Uttarakhand High Court
SPA/350/2020 on 17 December, 2021
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN
AND
THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA
SPECIAL APPEAL NO.350 OF 2020
Reserved on: 21.10.2021
Delivered on: 17.12.2021
BETWEEN:
Indu Prabha .....Appellant.
And
State of Uttarakhand & others ....Respondents.
Counsel for the Appellant : Mr. Mayank Rajan Joshi.
Counsel for the Respondents : Mr. B.P.S. Mer, learned Brief Holder for
the State.
The Court made the following:
JUDGMENT:(per Hon'ble The Chief Justice Sri Raghvendra Singh Chauhan)
The appellant has challenged the legality of the
judgment dated 19.11.2020, passed by a learned Single
Judge in Writ Petition (S/S) No. 2805 of 2019.
2. Briefly, the facts of the case are that appellant is
serving as Assistant Teacher in a Basic School, run by
Government of Uttarakhand. She filed WPSS No. 2805 of
2019, challenging the order dated 06.11.2019 passed by
Deputy Education Officer, Doiwala, Dehradun, whereby the
Head Masters of the concerned school were asked to relieve
the writ petitioner.
3. Teachers of Basic Schools belong to a District Level
Cadre, as they are appointed by the District Education Officer
and they are liable to be transferred within the District only.
Since Basic School Teachers had been representing for their
transfer outside the District, therefore, the State Government
issued Government Order dated 21.11.2016, wherein it was
provided that Basic School Teachers can be transferred
outside the District for a specified time, on their request, with
the condition that their lien shall be maintained in their
original cadre, they shall be repatriated upon completion of
the period specified in their order of transfer, and further
their seniority will be maintained in their original cadre.
4. Pursuant to Government Order dated 21.11.2016,
appellant was transferred from Hill Districts of Uttarakhand to
District Dehradun in the year 2017; she joined duties at the
transferred place and started performing her duties. Since
other Basic School Teachers, who could not get benefit of
inter-district transfer, had been making representations to
extend similar benefit to them also, therefore, the Director,
Elementary Education issued one letter dated 11.04.2018 to
Secretary, School Education to cancel the Government Order
dated 21.11.2016, which permitted inter-district transfer.
Ultimately, the State Government, vide Office Memo dated
25.04.2018, cancelled the Government Order dated
21.11.2016. In the said Office Memo, it was provided that all
transfers, made pursuant to Government Order dated
21.11.2016, shall also stand cancelled; a direction was issued
to all Basic School Teachers to join duties in their parent
cadre. A large number of writ petitions were filed challenging
the Government Order dated 25.04.2018. The said writ
petitions were dismissed by a common judgment dated
26.10.2018. However, liberty was given to the petitioners in
those writ petitions to make a representation before the
Competent Authority with direction to Competent Authority to
take decision on such representation sympathetically, in
accordance with law.
5. Consequently, the appellant also made a
representation in terms of the judgment dated 26.10.2018
rendered in WPSS No. 1406 of 2018 and other connected writ
petitions. Her representation was rejected by the Director,
Elementary Education by reasoned order. Subsequently,
when appellant was asked to go back to the original schools
in hills, from where she was transferred, she filed WPSS No.
2805 of 2019. The said writ petition was dismissed by learned
Single Judge vide judgment dated 26.11.2019. Hence, the
present appeal before this Court.
6. Learned counsel for the appellant submits that the
Transfer Act, 2017 provides the time schedule for effecting
transfers and Section 23 of the said Act provides 10th June,
as the last date for transfer. Thus, according to him, the
order of relieving is passed in violation of provisions of the
Transfer Act. It is further contended that since similarly
situate persons have been allowed to continue at the present
place, and the appellant is singled out by passing a relieving
order against her, hostile discrimination is being practiced
against the appellant.
7. Heard the learned counsel for the appellant.
8. A perusal of the Government Order dated
27.09.2019 reveals that the State Government, after
examining the documents produced by Basic School Teachers
along with their representations, decided to grant exemption
from relieving to few of them, who are suffering from critical
illness, or are covered by Spouse Policy. Some Teachers, who
were transferred from one Hill District to another, were also
granted exemption from relieving. However, such exemption
is effective only till decision is taken in their cases by the High
Powered Committee, constituted under the Chairmanship of
Chief Secretary.
9. Since the appellant does not fall in any of the
category of Teachers, to whom exemption was granted,
therefore, order of reliving was passed against her.
10. Learned Single Judge has considered the
submissions made on behalf of the writ-petitioner in great
detail and has come to the conclusion that there is no
illegality in the orders impugned in the writ petition.
11. According to the own showing of the writ petitioner,
she was transferred outside the District for a period of three
years. Her transfer was de hors the Rules, as Rules permit
transfer within the District. Thus, a privilege was conferred
upon the writ-petitioner, pursuant to a policy decision taken
by the State Government, which was communicated vide
Government Order dated 21.11.2016. Upon cancellation of
the said Government Order, the privilege conferred upon the
writ-petitioner was withdrawn, and she was asked to go back
to her original cadre.
12. Thus, stricto sensu, it is not a case of transfer. But,
a case of deputation, from one cadre to another. A
deputationist cannot claim absorption in the borrowing
organization, as of right, and she has to go back to her
original cadre, the moment, she is repatriated by the
borrowing organization.
13. Learned counsel for the appellant has relied upon
the provisions contained in the Uttarakhand Annual Transfer
for Public Servants Act, 2017 for challenging the order of
their relieving. Reliance placed upon the said Act is
misconceived, as provisions of the said Act would be
applicable only in the case of transfer within the cadre. But,
the appellant was transferred outside the cadre. Section
17(1)(e) of the Transfer Act also provides that transfers shall
be made only against cadre post/ places and shall not be
made against the post/places which are out of the cadre
(such as, inter district/ inter divisional transfers for
district/divisional cadres). Thus, the challenge thrown on the
ground of violation of provisions of Transfer Act, is
unsustainable.
14. Learned counsel for the appellant has submitted
that the appellant has been subjected to hostile
discrimination, inasmuch as, some similarly situate persons
have been granted relaxation from relieving, while she has
not been granted such relaxation. The said submission is also
misconceived.
15. Every employer has certain inherent rights in the
matter of transfer, and posting of its employees. Therefore,
the State Government cannot be denuded of such right. As a
model employer, the State Government has to consider the
personal difficulties faced by its employees, caused due to
serious illness, both spouse being Government Servant
posted separately or critical illness of some members in the
immediate family.
16. Perusal of the Government Order dated 27.09.2019
reveals that Government had decided to grant relaxation to
some Teachers from relieving, in view of their grave personal
difficulties, and such relaxation is valid only till decision is
taken in their matter by the High Powered Committee,
headed by Chief Secretary. Although, learned counsel for the
appellant has argued that such Teachers have been absorbed
at the place, where they were transferred, there is no
material on record to substantiate this argument. Moreover,
there is no challenge to the benefit of absorption, if any,
given to some teachers.
17. It is settled position in law that transfer is an
incidence of service; no Government Servant holding a
transferable post can claim transfer to a place of his/her
choice. It is for the employer to decide where to post his
employee. The Court's interference in these matters has to be
minimal, in order to maintain efficiency in public service.
18. As discussed above, the order of transfer passed in
favour of the appellant was cancelled vide Government Order
dated 25.04.2018 and all Basic Teachers, including the
appellant, were asked to join duties in their original cadre.
Despite the said order, appellant has not joined duties in her
parent cadre. By the impugned order dated 06.11.2019,
Deputy Education Officer, Doiwala, Dehradun has asked the
Head Master of the school to relieve the appellant, so that she
may join in her original school, from where she was
transferred.
19. Thus, this Court is of the considered opinion that no
prejudice is caused to the appellant by her relieving from the
school at Dehradun. Her service conditions, emoluments etc.
would remain the same. Moreover, she continues to be
member of her original cadre, where her seniority is also
retained. Therefore, her career prospects are also not going
to be affected by her relieving.
20. In such view of the matter, we do not find any
infirmity in the judgment impugned in this appeal.
21. Even otherwise, the learned counsel appearing for
the State informs this Court that this case is covered by the
judgment, dated 13.01.2021, passed by a learned Co-
ordinate Bench in Special Appeal No.02 of 2021 and bunch
cases.
22. In the said appeals, a similar order had been
challenged before the learned Co-ordinate Bench. By
judgment dated 02.11.2021, the learned Co-ordinate Bench
had dismissed the special appeals.
23. Therefore, even this case is, hereby, dismissed.
24. No order as to costs.
(RAGHVENDRA SINGH CHAUHAN, C.J.)
(ALOK KUMAR VERMA, J.)
Dated: 17th December, 2021
NISHANT
