Sukhpal vs State Of Uttarakhand And Others

Ramesh Ranganathan, C.J.

This appeal is preferred against the order passed by the learned Single Judge in WPSS No.933 of 2018 dated 26.10.2018 which formed part of a batch of the Writ Petition in W.P. (S/S) No.1406 of 2018 dated 26.10.2018 and batch.

By office memorandum dated 21.11.2016, the Principal Secretary to the Government permitted transfer of employees from one district to another, on condition that there would be no change in their cadre; and, after completion of the period of transfer, they would have to come back to the original district and to the original cadre to which they belonged. By proceedings dated 2.1.2017, the Additional Director, Primary Education was instructed to give effect to the office memorandum dated 21.11.2016. Subsequently, by proceedings dated 17.02.2017, the District Education Officer was directed to give effect to the office memorandum issued by the State Government on 21.11.2016.

While matters stood thus, the Secretary, Elementary Education, by proceedings dated 25.04.2018, cancelled the earlier office memorandum dated 21.11.2016 whereby transfers were to be effected from one district to another, holding that, since a "block" was a cadre, transfers outside the block were impermissible as per the Uttarakhand Teacher (School Education) First Appointment, Promotion, Transfer & Posting Regulations, 2013. Aggrieved thereby, the petitioner invoked the jurisdiction of this Court and, on the writ petition being dismissed, have now preferred the present appeal.

Both the proceedings dated 21.11.2016, and the subsequent proceedings dated 25.04.2018 whereby the office memorandum was issued by the Additional Chief Secretary/ Principal Secretary canceling the earlier office memorandum dated 21.11.2016, do not have the force of law. They are not even Executive/administrative instructions/guidelines referable to Article 162 of the Constitution of India, since they have, admittedly, not been issued under the orders of Her Excellency the Governor.

The office memorandum dated 21.11.2016 cannot, therefore, be sought to be implemented in proceedings under Article 226 of the Constitution of India. In Union of India Vs. S.L. Abbas (1993) 4 SCC 357 the Supreme Court, following its earlier order in Bank of India Vs. Jagjit Mehta (1992) 1 SCC 306, held that the guidelines relating to transfer conferred no right on an employee, and cannot form the basis for interdicting or quashing an order of transfer; and an order of transfer can be challenged only if it is mala fide or where it is made in violation of statutory provisions.

Admittedly, in the present case, neither have any statutory provisions being violated nor is it the petitioner's case that the order of transfer was vitiated by malice. We see no reason, therefore, to enforce the office memorandum dated 21.11.2016 permitting transfer of an employee outside the district even without a cadre change.

There is yet another reason why we should refrain from interfering with the order under appeal, as setting aside the subsequent order dated 25.04.2018 would result in revival of the earlier office memorandum dated 21.11.2016 whereby employees were permitted to be transferred outside the district in violation of the cadre rules, which stipulates that transfers should be effected only within a block in each district. The petitioner was in the cadre of Syalde Block, and could only have been transferred from one primary school to another within the said block, and not beyond.

The earlier order, transferring employees from Syalde Block in Almora district to Block Laksar in Haridwar district, would violate the cadre rules and is, therefore, illegal. Setting aside the order dated 25.04.2018 would result in revival of the earlier illegal order dated 21.11.2016. This Court would not exercise its discretionary jurisdiction, under Article 226 of the Constitution of India, to set aside an order, if it would result in revival of an earlier illegal order. If the quashing of an order is likely to result in revival of another order which is itself illegal, [Gadde Venkateswara Rao Vs. Govt. of A.P., AIR 1966 SC 828; Aligarh Muslim University Vs. Mansoor Ali Khan, (2000) 7 SCC 529], or no prejudice is caused to the person concerned, interference under Article 226 is unnecessary. [Aligarh Muslim University Vs. Mansoor Ali Khan; M.C. Mehta Vs. Union of India, (1999) 6 SCC 237].

We see no reason, therefore, to interfere with the order under appeal. The appeal fails and is, accordingly, dismissed.

Mr. Rajeev Pathak, learned counsel for the appellant would then submit that the petitioners have genuine difficulty, and they be permitted to continue to work at Block Laksar, District Haridwar, at least till the end of present academic session. While we see no reason to accede to any such request, suffice it to make it clear that the order now passed by us shall not disable the appellant writ-petitioner from making a representation to the authorities concerned, and for the authorities to pass orders thereupon in accordance with law.