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2015 DIGILAW 314 (UTT)

RISHIPAL SINGH v. STATE OF UTTARAKHAND

2015-06-23

K.M.JOSEPH, V.K.BIST

body2015
JUDGMENT : K.M. Joseph, C.J. (Oral): Since these appeals raise common question of law, therefore, we dispose of the same by this common judgment. 2. The appellants are the writ petitioners. They are teachers employed in Government Schools. They approached the learned Single Judge complaining of the impugned order, by which they stand reverted back to the Parent Schools. Since much turns on Rule 14 of the Uttarakhand Teachers (School Education) First Appointment, Promotion and Posting on Transfer Rules, 2013 (hereinafter referred to as the Rules). English translation of Rule 14 (as supplied by the counsel for the appellants) reads as follows:- “Prohibition of attachment of teachers-14 (1) No teacher will be attached/arranged in any other school except the school of his/her original placement. All the arrangements/attachments prior to the publication of this rule will be automatically understood as finished on publication of this rule. Provided that due to sudden death of a teacher working in single teacher institution, going on long leave, on promotion or in case of a female teacher on child care leave/maternity leave of any teacher working in a single teacher school, if arrangement is required then concerned capable officer have to take the approval of such arrangement from District Magistrate. (2) Arrangement can be done only by teachers available in nearest schools. In any condition, arrangement cannot be done in X region from Y region. Provide that arrangement done in any school for conducting school activities, will not be treated as attached in this context.” 3. The case of the petitioners, in short, is that the Director General has issued a communication, by which he did not intend to disturb persons like the appellants, instead the Director General intended to take care of those schools, where there are more teachers, than mentioned in the norms, and also to take care of the schools, where there are not enough teachers, as per the norms. It was to undo the imbalance that the Director General issued the orders, after referring to Rule 14 to cancel the arrangements of teachers, which were contrary to the same. It is the case of the appellants that misconstruing the said communication by the Director General, the Education Officers had instead, passed the impugned order seeking to displace the appellants. It was to undo the imbalance that the Director General issued the orders, after referring to Rule 14 to cancel the arrangements of teachers, which were contrary to the same. It is the case of the appellants that misconstruing the said communication by the Director General, the Education Officers had instead, passed the impugned order seeking to displace the appellants. The appellants are, according to them, teachers who were sent to newly upgraded schools for the running of those schools, therefore, according to them, their case would not fall within the mischief of Rule 14 (1) of the Rules. It is their case that their case, instead, should be considered under the terms of the proviso to sub-rule (2) of Rule 14, which we have referred to above. In order words, according to them, they were sent on an arrangement in schools for running those schools. The proviso expressly declares that such arrangements will not be treated as attachment in the context. Therefore, they have approached this Court, complaining that it is on a complete misunderstanding of sub-rule (1) of Rule 14 of the Rules that the subordinates to the Director General, have passed the impugned orders. 4. Per contra, the learned Advocate General would contend that in all these cases, the appellants are all teachers, who were continuing to be paid for by the Parent Schools, even in the schools in which they are attached. He requests us to consider plight of the students in the Parent Schools. Secondly, he would submit that the understanding of Rule 14 by the appellants is not correct. According to him, the rule maker intended that after the Rule was amended, no teacher will be attached or arranged in any other school, except in school of his original placement. The only exception, that is contemplated, is provided in the proviso, i.e. if there is sudden death, long leave taken by a teacher, vacancy arising by way of promotion or a female teacher going on child care leave or maternity leave or a teacher working in a single teacher school, then despite the prohibition against any arrangement or attachment, an arrangement is required, then it cannot be done unless it is permitted by the District Magistrate. Passing on to sub-rule (2) of Rule 14, he points out that even there a further limitation is that, such an arrangement can be done only by the teachers, available in the nearest schools. An arrangement cannot be done under the proviso, by which a teacher working in ‘X’ region, be placed in ‘Y’ region. ‘X’ region stands for Sugam or accessible/ convenient areas, whereas ‘Y’ region stands for those inaccessible or disagreeable places. Therefore, the whole idea behind the Rule is that arrangements, attachments, which have become a problem, should be avoided except in certain specified circumstances, as provided in the proviso and even that could be done only as provided in sub-rule (2) of Rule 14. Passing on to the proviso, which is the bone of contention, he would submit that it is only to make things clear that this arrangement will not amount to an attachment. 5. No doubt, Sri Manoj Tewari, learned Senior Advocate for the appellant in one of the appeals, would submit that his client has been transferred to a place near Nainital and whether he should be transferred back to the Parent Schools, has not been the subject matter of the independent application of mind. The power has been exercised mechanically. 6. Sri Pankaj Miglani, learned counsel for the appellant would submit that in his case his party has medical problems. 7. Sri CS Rawat, learned counsel for the appellant, in one of the cases, would point out that in his case, the appellant stands on a different footing. The appellant was appointed on 31.11.2011 in Dehradun at Karoda. There is reference to harassment by certain persons on 11.05.2013 onwards. The complaints were made to the authorities, evoking no action. The application was moved before the Director and finally she was transferred to the Inter College at Thattyud, District Tehri Garhwal. But that order was not implemented by the Addl. Director. Further representation was made to the Director and she was posted at Doiwala. Even then, there is reference to her being threatened over phone. It is pointed out that the learned Single Judge has dismissed the writ petition saying that she can go on maternity leave. 8. But that order was not implemented by the Addl. Director. Further representation was made to the Director and she was posted at Doiwala. Even then, there is reference to her being threatened over phone. It is pointed out that the learned Single Judge has dismissed the writ petition saying that she can go on maternity leave. 8. Sri Rakesh Thapliyal, learned counsel for the appellant would, of course, reiterate that the arrangement was made after the promulgation of the Rules, and therefore, it means that such posting in upgraded school will not incur the wrath of sub-rule (1) of Rule 14, and they are necessary in public interest. 9. The primary function of a proviso is normally to except cases out of the ambit of the main provision. It may be used for limiting the scope of the main provision. It is also one of the Principles in interpretation of a proviso that it has a relationship with the main provision, to which it is a proviso. Rule 14 of the Rules is intended to prohibit attachments and arrangements, except in the school of the original placement. The said embargo would appear to be addressed to the future, as the rule maker has used the words that “no teacher will be attached”. It is thereafter that in sub-rule (1), it is provided that arrangements and attachments, prior to the publication of this Rule, will be automatically understood as finished or we would supply the more appropriate word “terminated”. Therefore, neither will there be attachment nor arrangement in the future and also all attachments and arrangements, made prior to the Rule are to be terminated on the publication of the Rule. The proviso as is the normal function of a proviso, carves out four exceptional cases, which we have already adverted to, in which situation an arrangement can be made of teachers, contrary to the dictate of sub-rule (1) of the Rules; the manner of doing is provided in sub-rule (2) of the Rules. The controversial proviso, however, is the proviso to sub-rule (2) of the Rules. In keeping with the general principles of interpretation, the controversial proviso figures as a proviso to sub-rule (2) and does not figure as a proviso to sub-rule (1). The controversial proviso, however, is the proviso to sub-rule (2) of the Rules. In keeping with the general principles of interpretation, the controversial proviso figures as a proviso to sub-rule (2) and does not figure as a proviso to sub-rule (1). If it had figured as proviso to sub-rule (1), then certainly it would have gone a long way in fortifying the appellants in their case, that an arrangement, for the running of the school, will not amount to an arrangement, and therefore, it will not be prohibited. But we notice the junction at which the said proviso is placed, namely, it is found as a proviso to sub-rule (2). One way of reading is that the rule maker intended that the only exceptional situation, in which an arrangement is permitted, is the situation contemplated in the proviso to sub-rule (1). Thereafter, as noted, the manner of making the arrangement is provided in sub-rule (2). It could be said that the controversial proviso is intended to remove any error or doubt, that would remain, as to whether, while it is an arrangement and is permitted as an arrangement, is still could be an attachment, which is prohibited under sub-rule (1) of Rule 14; therefore, the controversial proviso could be intended to remove any matter of doubt by way of abundant caution, that if an arrangement is done within the meaning of the proviso to sub-rule (1), it will not only be permitted as an arrangement, but it will not be treated as an attachment, which is preciously what it says. If it is so interpreted, then the State is entirely right in contending that outside of the contingencies, provided in the proviso to sub-rule (1), there could not be any arrangement or attachment permitted, nor could be any such arrangement or attachment, if it was done prior to the rule, be not treated as an attachment or arrangement. The other way of looking at this, to read the controversial proviso as a proviso not to sub-rule (2), but to the later limb of sub-rule (1), that is to say, after injuncting any arrangement or attachment in the future, the arrangements, which were made prior to the Rules, were to be treated as finished, with the publication of the Rules. It could be said that the arrangement for running the schools will not be treated as an attachment in the context, if the words “in the context’ are referred to as second limb of sub-rule (1), it could be said that when a teacher is put in another school, other then the school of the original posting, for the purpose of running the former school, then it will not be treated as an attachment, within the meaning of sub-rule (1), and such prior attachment could continue. We also notice the word used in the controversial proviso is ‘done’. The word ‘done’, no doubt, would take within its sweep past transactions, but it would also take in the context of the provisions, a thing to be done in the future. 10. Now having said all this, we would think that we need not finally pronounce on this, for the reason that in the facts of these cases, we must pause to pose the question as to what is the legal right of the appellants. Admittedly, all of the appellants are Govt. Teachers working in Govt. Schools, who were appointed in various Parent Schools, and who have been attached to the various Schools, which were upgraded. It could be said that they have been sent to the upgraded Schools for the purpose of running those Schools, as they contend. But it is admitted that in the orders, by which they have been attached to the upgraded schools, it is made clear, that this is only a temporarily arrangement, as they are liable to be replaced by regular hands. More importantly, the orders clearly show that they have a very precarious title to continue in the schools to which they are attached and it is made abundantly clear that they can be reverted back at any time. We must also bear in mind the fact that their salaries are being paid by the Parent Schools. There are vacancies apparently in the Parent Schools, as is evident from the fact that they are sought to be put back in the said Schools. This means, that there is a public interest dimension of the students in the Parent Schools, being left unattended to the extent of their absence from their Parent Schools and the need for their being put back in the said schools, from which schools they are drawing their salaries. This means, that there is a public interest dimension of the students in the Parent Schools, being left unattended to the extent of their absence from their Parent Schools and the need for their being put back in the said schools, from which schools they are drawing their salaries. Leading this circumstance alongwith the tenure of their appointments being precarious, as they are liable to be reverted back at any time, apart from being liable to be replaced by regular hands, we would think that they cannot seek to impugn the orders. Apart from this, the learned Advocate General would submit that there will be no attachment policy and there will only be a transfer policy, and by 1st of July, 2015, most of the vacancies will be filled. In such circumstances, we are of the view that, even though we do not wish to finally rule on the true scope of the rules, for the reason we have given other reasons in the judgment, the appeals must fail. Appeals are dismissed. No order as to costs. 11. Mr. CS Rawat, counsel for the appellant in SPA No. 241 of 2015 points out that an inquiry has been instituted in the matter of appellant. We make it clear that we have not pronounced anything on the inquiry, and it can go on in accordance with law.