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Allahabad High Court · body

2009 DIGILAW 198 (ALL)

PRATIBHA SINGH v. STATE OF U. P.

2009-01-22

PRADEEP KANT, SHABIHUL HASNAIN

body2009
JUDGMENT By the Court.—Heard the learned counsel for the appellant Sri P.K. Khare, Sri Avdhesh Shukla for respondents 4 and 5 and Sri Krishna Chandra for the State. 2. The appellant claims that she was promoted on the post of Headmistress vide order dated 23.1.2006 and while working as such at Basic School Alampur Latifpur, Block Hasanganj, District Unnao, she has been subjected to transfer to Basic School Hulas Khera, Block Hasanganj, District Unnao, by means of a punitive order without affording any opportunity to her. 3. The appellant was entrusted with the work of construction of the school/portion of the school building, in which allegedly the discrepancies have occurred, as is evident from the impugned order of transfer, which says that the appellant has been found guilty on complaint being received regarding the irregularities committed in the construction of latrin in the school. The order further says that the complaint was forwarded by the Sub Divisional Magistrate, Hasanganj, Unnao and an enquiry thereon was got conducted by the Basic Shiksha Adhikari. 4. In the said enquiry, the allegations were found proved against the appellant. As a result of the said enquiry, the Assistant Basic Shiksha Adhikari recommended for transfer of the appellant as Assistant Teacher. The District Basic Shiksha Adhikari has passed the aforesaid order on 27.12.2008 clearly stating that as a result of the said enquiry, she is being transferred as Assistant Teacher to another school. 5. The learned Single Judge by the impugned order has taken note of the fact that the appellant was promoted as Headmistress and has directed that in case the appellant was holding the post of Headmistress and was regularly appointed on the said post, she shall not be reverted to the post of Assistant Teacher without affording her adequate opportunity. The learned Single Judge further observed that this Court has not interfered in the transfer of the petitioner to Hulas Khera, Block Hasanganj, District Unnao. 6. The learned Single Judge further observed that this Court has not interfered in the transfer of the petitioner to Hulas Khera, Block Hasanganj, District Unnao. 6. Sri P.K. Khare, learned counsel for the appellant says that the aforesaid order passed by the learned Single Judge has not yet been complied with by the respondents and further argued that since the learned Single Judge did not decide the controversy as to whether the appellant could at all have been transferred and punished without affording any opportunity and that too by reverting her on a lower post, the impugned order, therefore, deserves to be set aside. 7. Sri Avdhesh Shukla, learned counsel for respondents 4 and 5 submits that the appellant was holding a transferable post and if there were some complaints, she could have been transferred, for which opportunity was not needed. 8. We have considered the arguments and perused the record. 9. It is true that if there is a complaint against the government servant, the transfer can be effected and it is not necessary to hold an enquiry before transferring the employee, which can be done even after the transfer of the employee, but here is a case where the enquiry has been conducted against the appellant on a complaint being made by some third person, which was addressed to the Sub Divisional Magistrate and thereafter, the enquiry was conducted by the Basic Shiksha Adhikari. In the enquiry, the appellant was not associated and order of reversion and transfer has been passed. It is not a simple order of transfer, where the appellant has been transferred from one institution to the other institution, but it reverts the appellant to a lower post of Assistant Teacher. The order of reversion could not have been passed without affording any opportunity to the appellant. 10. Learned counsel for the appellant has brought on record the promotion order dated 23.1.2006. 11. The order, therefore, being punitive could not have been passed without associating the appellant in the enquiry and without affording any opportunity, which deserves to be set aside. The impugned transfer order dated 27.12.08 is, therefore, also liable to be set aside, which is hereby set aside. 12. The respondents are at liberty to pass fresh orders and if they find that some enquiry is needed, they should associate the appellant in the enquiry and hold enquiry in accordance with law. The impugned transfer order dated 27.12.08 is, therefore, also liable to be set aside, which is hereby set aside. 12. The respondents are at liberty to pass fresh orders and if they find that some enquiry is needed, they should associate the appellant in the enquiry and hold enquiry in accordance with law. In case they wish to transfer the appellant, they are at liberty to do so, keeping in mind that the appellant should be transferred on the post, which she is holding, as directed by the learned Single Judge she being the regular Headmistress. 13. Subject to aforesaid liberty, the special appeal is allowed. No order as to costs. ————