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2018 DIGILAW 96 (UTT)

State of Uttarakhand v. Mamta Devi

2018-03-12

K.M.JOSEPH, SHARAD KUMAR SHARMA

body2018
JUDGMENT : K.M. Joseph, J. Appellants are the respondents in the writ petition. The writ petitioner was working as an Assistant Teacher in the Government Primary School in District Bageshwar. Her husband appears to be posted as an employee in the Collectorate at Nainital. She sought transfer to District Nainital. The writ petitioner sought the following reliefs in the writ petition: “I. To issue a writ, order or direction in the nature of mandamus commanding the respondents to transfer the petitioner from the Government Primary School Tiladi, Kapkot, District Bageshwar to any School in the District of Nainital, whether situated in remote or extreme remote area. II. To issue a writ, order or direction in the nature of certiorari quashing the order dated 03-12-2015 passed by the respondent no. 2 (Annexure No. 6 to the writ petition).” 2. Learned Single Judge noted the stand of the appellants that the writ petitioner had not completed five years. The learned Single Judge further noted, however, that by order dated 02.01.2017, 14 persons have been transferred. The learned Single Judge, thereafter, concludes that it is a case of discrimination; there should be uniformity in all the decisions taken by the State Government; the decision not to transfer the petitioner and to accommodate the persons mentioned at Serial Nos. 1 to 14 by letter dated 02.01.2017 is unreasonable and arbitrary. Learned Single Judge, thereafter, allowed the writ petition by directing the appellants to transfer the petitioner from District Bageshwar to Nainital within a period of three weeks from the date of the judgment. 3. In Appeal, we heard Mr. Rajeev Singh Bisht, learned Brief Holder for the State of Uttarakhand / appellants and we also heard Mr. T.A. Khan, learned Senior Counsel appearing on behalf of the writ petitioner. 4. Mr. Rajeev Singh Bisht, learned Brief Holder would submit that the learned Single Judge was not justified in placing reliance on order dated 02.01.2017. It did not contemplate any transfer. It only contemplated arrangement for a maximum period of three years. However, learned Single Judge, instead directed order of transfer. He would also point out the embargo against the transfer before five years as contained in Rule 16 of the Uttarakhand Teachers (School Education) First Appointment, Promotion and Transfer Rules, 2013 (hereinafter referred to as the 2013 Rules). 5. Mr. It only contemplated arrangement for a maximum period of three years. However, learned Single Judge, instead directed order of transfer. He would also point out the embargo against the transfer before five years as contained in Rule 16 of the Uttarakhand Teachers (School Education) First Appointment, Promotion and Transfer Rules, 2013 (hereinafter referred to as the 2013 Rules). 5. Mr. T.A. Khan, learned Senior Counsel appearing on behalf of the writ petitioner, on the other hand, supports the judgment of the learned Single Judge. He would submit that if transfer cannot be ordered, writ petitioner should be accorded the same treatment in terms of order dated 02.01.2017; there cannot be discrimination. 6. There can be no doubt that subject to the condition that a person completes five years, a posting outside the District (as the petitioner in this case is a Primary Teacher) is permitted under Rule 16. 7. No doubt, we notice that there is power under Rule 29 to issue orders removing the difficulties and certain provision is contemplated in Sub-Rule (1) of Rule 29. 8. Rule 29(2) of the 2013 Rules also provides power with the Government. 9. In fact, on our direction, Mr. Rajeev Singh Bisht, learned Brief Holder got instructions during the course of the day, and he would make further submission that the Office Memorandum dated 21.11.2016 has been kept in abeyance by Government Order dated 24.07.2017. Thereupon, learned Senior Counsel Mr. T.A. Khan would point out that 14 persons, who are beneficiaries of the order dated 02.01.2017, have got the benefit; whereas in this case, the judgment of the learned Single Judge is dated 20.03.2017. He would submit that the conduct of the respondents (appellants herein) is eloquent for the injustice meted out to the writ petitioner as it is to defeat her rights that the order dated 24.07.2017 has been passed. 10. Having heard the learned counsel for the parties, we arrive at the following conclusions; The writ petitioner has been appointed as an Assistant Teacher in District Bageshwar. There is a clear cut statutory embargo contained in Rule 16 of the 2013 Rules against the posting outside the District before completion of five years. 10. Having heard the learned counsel for the parties, we arrive at the following conclusions; The writ petitioner has been appointed as an Assistant Teacher in District Bageshwar. There is a clear cut statutory embargo contained in Rule 16 of the 2013 Rules against the posting outside the District before completion of five years. The relief, which is sought, is in the teeth of the embargo contained in Rule 16 of the 2013 Rules and, therefore, the writ court could not possibly grant the transfer contrary to the mandate of Rule 16. It must be remembered that writ jurisdiction being discretionary, though extra ordinary, is essentially meant to keep the Authorities within the bounds of law. It is meant to ensure the rule of law. Therefore, a writ court cannot be asked to issue a direction contrary to the mandate of law. It is equally elementary that placed side by side with the Statutory Rules, an executive order must perish, if it runs counter to the Statutory Rules. It is equally true that if there are gaps or areas not covered by a Statutory Rule, it is open to the State to invoke its executive power as provided under Article 162 and issue executive orders. We also, no doubt, cannot be oblivious to the power in the Statutory Rules available to the Government under Rule 29 by way of removing the difficulties. As far as this case is concerned, we notice that the learned Single Judge has found it to be a case of discrimination based on the treatment accorded to 14 persons by order dated 02.01.2017, which, in turn, is based on Office Memorandum dated 21.11.2016. Office Memorandum dated 21.11.2016 purports to give power to deal with the cases of teachers on the basis of personal request and family problems. By letter dated 02.01.2017, 14 employees have been given the benefit of Office Memorandum dated 21.11.2016. Mr. T.A. Khan, learned Senior Counsel, in fact, would submit that even others have been given the benefit of the Office Memorandum. When it comes to discrimination, it is for the petitioner pleading discrimination under Article 14 of the Constitution of India to not only establish that he is equally circumstanced but also to show that the order, which she/he is seeking will not result in commission of any illegality. There cannot be negative equality. When it comes to discrimination, it is for the petitioner pleading discrimination under Article 14 of the Constitution of India to not only establish that he is equally circumstanced but also to show that the order, which she/he is seeking will not result in commission of any illegality. There cannot be negative equality. In other words, if some others have received treatment, which is illegal per se, then it may not be open to the writ petitioner to ask the writ court to issue a direction, which will, in substance, result in perpetuation of illegality as this would run counter to the province of the writ court, as we have noticed a writ court is meant for upkeep of the law. Therefore, in this case, noticing the contents of Rule 16, we have no hesitation in holding that the direction to transfer the petitioner based on the treatment, which was given to 14 others, may not be justified. Then, there remain a request of the learned Senior Counsel Mr. T.A. Khan that the writ petitioner may be given the treatment as was given to 14 persons, namely, not of transfer, but benefit of arrangement in terms of the Office Memorandum dated 21st November 2016. In this regard, we would notice two aspects. Firstly, we notice the submission of the learned Brief Holder Mr. Rajeev Singh Bisht that the Office Memorandum dated 21st November, 2016 was kept in abeyance by order dated 24.07.2017, which though not brought on record, is made available to us, as also to the learned Senior Counsel. We, no doubt, notice that the order keeping in abeyance the Office Memorandum dated 21.11.2016 has been passed after the date of the judgment and was not available to either the writ petitioner, either at the time of filing of the writ petition or at the time of pronouncement of the judgment. We do notice it having regard to the course we intend to adopt. Secondly, we have noticed Rule 16 and we have also considered Rule 29. Rule 29, we notice, contemplates constitution of a Committee as far as the first part of Rule 29 is concerned. Thus, we cannot possibly go into all these aspects in this writ petition. We do notice it having regard to the course we intend to adopt. Secondly, we have noticed Rule 16 and we have also considered Rule 29. Rule 29, we notice, contemplates constitution of a Committee as far as the first part of Rule 29 is concerned. Thus, we cannot possibly go into all these aspects in this writ petition. Suffice it for this case for us is to observe as we have already noted that merely on the basis of an illegal order, benefit, which is given illegally, which means as it is ultra vires the statutory rules, a person cannot claim the same benefit, which is apparently what has been granted to the writ petitioner by the learned Single Judge. As regards the claim of the writ petitioner that she may be given the benefit of Office Memorandum dated 21.11.2016 insofar as we are not in a position to consider as to whether it is an order, which fulfils the requirement of Rule 29 and would, therefore, be legal, we do not think that we should go into that question and instead, we leave it open to the writ petitioner to seek appropriate remedies as advised, which can only be based on Rule 29 providing the premise for valid proceeding giving the benefit as is sought to be given thereunder. Accordingly, we allow the Appeal; set aside the judgment of the learned Single Judge. We, however, leave it open to the writ petitioner to seek the reliefs as noted above. No order as to costs. We make it clear that this judgment will not stand in the way of the writ petitioner challenging the order dated 24.07.2017 also.