Km. Rajnee Durgapal vs State Of Uttarakhand & Others

Manoj K. Tiwari, J

Heard learned counsel for the parties and perused the record.

Since common questions of fact and law are involved in these petitions, therefore, all these petitions are clubbed together and are being heard & decided by a common judgment. However, for the sake of convenience, facts of WPSS No. 1397 of 2018 are being considered.

Petitioner was appointed as Assistant Teacher in a Government Primary School in Bhikyasen Block of District Almora vide order dated 21.10.2013. Since petitioner is a Physically Challenged person and suffers from locomotor disability, which has been assessed as 50 per cent, therefore, petitioner had requested for transferring her to her home block i.e. Hawalbag (Almora) on the ground that it is not possible for her to manage her affairs on her own in Bhikyasen Block.

Similar request, for transfer on medical/health grounds, was made by some other Teachers, serving in Government Primary School/Government Junior High Schools. The State Government vide order dated 28.11.2016 directed the Director (Elementary Education) to consider the request regarding transfer made by 32 teachers named in the said letter and to pass appropriate order in respect of those teachers and if any order is required from the State Government, then refer those cases to the State Government for appropriate decision.

Pursuant to the aforesaid order passed by the State Government, Director (Elementary Education) vide order dated 2. 01.2017 issued necessary instructions and ultimately District Education Officer, Almora issued an order on14.03.2017 transferring petitioner to Hawlbag Block. Petitioner joined in Hawalbag Block in terms of the transfer order passed by District Education Officer, however, after more than a year of her joining at Hawalbag Block, transfer of the petitioner to Hawalbag Block was cancelled in terms of the order dated 25.04.2018 passed by Secretary, Department of Education. Thus, feeling aggrieved, petitioner has approached this Court.

A bare perusal of the cancellation order dated25. 04.2018 reveals that the sole ground for canceling transfer order passed in favour of the petitioner is that primary school teachers have a block level cadre and change of cadre is not permissible under the Rules. In other words, the ground taken is that petitioner's transfer is in violation of Rule 16(2) of the Uttarakhand Teachers (School Education) Posting on First Appointment, Promotion and Transfer Rules, 2013 (in short 'Rules of 2013').

Sri K.P. Upadhyaya, learned counsel for the petitioner submits that in terms of Uttarakhand Government Elementary Education (Teacher) Service Rules, 2012, the cadre of teachers in Government Primary School and Government Junior High School was Block-Level, however, after amendment in the Rules in the year 2018, their cadre has now become District-Level cadre w.e.f. 14.12.2018. Thus, according to him, the ground taken for cancelling the transfer outside block does not hold good after the amendment. Thus, according to him, petitioner's transfer from Bhikyasen Block to Hawalbag Block within the same district would not amount to transfer outside the cadre.

Learned counsel for the petitioner submits that Rule29 of the Rules of 2013 confers power to the State Government to pass appropriate order in deserving cases.

Transfer is an incidence of service and no person can claim transfer to a place of his/her choice, as a matter of right. It is settled position in law that interference with a transfer order can be made only when the transfer order is infected with malice or is in violation of Rules. Since this is not the case here, therefore, this Court is not inclined to interfere with the impugned order. However, having regard to the fact that petitioner's request of transfer was considered by the Competent Authority on account of her physical disability, therefore, this Court is of the opinion that ends of justice would be met, if petitioner is permitted to make fresh representation to the Competent Authority i.e. Director Elementary Education, Dehradun, regarding her transfer, who shall examine the claim of the petitioner and take appropriate decision.

Accordingly, writ petitions are disposed with liberty to the petitioners to make representation(s) to the Competent Authority, within two weeks from today. If such representation is made, Competent Authority shall consider the same and take appropriate decision, in accordance with law, within eight weeks from the date of receipt of such representation along with certified copy of this order. Till decision on the representation by Competent Authority status quo regarding posting of the petitioner shall be maintained.12. Pending application(s), if any, stands disposed of.