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2021 DIGILAW 718 (UTT)

Indu Prabha v. State Of Uttarakhand

2021-12-17

ALOK KUMAR VERMA, RAGHVENDRA SINGH CHAUHAN

body2021
JUDGMENT Raghvendra Singh Chauhan, CJ. - The appellant has challenged the legality of the judgment dated 19.11.2020, passed by a learned Single Judge in Writ Petition (S/S) No. 2805 of 2019. 2. Briefly, the facts of the case are that appellant is serving as Assistant Teacher in a Basic School, run by Government of Uttarakhand. She filed WPSS No. 2805 of 2019, challenging the order dated 06.11.2019 passed by Deputy Education Officer, Doiwala, Dehradun, whereby the Head Masters of the concerned school were asked to relieve the writ petitioner. 3. Teachers of Basic Schools belong to a District Level Cadre, as they are appointed by the District Education Officer and they are liable to be transferred within the District only. Since Basic School Teachers had been representing for their transfer outside the District, therefore, the State Government issued Government Order dated 21.11.2016, wherein it was provided that Basic School Teachers can be transferred outside the District for a specified time, on their request, with the condition that their lien shall be maintained in their original cadre, they shall be repatriated upon completion of the period specified in their order of transfer, and further their seniority will be maintained in their original cadre. 4. Pursuant to Government Order dated 21.11.2016, appellant was transferred from Hill Districts of Uttarakhand to District Dehradun in the year 2017; she joined duties at the transferred place and started performing her duties. Since other Basic School Teachers, who could not get benefit of inter-district transfer, had been making representations to extend similar benefit to them also, therefore, the Director, Elementary Education issued one letter dated 11.04.2018 to Secretary, School Education to cancel the Government Order dated 21.11.2016, which permitted inter-district transfer. Ultimately, the State Government, vide Office Memo dated 25.04.2018, cancelled the Government Order dated 21.11.2016. In the said Office Memo, it was provided that all transfers, made pursuant to Government Order dated 21.11.2016, shall also stand cancelled; a direction was issued to all Basic School Teachers to join duties in their parent cadre. A large number of writ petitions were filed challenging the Government Order dated 25.04.2018. The said writ petitions were dismissed by a common judgment dated 26.10.2018. However, liberty was given to the petitioners in those writ petitions to make a representation before the Competent Authority with direction to Competent Authority to take decision on such representation sympathetically, in accordance with law. 5. The said writ petitions were dismissed by a common judgment dated 26.10.2018. However, liberty was given to the petitioners in those writ petitions to make a representation before the Competent Authority with direction to Competent Authority to take decision on such representation sympathetically, in accordance with law. 5. Consequently, the appellant also made a representation in terms of the judgment dated 26.10.2018 rendered in WPSS No. 1406 of 2018 and other connected writ petitions. Her representation was rejected by the Director, Elementary Education by reasoned order. Subsequently, when appellant was asked to go back to the original schools in hills, from where she was transferred, she filed WPSS No. 2805 of 2019. The said writ petition was dismissed by learned Single Judge vide judgment dated 26.11.2019. Hence, the present appeal before this Court. 6. Learned counsel for the appellant submits that the Transfer Act, 2017 provides the time schedule for effecting transfers and Section 23 of the said Act provides 10th June, as the last date for transfer. Thus, according to him, the order of relieving is passed in violation of provisions of the Transfer Act. It is further contended that since similarly situate persons have been allowed to continue at the present place, and the appellant is singled out by passing a relieving order against her, hostile discrimination is being practiced against the appellant. 7. Heard the learned counsel for the appellant. 8. A perusal of the Government Order dated 27.09.2019 reveals that the State Government, after examining the documents produced by Basic School Teachers along with their representations, decided to grant exemption from relieving to few of them, who are suffering from critical illness, or are covered by Spouse Policy. Some Teachers, who were transferred from one Hill District to another, were also granted exemption from relieving. However, such exemption is effective only till decision is taken in their cases by the High Powered Committee, constituted under the Chairmanship of Chief Secretary. 9. Since the appellant does not fall in any of the category of Teachers, to whom exemption was granted, therefore, order of reliving was passed against her. 10. Learned Single Judge has considered the submissions made on behalf of the writ-petitioner in great detail and has come to the conclusion that there is no illegality in the orders impugned in the writ petition. 11. 10. Learned Single Judge has considered the submissions made on behalf of the writ-petitioner in great detail and has come to the conclusion that there is no illegality in the orders impugned in the writ petition. 11. According to the own showing of the writ petitioner, she was transferred outside the District for a period of three years. Her transfer was de hors the Rules, as Rules permit transfer within the District. Thus, a privilege was conferred upon the writ-petitioner, pursuant to a policy decision taken by the State Government, which was communicated vide Government Order dated 21.11.2016. Upon cancellation of the said Government Order, the privilege conferred upon the writ-petitioner was withdrawn, and she was asked to go back to her original cadre. 12. Thus, stricto sensu, it is not a case of transfer. But, a case of deputation, from one cadre to another. A deputationist cannot claim absorption in the borrowing organization, as of right, and she has to go back to her original cadre, the moment, she is repatriated by the borrowing organization. 13. Learned counsel for the appellant has relied upon the provisions contained in the Uttarakhand Annual Transfer for Public Servants Act, 2017 for challenging the order of their relieving. Reliance placed upon the said Act is misconceived, as provisions of the said Act would be applicable only in the case of transfer within the cadre. But, the appellant was transferred outside the cadre. Section 17(1)(e) of the Transfer Act also provides that transfers shall be made only against cadre post/ places and shall not be made against the post/places which are out of the cadre (such as, inter district/ inter divisional transfers for district/divisional cadres). Thus, the challenge thrown on the ground of violation of provisions of Transfer Act, is unsustainable. 14. Learned counsel for the appellant has submitted that the appellant has been subjected to hostile discrimination, inasmuch as, some similarly situate persons have been granted relaxation from relieving, while she has not been granted such relaxation. The said submission is also misconceived. 15. Every employer has certain inherent rights in the matter of transfer, and posting of its employees. Therefore, the State Government cannot be denuded of such right. The said submission is also misconceived. 15. Every employer has certain inherent rights in the matter of transfer, and posting of its employees. Therefore, the State Government cannot be denuded of such right. As a model employer, the State Government has to consider the personal difficulties faced by its employees, caused due to serious illness, both spouse being Government Servant posted separately or critical illness of some members in the immediate family. 16. Perusal of the Government Order dated 27.09.2019 reveals that Government had decided to grant relaxation to some Teachers from relieving, in view of their grave personal difficulties, and such relaxation is valid only till decision is taken in their matter by the High Powered Committee, headed by Chief Secretary. Although, learned counsel for the appellant has argued that such Teachers have been absorbed at the place, where they were transferred, there is no material on record to substantiate this argument. Moreover, there is no challenge to the benefit of absorption, if any, given to some teachers. 17. It is settled position in law that transfer is an incidence of service; no Government Servant holding a transferable post can claim transfer to a place of his/her choice. It is for the employer to decide where to post his employee. The Court's interference in these matters has to be minimal, in order to maintain efficiency in public service. 18. As discussed above, the order of transfer passed in favour of the appellant was cancelled vide Government Order dated 25.04.2018 and all Basic Teachers, including the appellant, were asked to join duties in their original cadre. Despite the said order, appellant has not joined duties in her parent cadre. By the impugned order dated 06.11.2019, Deputy Education Officer, Doiwala, Dehradun has asked the Head Master of the school to relieve the appellant, so that she may join in her original school, from where she was transferred. 19. Thus, this Court is of the considered opinion that no prejudice is caused to the appellant by her relieving from the school at Dehradun. Her service conditions, emoluments etc. would remain the same. Moreover, she continues to be member of her original cadre, where her seniority is also retained. Therefore, her career prospects are also not going to be affected by her relieving. 20. In such view of the matter, we do not find any infirmity in the judgment impugned in this appeal. Her service conditions, emoluments etc. would remain the same. Moreover, she continues to be member of her original cadre, where her seniority is also retained. Therefore, her career prospects are also not going to be affected by her relieving. 20. In such view of the matter, we do not find any infirmity in the judgment impugned in this appeal. 21. Even otherwise, the learned counsel appearing for the State informs this Court that this case is covered by the judgment, dated 13.01.2021, passed by a learned Co-ordinate Bench in Special Appeal No.02 of 2021 and bunch cases. 22. In the said appeals, a similar order had been challenged before the learned Co-ordinate Bench. By judgment dated 02.11.2021, the learned Co-ordinate Bench had dismissed the special appeals. 23. Therefore, even this case is, hereby, dismissed. 24. No order as to costs.