Uttarakhand High Court
WPSS/1389/2022 on 25 July, 2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
ON THE 25TH DAY OF JULY, 2022
BEFORE:
HON'BLE SHRI JUSTICE MANOJ K. TIWARI
Writ Petition (S/S) No. 1381 of 2022
BETWEEN:
Dr. Deepak Kumar ... Petitioner
AND:
State of Uttarakhand & others ... Respondents
With
Writ Petition (S/S) No. 1387 of 2022
Writ Petition (S/S) No. 1389 of 2022
Writ Petition (S/S) No. 1393 of 2022
Writ Petition (S/S) No. 1406 of 2022
Petitioners
(By Mr. B.D. Upadhyaya, Senior Counsel with Mr. Sandeep
Tiwari & Mr. Ravi Babulkar, Advocates)
Respondents
(By Mr. P.C. Bisht, learned Additional C.S.C. with Mr. V.S.
Rawat, learned Brief Holder for the State)
JUDGMENT
1. Petitioners were appointed as Lecturer in terms of
Uttarakhand Special Subordinate (Lecturer Cadre) Service
Rules, 2008 in different years. After serving in Government
Inter College as Lecturer, they were transferred as Senior
Lecturer in District Institute of Education and Training
(DIET) in the same scale of pay. Now, they have been
transferred from one DIET to another by means of order
dated 10.07.2022. Feeling aggrieved by their transfer,
petitioners have filed these writ petitions.
2. Since common questions of fact and law are
involved in these petitions, therefore, they are clubbed
together and are being heard & decided together. However,
for the sake of brevity and convenience, facts of WPSS No.
1381 of 2022 alone are being considered.
3. This writ petition has been filed by Dr. Deepak
Kumar, seeking the following relief:-
(i) Issue a writ or order in the nature of certiorari
quashing the impugned transfer order dated
10.07.2022 issued by respondent no. 4 (Contained as
Annexure No. 11) at serial no. 19 whereby the
petitioner has been transferred from DIET Udham
Singh Nagar to DIET Didihat, District Pithoragarh
being passed without any jurisdiction.
(ii) Issue a writ or order in the nature of mandamus
directing the respondent to permit the petitioner to
continue his services at his present place of posting.
4. According to petitioner, he was initially
appointed as Assistant Teacher (L.T. Grade) in
Department of Secondary Education in the year 1999 and
was subsequently promoted as Lecturer in the year 2006.
According to him, upon his promotion, petitioner was
transferred to DIET, Udham Singh Nagar in 2006 and
since then he is serving there to the satisfaction of all
concerned. By means of impugned order dated
10.07.2022, petitioner has been transferred to DIET
Didihat in District Pithoragarh.
5. Learned counsel for the petitioner contended
that persons posted as Senior Lecturer in DIET cannot be
transferred from one DIET to another by Director,
Secondary Education and only the Director, Academic,
Research & Training would be competent for transferring
them. It is further contended that categorisation of
different DIETs in terms of Section 9 of the Transfer Act
has not been done so far and in the absence of such
categorisation, petitioner could not have been transferred,
that too when no option was invited from him.
6. Per contra, Mr. P.C. Bisht, learned State
Counsel contended that even though petitioner was
posted in DIET for quite some time, however, the fact
remains that he is member of Lecturer Cadre of
Government Inter College and his Appointing and
Transferring Authority is Additional Director, Headquarters
/ Director, Secondary Education. He further contended
that Director, Secondary Education is Head of the
Department in respect of petitioner, as he was appointed
by promotion to the Cadre of Lecturer, Government Inter
College and since he still continues to be member of the
same cadre, therefore, Director, Secondary Education
would be competent to transfer the petitioner.
7. In support of this contention, learned State
Counsel has placed reliance upon a 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, one does not become
member of separate cadre created for DIET.
8. Regarding second submission made on behalf of
the petitioner that the work of identification of DIETs as
'Sugam' and 'Durgam' has not been done before
transferring him, learned State Counsel has produced in
Court one Office Memo dated 29.04.2022, issued by
Director General, Secondary Education, which is taken on
record.
9. 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 petitioners is also unsustainable. This Court
finds substance in the contention made by learned State
Counsel
10. 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. In the absence of any of the aforesaid two
grounds, interference with a transfer order would be
unwarranted.
11. Having regard to the issues highlighted by
petitioners in these writ petitions, this Court is not inclined
to interfere with the impugned transfer order. Since
petitioners have raised the issue of non-uploading of
categorisation of DIETs in the web portal and also of not
inviting options, which can be gone into by the
Departmental Authority, therefore, this Court thinks that
ends of justice would be met, if petitioners are permitted
to make representation to Director, Secondary Education.
12. Accordingly, writ petitions are disposed of with
liberty to petitioners to make representation(s) on or
before 29.07.2022 to Director, Secondary Education. It
shall be open to petitioners to submit representation(s)
through e-mail, with soft copy of this order. If petitioners
make such representation(s) 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 petitioners shall be
maintained.
(Manoj Kumar Tiwari, J.)
Aswal
