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2019 DIGILAW 57 (UTT)

Shayra Khan v. State of Uttarakhand

2019-01-11

R.C.KHULBE, RAMESH RANGANATHAN

body2019
JUDGMENT : RAMESH RANGANATHAN, J. 1. This appeal is preferred against the order passed by the learned Single Judge in Writ Petition (S/S) No.2036 of 2018 dated 13.11.2018, whereby the writ petition filed by the petitioner, questioning her transfer from Govt. Primary School, Ajabpur Kalan, Raipur, Dehradun district to Govt. Upper Primary School, Chakrata, District Dehradun, was dismissed. The learned Single Judge dismissed the writ petition on the ground that there was nothing improper in the transfer order, as the petitioner had been transferred and posted in the same district i.e. Dehradun. 2. It is no doubt true that the learned Single Judge has not dealt with the contentions urged on behalf of the petitioner in the order under appeal. The fact, however, remains that the order under challenge is an order of transfer, and unless such a transfer is prohibited by the provisions of the Uttarakhand Public Servants Annual Transfer Act, 2017, any order of transfer, passed in administrative exigencies, would not necessitate interference by the High Court in proceedings under Article 226 of the Constitution of India. 3. Ordinarily, this Court would not examine contentions, which have not been considered in the order under appeal, in an intra-court appeal. We have only examined the contentions now urged before us, by Mr. Subhash Upadhyaya, learned Counsel for the appellant-writ petitioner, only to show that the conclusions of learned Single Judge are justified even if these contentions are taken into consideration. 4. The appellant-writ petitioner was, hitherto, working in Chamoli district of the State of Uttarkahand ever-since she was initially appointed as an Assistant Teacher on 21.10.1989. While the respondents have treated her service in Chamoli also as service rendered in accessible areas, and have computed the total service rendered by her, in accessible areas, as 26 and half years, the contention urged by Mr. While the respondents have treated her service in Chamoli also as service rendered in accessible areas, and have computed the total service rendered by her, in accessible areas, as 26 and half years, the contention urged by Mr. Subhash Upadhyaya, learned Counsel for the petitioner, is that the post of Assistant Teachers is a district cadre post; inter-district transfers are permissible only at the request of an employee, and that too, on her agreeing to forego the entire service rendered by her in her original post in the other district, and to take the last place in the seniority list in the district to which she is transferred; since the petitioner was brought to Dehradun on her request only in the year 2003, the service rendered by her, prior thereto, should not have been reckoned in computing the total service in accessible areas; the petitioner has worked only for around 9½ years in the present institute, and since she has not completed 10 years in the present institute, she could not have been transferred to a remote area; and persons who have put in more number of years of service in accessible areas have been retained in accessible areas, and the petitioner has been singled out for transfer to a remote area, ignoring the fact that persons, who have put in more years of service in accessible areas, were retained in the accessible areas of Dehradun district. 5. Even if we were to agree with the submission that, since the petitioner had sought and was granted an inter-district transfer from Chamoli to Dehradun district, her service in Chamoli should not be taken into consideration, it is evident that, even after her transfer to Dehradun district in 2003, the petitioner has been working only in accessible areas of Dehradun district, albeit in different schools, for the past 15 years. Accepting the contention of Mr. Accepting the contention of Mr. Subhash Upadhyaya, learned Counsel for the petitioner, that the service rendered in a school alone should be computed in determining whether or not an employee has worked for 10 years in an accessible area, would render Section 7(b) of the 2017 Act unworkable and redundant, since an assistant teacher can then be conveniently transferred to another school in an accessible area of Dehradun district, just before completion of 10 years of service in the present school, and thereby avoid being transferred to remote areas within the same district. 6. Section 7(b) of the Uttarakhand Annual Transfer for Public Servants Act, 2017 stipulates that employees, who are working for less than 04 years at the present place of posting in an accessible area, but during the whole service, the period they have served in accessible area is more than 10 years, shall also be compulsorily transferred from an accessible area to remote area subject to availability of vacancies/posts in the remote area. 7. The petitioner has been working in the present place of posting for more than 9½ years and has been continuously working in accessible areas of Dehradun district ever-since 2003. She has, thereby, fulfilled the twin conditions stipulated in Section 7(b), i.e. she has been working at the present place for more than 04 years, and she has worked in accessible areas in Dehradun District for more than 10 years. She is, therefore, liable to be transferred compulsorily under Section 7(b) of the 2017 Act. 8. The petitioner’s contention that persons, who have served far longer in accessible areas, have not been transferred, cannot be examined in the absence of those employees, who are alleged to have put in more years of service in accessible areas of Dehradun district but have still been retained in accessible areas, being arrayed as parties to these writ proceedings. Even if such retention is presumed to be illegal, the only order which could have been passed was for the State Government to effect transfer of such employees also, and such an order could only have been passed in the presence of those individuals, and not behind their back. 9. Even if such retention is presumed to be illegal, the only order which could have been passed was for the State Government to effect transfer of such employees also, and such an order could only have been passed in the presence of those individuals, and not behind their back. 9. The petitioner cannot claim parity in illegality (Chandigarh Administration v. Jagjit Singh, AIR 1995 SC 705 ), and merely because others, who have put in longer years of service, have been retained in accessible areas, she cannot seek retention in an accessible area on this ground, as it is not in dispute that she is compulsorily transferable in terms of Section 7(b) of the 2017 Act. 10. The only other ground, on which the order of transfer is under challenge, is that this Court, had in its earlier order in WPSS No.1457 of 2018 dated 1.6.2018, directed the second respondent therein (Director of Education) to consider the petitioner’s representation by passing a speaking order within four weeks; and since this Court had directed the Director to consider the representation, it is he alone, and not the District Education Officer, who is entitled to effect transfers. We must express our inability to agree. Neither can the Court confer jurisdiction on an authority, other than the one prescribed under the Act and the Rules to effect transfers, by a mere direction that he should consider the representation, nor has this Court, in fact, so directed. In the order passed in WPSS No.1457 of 2018 dated 1.6.2018, a direction was merely issued to the second respondent to take a decision on the representation, and pass a reasoned and speaking order within four weeks. 11. While failure on the part of the second respondent to pass an order would enable the petitioner to initiate appropriate proceedings against the Director for having violated the order passed by this Court in WPSS No.1457 of 2018 dated 1.6.2018, that would not mean that the District Education Officer, who passed the impugned order, lacked jurisdiction to do so. 12. Viewed from any angle, we see no reason to interfere with the order under appeal. The appeal fails and is, accordingly, dismissed.