Uttarakhand High Court
WPSS/1401/2022 on 25 July, 2022
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WPSS No.1401 of 2022
Hon'ble Manoj Kumar Tiwari, J.
Mr. B.D. Upadhyaya, Senior Advocate,
assisted by Mr. Sunil Upadhyaya, Advocate for the
petitioner.
Mr. P.C. Bisht, Additional C.S.C., Mr. N.P.
Sah, Standing Counsel and Mr. V.S. Rawat, Brief
Holder for the State of Uttarakhand.
Heard learned counsel for the parties.
Petitioner is serving as Lecturer in District
Institute of Education and Training (DIET),
Dehradun. She has been transferred to District
Institute of Education and Training (DIET),
Chhadigaon, Pauri. In this writ petition, petitioner
has challenged her transfer order.
Learned Senior Counsel for the petitioner
contends that persons posted as Senior Lecturer in
different DIET cannot be transferred from one DIET
to another by Director, Secondary Education and
only Director, Academic, Research & Training
would be Competent Authority for the purpose. It
is further contended that categorisation of different
DIET in terms of Section 9 of the Transfer Act has
not been done nor it has been displayed in web
portal of the Department, therefore, in the absence
of such categorisation, petitioner could not have
been transferred, that too when no option was
invited from the petitioner.
Per contra, Mr. P.C. Bisht, learned State
Counsel contended that even though petitioner is
posted in different DIETs for quite some time,
however, the fact remains that she is member of
Cadre of Lecturer in Government Inter Colleges
and her Appointing and Transferring Authority is
Additional Director/Director, Secondary Education,
Headquarters. He further contended that Director,
Secondary Education would be the Head of the
Department in respect of petitioner, as she was
appointed in the Cadre of Lecturer of Government
Inter College and since she still continues to be
member of the same cadre, therefore, Director,
Secondary Education would continue to be Head of
the Department in respect of petitioner. In
support of this contention, learned State Counsel
has placed reliance upon judgment dated
16.06.2022 rendered by this Court in WPSS No.
1476 of 2019, wherein it has been held that
merely by transfer/posting as Teacher in DIET,
petitioner has not become member of separate
cadre created for DIETs.
Regarding second submission made on behalf
of the petitioner that the work of identification of
DIET has not been done before transferring the
petitioner, learned State Counsel has produced in
Court Office Memo dated 29.04.2022, issued by
Director General, Secondary Education, which is
taken on record. Perusal of the said document
reveals that different DIETs have been categorised
as 'Sugam' and 'Durgam'. Based on the said
document, learned State Counsel contends that
the second submission made on behalf of the
petitioner is also unsustainable.
Learned Senior Counsel for the petitioner
further contended that petitioner's husband is
paralytic, due to which, he is unable to move and
there is no one else in the family to look after
petitioner's ailing husband. He further points out
that petitioner's mother-in-law is also ailing, who is
84 years of age. Thus, he contends that petitioner
deserves to be exempted from compulsory
transfer.
It is well settled that transfer is an incidence
of service and transfer order should not be
interfered with ordinarily by the Court, unless the
order has been passed in violation of the service
rules or it is infected with malice.
Having regard to the issues highlighted by
petitioner in the writ petition, this Court is not
inclined to interfere with the impugned transfer
order. Since petitioner has raised the issue of non-
uploading of categorisation of school in the web
portal and also not inviting options, which can be
gone into by the Departmental Authority,
therefore, this Court thinks that ends of justice
would be met, if petitioner is permitted to make
representation to Director, Secondary Education.
Accordingly, the writ petition is disposed of
with liberty to petitioner to make representation
on or before 29.07.2022 to Director, Secondary
Education. It shall be open to petitioner to submit
representation through e-mail, with soft copy of
this order. If petitioner makes such representation
within stipulated time, Director, Secondary
Education shall take decision thereupon on or
before 20.08.2022.
Till 20.08.2022 or till decision on petitioner's
representation, whichever is earlier, status quo,
qua posting of petitioner shall be maintained.
(Manoj Kumar Tiwari, J.)
25.07.2022
Arpan
