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2018 DIGILAW 70 (UTT)

Neelam Nautiyal v. State of Uttarakhand

2018-02-23

LOK PAL SINGH

body2018
JUDGMENT : LOK PAL SINGH, J. 1. By means of this writ petition, the petitioner has sought a writ of certiorari for quashing the impugned order dated 20.07.2017 passed by respondent no.2. A writ of mandamus has also been sought commanding and directing the respondent nos. 1 & 2 to relieve the petitioner from Government Primary School Bidashini, Yamkeshwar, Pauri Garhwal to District Haridwar under the respondent no.5 on the post of Assistant Teacher, Primary. 2. Brief facts of the case, as narrated in the writ petition, are that the petitioner was appointed as Assistant Teacher in Primary School Vivil Lohaghat at District Chamwapat on 19.01.2000. She got married with Mr. Dhananjay Nautiyal, resident of Bisthapit Colony Ranipur, Haridwar. The husband of the petitioner is in private job in District Haridwar. She continued as Assistant Teacher in the aforesaid institution till 2003. The State of Uttarakhand invited applications from the Assistant Teachers who were willing to seek transfer to another place. In view of transfer scheme, the petitioner submitted her option for her transfer from District Chamwapat to District Haridwar as her husband was the resident of District Haridwar as well as he was doing private job in District Haridwar. The application form submitted by the petitioner dated 02.05.2002 depicts at column no.10 the name of District and area for where the candidate sought transfer. The petitioner gave option of rural area as well as city area of District Haridwar on the ground of family reasons as she was posted about 600 kilometer away from her place of residence. 3. The respondents/authorities, by order dated 30.06.2003, transferred her from Primary School Vivil Lohaghat, District Chamwapat to Government Primary School Bidashini, Yamkeshwar, Pauri Garhwal, whereas transfer was not sought by the petitioner from District Champawat to District Pauri Garhwal. Petitioner had opted for District Haridwar in her application, but without assigning any reason, by order dated 30.06.2003, the petitioner was transferred to Government Primary School Bidashini, Yamkeshwar, District Pauri Garhwal. Further, the transfer dated 30.06.2003 passed by Director Primary Education, Dehradun depicts the change of cadre and the name of District. Pursuant to transfer order dated 30.06.2003, although petitioner joined at Government Primary School Bidashini, Yamkeshwar, District Pauri Garhwal on her personal expenses and also discharged her duties, but in the year 2015, she moved another application seeking her transfer to District Haridwar under the Transfer Rules 2013. Pursuant to transfer order dated 30.06.2003, although petitioner joined at Government Primary School Bidashini, Yamkeshwar, District Pauri Garhwal on her personal expenses and also discharged her duties, but in the year 2015, she moved another application seeking her transfer to District Haridwar under the Transfer Rules 2013. Her application was considered and vide order dated 13.7.2015, she was transferred from District Pauri Garhwal to District Haridwar. After transfer of the petitioner in the year 2015, when she was not relieved by the authorities for two years, she was constrained to file a writ petition before this Court being WPSS no.1350 of 2017 contending that even after her transfer to District Haridwar, she has not been relieved by the concerned authority. Said writ petition was disposed of by the Co-ordinate Bench of this court vide order dated 09.06.2017, giving liberty to petitioner to move a representation before the authorities concerned for redressal of her grievances and the respondent/Director Elementary Education was directed to consider and decide the representation of the petitioner by a reasoned and speaking order within eight weeks from the date of receipt of the representation. Thereafter, the petitioner submitted a detailed representation to the Director Elementary Education, Uttarakhand alongwith copy of the order passed by this court. Instead of considering the grievances of the petitioner, the Director Elementary Education, Uttarakhand by order dated 20.07.2017, rejected the representation on the ground that earlier the petitioner was posted as Assistant Teacher in District Champawat from where she was transferred to District Pauri Garhwal. She does not fulfill the conditions mentioned in clause 16(1) of Uttarakhand Teacher (School Education) first appointment, promotion and transfer holding the post of transfer rules, 2013 (as amended) as she has already availed the benefit of district cadre change. Therefore, it is stated that legally the petitioner does not fulfill the conditions, as it will change the district cadre and the division which can be done only once during the entire service and in the case of petitioner it has been granted to the petitioner, while transferring her from District Champawat to District Pauri Garhwal. 4. Therefore, it is stated that legally the petitioner does not fulfill the conditions, as it will change the district cadre and the division which can be done only once during the entire service and in the case of petitioner it has been granted to the petitioner, while transferring her from District Champawat to District Pauri Garhwal. 4. The petitioner has challenged the order of rejection of the representation dated 20.07.2017 on the ground that earlier order of transfer from District Champawat to District Pauri Garhwal is a camouflage as the petitioner did not make any request to transfer her from District Champawat to Pauri Garhwal and it is the authorities who themselves have decided to transfer the petitioner from District Champawat to District Pauri Garhwal, instead of transferring her from District Champawat to District Haridwar. Besides this, it is also pleaded in the writ petition that son of the petitioner, who is aged about 11 years, is suffering from disease of UC of Neprotic Syodrime and for this, the petitioner has to frequently visit the doctor. 5. The respondents have filed their counter affidavit stating therein that benefit of cadre change is available once during entire service. Since, the cadre of the petitioner has already been changed by transferring her from District Champawat to Pauri Garhwal, therefore, there cannot be a second change of cadre from District Pauri Garhwal to District Haridwar. 6. Mr. Anil Dabral, Standing Counsel appearing on behalf of State has submitted that though the petitioner had moved an application to transfer her from District Champawat to Haridwar but she was transferred from District Champawat to District Pauri Garhwal and she has joined at District Pauri Garhwal without there being any protest. Mr. Anil Dabral, Standing Counsel, further submits that since the petitioner had accepted the transfer order and had joined at transferred place in District Pauri Garhwal, therefore, she cannot re-agitate that she may be transferred from District Pauri to District Haridwar. 7. Per Contra, Mr. Mr. Anil Dabral, Standing Counsel, further submits that since the petitioner had accepted the transfer order and had joined at transferred place in District Pauri Garhwal, therefore, she cannot re-agitate that she may be transferred from District Pauri to District Haridwar. 7. Per Contra, Mr. S.S. Yadav, Advocate for the petitioner submits that though the transfer order was not in consonance with the option submitted by the petitioner, but the petitioner, being the obedient employee, had no other option except to join at the place of transfer under compulsion, in pursuance of the order dated 30.06.2003 and the order of changing the cadre from District Champawat to District Pauri Garhwal was beyond the control of the petitioner. 8. Having considered the rival submissions of learned counsel for the parties, this Court finds that the authorities by order dated 13.7.2015, granted benefit of change of district cadre to the petitioner and transferred her from Government Primary School Bidashini, Yamkeshwar, Pauri Garhwal to District Haridwar, but when she was not relieved from District Pauri Garhwal, she filed a writ petition WPSS No.1350 of 2017 before this Court, which was disposed of by this Court, giving liberty to the petitioner to move a representation before authority concerned, whereafter representation was filed by the petitioner for ventilation of her grievances. By the impugned order, representation of the petitioner has been rejected on the ground that the cadre of the petitioner has been changed earlier and it cannot be changed again as the same is available to the teachers only once during the entire period of service. From the perusal of impugned order, it reveals that the respondent no.2 while deciding the representation of the petitioner has lost sight of the fact that transfer to District Pauri Garhwal was not in consonance with the transfer sought by the petitioner; petitioner had not prayed for her transfer to District Pauri Garhwal. The respondent authorities, on their own, for the reasons best known to them, had granted benefit of cadre change to the petitioner and had passed the transfer order, transferring the petitioner from District Champawat to District Pauri Garhwal. In my considered view, reasons assigned by respondent no.2 in deciding the representation are merely a camouflage. The respondent authorities, on their own, for the reasons best known to them, had granted benefit of cadre change to the petitioner and had passed the transfer order, transferring the petitioner from District Champawat to District Pauri Garhwal. In my considered view, reasons assigned by respondent no.2 in deciding the representation are merely a camouflage. It appears that respondent no.2, while deciding the representation, has shut its eyes to the fact that earlier change of district cadre was done by the respondent authorities on their own, without their being any request for the same as such petitioner cannot be denied the benefit of provisions of clause 16(1) of Transfer Rules, 2013. That apart, as pleaded in the writ petition, petitioner’s son is suffering from a serious disease. On this ground also, case for transfer of petitioner is made out. 9. In the light of aforesaid, I am of the view that the petitioner is entitled to get the benefit of provisions of clause 16(1) of Transfer Rules, 2013. Consequently, writ petition is allowed. Impugned order dated 20.07.2017 is quashed. Respondent no.2 is directed to forthwith relieve the petitioner from Government Primary School Bidashini, Yamkeshwar, Pauri Garhwal to any primary school at District Haridwar. 10. Parties are directed to bear their own costs. 11. Pending application, if any, stands disposed of accordingly.