Rajendra Prasad Badoni & Others vs State Of Uttarakhand & Others

Lok Pal Singh, J

Since the controversy involved in these bunch of writ petitions is same and the question of law involved is also common, therefore, for sake of

brevity and convenience, these writ petitions are being disposed of by a common judgment and order. WPSS No.2601 of 2019 shall be the leading

case and the facts thereof are being taken into consideration for proper adjudication of the case:

Petitioner in WPSS No.2601 of 2019 has approached this Court seeking the following reliefs:-

i) Issue a writ, order or direction in the nature of certiorari calling for the records and quashing the order dated 27.9.2019 passed by the Secretary,

Education, order dated 22.10.2019 (Annexure no.16 to the writ petition) passed by the Director, Education and the order dated 6.11.2019

(annexureno.18 to the writ petition) passed by the Deputy Education Officer, Sahaspur, Dehradun.

ii) Issue a writ, order or direction in the nature of mandamus or an appropriate writ for holding an independent enquiry with regard to the

irregularities/illegalities done by the official respondent in providing benefit to the persons of their choice by providing them the shelter from transfer till

a decision is being taken in their case as provided under Section 27 of the Act.

iii) Issue a writ, order or direction in the nature of mandamus or an appropriate writ for holding an independent enquiry with regard to the attachment

orders issued on 12.2.2019 and 7.8.2019 by which the employees of their choice are being attached/absorbed.

Petitioner was appointed as Assistant Teacher, Primary in General/Social Studies and remained posted at Government Primary School, Devlaad,

Nainidanda, Pauri from 12.01.1996 to 11.09.1998. Thereafter, from 13.09.1998 to 07.11.1998, he remained posted at Government Primary School,

Kwali, Agastyamuni, Rudraprayag and from 07.11.1998 to 03.12.2001 at Government Primary School, Jaharikhal, Agastyamuni, Rudrapyrag.

Petitioner was promoted as Assistant Teacher, Junior High School and from 04.12.2001 to 20.12.2001 he was posted at Government Upper Primary

School, Pata Agastymuni, Rudraprayag; from 21.12.2001 to 01.08.2003 at Government Upper Primary School, Syuni; from 02.8.2003 to 26.08.2003 at

Government Primary School Kuasi, Ekeshwar, Pauri; from 27.08.2003 to 22.12.2016 at Government Upper Primary School, Kundoli, Ekeshwar, Pauri

Garhwal and from 21.12.2016 to 02.01.2017 at Government Upper Primary School, Jaigaun, Dugadda, Pauri. The State Government issued a

government order dated 21.11.2016 whereby a permission was granted for posting in another cadre for a period of three years with a rider that the

person transfer under the said order would maintain his/her lien in original cadre and would have to go back to their original cadre and their seniority

will be maintained in original cadre. Pursuant to said government order dated 21.11.2016, petitioner was posted at Government Upper Primary School,

Khusalpur, Sahaspur, Dehradun. However, by another order dated 25.04.2018 issued by the State Government, order dated 21.11.2016 was cancelled,

whereagainst petitioners and several others, approached this Court by filing WPSS No.1406 of 2018. A Coordinate Bench of this Court, vide judgment

dated 26.10.2018, dismissed all the writ petitions. However, the competent authority was requested to take a decision on the representations

sympathetically, if moved by the petitioners, for ventilation of their grievances. Pursuant to judgment dated 26.10.2018, some employees moved

representations before the Director, which were rejected. It is alleged that on the one hand the department took steps for cancellation of the

attachment orders, which were issued earlier, whereas on the other hand, on 12.02.2019, the Secretary passed an order of attachment of certain

teachers for a period of six months. In the writ petition, the petitioner has annexed the copy of order dated 12.02.2019 as well as the list of employees

and alleges that even after expiry of six months those teachers have not been relieved and as per the knowledge of the petitioner, they have been

absorbed at the present place of posting.

The petitioner alleges that a pick and choose policy has been adopted by the respondents to provide benefit to the individuals of their choice. It is

averred that total 586 employees were given the benefit of government order dated 21.11.2016, out of which 253 employees were retained till the

decision on their case u/s 27 of the Transfer Act. Only 180 employees have been relieved and at present there are no whereabouts of the remaining

153 employees. It is further averred that as per the best knowledge to the petitioner said persons have been provided the benefit of absorption by the

respondents, whereas the petitioners have been discriminated. Petitioner contends that at that point of time, the State Government did not relieve the

petitioner and he continued at the present place of posting but now in the mid term, he has been relieved to Pauri Garhwal from Government Upper

Primary School, Khusalpur, Dehradun vide order dated 06.11.2019.

The petitioner has challenged the order dated 06.11.2019 mainly on two grounds. First, that the same is in violation of the Transfer Act as the

relieving order has been passed beyond the period prescribed under the Transfer Act and for which no permission under Section 27 of the Act has

been taken. Second, that similarly situated persons like petitioner have been provided the benefit and their case has been considered under Section 27

of the Transfer Act and till a decision being taken on their case, they have not been relieved, whereas the petitioner who has crossed the age of 55

years, is being relieved during the mid term.

In para-12 of the writ petition, it is alleged by the petitioner that in the list enclosed with the order dated 12.02.2019 against the name of the persons

which was mentioned at serial no.36 to 41, it is endorsed that the necessary certificates have not received, however, without there being any

certificate enclosed, the said persons were provided the attachment initially for a period of six months and now they have been continued at the

transferred placed. Further, person mentioned at serial no.42 was attached on the ground that his leg was fractured but he is still continuing at the

same place of posting after the expiry of six month. In para-13, it is averred that at serial no.11 against the name of person it is written that he is

undergoing treatment from P.G.I. Chandigarh for last two years. Petitioner contends that it is not known as to from which disease said person is

suffering whereas the Transfer Act provides benefit only in case of serious illness or disease. Petitioner has given details of some other employees

also in the writ petition and has alleged that the respondents have attached and absorbed the employees in violation of the provisions of Transfer Act.

An affidavit was filed on behalf of respondent nos.3 and 7 wherein it was inter-alia stated that the State Government, looking to the affairs of the

incumbents/teachers and on making of such representations, vide office memorandum dated 21. 11.2016, made the provisions for the concern

teachers, to transfer them from their original cadre to some other cadre with a rider that their lien of service would always be in their original cadre

meaning thereby a teacher can be transferred from one cadre to another cadre with the condition that such teachers shall always be treated to be

placed in their original cadre. However, as a large number of teachers who were posted in the hilly region made the representation for their respective

transfer, the State Government, thus, vide another office memorandum dated 25.04.2018, cancelled the office memorandum dated 21.11.2016. It is

also stated that the Directorate of Education vide the letter dated 18.02.2019 and in compliance of order passed by this Court dated 26.10.2018,

decided the representations of the teachers-petitioners in light of Section 17 of the Transfer Act.

It is also stated that in compliance of order dated 26.10.2018 the teachers who were affected by the office memorandum dated 21.11.2016, State

Government on the basis of the certificates and application provided by the teachers, issued Government Order dated 27.09.2019, whereby it was

directed that till the completion of process under Section 27 of Transfer Act, in total 253 teachers shall be kept in their respective posting place and

other teachers were relieved.

Pursuant to the order of this Court, respondent no.1-Chief Secretary, Government of Uttarakhand, Dehradun, also filed his personal affidavit

indicating that as per the provisions of Section 17(2)(e) of the Transfer Act, transfer 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). It is also stated

that under the power conferred in section 27 of the Transfer Act, a committee has been constituted under the Chairmanship of the Chief Secretary, to

consider the cases referred to by the department for transfer in accordance with the provisions of the Transfer Act. Such a relaxation on the

provisions of the Transfer Act, can only be given on the recommendation of the Committee and after the approval of the Hon’ble the Chief

Minister. It is also stated that as per Rule 16 of the Uttarakhand Teachers (School Education) First Appointment, Promotion and Transfer Rule, 2013

Primary Teachers can be given cadre transfer for one time in the entire service if they fulfill the condition of five years service and availability of

posts on the basis of serious illness or husbands serving in another district cadre or in the home district of her husband. Such teachers will be placed at

the bottom of the seniority list in new cadre. However, in the Government order dated 21.11.2016 total 586 of such cases which do not fit into these

essential conditions were considered and in the order it is specified that it is not a transfer of cadre, but only one time posting in another cadre, keeping

their original cadre intact and they will have to go back to the original cadre after completion of specific period of posting in the new cadre their

seniority will be intact in the original cadre. It is further stated that at that point of time the transfer order of total 586 teachers were issued whereby

the concerned teachers were given the posting on the place of their own choice for a particular time period, who were not eligible to be transferred

under provisions of the Rule 2013. Out of those 586 transfer orders, only 571 transfer orders of the teachers were executed. Thereafter, a total list of

571 teachers was sent to the State Government for consideration. It is also stated that a meeting of the Committee constituted under the provisions of

the Transfer Act, 2017 was held on 02.12.2019 which considered the matter of transfers in different departments. On the said meeting, after due

consideration, vide the G.O. dated 20.12.2019 issued by the Personnel Department, the following recommendation was made on the proposal

submitted by the Elementary Education Department:

i) That in total list of 23 teachers including the teachers benefited by the government order dated 21.11.2016 submitted by the elementary education

department pertaining to the transfer/cadre change on the ground of assets acquisition caused due to development plan, said teachers have been

recommended to be posted in their respective present posting place by the committee on the basis of only one time cadre change/transfer provisions of

Transfer Act 2017, with the condition that in future if any of them make further representation for their cadre change/transfer, then in such a situation

their representation shall not be considered in any condition.

ii) That the education department, vide its office memorandum dated 21.11.2016, had transferred some of the teachers/principals with a rider that their

posting shall always be subject to their original cadre. Such teachers/principals on the basis of serious illness, spouse policy, asset acquisition for

development projects, displaced due to disaster and Tehri Dam project and transferred from one hill district to another hill district, have been

recommended to be kept in their respective present posting place by the committee on the basis of one time cadre change/transfer with the condition

that in future if any of them make any further representation for their cadre change/transfer, then in such a situation their representation shall not be

considered in any condition.

It is further stated that in the said meeting the committee has decided that transfers claimed under Section 27 of the Transfer Act shall only be

considered if serious illness is verified by the competent authority/state medical board. Furthermore, in such recommendation of the competent

authority/state medical board, the concern department shall also verify such serious illness at their respective level. It is further stated that the case of

disabled/handicapped shall not be considered for the transfer on the basis of certificate, on which he attained/got the job. It is further stated that the

claim of the petitioner is not covered under any of the said recommendations, such as serious illness, spouse policy (since the spouse is working in

district Pauri Garhwal) hill to hill or the provisions of Transfer Act 2017. It is also stated that the Committee constituted under the provisions of the

Transfer Act, 2017, has made the recommendation after due consideration, and thus it is not correct to say that the committee has adopted the

“Pick and Choose Policyâ€​.

Subsequently, a counter affidavit was also filed by respondent no.3 wherein parawise reply has been given to the writ petition. Reply to para-2 of

the writ petition has been given in para-14 of the counter affidavit and it is stated that the posting of the petitioner was done in compliance of office

memorandum no.1596 dated 21.11.2016 from Pauri Garhwal to Dehradun. The petitioner was posted in District Dehradun for maximum three years

on his critical condition and the lien of the petitioner was in original cadre i.e. Pauri Garhwal. In reply to para-10, it was submitted that the

representation of Smt. Babita Joshi and Dinesh Chand was decided by the Director, Education in compliance of Court’s order and as per Section

17(2) (e) of the Act.

In reply to para-11 to 13 of the writ petition, it is stated that as per the government order no.66 dated 12.02.2019 the teacher on her/his and the

family members who are suffering from serious illness, 74 teachers were attached for six months in their respective districts and in the attachment

order, it is clearly mentioned that the attachment order automatically will come to an end after six months. In para no.12, serial no.36 to 41 and para

13, serial no.11 the name mentioned namely Shri Kushalanand Joshi and para 14, serial no.1 and 2 the mentioned teachers and other teachers in

government order dated 12.02.2019 in point no.3 it is clearly mentioned that who has not submitted the certificate of medical council, the documents

relating to serious illness will be examined on merit and the decision be taken for attachment in pursuant to government order dated 12.02.2019. It is

further stated that as per the information received from the districts, 17 teachers has already been relieved as the attachment period has already been

completed and six teachers has not joined the place of attachment, 44 teachers has already been transferred as per Section 27 on the recommendation

of Committee and 7 teachers still working in attached school. Shri Kushalanand Joshi has already joined his original district Tehri and Shri Mujresh

Singh has already been relieved for their original cadre on 30.11.2019. In reply to para 17 and 18 of the writ petition, it is stated that the case of Shri

Pushpendra Kumr and Shri Amit Kumar has already been decided in compliance of Hon’ble Court’s order and as per section 17(2)(e) of the

Act. In para-28 of the counter affidavit, it is stated that the allegations levelled by the petitioner are bald and baseless.

I have heard learned counsel for the parties and have carefully gone through the entire material available on record.

The petitioners in all the writ petitions have approached this Court being aggrieved by the highhanded and the arbitrary action on the part of the

respondent department in effecting the transfer orders. In the writ petitions, they have levelled serious allegations of capriciousness, malafide,

favoritism and ‘pick and choose policy’ on the respondent department. A perusal of record reveals that by the office memorandum dated

21.11.2016, on making the representation, the employees were provided the benefit of cadre posting with the condition that the employee would

maintain his/her lien in original cadre and would have to go back to their original cadre. Under the said office memorandum, teachers were transferred

from one cadre/district to another cadre/district for a particular time i.e. upto three years. However, as the large number of teachers, who were

posted in the hilly region, made representations for their transfers, the said office memorandum was cancelled vide another office memorandum dated

25.04.2018, keeping in view of proper functioning of the schools in hilly area, whereagainst, writ petitions were filed before this Court. It would be

noteworthy to mention here that the writ petitions filed against the cancellation of office memorandum dated 21.11.2016 were dismissed by a

Coordinate Bench of this Court by a detailed judgment dated 26.10.2018. However, looking to the genuine difficulty of the teachers, the Coordinate

Bench permitted them to make representations before the respondent department, who in turn, was directed to take decision thereon sympathetically.

Record further reveals that pursuant to such order, representations were filed and were decided by the respondent in the light of the provisions of the

Transfer Act. Thereafter a Government Order dated 27.09.2019 was also issued whereby it was directed that till the completion of process under the

provisions of the Act, in total 253 teachers shall be kept in their respective posting place and other teachers were relieved. Petitioner is challenging

order dated 27.09.2019 as well as order dated 06.11.2019 whereby he has been relieved to Pauri Garhwal from Government Upper Primary School,

Khusalpur, Dehradun. The main ground of attacking said orders is that the petitioner has been discriminated whereas the similarly situated persons

have been provided benefit and that the orders impugned have been passed in violation of the Transfer Act.

The first and foremost thing is that in the office memorandum dated 21.11.2016 it was specifically mentioned that the person transferred under the

said order would maintain his/her lien in original cadre and would have to go back to their original cadre after expiry of prescribed period. It was a

district cadre post but on petitioners’ representation, they were transferred outside their cadre. Order dated 21.11.2016 has been cancelled.

Otherwise also, no question of attachment or absorbing in that changed cadre arises. After expiry of period of three years, they have been relieved to

their original cadre. Petitioners do not have any right to contend that they may be permitted to continue at the transferred place of posting. Transfer is

an exigency of service and is an administrative decision. A person holding a transferable post, cannot claim a vested right to work at a particular place

as the transfer order does not affect any of his/her legal rights and Court should not interfere with the transfer order unless it suffers from

arbitrariness and malafide. The law of transfer has been well settled by the Courts in a catena of decisions. Hon’ble Apex Court in the case of

State of U.P. Vs. Gobardhan Lal AIR 2004 SC 2165 has held that the orders of transfer should not be interfered with unless there is a violation of

some statutory rule or in the cases of proved malice. Mere violation of guidelines issued by the Government cannot be made a ground to interfere in

the exercise of extra ordinary jurisdiction Under Article 226 of the Constitution of India. Transfer or posting are ordinary incidents of service and

ordinarily any transfer or posting is presumed to have been made to satisfy the administrative exigency of service. No consent is required from the

employee before transferring him/her.

As regards the allegations of malafide, favoritism and pick and choose policy, this Court finds that the respondents have filed the counter affidavits

in the matter with utmost precision and clarity. Along with the counter affidavit, the respondents have annexed the entire record of the transfers

effected, giving each and every detail of the employee transferred and the reasons for such transfer. In the case of the petitioner, they have

specifically stated that the claim of the petitioner is not covered under any of the recommendations, such as serious illness, spouse policy (since the

spouse is working in district Pauri Garhwal) hill to hill or the provisions of Transfer Act 2017.

After carefully scrutinizing the record, this Court does not find any arbitrariness or malafide on the part of the respondent in effecting the transfer

orders. That being the position, all the writ petitions are liable to be dismissed.

Considering all facts and facets of the case, I am not inclined to interfere with the impugned orders. Writ petitions lack merit and the same are

hereby dismissed.

Interim orders, granted in the writ petitions, stand vacated.

No order as to costs.