HIGH COURT OF UTTARAKHAND, AT NAINITAL Writ Petition No. 437 of 2008 (S/S) Smt. Gangotri Sharma Aged about 52 years W/o Shri Umesh Chandra Village – Daula, Post Office Bin District Pithoragarh …Petitioner Versus State of Uttarakhand and others …Respondents Mr. Subhash Upadhyaya, Advocate for the petitioner. Mr. N.P. Shah, Standing Counsel for the respondents. Per Hon’ble J.C.S. Rawat, J. This writ petition under Article 226 of the Constitution of India has been filed by the petitioner for seeking the following reliefs:- “(I) Issue a writ, order or direction in the nature of certiorari calling for the record and quashing the impugned order dated 28th May, 2008 (Annexure No.-8 to the writ petition). (II) Issue a writ,order or direction in the nature of ad interim mandamus staying the effect and operation of the impugned order dated 28th May, 2008 (Annexure No.8 to the writ petition) during the pendency of the writ petition.. (III) Issue a writ, order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case. (IV) Award the cost of the petition to the petitioner.” 2. The petitioner was appointed on 29/12/1995 as Assistant Teacher and was posted at Primary School, Dhuroli, Kanalichina. After working nearly three years in the said school, the petitioner was transferred to Primary School, Dungrakot (Munakot). The petitioner has been working since 1999 in the Primary School, Dungrakot. Thereafter, husband of the petitioner moved an application to the authorities concerned on 29th April, 2008 for the transfer of the 2 petitioner. Vide order dated 29th April, 2008, Secretary, School Education, directed the competent authority to adjust the petitioner at the Government Adarsh Vidhyalaya, Naini Saini. Pursuant to the above order of the Secretary, the transfer order dated 15/17th May, 2008 annexure-5 to the writ petition was issued by District Education Officer, Pithoragarh transferring the petitioner to Govt. Adarsh Vidhyalaya, Naini Saini. After receiving the transfer order, the petitioner was relieved vide annexure-6 to the writ petition on 22/05/2008 by the Incharge Regional Education Officer, Dungarakot and the petitioner joined pursuant to the transfer order on 22/05/2008. After her joining on 23/05/2008, the petitioner’s transferred order was cancelled on 28th May, 2008 by the District Education Officer, Pithoragarh pursuant to the direction given by the Director, School Education, Uttarakhand by the fax message. Being aggrieved by the said order, the present writ petition has been filed by the petitioner. 3. Heard learned counsel for the parities and perused the record. 4. It was contended by the learned counsel for the petitioner that representation was made on behalf of the petitioner to the Secretary, School Education; the Secretary, School Education directed the competent authority to transfer the petitioner in Government Adarsh Vidhyalaya, Naini Saini; pursuant to the said order, District Education Officer transferred the petitioner to Naini Saini School; thus the transfer of the petitioner was made on the prior permission of the Secretary, School Education; later on Director of Education found that certain transfer orders have been made by the District Education Officer without seeking approval of 3 the higher authorities so the said transfer orders were ordered to be cancelled; the order of the Director clearly reveals that the competent authority has passed the order in violation of the policy laid down by the Government that the promotion or the transfer would be made from Durgam areas to Shugum areas or as per the principle laid down in the policy. 5. Counter affidavit has been filed by the respondents; vide annexure CA-2 of the counter affidavit, the Directorate, School Education directed the respondents to cancel those transfer orders which have been passed without approval of the higher authorities; the transfer order of the petitioner was issued under the direction of the Secretary, Government, as such, the said Government order issued by the Director is not applicable in the case of the petitioner. He further pointed out that the transfer order has been cancelled by the order of the Director and there is no case of the respondents that the Secretary, Education had also directed to cancel the order of the present petitioner which has been directed by him as above. The Director being subordinate of the Secretary Education cannot cancel the transfer of the petitioner which was issued by the competent authority under the direction of the Secretary, Education. It was further contended that the transfer order which was passed pursuant to the direction of the Secretary on 17th May, 2008 and the petitioner had joined at the place of posting, the effect of the order has already been ceased and the State Government could not cancel the said order which has already been executed. The option which was available was only to re-transfer the petitioner. 4 6. I have gone through the contents of the letter. It is clearly mentioned in the order (annexure CA-2 of the counter affidavit) dated 27th May, 2008 that some transfer orders have been passed without the approval of the higher authorities by the Additional Director or by the Education Officers. So such transfer should be cancelled at once. In the instant case, the transfer order has been made pursuant to the direction of the Secretary Education, as such the said transfer order would be deemed to have been approved by the Secretary, Education i.e. higher authorities. The plea that the approval has not been obtained for the same is of no consequence. Secondly, the Director being subordinate to the Secretary, Education could not have cancel the transfer of the petitioner without approval of the Secretary. In the case in hand the transfer has been made under the direction of the Secretary, Education who is higher than the Director, Education. 7. In view of the above, I find that this is a fit case where interference under Article 226 is required. As such, the impugned order dated 28th May, 2008 passed by District Education Officer, Pithoragarh is hereby quashed. The writ petition is liable to be allowed and is hereby allowed. The rule/order which has been issued on 13/06/2008 is made absolute. No order as to costs. (J.C.S.Rawat, J.) 26th August, 2009 Shiv