Poonam Arora vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

This appeal is preferred against the order passed by the learned Single Judge in WPSS No.2422 of 2019 dated 23.10.2019. The relief sought for in this writ petition is to quash the transfer order dated 25.06.2019 in so far it relates to the petitioner's transfer from the Government Girls Inter College, Jwalapur, District Haridwar to the Government Girls Inter College, Ghat, District Chamoli; a writ of certiorari to quash the transfer order dated 10.10.2019, by which the petitioner was transferred from the Government Girls Inter College, Jwalapur, Haridwar to Government Inter College, Silari, Pratapnagar; a writ of mandamus directing the respondents not to implement either of the transfer orders dated 25.06.2019 and 10.10.2019, and not to interfere with the peaceful working of the petitioner in the Government Girls Inter College, Jwalapur, Haridwar; a direction to the respondents to hold an independent inquiry in the manner in which the respondents have categorized various institutions in violation of the Transfer Act, 2017, more particularly, the manner in which various institutes, which were earlier earmarked as Sugam Institutes, have been earmarked as Durgam Institutes.

The petitioner, a teacher in the Government Girls Inter College, was transferred from Jwalapur in Haridwar District to Ghat in Chamoli District by proceeding dated 25.06.2019. She invoked the jurisdiction of this Court, questioning the order of transfer, in WPSS No.1593 of 2019. The writ petition was disposed of by order dated 09.07.2019, directing the respondents to take a decision on the petitioner's representation.

Consequent thereto, the competent authority passed order dated 10.10.2019 transferring the petitioner to the Government Inter College, Silari in Pratapnagar, Tehri District. Shri B.S. Parihar, learned Standing Counsel for the State of Uttarakhand, would submit that, while the entire body of the order dated 10.10.2019 refers to the petitioner's transfer to the Government Girls Inter College, Ghat in Chamoli, in one part of the said order there is an erroneous reference to her being transferred to Government Inter College, Silari, Pratapnagar in Tehri District; and the petitioner has, in fact, only been transferred to Government Girls Inter College, Ghat in Chamoli District.

The petitioner questions her transfer on the ground that, since compulsory transfer from the plains (Sugam areas) to the hills (Durgam areas) is only upto 10% of the vacancies available, and since persons above the petitioner in the seniority list were not transferred, transferring the appellant-writ petitioner alone is arbitrary and illegal. A reference in this context is made to those whose names are listed at Serial Nos.1, 2 and 7 in the seniority list. In the order under appeal, the learned Single Judge has noted that the petitioner has worked for 24 years 09 months and 13 days in accessible areas, and has worked only for 8 months 02 days in Durgam areas; and he found no illegality in either of the transfer orders dated 25.06.2019 or 10.10.2019.

Before us Shri Pankaj Miglani, learned counsel for the petitioner, would submit that there is no justification in exempting persons above the petitioner in the seniority list of compulsorily transferable employees; transfer of the petitioner mid-term would adversely affect the interests of students studying in the 10th Class, since they are required to appear in the internal board and the final examination just a few months hence; no other teacher has been posted in the appellant-writ petitioner's place in the Government Girls Inter College, Jwalapur, Haridwar; the appellant-writ petitioner's performance as a teacher is assessed on the basis of the performance of the students in the examination; transfer of the petitioner, during the middle of the academic year, would adversely affect her performance in the newly transferred school, and may result in her performance being adversely rated for no fault of hers; the petitioner was appointed in the cadre of the women teachers; she can only be transferred to a Government Girls Inter College and not to a Government Inter College where both boys and girls study; and the learned Single Judge had erred in refusing to interfere with the order of transfer.

Section 8 of the Uttarakhand Annual Transfer for Public Servants Act, 2017 relates to compulsory transfer from accessible areas to remote areas and, thereunder, compulsory transfer from accessible areas to remote areas shall be made upto the limit of availability of vacancies in the remote areas in the concerned cadre; the counting of eligible employees for such transfer shall be done in the order of total service rendered in accessible areas during the whole service period; those do not fall under any exemption shall be identified for transfer upto the limit of availability of vacancies in remote areas, of the concerned cadre, by placing them in a descending order according to the total period of posting in accessible areas.

Section 7(d) of the 2017 Act stipulates employees, under the categories mentioned thereunder, shall be exempted from compulsory transfer from accessible to remote areas. These categories include (i) senior employees, (iii) employees seriously ill/disabled under Section 3 on submitting a certificate from a competent authority.

While Mr. B.S. Parihar, learned Standing Counsel, would contend that employees, above the petitioner in the seniority list, were exempt from transfer since they fall within the ambit of Section 7(d) of the 2017 Act, it is wholly unnecessary for us to dwell on this aspect, since the appellant-writ petitioner has chosen not to array any of these teachers as respondents eo-nominee in the writ petition. In Chandigarh Administration and another vs. Jagjit Singh and another : (1995) 1 SCC 745, the Supreme Court observed thus:

".....Generally speaking, the mere fact that the respondent- authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. The extra-ordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent-authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law - indeed, wherever it is possible, the court should direct the appropriate authority to correct such wrong orders in accordance with law - but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent-authority to repeat the illegality, the court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioners' case is similar to the other persons' case. But then why examine another person's case in his absence rather than examining the case of the petitioner who is present before the court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another person's case, which other person is not before the case nor is his case. In our considered opinion, such a course - barring exceptional situations - would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles......."

The petitioner cannot claim parity in illegality and, even if the exemption of those above him in the seniority list is in violation of the statutory provisions, that would not justify such illegality being perpetuated, and the petitioner also to be retained. While the petitioner could, no doubt, have sought a direction from this Court that those who were exempted were not entitled for such a benefit and ought to have been transferred, such a contention could only have been examined if the petitioner had impleaded those candidates as party respondents in the writ petition. Since the petitioner has failed to do so, we see no reason to examine the justification or otherwise of exempting those, who stand at Serial Nos. 1, 2 & 7 in the seniority list, from being subjected to transfer.

The petitioner's contention of a change in the cadre does not merit acceptance, in the light of the submission of Shri B.S. Parihar, learned Standing Counsel, that she is only being transferred to the Government Girls Inter College at Ghat in Chamoli District, and not to the Government Inter College, Silari, Pratpnagar in Tehri District. Posting the petitioner at the Government Girls Inter College at Ghat would not, result in a change in her cadre.

The petitioner's complaint, of having been transferred during the middle of the academic year, does not also merit acceptance, since she was originally transferred to Ghatt in Chamoli District by order dated 29.06.2019. It is only because she approached this Court, and a direction was issued that her representation be considered, that she was retained at Jwalapur, Haridwar till the order dated 10.10.2019 was passed. The petitioner cannot take advantage of her own act in invoking the jurisdiction of this Court, and securing an order for her representation to be considered, and then turn around and contend that rejection of her representation has resulted in her transfer in the middle of the academic year.

The contention that, in terms of Section 27 of the Act, any deviation from the statutory prescription can only be examined by the prescribed Committee, and the claims of persons at Serial Nos. 1, 2 and 7 in the seniority list could only have been examined by such a Committee, is also only to be noted to be rejected. While the stand of the State Government is that the retention of these employees is because they fall within the exempted categories under Section 7(d), the illegality or otherwise of their retention could only have been examined if they were arrayed as respondents in the writ petition.

While we see no reason to interfere either with the order under appeal, or the order transferring the petitioner to Government Girls Inter College at Ghat in Chamoli District, we find force in the submission of Mr. Pankaj Miglani, learned counsel for the petitioner, that transfer of the petitioner would result in the absence of a teacher for Class 10 students studying at the Government Girls Inter College, Jawalapur, Haridwar, who are due to appear in their board examination just a few months hence. As that may not, by itself, justify the petitioner's retention, suffice it to direct the respondents to forthwith fill up the vacancy, arising on account of the petitioner's transfer, at Government Girls Inter College, Jwalapur, Haridwar, post a qualified teacher and ensure that the students, studying there at, are not adversely effected by the absence of a qualified teacher. Such a teacher shall be posted at Jwalapur, Haridwar with utmost promptitude, and in any event within one week from today. Needless to state that, since the petitioner is now being shifted to the Government Girls Inter College, Ghat District Chamoli pursuant to the order dated 10.10.2019, her claim of her performance being adversely affected, since she would now teach students there at only for a period of less than four months and not for the entire academic year, which may also adversely affect her performance rating, shall also be considered by the competent authority while assessing her performance later.

Subject to the aforesaid observations, the Special Appeal fails and is, accordingly, dismissed. No costs.

Let a copy of this order be provided to the learned counsel for the parties, on payment of the prescribed charges, by 21.11.2019.