Sangita Panwar 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. 1872 of 2019. In the order under appeal dated 06.08.2019, the learned Single Judge noted that the petitioner's earlier writ petition was disposed of by order dated 04.07.2019, directing the competent Authority to take a decision on the petitioner's representation; pursuant thereto, the Chief Education Officer had decided the representation, and had directed her to join at her transfered place; while rejecting the representation, the authorities had assigned the reason that the place, to which the petitioner had exercised her option for transfer, was not vacant; and a second writ petition, on the very same cause of action, was, therefore, not maintainable. Accordingly, the writ petition was dismissed by order dated 06.08.2019 with costs of Rs. 10,000/- for wasting the valuable time of the Court.

Mr. Kurban Ali, learned counsel for the appellant, would submit, not without justification, that the earlier writ petition was disposed of directing the respondents to consider the petitioner's representation; since the respondents had illegally rejected the petitioner's request, she was entitled to again invoke the jurisdiction of this Court; transfers, in the State of Utttarakhand, are governed by the provisions of the Uttarakhand Annual Transfer for Public Servant Act, 2017 (hereinafter referred to as the "2017 Act"); the petitioner stood at serial no. 10 in the seniority list of teachers, liable to be compulsorily transfered from a sugam area to a durgam area; the sixth respondent stood below her at serial no. 13, in the said list; instead of posting the petitioner to the Government Primary School, Pali (which was her fifth option among ten choices), the sixth respondent, who stood at serial No.13, was posted to Pali ignoring the petitioner's claim to be posted thereat.

When the matter came up earlier, Mr. B.S. Parihar, learned Standing Counsel for the State of Uttarakhand, sought time to obtain instructions. Today, the learned Standing Counsel, on instructions, would submit that 31 places were identified to which requests for transfer could be made; Pali was not one among those 31 places; yet the appellant-writ petitioner had exercised her fifth choice to be posted at Pali; since the post at Pali was not vacant, she was posted instead to the Government Primary School, Rangaon; the vacancy at Pali subsequently arose, consequent on the selection of the candidate, posted at Pali, to another post; and since the vacancy at Pali arose on 01.07.2019, after the appellant-writ petitioner was posted at Rangaon, the sixth respondent was posted at Pali on 11.07.2019.

The 2017 Act requires option of employees, liable to be compulsorily transferred from a sugam area to a durgam area, to be considered strictly in the order of seniority. The appellant-writ petitioner stood at serial no.10, while the sixth respondent stood at serial no. 13. Consequently the petitioner's option for Pali ought to have been considered first, before considering the option of the sixth respondent to be posted at the said place. Even if, as is now contended before us by Mr. B.S. Parihar, learned Standing Counsel, the vacancy arose only thereafter on 01.07.2019, employees higher in seniority, than the sixth respondent, should have been posted at Pali, in case they had exercised their option to be posted thereat; and the sixth respondent could not have been posted thereat ignoring the options exercised by any one of the twelve employees placed above her in the seniority list.

While it does appear, prima facie, that the respondents have not adhered to the provisions of the 2017 Act, in posting the sixth respondent at Pali instead of the appellant-writ petitioner, the fact remains that the writ petition was dismissed at the stage of admission without the sixth respondent being put on notice and without her being given an opportunity of being heard. Since any order, which this Court may pass, can only be after the sixth respondent is heard in the matter, and since the writ petition was dismissed at the stage of admission, suffice it, in such circumstances, to set aside the order under appeal and restore the writ petition to file.

The learned Single Judge shall hear the writ petition afresh, and in accordance with law. It is open to the learned counsel for the appellant to request the learned Single Judge to take up the writ petition for admission at an early date.

The Special Appeal is, accordingly, disposed of. No costs.