Sunder Singh Tagore vs State of H.P. and Others

Sanjay Karol, J.—Petitioner has prayed mainly for the following relief:-

(i) That the instant Civil Writ Petition may very kindly be allowed and the impugned order of transfer, Annexure P-3, dated October, 2011 may very kindly be ordered to be quashed and set aside in the ends of justice and law.

Annexure P-3 is the order dated October, 2011 which is reproduced in toto as under:-

No.EDN-H (19) B (1)-1/2010-CD-Cont./PTA

Directorate of Higher Education

Himachal Pradesh

Dated : Shimla-17101 the October, 2011

In the matter of

CWP No.4607 of 2009

Pratibha Bhalooni D/o late Dr. Dharma Sain Bhalooni, Main Bazar, Rampur, Tehsil Rampur, District Shimla, H.P.

Petitioners

Versus

State of H.P. through Principal Secretary, Higher Education Govt. of H.P.

Director of Higher Education, Himachal Pradesh, Shimla-1.

Sh. Sunder Singh Tagore S/o Sh. Banki Ram resident of village Dahsmara, P.O. Dofda, Tehsil Rampur, Distt. Shimla.

President, Parent Teacher Association (PTA), Rani Rattan Kumari Memorial Govt. Sr. Sec. School, Nogli, Tehsil Rampur Bushahar, Distt. Shimla.

Respondents.

Order

The Hon''ble High Court of Himachal Pradesh vide its judgment delivered on dated 11-11-2010 in CWP No. 4607 of 2009 titled as Pratibha Bhalooni vs. State of H.P. the operative part of the order is as under:-

An attempt shall be made by the Directorate to see as to whether the regularly appointed teachers, be it on contract basis or otherwise selected by the Himachal Pradesh Subordinate Services Selection Board, can be accommodated in any of the posts, which are lying vacant even without PTA teachers. After making such an attempt only the replacement of PTA teachers need to be made. It will be open to the petitioners also to point out such vacant posts, where services of the teachers are required, so as to enable the Directorate to pass appropriate orders as above.

I have carefully gone through the case of Smt. Pratibha Bhalooni, the petitioner. Both the petitioner and private respondent (Sh. Sunder Singh, Para Lect. In History) were heard in person alongwith the Principal, GSSS Nogli, Distt. Shimla. In view of Para Teacher transfer policy, Para Teachers can be transferred only against vacancy, if there is administrative need. But in the instant case there was no administrative need. So, PTA GIA is allowed to continue at GSSS Nogli and Sh. Sunder Singh, Para Lecture History is hereby transferred to GSSS Bahli, Distt. Shimla against vacant post. Hence, the representation of the petitioner is hereby accepted and disposed of accordingly.

Sd/ Director Higher Education Himachal Pradesh.

It is not in dispute that Government of Himachal Pradesh has issued an Office Memorandum dated 13.8.2009 (Annexure P-1), conveying its decision that contract appointees of all Departments/Para Teachers and Gramin Vidya Upasaks in Education Department, who have completed five years tenure of service at one place of posting would be eligible for transfer on need base basis where ever required on administrative grounds.

It is also not in dispute that petitioner was engaged as a Lecturer, History (Para Teacher) sometime in the year 2004 and posted at Govt. Senior Secondary School, Deothi, Distt. Shimla. Petitioner made a request for his adjustment from Govt. Senior Secondary School, Deothi to Govt. Senior Secondary School, Nogli, Distt. Shimla, which was acceded to in terms of transfer order dated 3.12.2009 (Annexure P-2). Order presumes that one post at Nogli was lying vacant and, as such, petitioner was transferred without TTA/joining time. But the fact of the matter is Smt. Pratibha Bhaluni (private respondent herein) already stood appointed as a PTA and posted at Govt. Senior Secondary School, Nogli, even prior to the order of transfer dated 3.12.2009 and, as such, there was no vacant post at Nogli as on that date. Resultantly, Smt. Pratibha Bhaluni approached this Court and her petition along with the petitions filed by other similarly situated persons disposed of by the Division Bench of this Court in terms of judgment dated 11.11.2010 passed in lead case CWP No. 1746 of 2007 titled as Daya Ram vs. State of H.P. & Ors. and Other connected matters, wherein following directions were issued:-

An attempt shall be made by the Directorate to see as to whether the regularly appointed teachers, be it on contract basis or otherwise selected by the Himachal Pradesh Subordinate Services Selection Board, can be accommodated in any of the posts, which are lying vacant even without PTA teachers. After making such an attempt only the replacement of PTA teachers need to be made. It will be open to the petitioners also to point out such vacant posts, where services of the teachers are required, so as to enable the Directorate to pass appropriate orders, as above.

This exercise shall be completed within a period of one month from the date of receipt/production of a copy of this judgment by the petitioners. The interim orders passed by this court will continue till such time.

The learned Additional Advocate General submits that the PTA teachers may claim permanent status. We do not find any basis for such apprehension. They are appointed under a particular Government policy. So long as the policy is kept in tact, they are bound by the orders of appointment/agreements executed in terms of the policy. Therefore, in tune with the progress in regular appointment, PTA appointees will have to be replaced in a phased manner, unless the policy is changed.

Undisputedly, the aforesaid directions have attained finality.

Noticeably, private respondent was allowed to continue at GSSS, Nogli in terms of the interim order passed by this Court in her petition.

In compliance of the aforesaid directions issued by this Court, Director of Higher Education (respondent No.2) passed the impugned order (Annexure P-3) whereby petitioner has now been asked to join at GSSS, Bahli, where the post is lying vacant.

To begin with, petitioner was wrongly transferred to GSSS, Nogli for the reason that no post was lying vacant at the relevant time. Private respondent has been successfully discharging her duties even prior to the order of transfer dated 3.12.2009. Impugned order has been passed pursuant to and by taking into account the directions issued by this Court and the policy framed by the State. Thus no illegality/infirmity can be found in the impugned order, which contains reasons and have been passed after fully complying with the principles of natural justice. Hence present petition, being devoid of merit, is dismissed.

Interim order dated 1.11.2011 stands vacated.