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2013 DIGILAW 611 (UTT)

Ghanshyam Pandey v. State of Uttarakhand

2013-09-27

V.K.BIST

body2013
JUDGMENT : V.K. Bist, J. By way of instant petition, the petitioner has challenged the order dated 12.09.2013 passed by Addl. Director, School Education, Kumaun Region, Nainital/ respondent no.2. Further prayer has been made declaring the act of respondent no.2 treating 31.03.2013 as point of reference for determining eligibility for transfer during transfer year 2013-14 as arbitrary and illegal. 2. Heard Mr. Manoj Tewari, Senior Advocate with Mr. Alok Mehra, Advocate for the petitioner, Mr. Subhash Uppadhyay, Standing Counsel for the State/respondents and perused the record. 3. Learned Senior Advocate for the petitioner referred the Uttarakhand Teachers (School Education) First Appointment, Promotion and Creation of Posts on Transfer Rules, 2013 (hereinafter referred to as the Rules) and emphasized upon Rule 10 (1) (A) (Kha-one) of the Rules. He contended that Rule 10 (1) (A) (Kha-one) of the Rules deals with the certain category of teachers who are exempted from compulsory transfer. Clause one thereof provides that female teachers, who are more than 52 years of age and male teacher, who are more than 55 years of age, shall be exempted, though the said provision was amended and after amendment, a female teacher, who has crossed 50 years of age is now exempted. 4. He contended that petitioner’s date of birth is 05.05.1958 and he completed 55 years of age on 04.05.2013, however vide order dated 12.09.2013, the petitioner has been transferred from G.I.C. Champawat to Govt. High School, Chalthi (Champawat). It was pointed out that vide order dated 20.06.2013, the petitioner was earlier transferred to Govt. High School, Khati, Bageshwar, which, however, was cancelled. He submits that entire information regarding the petitioner, including his age, is available with the respondent no.2, who is also the appointing authority. The above transfer orders were issued after petitioner completed 55 years of age and since the Rules do not permit any transfer after completion of 55 years of age, therefore the impugned transfer order passed in respect of the petitioner, is unsustainable. 5. He further contended that in Rule 10 (1) (A) (Kha-one) of the Rules, a cut off date for determining age is fixed, which makes clear that teachers, who completed 55 years as on 31st March of the concerned transfer year, shall be exempted. By referring this Rule, learned Senior Advocate for the petitioner submitted that the respondents passed the transfer order transferring the petitioner from Govt. By referring this Rule, learned Senior Advocate for the petitioner submitted that the respondents passed the transfer order transferring the petitioner from Govt. High School, Khati, Bageshwar to Govt. High School, Chalthi (Champawat), which is in violation of this Rule. He submitted that Transfer Rules provides that age for determining eligibility has to be seen as on 31st March of the concerned transfer year, therefore age has to be determined by fixing 31.03.2014 as point of reference. On the strength of this argument, learned counsel for the petitioner submitted that the respondent no.2 should have calculated the age taking into consideration 31st March, 2014, because the academic session begins from 1st April and ends on 31st March in the next year. 6. Second submission of the counsel for the petitioner is that petitioner’s wife is suffering from acute arthritis and petitioner has to look after his ailing wife and this fact has not been considered by the respondent no.2, while making his transfer. 7. Learned Senior Advocate for the petitioner then contended that Transfer Rules were enforced on 21.05.2013 and there is nothing to indicate that these Rules are retrospective. Thus, in the case of the petitioner, the cut off date should have been applied, after the issuance or framing of the Rules. 8. I have considering the submission of the counsel for the parties and have also gone through the entire material available on record. 9. Rule 10 (1) (A) (Kha-one) of the Rules elucidates that those male teachers, who have completed 55 years on 31st March of the transfer year, shall be exempted from compulsory transfer. In my view 31st March of the year in which transfer is made, should be the crucial date for calculation. In the case in hand, transfer has been made for the year 2013 and it connote directly for the current academic year, therefore, the authority has rightly considered the date of birth of the petitioner on 31st March, 2013. Argument of learned Senior Advocate for the petitioner that the transferring authority should have considered 31st March of the next year i.e. 2014, cannot be accepted, as that is the last date of session and on very next day i.e. 1st April, 2014 next transfer session starts. Argument of learned Senior Advocate for the petitioner that the transferring authority should have considered 31st March of the next year i.e. 2014, cannot be accepted, as that is the last date of session and on very next day i.e. 1st April, 2014 next transfer session starts. If last day of session is treated as crucial date for calculating age, in that event, an employee, who has not completed 55 years will also be entitled for exemption. In my view, an employee, who has not completed 55 years at the beginning of the session, cannot claim benefit of Rule 10 (1) (A) (Kha-one) of the Rules. The Transfer Rules have not only been made for steering the ship of education but also to serve the purpose of public interest. It is known to everybody that several vacancies of teachers are vacant in hill area. During arguments, this Court has been told by Standing Counsel for the State that in 2011-12, no annual transfers were made. Again, session 2012-13 was declared as zero transfer session. In some colleges posts of Science, Maths, English and Biology Teachers are vacant. In such situation, how guardians of the students can be expected to send their children in such schools. Considering all these facets and also considering the fact that transfer is an exigency of service, no interference of this Court is warranted. In fact, respondents should make efforts for filling up vacancies in remote areas. 10. So far the applicability of Transfer Rules from retrospective effect is concerned, it is not disputed that Transfer Rules will apply prospectively and are being propounded with prospective effect, but condition mentioned in Rule 10 (1) (A) (Kha-one) of the Rules is general in nature, which is to be propounded for the year in which transfer is made. These Rules are being applied in the current academic year. The argument of learned Senior Advocate for the petitioner is not acceptable. 11. In view of above, the petition has no merit and is liable to be dismissed. Accordingly the writ petition is dismissed in limine. No order as to costs. 12. Stay application also stands rejected.