transfer drive or technical problems or compulsions of administrative
and litigational nature apart from a post of any cadre whether non-teaching
or teaching held by a teacher previously or presently in the School
Education Department in regular capacity for a period of 05 years or more
on the qualifying date in the present zone of posting.
In the amendment carried out on 28.06.2021 Involuntary
Deemed Vacancy included only the post of any cadre held by a teacher
previously or presently in the School Education Department in a regular
capacity for a period of five years or more on the qualifying date in the
present zone of posting or a post occupied by a guest/contractual/adhoc
teacher.
Provision regarding the post occupied by a teacher given
temporary manual posting was missing. It is to be noticed that provision
regarding the post occupied by the teachers given temporary manual posting
was again inserted by way of Corrigendum dated 25.08.2021. To read any
kind of mala fides in this exercise as is sought to be urged by learned
counsel for the petitioners, is not possible in the given factual matrix and
neither have learned counsel been able to indicate any such aspect from the
record.
Much stress was laid during arguments on the aspect that in the
policy as it existed in 2017 provided that posts occupied by teachers given
temporary manual posting who were duly posted as an outcome of the
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Grievance Redressal mechanism of a general transfer drive would not be
included and non-inclusion of this clause in the corrigendum vitiates the
same. This aspect has been succinctly explained by the learned Advocate
General, Haryana while submitting that as per experience, very often
participation in or invocation of Grievance Redressal mechanism itself had
become a vehicle of mis-use in a manner where an employee would manage
a posting through the manual mode a short time before the general transfer
drive thereby managing to escape participation therein. It is submitted that it
is in this view of the matter that this clause was not included in the
corrigendum.
Be that as it may, it is to be noted that the policy or the
corrigendum as such is not under challenge in this writ petition. Petitioners
are clearly governed by the policy including the corrigendum dated
25.08.2021. It is clearly provided that Involuntary Deemed Vacancy shall
include a post occupied by a teacher given temporary manual posting due to
(i) non availability of online transfer drive, or (ii) technical problems or (iii)
compulsion of administrative or litigational nature or (iv) on new
appointment or (v) on promotion or (vi) otherwise.
During the course of hearing, learned Advocate General while
referring to the reply filed in all the writ petitions, succinctly explained
various reasons/exigencies for which the Department resorts to transfer of an
employer through manual mode as under:-
1). New appointment:-
It is stated that when a new employee joins a Department, there
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are less chances with the Department to grant posting through the online
mode, therefore, temporary station is allocated with a condition that
employee shall participate compulsorily in the next online drive.
2). Promotion cases:-
When an employee is promoted to the next promotional post, it
is stated he has to be posted on a fresh station. Said exercise is conducted
manually again with a condition that employee shall participate
compulsorily in the next transfer drive.
3). Court cases:-
It is stated that whenever interim orders are granted by any
Court, manual transfer orders have to be issued qua the said employee for
conversion of normal schools to Model Sanskriti Schools. It is stated that
the Department converted some normal schools to Model Sanskriti Schools
to provide quality education to the students wherein students are to be
taught as per the CBSC pattern. Teachers are selected through the screening
process in the schools. Therefore, employees who did not apply for the
Model Sanskriti Schools or were selected for the interview process, were
adjusted manually to the other schools with the rider that they would
participate compulsorily in the next transfer drive.
4). Administrative grounds:-
It is explained that in certain cases for the purpose of
conducting a fair inquiry, an employee may have to be transferred to another
station manually or some persons who by some means were able to get
relaxation in the policy are also liable to participate mandatorily in the next
transfer drive.
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It is relevant to note at this stage that petitioners Shiv Kumar
and Kashmir Singh in CWP-15249-2021 and CWP-15952-2021 were
allocated their present place of posting through the manual mode on account
of the schools where they were posted being designated as Model Sanskriti
Schools wherein Principals were to be appointed through the designated
mode of selection. Admittedly, said petitioners did not come forward to
participate in the said selection process for being appointed at the Sanskriti
Schools. They were adjusted through the manual mode after duly selected
Principals were appointed at the respective stations. Moreover, both the said
petitioners have admittedly been posted for considerable number of years in
the district concerned. Petitioner in CWP 20337-2021 was transferred to
Government Senior Secondary School, Anwali, District Sonipat admittedly
through the manual mode. Likewise it is a matter of record that all the
petitioners were posted through the manual mode.
Learned counsel for the petitioners in some of the cases have
also raised a ground that the transfer orders handed over to them do not
contain the rider that they would have to participate compulsorily in the
transfer drive whereas order uploaded on the MIS portal contained a note
that the officer shall participate in the next transfer drive compulsorily.
During the course of hearing, it has been succintly explained
that there is a specific provision in the policy for mandatory participation in
the case of manual mode of transfer, therefore, even if there is no mention of
mandatory participation in the transfer order, same would be
inconsequential. Updation of particulars on the portal has been provided in
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such a manner to automatically provide for the said note to appear.
Explanation set forth is in consonance with the factual position and no
benefit can be availed therefore of by petitioners on this account.
It is further to be noted that the transfer policy or its provisions
are not under challenge before this Court, therefore, no occasion arises for
any adjudication thereon. It is a settled position of law that an employee has
no vested right to seek transfer to a particular place or seek not to be
transferred from a particular station. It has been held by the Hon'ble
Supreme Court in S.K. Naushad Rehmand and others Vs. Union of India
and others, Civil Appeal No.1243 of 2022, decided on 10.03.2022 that an
employee has no fundamental right or for that matter a vested right to claim
transfer or posting of his/her choice. It is further held that executive
instructions and administrative directions concerning transfers and posting
do not confer an indefeasible right to claim a transfer or posting. Individual
convenience of persons, who are employed in service, is subject to
overreaching needs of the administration. Coordinate Bench in the case of
CWP-15984-2021 titled 'Inderjit Pahwa Vs. State of Haryana and
another', rejected the claim of the petitioner therein who was a Teacher
seeking setting aside of action of the respondents in insisting on mandatory
participation in Teacher Transfer Drive on the ground that he had only
completed two years at the place of posting and that he should not be
subjected to compulsory participation in the drive before completion of five
years. While referring to Clause 6 of the Policy, Court refused to interfere in
the absence of any arbitrariness and malafides. Similarly in the present writ
petitions no ground for any interference is made out as such.
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Keeping in view the facts and circumstances, all the petitioners
are eligible to participate in the general teachers transfer drive to be held
pursuant to notice dated 25.06.2021 and any other subsequent notices as
may be issued by the State, keeping in view Clause 8(b)(i) & (ii) of Teachers
Transfer Policy in view decision dated 27.01.2020 in CWP-28707-2019,
titled Manish Kumar Vs. State of Haryana and others, which has been
upheld by Division Bench in LPA-247-2020. However, in case petitioners in
CWP Nos.15099, 15234, 15844, 15380, 15195 and 16032 of 2021 do not
get posting at the same station/district where they are posted, they shall
represent before the Department within 15 days of their transfer and in terms
of the statement made by learned Advocate General before this Court, said
petitioners shall be accommodated in the same district where they are
presently posted, within a stipulated period of time as determined by the
respondents. Till then status quo regarding posting of said petitioners only
shall be maintained. Needless to say petitioners in the remaining three writ
petitions are at liberty to seek redressal of their grievance if any within 15
days of transfer order in consonance with Clause 9(xvii) of Teacher Transfer
Policy.
No other argument has been addressed.
Keeping in view the facts and circumstances as above, CWP
Nos.15099, 15234, 15844, 15380, 15195 and 16032 of 2021 are disposed of
and CWP Nos.15952, 15249 and 20337 of 2021 are dismissed. Pending
applications, if any, are disposed of accordingly.
(Lisa Gill)
May 0 7 , 2022 Judge
Sunil
Whether speaking/reasoned: Yes/No
Whether reportable:
27 of 27 Yes/No
