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Uttarakhand High Court · body

2007 DIGILAW 519 (UTT)

Smt. Pushpa Aswal v. State of Uttarakhand

2007-10-11

M.M.GHILDIYAL

body2007
Judgment Heard learned counsel for the petitioners and learned Standing Counsel for the State/respondents. 2. In all the above writ petitions, the petitioners who are working as Headmaster/ Headmistress in the Primary Schools have been transferred by the respondents on different dates; The ground transferring the petitioners is common that since the particular petitioner had joined his/her present place of posting in the Institution at the last therefore; he/she is being transferred being an excess teacher. Aggrieved with the transfer orders, the petitioners have approached this Court. 3. Since common question of law is involved which is to be determined by this Court in all these writ petitions, therefore for the sake of convenience all the above petitions have been consolidated and are being decided by a common judgment. Writ petition no. 940(ss) of 2007 Smt. Pushpa Aswal vs. State and others shall be treated as the leading case. 4. Brief facts, which emerge out from all the petitions; are identical except the fact that one petitioner is transferred from place-'A' to place-'B' and other have been transferred from place-'C' to place '0'. 5. The respondents have filed counter affidavit in writ petition no. 940 (ss) 2007 Smt. Pushpa Aswal vs. State and others to which the petitioner Smt. Pushpa Aswal has filed rejoinder affidavit in the aforesaid writ petition. The respondents have submitted that the counter affidavit filed in the said writ petition may be read in all other writ petitions. 6. The law of transfer has been well settled by the Courts in a catena of decisions. A person holding a transferable post, cannot claim a vested right to work at a particular place as the transfer order does not affect any of his/her legal rights and Court should not interfere. with the transfer order passed in public interest of administrative exigency. Transfer or posting are ordinary incidents of service and ordinarily any transfer or posting is presumed to have been made to satisfy the administrative exigency of service. No consent is required from the• employee before transferring him. Even if the transfer order has been passed taking into consideration the complaints against an employee or has been passed on the directions of Minister of the Department concerned on being receiving complaint from public should not be interfered as the same would avoid any future trouble or incident which may take place. Even if the transfer order has been passed taking into consideration the complaints against an employee or has been passed on the directions of Minister of the Department concerned on being receiving complaint from public should not be interfered as the same would avoid any future trouble or incident which may take place. Since the transfer being incident of service, for providing power to transfer no specific provision is required. Even if the transfer order has been passed in violation of Guidelines framed by the Govt., the remedy before the employee is first to join at the new place of posting and then to make representation to the Authority concerned. It is true that the Guidelines framed by the Govt. for transfer of employee does not have statutory force, but at the same time, it is expected from the Govt. to follow the Guidelines which has been framed by the Govt. itself, otherwise there is no meaning to frame Guidelines, if the same are not to be followed. Again, though the Court should not ordinarily interfere with the transfer orders except on the ground that the transfer order has been passed mala-fide, stigmatic in nature and is a frequent transfer, the Court may interfere even if the Guidelines on the basis of which the transfer has been made is absolutely arbitrary, the Court cannot sit silently and can interfere in the circumstances. 7. Various questions have been raised by the petitioners during the course of arguments. 8. Firstly; that the petitioners though have joined the Institutions at the last, but they should not have been transferred on the ground that by his/her joining to the Institution, the strength of teachers in the Institution has become in excess, specially when the teachers working in the School have a long stay and the Headmaster has joined only few months back. 9. Secondly, in none of the impugned orders in the Writ petitions it is mentioned that the employee is being transferred. instead of the word 'Transfer', the word 'SAMAYOJAN' has been used. 10. Thirdly, in some of the impugned orders while adjusting the person to some other Institution, it is specifically stated by the transferring authority that the person concerned will not be entitled to get TNOA. 11. Learned Standing Counsel for State Sri H.M. Raturi has submitted that pursuant to the Govt. order dated 28-05-2007, issued in continuation of Govt. 10. Thirdly, in some of the impugned orders while adjusting the person to some other Institution, it is specifically stated by the transferring authority that the person concerned will not be entitled to get TNOA. 11. Learned Standing Counsel for State Sri H.M. Raturi has submitted that pursuant to the Govt. order dated 28-05-2007, issued in continuation of Govt. order dated 12-12-2005, the strength of teachers in proportion to number of students in Junior Basic Schools and Senior Basic Schools has been fixed. By the Govt. Order dated 12-12-2005 and 13-07-2007, the authorities have been directed to transfer such teachers who have joined in the "Institution and by joining his/her in the Institution the strength of teachers, which is prescribed, has become in excess. He has further submitted that in the Basic Education, the district-wise details of number of Schools, number of students, sanctioned posts of Headmaster/ Headmistress and Assistant Teachers has been prepared, which shows that the sanctioned posts of Headmasters is less than the number of Schools with the result there are many Junior Basic Schools as well as Senior Basic Schools, being run without Headmasters/ Headmistress and in those Schools, the senior teacher is holding the charge of Headmaster. The respondents have annexed a chart. In the chart, it is indicated that in the District Pauri, there are 1673 Schools against which only 1568 posts of Headmasters/Headmistresses are created. In District Chamoli 507 posts of Headmasters/Headmistresses are created against 973 Schools. Similar is the condition in respect of all other Districts. The total number of Junior Basic Schools and Senior Basic Schools, as per the chart, is 12112; whereas only 8796 posts of Headmasters/ Headmistresses have been created by the State Govt. 12. Contention of learned Standing Counsel is that the impugned transfer orders have been passed by the respondents transferring the Headmasters/Headmistresses from one Institution where the sanctioned strength of Teachers has become in excess due to joining of that Headmaster by directing to join in a School where there is no Headmaster or Headmistress and those transfer orders impugned in these writ petitions are perfect, just and proper which are not in violation of any Rule. Further, the intention of direction issued by the Director of Schools to all the District Education Officers was to maintain uniformity and availability of Teachers in those Schools where there is lack of Teachers and this decision was taken in the interest of education and further in exigency of the service, the transfer order cannot be challenged. 13. Prior to enforcement of Uttaranchal Education Act, 2006 (Act no. of 2006 which came into force on 22nd April 2006) the services of Primary School Teachers were being governed by U.P. Basic Education (Teachers) Service Rules, 1981. The Rules were framed under Sub Section 1 of section 19 of Uttar Pradesh Basic Education Act, 1972 (hereinafter referred to as the Act no. 34 of 1972). Rule-5 of 1981 Rules aforesaid provides for source of recruitment for Assistant Teachers/Headmasters of Junior Basic School as also of Senior Basic School. Rule 21 of the aforesaid Rule provides procedure for transfer which reads as under :21. Procedure for Transfer :- There shall be no transfer of any teacher from rural local area to an urban local area or vice versa or from one urban local area to another of the same district or from local area of one district to that of another district except on the request of or with the consent of the teacher himself and in either.case approval of the Board shall be necessary. 14. Basic School/Junior Basic School/Senior Basic School/Local Area/Urban Local Area and Teacher has been defined under Rule-2 of the aforesaid Rules. Rule 2(1)c defines Basic School. Rule 2(1)h and Rule 2(1)m define Junior Basic School and Senior Basic School. Rule 2(1)c, 2(1)h and Rule 2(1)m are reproduced hereunder:Rule 2(1)c :- 'Basic School' means a school where instructions from Class I to VIII are imparted. Rule 2(1)h :- 'Junior Basic School' means a Basic School where instructions from Class I to V are imparted. Rule 2(1)m :- 'Senior Basic School' means a Basic School where instructions from Class VI to VIII are imparted. 15. Under Rule-3, these Rules shall apply to :(i) all teachers of Local Bodies transferred to the Board u/s 9 of the Act; and (ii) all teachers employed for the Basic and Nursery Schools established by the Board. 16. Rule 2(1)m :- 'Senior Basic School' means a Basic School where instructions from Class VI to VIII are imparted. 15. Under Rule-3, these Rules shall apply to :(i) all teachers of Local Bodies transferred to the Board u/s 9 of the Act; and (ii) all teachers employed for the Basic and Nursery Schools established by the Board. 16. On bifurcation of State of Uttarakhand from State of U .P., the Act and the Rules applicable in the State of Uttar Pradesh were adopted by the State of Uttarakhand and the service of these teachers were governed by these Rules of 1981 , which were framed under Act no. 34 of 1972. 17. The State of Uttarakhand passed Act no. 8 of 2006, which came into force on 2204-2006. Section 60 of the Uttaranchal School Education Act, 2006 relates to Repeal and Saving which is reproduced hereunder :(1) The Uttaranchal (The Uttar Pradesh Intermediate Education Act, 1921) Adaptation and Modification Order, 2002, The Uttaranchal (The Uttar Pradesh Basic Education Act, 1972) Adaptation and Modification Order, 2002, The Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 and the Uttar Pradesh Junior High School (Payment of Salaries of Teachers and Other Employees) Act, 1978 are hereby repealed. (2) Notwithstanding such repeal, anything done or any action taken under the Principal Acts referred to in sub-section (1) shall be deemed to have been done or taken under the corresponding provisions of the Act as if the provisions of the Act were in force at all material times. 18. Thus, after enforcement of the Act no. 8 of 2006, Act of 1972 and Rules framed therein in 1981 are not applicable now in the case of teachers employed in Basic Schools i.e. in Junior Basic Schools and Senior Basic Schools. 19. Under Section 58 of Act no. 8 of 2006, provision has been made for the teachers of these schools which provides that all the teachers, officers and employees of Basic Shiksha Parishad, including any supervising or inspecting officer or employee working immediately before the date of the commencement of this Act, shall be transferred to the State Government and they shall become teachers, officers and employees of the State Government and their services shall be governed by the service rules prescribed by the State Government. 20. 20. Learned counsel for the petitioners Sri S.K. Posti has submitted that though Rules have been framed under the Act, however the same are not approved, thus no Rules or Regulations under the Act are in force at present. 21. Under Section 56 of Act no. 8 of 2006, the State Govt. has been empowered to issue Notification in the Gazette and to remove the difficulty by making such incidental or consequential provisions, not affecting the substance. Provided that no order shall be made after the expiration of the period of two years from the date of commencement of this Act. Provided further that such every order as soon as shall be laid, before the State Legislative Assembly. 22. Learned counsel for the petitioners have submitted that, though the Rules have been framed u/s 56 of the Act no. 8 of 2006, but the Rules have yet not been approved nor any Notification if issued to remove the difficulty has been laid before the State Legislative Assembly as required u/s 58 of the Act. 23. For the purposes 'of deciding the issues involved, following Govt. Orders/Circular are relevant :(i) G.O. dated 18th September 2003 was issued by the State of Uttarakhand for transfer of teachers of Basic Education. Clause 2 & 3 of this G.O. provides as under :. On 9th July 2005, Director of Education issued order to transfer teachers where the strength of teachers in any school is in excess than the prescribed strength. The District Education Officers/Add!. District Education Officers following the guidelines, issued by Director on 09-07-2005, transferred the Headmaster where the strength of teachers has become in excess because of joining the school by the Headmaster. Consequently, the Director of Education has clarified its earlier order on 16-07-2005, which reads as under : (ii) Letter dated 7th October 2005 was issued by the Director of School Education, Uttarakhand, Dehradun by which the number of teachers in an Institution has been prescribed on the basis of strength of students. It is further provided in the G.O. that in every Junior High School, there must be, at least, one Science Teacher as also one Headmaster/Headmistress. The relevant extract of the Govt. Order is reproduced hereunder :- (iii)Again on 12th December 2005 another G.O. was issued by the Education Department, State of Uttarakhand fixing the strength of teachers in an Institution. It is further provided in the G.O. that in every Junior High School, there must be, at least, one Science Teacher as also one Headmaster/Headmistress. The relevant extract of the Govt. Order is reproduced hereunder :- (iii)Again on 12th December 2005 another G.O. was issued by the Education Department, State of Uttarakhand fixing the strength of teachers in an Institution. In respect to Primary Schools, according to this G.O., upto 100 students 2 teachers will be posted in an Institution and in respect of Senior Basic Schools 4 teachers will be posted in an Institution where the strength of student is upto 100. Under Clause-3 of this G.O. dated 12th December 2005, it is specifically stated that while counting the number of teachers in a particular Institution, the Headmaster will be included as a teacher for the purposes of fixing strength of the teachers. Relevant extract of the G.O. dated 12th December 2006 is being quoted below : (iv) Again on 13th July 2007, the Govt. of Uttarakhand issued G.O. in respect of transfer of Junior Basic School Teachers as well as the Teachers of Senior Basic Schools, where the strength of teachers is in excess. The said Govt. Order is quoted hereunder :- 24. The petitioners have assailed their transfer order and particularly the G.O. dated 13th July 2007, as by the said Govt. Order, guidelines have been issued for transfer of Primary School Teachers as well as the Teachers of Senior Basic Schools, where the strength of teachers is in excess and directions have been issued for transfer of Headmasters in a Junior Basic School or Senior Basic School, in case, the Headmaster/Headmistress has joined the Institution at the last due to which in a particular Institution the strength of teachers has become in excess than the prescribed strength. . 25. Assailing the action of the respondents the petitioners have raised following issues to be determined by this Court :(1) Whether the G.O. dated 13th July 2007 was applicable in the case of some of the petitioners who have been transferred prior to issuance of the Govt. Order dated 13th July 2007 on the ground of excess teachers in a particular Institution ? (2) Whether transfer of petitioners should be treated as a transfer; or it is merely an adjustment, as stated in the impugned orders? Order dated 13th July 2007 on the ground of excess teachers in a particular Institution ? (2) Whether transfer of petitioners should be treated as a transfer; or it is merely an adjustment, as stated in the impugned orders? (3) Whether the petitioner, who has been transferred using the word 'SAMAYOJAN', is entitled to get transfer T.A., under the Provisions of Rule 42 of U.P. Financial Hand Book, Volume III ? (4) Whether a Headmaster should be transferred from a School, in case, the number of teachers has become in excess in a particular School than the prescribed strength fixed by the Govt. on account of joining of a Headmaster/Headmistress in the School? Issue no.1 :26. The order dated 13th July 2007 is contradictory itself. By the aforesaid Govt. Order, directions have been issued under that G.O. that if the strength of teachers has become in excess because of joining of a Headmaster in an Institution, he should be transferred to a School where no Headmaster is posted. From contents of the Govt. Order, it appears that transfer shall be made irrespective of the fact that he/she belong to a separate cadre and further by transferring such person, the Institution will remain without any Head. Thus, on the one hand a Headmaster is being transferred to a School where no Headmaster is posted and on the other hand another School is being permitted to run without Headmaster and in case, some other person is transferred as Headmaster of any school, again the situation will remain the same and without any Head, there cannot be any Institution. Further there cannot a retrospective effect of any Govt. Order. Almost all the petitioners were transferred prior to issuance of G.O. dated 13-07-2007 and, as such, the stand taken by the learned Standing Counsel, taking shelter of G.O. dated 13-07-2007 is not accepted. Issue nos. 2 & 3:27. Both these issues are interconnected and if be decided collectively, they shall put common impact upon the transfer policy adopted by the Govt., therefore both these issues are being decided jointly. Till date, after the enforcement of the present Act, the Govt. has not framed any Rule under the Act. Rules framed in 1981 under Act of 1972, were adopted by the State of Uttarakhand. Till date, after the enforcement of the present Act, the Govt. has not framed any Rule under the Act. Rules framed in 1981 under Act of 1972, were adopted by the State of Uttarakhand. Under the Rules of 1981, there was no provision for transfer of a Assistant Teacher in Primary Schools from rural local area to an urban local area or vice versa or from one urban local area to another of the same district or from local area of one district to that of another district except on the request of or with the consent of the teacher himself/herself and in either case approval of the Board was necessary but after the enforcement of Act no. 8 of 2006, under Section 58 of the Act the services of these teachers have been transferred to State Govt. and they have become teachers of the State Govt. 28. It appears that earlier the transfer of Primary School Teachers from one district to another in rural areas or in urban areas were being made and in place of transfer the terminology 'SAMAYOJAN' was being used and in order to this policy, the teachers were not being transferred to far of areas from where they were working, consequently the word 'TRANSFER' was not being used and they were also not getting travelling allowances under Rule 42(1) of the Financial Hand Book, vol-III, and in pursuance of G.O. dated 11111 June 1999. After enforcement of Act NO.8 of 2006, all the teachers of Junior Basic School and Senior Basic School have become Govt. servant u/s 58 of Act NO.8 of 2006 and Rule 42 of the Financial Hand Book, vol. III will be applicable to them. Rule 42(1) of the Financial Hand Book vol. III is reproduced hereunder:Rules Reaardina Special Journeys Journevs on Transfer 42(1). A Government servant. for a journey on transfer from one station to another. if he is transferred in the interest of Government work and not at his own request. is entitled to a lump-sum at the following rates whether the journey is performed by rail or road alone or in combination with one another. (i) xxx (ii) xxx (iii) xxx (iv) xxx (v) xxx Provided that. if the new station of the Government servant on transfer is within the same district. is entitled to a lump-sum at the following rates whether the journey is performed by rail or road alone or in combination with one another. (i) xxx (ii) xxx (iii) xxx (iv) xxx (v) xxx Provided that. if the new station of the Government servant on transfer is within the same district. the lump-sum will be admissible at 50% of the above rates: Provided further that no lump-sum is available if the new station of the Government servant on transfer is situated within 8 kilometers of the old station. (2) Besides the above, he will also be entitled to the following :(I) xxx (II) xxx 29. In fact, the word 'SAMAYOJAN' is the camouflage of the word 'TRANSFER' and the teacher transferred is entitled to get transfer T.A. in accordance with law. 30. Keeping in view the aforesaid discussions, the issues nos. 2 & 3 are being answered in favour of the petitioners and against the respondents. Issue no. 4: 31. So far the issue no. 4 is concerned, except in G.O. dated 13th July 2007, there is no mention in any of the aforesaid G.Os. that if strength of teachers in an Institution has become excess than the prescribed strength, by joining of a Headmaster, the teacher who has joined the School at last, irrespective of the fact whether he is a teacher or Headmaster, shall be transferred. 32. Both the parties have admitted that every Institution must have a Headmaster/ Headmistress. It is a matter of common sense that there should not be any Institution without any Head. In fact, the G.O. dated 13th July 2007 is contrary itself, as it speaks about transfer of those Headmasters because of whom strength of teachers in an Institution has become in excess but on the other hand the said G.O. speaks that the teacher, if holding the post of Headmaster and on account of his/her-joining the strength of teachers has become in excess, the person who has joined the institution at the last, should be transferred to that Institution where there is no Head. In these circumstances, by transferring the petitioners, the Department will have to make further arrangements for posting of some other Headmaster to that Institution from where the Headmaster has been transferred, and is this process, if accepted, the transferred Headmaster/Headmistress will again be treated as the last person who has joined the Institution. In these circumstances, by transferring the petitioners, the Department will have to make further arrangements for posting of some other Headmaster to that Institution from where the Headmaster has been transferred, and is this process, if accepted, the transferred Headmaster/Headmistress will again be treated as the last person who has joined the Institution. Further by joining the person as Head of Institution, the sanctioned strength will again be in excess in that Institution and it will be a never ending game. So, there is no justification of issuing such directions by the Govt. to transfer those Heads, because of whom the sanctioned strength of teachers in the ratio of students has become in excess according to the policy framed by the Govt. itself. 33. Learned counsel for the petitioners have submitted that cadre of Primary School Teachers/Science Teachers and those of the Headmasters and their pay scales are different and in case, a teacher is to be transferred, the Headmaster cannot be transferred by treating him/her to be a teacher. So far the question of treating the Headmaster as a teacher for the purpose of strength in an Institution, is concerned that is perfectly correct, because the Headmaster has to perform duty of a teacher also. 34. Learned counsel for the petitioners have further submitted that, the order of Government transferring an Assistant Teacher/Headmaster/Headmistress on the ground that because of joining of said teacher or Headmaster, the strength of Assistant Teacher has become surplus in an Institution, as such, the last person who has joined the Institution should be transferred, is not at all acceptable. Because the Principle of "last come-first go", can be applied in the case of retrenchment and not in the case of transfers, on the contrary, normally in transfer matters, a person should be transferred who has a long stay in an Institution. Prima-facie, I agree with the submission advanced by learned counsel for the petitioners, but at the present moment, no direction can be issued to the Govt. on this issue, as the Govt. will have to adopt reverse policy, which will create chaos in the Department and further, the Court in policy matters may give a direction which is suggestive in nature and not a positive direction. 35. For the reasons recorded above all the writ petitions are allowed. Impugned transfer orders, so far it relates to the petitioners, are quashed. 36. will have to adopt reverse policy, which will create chaos in the Department and further, the Court in policy matters may give a direction which is suggestive in nature and not a positive direction. 35. For the reasons recorded above all the writ petitions are allowed. Impugned transfer orders, so far it relates to the petitioners, are quashed. 36. Let certified copies of this judgment be placed in the connected writ petitions.