IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/S) No. 1122 of 2010 Naubat Singh ….Petitioner. Versus The State of Uttarakhand and others …Respondents. Present : Mr. K.N. Joshi, Advocate for the petitioner. Mr. N.P. Sah, Standing Counsel for the State of Uttarakhand. Mr. Anil Kumar Bisht, Advocate for respondent no. 5. Hon’ble Sudhanshu Dhulia, J. (Oral) Heard Mr. K. N. Joshi, counsel for the petitioner, Mr. N. P. Sah, Standing Counsel for the State of Uttarakhand and Mr. Anil Kumar Bisht, counsel for respondent no.5. The petitioner is a primary school teacher in an urban area in District Champawat. He has challenged the order dated 23.8.2010 and 10.9.2010 by which respondent no. 5 has been transferred from a rural area to urban area as a Head Mistress. The contention of the petitioner is that in the elementary education, there is a clear-cut demarcation between urban area and rural area and in fact these are two different cadres. As a rule a teacher from urban area cannot be transferred to rural area and vice versa. However, such transfer can be made by way of an exception of only Assistant Teachers and that too in very exceptional circumstances where on such a transfer the Assistant Teacher is placed at the bottom of the cadre in seniority where he is transferred. The undisputed facts are that while the petitioner was appointed as an Assistant Teacher in Urban Area in the year 1983, respondent no. 5 was appointed as an Assistant Teacher in Rural Area in the year 2002. In other words, the petitioner is about 19 years senior in service to respondent no.5. It is also an admitted fact that in Rural Area, the cadre of Assistant Teacher being much larger and there being many times more Assistant Teachers in Rural Area, the promotions of Assistant Teacher to Headmistress or Headmaster is much faster. Consequently the respondent no.5 was promoted as 2 Headmistress on 21.2.2003, the petitioner is still awaiting his promotion. Now vide the impugned orders dated 23.8.2010 and 10.9.2010 respondent no.5 has been transferred as Headmistress from Rural Area to Urban Area and has now become a Headmistress in Mahatma Gandhi School in District Champawat. According to the petitioner, such a transfer cannot be made for the simple reason that it is in violation of law and if at all such a transfer is made respondent no. 5 will have to be placed at the bottom of the cadre which would be at the bottom of Assistant Teacher in the entire Urban Area in District Champawat. This in short is the contention of the petitioner. These transfers of Assistant Teachers from Rural Area to Urban Area and vice versa are governed by Rules 21 and 22 of the U.P. Basic Education (Teachers) Service Rules, 1981 (from hereinafter referred to as 1981, Rules). Rule 21 of 1981 Rules reads as under :- “21. Procedure for transfer. – There shall be no transfer of any teacher from the rural local area to an urban local area or vice versa or from one urban local area to another of the same district or from local area of one district to that of another district except on the request of or with the consent of the teacher himself and in either case approval of the Board shall be necessary. Rule 22 of 1981 Rules reads as under :- 22. Seniority, - [(1) The seniority of a teacher in a cadre shall be determined by the date of his appointment in a substantive vacancy : Provided that, if two or more persons are appointed on the same date their seniority shall be determined in which their names appear in the list referred to in Rule 17 or 17-A or 18, as the case may be. (2) The seniority of a teacher who has been transferred from one local area to another in accordance with the provisions of Rule 21 shall be placed at the bottom of the list of teachers of the corresponding class or category pertaining to the local area to which he has been transferred, as on the date of orders for transfer are passed. Such a person shall not be entitled to any compensation.” 3 The argument of the petitioner is though rebutted by respondent no.5 by stating that transfer has been made in accordance with law i.e. in accordance with Rules 21 and 22 of 1981 Rules. In her counter affidavit respondent no.5 has annexed Government Order dated 14.2.2005 as CA 4, according to which though in exceptional cases this transfer can be made but a person who is coming from rural are to urban area and vice-versa shall be placed at the bottom of the cadre of Assistant Teacher, and according to respondent no.5 she is liable to be placed as junior most Headmistress in the District. However, on the other hand, the case of the petitioner is that firstly such transfer cannot be made and subsequently respondent no.5 shall be placed as junior most in the cadre of Assistant Teacher. Rule 22 of the Rules just referred to as above though state that on such a transfer a person shall be placed “at the bottom of the list of teachers of the corresponding class or category pertaining to the local area to which he has been transferred, as on the date of orders for transfer are passed.” Considering the rival submission of the parties, this Court is of the considered view that though in exceptional cases such transfer are permitted but as per Rule 21 read with Rule 22 of 1981 Rules this transfer are only permitted in the case of Assistant Teacher and not Headmistress for the simple reason that it would create a lot of uncertainty in the service, as it would be very easy for an Assistant Teacher to get promotion to the post of Headmistress in Rural Area and to get transfer in an Urban Area and thereafter claim seniority as Headmistress. This cannot be permitted under the law. Respondent no.5 has drawn attention of this Court of a Government Policy dated 14.9.2005 where there is specific provision that the assistant teachers working in a rural area can be transferred to the urban area. The argument therefore of respondent no.5 would be that her transfer cannot be said 4 to be in violation of rules as the language of Rule 22 clearly states that consequent to such a transfer an Assistant Teacher shall be placed at the “bottom of the list of the teachers of corresponding class or category pertaining to the local area” and therefore at the bottom of the list of teachers of the corresponding class or category would be that of which she belongs i.e. Headmistress. This argument of the counsel appearing for respondent no. 5 cannot be accepted for the simple reason that in the present case, respondent no. 5 has been transferred as a Headmistress/Headmaster from a rural area to an urban area. The provisions of transfer relied upon by the respective counsels before this Court and the Government Orders as well pertain to transfer of assistant teachers alone. Therefore, assuming for the sake of argument that such a transfer is permissible and on such transfer a person can only be placed at the bottom of the list of teachers of the corresponding class or category pertaining to that local area and, therefore, by logic respondent no. 5 can only be placed at the bottom of Headmistress/Headmaster of the local area i.e. Urban Area, Champawat is not acceptable by this Court for the simple reason that rules 21 and 22 of 1981 Rules and the Government Orders only visualize, that too in exceptional cases, the transfer from one local area to another of assistant teachers alone and not of Headmistress/Headmaster. At this stage, the learned counsel for respondent no. 5 relied upon the definition of “teacher”. “Teacher” has been defined under Section 2 (k) of the U.P. Secondary Education (Services Selection Boards) Act, 1982, which reads as follows :- “2. Definitions. – In this Act – [(a) … (b) … (c) … (d) … (e) … 5 (f) … (g) … (h) … (i) … (j)…. (k) ‘Teacher’ means a person employed for imparting instruction in an institution and includes a Principal or a Headmaster.” (l)…” The counsel, therefore would argue that since as a Headmistress, respondent no. 5 was performing the duties of a “teacher”, she is liable to be treated as a teacher for the purpose of transfer as well and, therefore, transfer as visualized under Rules 21 and 22 of 1981 Rules as well as in Government Orders, referred above, will also include Headmistress/Headmaster. This argument of respondent no. 5 is again not acceptable for the simple reason that if such a view is taken even in transfer matters, from one local area to another and the transfer of Headmistress is justified, then it would leave chaos and heart burning among the incumbents who are actually much senior to one who have been imposed upon them as senior now by virtue of such transfer, an aspect which has already been referred in the preceding paragraphs. This has resulted in a situation where the petitioner who has been appointed in the year 1983 will now be placed below respondent no. 5 who has been appointed as late as 2002. Therefore, the definition of “teacher” as given under Section 2 (k) of U.P. Secondary Education (Services Selection Boards) Act, 1982 has to be read down for the purposes of transfers from one local area to another, as visualized under Rules 21 and 22 of 1981 Rules and the Government Orders passed therein and it is therefore held that such transfer, as visualized under Rules 21 and 22 of 1981 Rules and the Government Orders, is restricted only to an assistant teacher 6 and transfer of a Headmistress/Headmaster from one local area to another cannot be made. At this stage, counsel representing respondent no.5 Sri Anil Kumar Bisht has stated that respondent no.5 has sought transfer in an Urban Area as her husband is also a teacher. Counsel for respondent no.5 has also objected to the very maintainability of the writ petition on the grounds of locus standi of the petitioner. He has further argued that by transfer of respondent no.5 in an Urban Area, the petitioner is not affected in any manner. If at all petitioner is affected only his chances of promotion would be curtailed, according to the petitioner. Therefore counsel for respondent no.5 would argue that merely if chances of promotion have been diminished there was no curtailment any right of the petitioner. Counsel for respondent no.5 has cited a judgment of this Court namely Anand Kumar Vs. Managing Director, Forest Development Corporation reported in 2010 (2) U.D. 390 wherein this Court has held that chance for promotion is not a condition of service. Even though there is no such a dispute in the present writ petition regarding curtailment of chance of promotion, such transfer i.e. transfer of an Assistant teacher from a rural area to an urban and vice versa is not permissible under the law. What has been challenged in the present case is the very validity of the said impugned transfer, which could not have been made under the law. This being the legal position, the writ petition succeeds. Impugned orders 23.8.2010 and 10.9.2010 (Annexure Nos. 8 and 9 respectively to the writ petition) are hereby set aside. Respondent no.5 has submitted that her husband who is also a Lecturer in a Government College at District Champawat and she wants to be transferred at a nearby place where her husband is presently posted. Although the writ 7 petition is allowed and the orders dated orders 23.8.2010 and 10.9.2010 (Annexure Nos. 8 and 9 respectively to the writ petition) are set aside, by which respondent no.5 was transferred to Champawat, respondent no.5 is at liberty to move a proper representation before the concerned authority, who may under the law if so permits, adjust her to any other place at Champawat. No order as to costs. (Sudhanshu Dhulia, J.) 1.9.2011 kuldeep