Abdul Hasan Rizvi vs State of Uttarakhand and Another

V.K. Bist, J.—Heard learned Counsel for the parties.

Present writ petition has been filed by the petitioner for quashing the order dated 25.07.2008 by which petitioner has been transferred to Government Junior High School, Chausala to Government Junior High School, Bhadyoothi.

Brief facts of the case are that on 04.04.1995 petitioner was appointed as Assistant Teacher (Urdu) in Primary School (Railway), Lalkaun, District - Nainital. Thereafter, vide order dated 13.05.1997 petitioner was promoted to the post of Assistant Teacher (General) but this promotion order was cancelled on 30.05.1997. Cancellation order was challenged by the petitioner before Public Service Tribunal on the ground that petitioner was very much entitled to be promoted as Assistant Teacher (General) in Junior High School Cadre. Respondent department opposed the same on the ground that since the petitioner was basically appointed as Assistant Teacher (Urdu) in Primary School Cadre, he cannot be promoted as Assistant Teacher (General) in Junior High School Cadre. Subsequently, Public Service Tribunal vide order dated 27.04.2006 disposed of the claim petition of the petitioner directing the petitioner to make representation before the authority concerned within two months from the date of the order and thereafter, the department was directed to decide the representation of the petitioner by a reasoned speaking order in another three months. Order of the Tribunal was challenged by the petitioner by way of filing Writ Petition No. 152 of 2006 before this Court. Subsequently, petitioner withdrew the writ petition on the assurance of the respondent department that after withdrawal of the writ petition, petitioner would be promoted on the post of Assistant Teacher (Urdu) in Junior High School Cadre. Thereafter, vide order dated 10.07.2007, petitioner was promoted to the post of Assistant Teacher (Urdu), Junior High School Cadre. Now, vide order dated 25.07.2008, the petitioner has been transferred from Government Junior High School, Chausala to Government Junior High School, Bhadyoothi.

Learned Counsel for the petitioner has argued that the post of Assistant Teacher (Urdu) does not exist in the school where the petitioner has been transferred and therefore, the impugned transfer order is bad in law. In support of his argument, learned Counsel for the petitioner took the ground that when respondents themselves cancelled his earlier promotion order dated 13.05.1997 whereby petitioner was promoted to the post of Assistant Teacher (General) on the ground that petitioner was appointed on the post of Assistant Teacher (Urdu), the respondents are not justified in transferring the petitioner to a place where there is no post of Urdu Teacher and respondent cannot compel the petitioner to teach the students of general subject. Counsel for the petitioner has further argued that since petitioner has already completed 11 years of service in Ati Durgam Area, now, again he cannot be transferred to Ati Durgam Area in view of Transfer Policy issued by the respondents. Learned Counsel for the petitioner has submitted that petitioner is ready to go any other place where post of Urdu Teacher is vacant but his posting to a place where there is no post Urdu Teacher should be cancelled.

In the counter affidavit, respondents have admitted that petitioner was appointed as Assistant Teacher (Urdu) in Primary School and as per Rules, he could only be promoted as Assistant Teacher (Urdu) in Junior High School. In the counter affidavit, respondents further submitted that there is no separate cadre for Urdu Teacher in the Department nor there separate seniority is determined, therefore, they are counted under the prescribed limit / number of teachers and their seniority is determined along with other General Teachers of Junior High School Cadre. In case, when in a school the number of students of Urdu subject is become zero, the posted Urdu Teacher normally will have to teach other subject, similarly, when no post of Urdu Teacher found vacant then the Urdu Teacher can be posted in those institutions where numbers of Urdu Students is zero. It is also stated in the counter affidavit that since the petitioner was posted in Government Junior High School, Chausla, Haldwani after being identified as an excess teacher as per prescribed limit of teachers - students ratio, therefore, he has been adjusted in accordance with the Annual Transfer Policy of 2008-09 to Government Junior High School, Bhadyoothi against the vacant post of Assistant Teacher. It is further submitted that as per the educational qualification, petitioner is fully qualified to teach other subjects also and as in past petitioner taught Hindi, Agricultural Science, Art, History and Geography subjects.

Petitioner has also filed supplementary affidavit on 01.12.2008 in which he has mentioned that school where the petitioner has been transferred does not have any post of Urdu Teacher. In support of his contention the petitioner has annexed copy of letter given by Block Education Officer, Ramgarh, Nainital, under Right to Information Act in which it is mentioned that there is no post of Urdu Teacher in Junior High School, Bhadyoothi. It is further informed in this letter that only 9 students are studying in the School and out of 9 students, 2 students are in Class VI, 6 students are in Class VII and 1 student in Class VIII. This letter further informs that there are two teachers in the school. In the supplementary affidavit it is also stated that there is another school namely Kanya Purva Prathmik Vidyalaya, Lalkuan where 73 students of Urdu are studying and as per Government''s own policy at least two teachers are required in that school but respondents have posted only one Urdu Teacher. Similarly, in Government Junior High School, Banphoolpura, there are 41 students in Class VI, 27 students in Class VII and 35 students in Class VIII who are getting education of Urdu but there is also one teacher, who is also Head Master and there is acute shortage of Urdu Teacher in that school. The counsel for the petitioner submitted that the respondents treated the petitioner in step motherly manner and in place of appointing petitioner at a place where Urdu students are available, he has been transferred to a place where there is no student of Urdu subject.

In view of this count though transfer is said to be exigency of service and should not normally be interfered but in the present case, this Court is convinced that the respondents have not acted in fair manner. They declined the promotion of the petitioner as Assistant Teacher (General) on the ground that petitioner being Primary Teacher (Urdu) cannot be promoted as Assistant Teacher (General) but when the petitioner asked for posting at a place where Urdu subject is available, they declined to do so on the ground that petitioner can teach general subjects. Petitioner has been posted in a school where only 9 students are studying and where two teachers are already working and he is not being considered for those schools where students of Urdu subject are much higher and where only one teacher is available, therefore, the claim of the petitioner for posting at a place where post of Urdu Teacher is available and where students of Urdu subject are available appears to be genuine. Now, respondents cannot be permitted to take different stands which suits and is favourable to them. Respondents should transfer the petitioner to place where the post of Urdu Teacher is vacant and where students are studying Urdu. The petitioner can be transferred against the post of Assistant Teacher (General) only when all posts of Urdu Teacher are occupied.

In view of the above discussion, writ petition is allowed, the order dated 25.07.2008 and 23.10.2008 are quashed. The respondent No. 2 is directed to consider the case of the petitioner for posting at a place where post of Urdu Teacher is available. No order as to costs.