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Uttarakhand High Court · body

2010 DIGILAW 85 (UTT)

PARVATI JOSHI v. STATE OF UTTARANCHAL

2010-03-08

TARUN AGARWALA

body2010
JUDGMENT Heard Sri K.N. Joshi, the learned counsel for the petitioners and Sri Subhash Upadhyaya, the Brief Holder for the State of Uttarakhand. 2. The petitioners were appointed as Assistant Teaches and were posted in various primary schools. The respondents created two cadres, namely, rural cadre and urban cadre, and invited applications from the teachers, who were interested in the urban cadre. The respondents indicated that if the teachers opt for the urban cadre, they would lose their seniority and that if they join the urban cadre, they would be placed at the bottom of the seniority list of urban cadre. The petitioners opted for the urban cadre and, the respondents, by orders dated 21st July, 1988 and 12th August, 1988 posted the petitioners in the urban cadre. The petitioners jointed and were placed at the bottom of the seniority list of urban cadre. This procedure was also in consonance with Rule 21 of the Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 (hereinafter referred as Rules of 1981). For ready reference Rule 21 and 22 of the Rules of 1981 are quoted hereunder :- “21. Procedure for transfer. – There shall be no transfer of any teacher from the 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. 22. Seniority – (1) The seniority of a teacher in a cadre shall be determined by the date of his appointment in a substantive vacancy : Provided that, if two or more persons are appointed on the same date their seniority shall be determined according to the order in which their names appear in the list referred to in Rule 17 or 17-A or 18, as the case may be. Note. – A candidate selected by direct recruitment may lose his seniority, if he fails to join without valid reasons when a vacancy is offered to him whether the reasons in any particular case are valid or not shall be decided by the appointing authority. Note. – A candidate selected by direct recruitment may lose his seniority, if he fails to join without valid reasons when a vacancy is offered to him whether the reasons in any particular case are valid or not shall be decided by the appointing authority. (2) The seniority of a teacher who has been transferred from one Local Area to another in accordance with the provisions of Rule 21 shall be placed at the bottom of the list of teachers of the corresponding class or category pertaining to the Local Area to which he has been transferred, as on the date of orders for transfer are passed. Such a person shall not be entitled to any compensation.” 3. A perusal of the aforesaid rules indicate that once a person has been transferred from one rural local area to another he cannot be transferred back to the rural area, except on the own request of the person or with the consent of that person. Rule 22 also provides that the person would lose his seniority when he is transferred from one cadre to another cadre. 4. In the light of the aforesaid provision, the petitioners have filed the present writ petition challenging the transfer order dated 28th June, 2004 by which the petitioners were transferred from urban cadre to the rural cadre. The learned counsel for the petitioners submitted that the said transfer order is without any authority of law and is in complete violation of Rule 21 & 22 of the Rules of 1981 and that no consent was taken from the petitioners. 5. The respondents in their counter affidavit are totally silent on the procedures indicated in Rule 21 and 22 of the Rules of 1981 and have only stated that since the petitioners originally belonged to the rural cadre, they have been repatriated to their parent cadre and, consequently, there is no illegality in the transfer order. 6. Having heard the learned counsel for the petitioner and having perused the counter affidavit, the court is of the opinion that the stand taken by the respondents is patently misconceived and the transfer order is in gross violation of Rule 21 & 22 of the Rules of 1981. It is apparently clear that once the petitioners have been placed at the bottom of the seniority list of urban cadre, the petitioners cannot be treated to be in the rural cadre. It is apparently clear that once the petitioners have been placed at the bottom of the seniority list of urban cadre, the petitioners cannot be treated to be in the rural cadre. Once the petitioners have opted for the urban cadre, which has been accepted by the respondents and the petitioners have been posted in the urban cadre and having lost their seniority the question of their repatriation to the original cadre, namely the rural cadre does not arise. In my opinion, the transfer order passed by the respondents was in gross violation of Rule 21 & 22 of the Rules of 1981. 7. In view of the aforesaid, the impugned transfer order cannot be sustained and is quashed. The writ petition is allowed. In the circumstances of the case, there shall be no order as to cost.