SPA/5/2021
2021 Latest Caselaw 148 UK

  THE HIGH COURT OF UTTARAKHAND

                    AT NAINITAL
        ON THE 13TH DAY OF JANUARY, 2021

                         BEFORE:

   HON'BLE SHRI JUSTICE RAGHVENDRA SINGH
                CHAUHAN, C.J.

                             AND

 HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI, J.

           SPECIAL APPEAL NO. 2 OF 2021

BETWEEN:

   Smt. Asha Mohan Female, aged 47 years, W/o
   Brij Mohan, R/o Chandrabani, Sewla Kalan,
   Mohbewala, Dehradun, Uttarakhand.
                                                 .....Appellant
AND:

 1. State of Uttarakhand through Chief Secretary,
   Government of Uttarakhand, Dehradun.
 2. The     Secretary,       Department     of     Education,
   Government of Uttarakhand, Dehradun.
 3. The     Director,    School     Education,      Primary,
   Uttarakhand, Dehradun.
 4. The District Education Officer, Basic, Dehradun.
 5. Deputy Education Officer, Doiwala, Dehradun.
 6. Sri. R.K. Kunwar, Director, School Education,
   Primary, Uttarakhand, Dehradun.
 7. Meenakshi Pathak, aged and wife of not known
   to     the   petitioner    through   District   Education
   Officer, Udham Singh Nagar.
 8. Pushpendra Kumar, aged and son of not known
   to the Petitioner, through District Education
   Officer, Haridwar.
                              2

 9. Amit Kumar, aged and son of not known to the
   petitioner     through District Education Officer,
   Haridwar.
10. Dinesh Chandra Negi, aged and son of not
   known     to     the    petitioner    through     District
   Education Officer, Chamoli.
                                          .....Respondents.

                           With

           SPECIAL APPEAL NO. 5 OF 2021

BETWEEN:
   Arun Kumar Gezwal Male, aged 50 years, S/o
   Mijaji Lal, R/o Ward No. 3, Shimla Bypass,
   Chauhan Mohalla Mehuwala Mafi, Dehradun,
   Uttarakhand.                                .....Appellant
AND:

 1. State of Uttarakhand through Chief Secretary,
   Government of Uttarakhand, Dehradun.
 2. The    Secretary,      Department      of     Education,
   Government of Uttarakhand, Dehradun.
 3. The    Director,      School    Education,      Primary,
   Uttarakhand, Dehradun.
 4. The District Education Officer, Basic, Dehradun.
 5. Deputy Education Officer, Basic, Dehradun.
                                          .....Respondents.
                           With

          SPECIAL APPEAL NO. 341 OF 2020

BETWEEN:

   Maheshwar Singh (Male), aged about 55 years,
   S/o Keshar Singh Khati, R/o C-168, Subhash
   Nagar,         Roorkee,         Shafipur,       Haridwar,
   Uttarakhand.                                 .....Appellant
                             3

AND:

 1. State of Uttarakhand through Secretary, Primary
   Education, Civil Secretariat, Dehadun.
 2. District Education Officer, Haridwar.
 3. Block      Education   Officer,       Roorkee,    District
   Haridwar.
 4. Deputy Education Officer, Primary Education,
   Roorkee, District Haridwar.
 5. Director    General,   Health     &    Family    Welfare,
   Dehradun.                               .....Respondents.
                           With

        SPECIAL APPEAL NO. 342 OF 2020

BETWEEN:

   Moti Ram (Male), aged about 50 years, S/o Shri
   Bablu    Ram,     R/o    Todo      Kalyanpur,     District-
   Haridwar, Uttarakhand.                     .....Appellant
AND:

 1. State of Uttarakhand through Secretary, Primary
   Education, Civil Secretariat, Dehadun.
 2. District Education Officer, Haridwar.
 3. Block   Education      Officer,    Haridwar,      District
   Haridwar.
 4. Deputy Education Officer, Primary Education,
   Haridwar, District Haridwar.
 5. Director    General,   Health     &    Family    Welfare,
   Dehradun.
 6. Director, Primary Education, Dehradun, District
   Dehradun.
                                           .....Respondents.
                              4

                           With



          SPECIAL APPEAL NO. 343 OF 2020

BETWEEN:

   Sanjay Singh Samant (Male), aged about 37
   years, S/o Shri Shivraj Singh, R/o 438, Mahavir
   Colony, Bhangeri Mahawatpur, P.O. Milap Nagar,
   Haridwar, Uttarakhand.                  .....Appellant
AND:

 1. State of Uttarakhand through Secretary, Primary
   Education, Civil Secretariat, Dehadun.
 2. District Education Officer, Haridwar.
 3. Block    Education     Officer,   Primary    Education
   Roorkee, District Haridwar.
 4. Deputy Education Officer, Primary Education,
   Haridwar, District Haridwar.
 5. Director, Primary Education, Dehradun, District
   Dehradun.                            .....Respondents.
                           With

            SPECIAL APPEAL NO. 4 OF 2021

BETWEEN:

   Devendra Dutt Male, aged 46 years, S/o Madan
   Mohan,      R/o   23,     Gram-Chilhar,      Dehradun,
   Uttarakhand
                                               .....Appellant
   (By Shri Nagesh Aggarwal, Advocate)

AND:

 1. State of Uttarakhand through Chief Secretary,
   Government of Uttarakhand, Dehradun.
 2. The     Secretary,     Department     of    Education,
   Government of Uttarakhand, Dehradun.
                                  5

  3. The     Director,        School   Education,       Primary,
     Uttarakhand, Dehradun.
  4. The District Education Officer, Basic, Dehradun.
  5. Deputy Education Officer, Doiwala, Dehradun.
  6. Sri. R.K. Kunwar, Director, School Education,
     Primary, Uttarakhand, Dehradun.
  7. Meenakshi Pathak, aged and wife of not known
     to    the   petitioner      through    District   Education
     Officer, Udham Singh Nagar.
  8. Pushpendra Kumar, aged and son of not known
     to the Petitioner, through District Education
     Officer, Haridwar.
  9. Amit Kumar, aged and son of not known to the
     petitioner       through District Education Officer,
     Haridwar.
 10. Dinesh Chandra Negi, aged and son of not
     known       to     the    petitioner    through     District
     Education Officer, Chamoli.
                                              .....Respondents.

     (By Shri B.S. Parihar, Standing Counsel for the
     State of Uttarakhand).



            These      Special    Appeals     coming     on   for
hearing this day, Hon'ble Shri Justice Manoj Kumar
Tiwari, J. delivered the following order:

                          JUDGMENT

Since common question of law and facts are involved in these Special Appeals, therefore are being taken up together and are being adjudicated by this common judgment. However, for the sake of clarity, facts of Special Appeal No. 02 of 2021 are being considered.

2. This Appeal is directed against the judgment and order dated 19.11.2020, passed in Writ Petition (S/S) No. 2657 of 2019 and other connected petitions.

3. The appellant is serving as Assistant Teacher in a Basic School, run by Government of Uttarakhand. She alongwith two other Basic School Teachers filed WPSS No. 2657 of 2019, challenging the order dated 05.11.2019 passed by Deputy Education Officer, Raipur, Dehradun, whereby the Head Masters of the concerned school were asked to relieve the writ petitioners. They also challenged the order dated 27.09.2019 passed by Secretary, School Education , whereby certain similarly situate Teachers were exempted from relieving till decision is taken in their matter by High Powered Committee, headed by Chief Secretary. The order passed, consequent to Government Order dated 27.09.2019, by the Additional Director, Elementary Education on 22.10.2019 was also challenged in the writ petition, whereby documents of Teachers, who were covered by Government Order dated 21.11.2016, with comments from the District Level Authorities, were called.

4. 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 and they shall be repatriated upon completion of the period specified in their order of transfer and, further that, their seniority will be maintained in their original cadre.

5. Pursuant to Government Order dated 21.11.2016, appellants were transferred from Hill Districts of Uttarakhand to District Dehradun in the year 2017 and they joined duties at the transferred place and started performing their 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 and 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 representation before the Competent Authority with direction to Competent Authority to take decision on

such representation sympathetically, in accordance with law.

6. Appellants also made representations in terms of the judgment dated 26.10.2018 rendered in WPSS No. 1406 of 2018 and other connected writ petitions. Their representations were rejected by the Director, Elementary Education by reasoned orders. Subsequently, when appellants were asked to go back to the original schools in hills, from where they were transferred, they filed WPSS No. 2657 of 2019. The said writ petition was dismissed by learned Single Judge vide judgment dated 26.11.2019, which is under challenge in this appeal.

7. Heard learned counsel for the parties and perused the record.

8. 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 some 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.

9. 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.

10. 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.

11. 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.

12. We find no infirmity in the judgment impugned in these appeals.

13. According to the own showing of the writ- petitioners, they were transferred outside the District for a period of three years. Their transfer was de- horse the Rules, as Rules permit transfer within the District. Thus, a privilege was conferred upon the writ-petitioners, 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-petitioners was

withdrawn and they were asked to go back to their original cadre.

14. 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 he has to go back to his original cadre, the moment, he is repatriated by the borrowing organization.

15. 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; while, 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.

16. 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.

17. 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.

18. 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, however, there is no material on record to substantiate this argument.

19. Moreover, there is no challenge to the benefit of absorption, if any, given to some teachers.

20. It is settled position in law that transfer is an incidence of service and 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 and Court's interference in these matters has to be minimal, in order to maintain efficiency in public service.

21. 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 05.11.2019, Deputy Education Officer, Raipur, 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.

22. 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.

23. In such view of the matter, we do not find any infirmity in the judgment impugned in these appeals.

24. Accordingly, the Special Appeals fail and are dismissed.

(Raghvendra Singh Chauhan, C.J.)

(Manoj Kumar Tiwari, J.) Navin