State Of Uttarakhand & Others vs Taukeer Ahmad

Manoj K. Tiwari, J

Heard on Delay Condonation Application No.16997 of 2017.

There is 221 days delay in filing the Special Appeal. Learned Counsel for the respondent does not seriously oppose the application. Cause shown in the delay condonation application is sufficient, therefore, the same is allowed and delay in filing the Special Appeal is condoned.

This appeal is directed against the Judgment and Order dated 19.04.2017, passed by learned Single Judge of this Court in Writ Petition No.1550 of 2015 (S/S), Taukeer Ahmad Vs. State of Uttarakhand & others.

Respondent participated in a process for selection for the post of Assistant Teacher (Primary School). It is a Block Cadre post i.e. one is not liable to be transferred outside the Block in which he is appointed. All candidates, who participated in the selection, were required to indicate the Districts of their choice where they wanted to be appointed, in order of preference and there were clear instructions to them that they will have to indicate their choice for all the 13 Districts in the State of Uttarakhand in descending order of preference. Respondent indicated the choice in which he gave first option for District Haridwar and last option for District Tehri Garhwal. As per the stipulation made in the advertisement, allotment of District was to be made on the criteria of Seniority-cum-Merit where seniority was to be determined with reference to the year of passing B.Ed. Examination. Based on his merit, respondent was appointed as Assistant Teacher (Primary School) on 14.10.2014, however, he was given appointment in Block Dev Prayag (District Tehri Garhwal) which was the district of his last preference.

Feeling aggrieved by allotment of District Tehri Garhwal for which he has given his last choice, respondent filed Writ Petition No. 1550 of 2015 (S/S), contending that candidates who were much below in the Select List prepared on the criteria of Seniority-cum-Merit have been allotted Districts of their first choice i.e. Haridwar while he has been subjected to hostile discrimination. He further contended in the writ petition that he belongs to O.B.C. Category and he was wrongly placed amongst General Category Candidates in the Select List, and if placed amongst O.B.C. Category candidates, then he would have been allotted the District of first choice i.e. Haridwar. The writ petition was disposed of by learned Single Judge vide Judgment dated 19.04.2017 with the direction to consider the claim of the respondent for transfer from District Tehri Garhwal to District Haridwar, as per his option without disturbing the seniority of Assistant Teachers (Elementary School), already posted in District Haridwar. Operative portion of the impugned judgment is extracted below:

"The case of the respondents, in a nutshell, is that the transfer from District Tehri Garhwal to District Haridwar would disturb their seniority.

However, learned counsel appearing for the petitioner submits that his client is ready and willing to be placed at the bottom of the seniority list of the Assistant Teacher (Elementary School), if they are transferred, to District Haridwar.

Accordingly, the writ petition is disposed of with the direction to the respondents to consider the case of the petitioners for transfer from District Tehri Garhwal to District Haridwar, as per his option without disturbing the seniority of Assistant Teachers (Elementary School), already posted in District Haridwar subject to availability of vacancy."

Learned Additional C.S.C. appearing for the State/appellant submits that learned Single Judge has issued positive direction to transfer the respondent from District Tehri Garhwal to District Haridwar. He further submits that the Transfer Act has been enforced in the State in the year 2018, therefore, the direction issued by learned Single Judge is contrary to the provisions of the Act. Learned Additional Chief Standing Counsel further submits that the available vacancies in District Haridwar were supplied by appointing Wait Listed Candidates, therefore, the direction issued by learned Single Judge cannot be implemented.

We are not impressed by the submissions made by learned Counsel for the appellant. The impugned judgment was rendered on 19.04.2017 and the Transfer Act, if enforced at a later date, cannot be a valid ground of challenge to the impugned judgment. Moreover, respondent is ready to forgo his seniority, if transferred to District Haridwar so that seniority of teachers serving in District Haridwar is not disturbed.

As regards the second submission made on behalf of the applicant that the available vacancies have been supplied by appointing wait listed candidates, is without any substance. It is common knowledge that persons who score less marks are placed in the wait list. The submission made on behalf of the appellant indicates that candidates who were placed below respondent, in the merit list were offered appointment in District Haridwar while respondent, who was much higher in the merit list was allotted District Tehri Garhwal, which further strengthens the case of the respondent.

Moreover, learned Single Judge has merely directed the authorities to consider case of the respondent for transfer to Haridwar, without disturbing seniority of other teachers. We find no illegality or perversity in the impugned judgment which may warrant interference.

In such view of the matter we find no merit in this appeal. The appeal is liable to be dismissed and the same is dismissed.

Pending application, if any, stands disposed of.