WPSS/1639/2022
2022 Latest Caselaw 2642 UK

                Office Notes,
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      Date                                       COURT'S OR JUDGES'S ORDERS
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                                  WPSS No. 1639 of 2022
                                  Hon'ble Manoj Kumar Tiwari, J.

Mr. Prabhat Bohra, learned counsel for the petitioner.

Mr. R.C. Joshi, learned Brief Holder for the State of Uttarakhand.

Petitioner is a Government employee, serving as Assistant Teacher L.T. Grade (English). He is aggrieved by his transfer from Government Inter College, BHEL, Haridwar to Government Inter College, Kthunkhal, Block Thelisain, District Pauri Garhwal vide order dated 05.08.2022. Petitioner has sought quashing of transfer order and also the enquiry report submitted by Block Education Officer, Bhadrabad, District Haridwar.

Learned counsel for the petitioner contends that, with a view to victimise him, petitioner has been transferred to an inaccessible place, thus his transfer is punitive in nature which is passed in colourable exercise of power. He further submits that there is no material whatsoever for transferring the petitioner, thus, the impugned transfer order is unsustainable in the eyes of law. Per contra, learned State Counsel submits that petitioner was appointed as Assistant Teacher L.T. Grade (English) in Government Inter College, BHEL, Haridwar in 2003 and he is serving there continuously ever since then. He points out that this is the first time he is being transferred to some other school. He submits that Government Inter College, BHEL, Haridwar, where petitioner served, is most accessible place, therefore, after serving at Haridwar town for about 19 years, he became liable for transfer to hill area. He further submitted that petitioner is a recalcitrant person who is in the habit of disobeying lawful orders issued by Principal of the College and other superior Authorities. He further submitted that petitioner is in the habit of making complaints against his Principal and other superiors to different Authorities. State Counsel referred to one such complaint addressed to Chairman, Uttarakhand Human Rights Commission, which is on record as Annexure-1 to the writ petition. He further submitted that in view of repeated complaints against petitioner from various quarters, disciplinary enquiry was initiated against him and he was also placed under suspension. During suspension, he was attached in the Office of Additional Director, Secondary Education, Pauri, however, petitioner visited the Office of Additional Director, Pauri only once. Learned State Counsel has drawn attention of this Court to letter dated 12.03.2021 submitted by petitioner before Additional Director, Pauri, which is Annexure-6 to the writ petition.

In the said letter, petitioner has stated that he cannot be expected to visit the Office of Additional Director, Pauri on daily basis, for marking attendance.

Perusal of the impugned transfer order dated 05.08.2022 reveals that based on complaint received against the petitioner, enquiry was initiated against him and the Enquiry Officer had submitted adverse report against the petitioner. Based on the enquiry report, a decision was taken to transfer him from Haridwar to Pauri Garhwal, as his presence at Government Inter College, BHEL, Haridwar was found not desirable.

Having regard to the nature of allegations and the report of enquiry held against petitioner, this Court does not find any reason to interfere with the impugned transfer order.

Learned counsel for petitioner has placed reliance upon a judgment rendered by this Court in WPSS No. 876 of 2018, however, the said judgment is distinguishable on facts, as in that case, without establishing guilt of petitioner, he was transferred based on a charge.

In the present case, transfer order has been passed based on report of the enquiry, therefore, it cannot be contended that petitioner has been transferred on the basis of unverified complaints.

Mr. Prabhat Bohra, learned counsel for petitioner has placed reliance upon a judgment rendered by Hon'ble Supreme Court in the case of Somesh Tiwari vs. Union of India & others, reported in (2009) 2 SCC 592. Para 16 of the said judgment is reproduced below:-

"16. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kindsone malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal."

The law laid down by Hon'ble Supreme Court in the said judgment does not help the petitioner. In the present case, complaints were received against petitioner that due to his activities, academic atmosphere of the concerned school is vitiated. A school is a temple of learning where children are imparted with education as well as human values, therefore, the Authorities of Education Department are under an obligation to ensure that congenial atmosphere is maintained there for the students to flourish. Interest of students cannot be compromised and it is the duty of all concerned to ensure that Teachers take classes regularly and shape the students for further challenges.

The impugned transfer order, when examined in the backdrop of enquiry report, reveals that there was sufficient material for Additional Director, Pauri to arrive at a conclusion that petitioner's transfer to some other school is necessary. Thus, the contention raised by learned counsel for petitioner that petitioner's transfer is punitive, cannot be accepted. Petitioner's transfer was necessitated due to the tug of war going on between him and the Principal of the school. Petitioner has served in the same school for fairly long period, since he is liable to be transferred within Garhwal Region as per condition of his service, therefore, this Court does not find any reason to interfere with his transfer.

Accordingly, writ petition fails and is hereby dismissed.

(Manoj Kumar Tiwari, J.) 25.08.2022 Aswal