Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 64 of 2008 (M/S) Km. Shikha Pandey D/O K.N. Pandey, R/O Quarter No. 125 Type 3, Sector 1, BHEL, Ranipur, District Haridwar, at present student of BAMS 1st Year Uttarakhand Ayurvedic College, Dehradun, District Dehradun. ….. Petitioner. Versus State of Uttarakhand through Chief Secretary Medical Health and Medicine, Uttarakhand Shashan, Secretariat, Dehradun and two others. ….. Respondents. Sri Navneet Kaushik, holding brief of Sri Parikshit Saini, learned counsel for the petitioner. Sri K.P. Upadhyay, learned Additional Chief Standing Counsel for the respondents 1 and 2-State. Sri Ramji Srivastava, learned counsel for the respondent no. 3. Date October 24, 2008. Hon’ble B.S. Verma, J. This writ petition has been filed for the following reliefs:- I. A writ, order or direction in the nature of certiorari quashing the order dated 2-1-2008 passed by respondent no.1 (contained as Annexure No. 10 to this Writ Petition). II. To pass a suitable writ, order or direction directing the respondent no. 1 and 2 to pass a necessary order as regard to transfer of petitioner from Uttaranchal Ayurvedic College to Rishikul Ayurvedic College Haridwar. III. To pass a suitable writ, order or direction in favour of petitioners and against the respondents, which this Hon’ble Court may deem fit and proper in the facts and circumstances of the present case. IV. To award the cost of the present writ petition to the petitioners. Brief facts, giving rise to the present writ petition, according to the petitioner, are that the petitioner is a student of BAMS 1st Year Course at Uttaranchal Ayurvedic College, Dehradun. She appeared in the UPMT entrance examination in the year 2006 and obtained 103 marks therein and she also appeared in the counseling held on 26-8-2006 at Himalayan Institute of Medicine, Dehradun. The petitioner belonged to General Mahila category and was allotted one seat in BAMS course in the said college. As per policy of the government students can be transferred from one medical college to another against vacant seats and the same can be effected only before the examination of 1st Semester of the course or by order of the respondent no.2. The petitioner made a representation to respondent no.3 on 14-10-2006 with a prayer that as her mother is a heart patient living at Haridwar and she needs care, therefore, the petitioner may be transferred to Rishikul Government Ayurvedic College or to Gurukul Government Ayurvedic College at Haridwar. The respondent no. 2 called for information from the Principal Rishikul Government Ayurvedic College with regard to vacant seats of UPMT 2006, who in turn sent a letter to the respondent no.3 that there were six vacant seats in General Mahila Category. A copy of the said letter has been annexed as Annexure No. 3 to the writ petition. The petitioner was not transferred, therefore, petitioner made a representation on 18-7-2007 to the respondent no. 1 and 2 with a prayer to transfer her to anyone of the above medical colleges at Haridwar. A copy of the representation dated 18-7-2007 has been annexed as Annexure No. 4 to the writ petition. On 6-8-2007 respondent no. 2 sent a letter to respondent no. 3 therein the names of five students who have prayed for transfer to Haridwar were given. The merit position of the students was asked for and it was also desired to mention that whether any other student placed higher in the merit was willing for transfer. The category of the students was also required to be mentioned and no objection certificates from the concerned students were called for. The name of the petitioner finds mention at serial no.3 in the letter dated 6-8-2007. According to the petitioner, the petitioner was placed at the top rank under General Mahila Category, who had been given admission in Uttaranchal Ayurvedic College having secured 103 marks in the entrance examination. On 30-8-2007, the Under Secretary, Medical Anubhag-1 of the State Government sent a letter to the respondent no.2 stating therein that the transfer of the students to Rishikul/Gurukul Government Ayurvedic College Haridwar is not covered under the transfer policy of the Government, hence the prayer for transfer could not be accepted. A copy of this letter was endorsed to the petitioner. The transfer policy of the government had never been disclosed to the petitioner and transfer of Ayurvedic students studying in BAMS course is being made regularly by respondent no.2 vide order dated 1-3-2007 passed by respondent no.3 thereby as many as seven students of BAMS 1st year course (six from 2005 Batch and one from the 2006 Batch) were transferred, while the name of the petitioner has been left out. A copy of the order dated 1-3-2007 has been annexed as Annexure No. 7 to the writ petition. It was also mentioned in the order dated 1-3-2007 that the transfer of students was made by relaxing the norms. It appears that when the request of the petitioner was rejected for her transfer by an order dated 30th August 2007 by the respondent no.2, she preferred Writ Petition No. 1497 (M/S) of 2007, Km. Shikha Pandey Vs. State of Uttarakhand and three others, which was disposed of vide order dated 26-11-2007 with the following observations:- “In the circumstances, having heard learned counsel for the parties, this writ petition is disposed of with the direction that if the similarly situated candidates to the petitioner, are transferred, the petitioner’s case may also be considered, provided the same is in accordance with the Rules.” The petitioner served a copy of the order passed by this Court upon respondent no.2 and on 1-12-2007 respondent no.2 sent a letter to respondent no.1 to pass an order with regard to othe transfer of petitioner. It was mentioned in the letter that earlier one Vijendra Singh of 2006 Batch was transferred as per Government order dated 29-12-2006. In paragraph no. 17 of the writ petition, the following averments were made:- “17. That in the order dated 26-11-2007 passed by the Hon’ble High Court it was directed to the respondents that in case similarly situated candidate has been transferred, then the case of the petitioner may also be considered, it is pertinent to mention here that one Vijendra Singh of the same batch has been transferred by the order dated 1-3-2007 (contained as annexure No.7) meaning thereby after the transfer policy was made i.e. dated 29-12-2006 and in the order it has been mentioned that Vijendra Singh as been transferred before the transfer policy was made which is against the record. Thus petitioner is also on similarly situated circumstances and she shall be transferred as her case is transferred by the policy, thus the order is completely illegal.” The only grievance of the petitioner is that the respondent no. 1 vide order dated 2-1-2008 rejected the prayer for transfer made by the petitioner on the ground that as per transfer policy dated 29.12.2006, holding that the case of the petitioner was not covered thereunder, while transfer of one similarly situated candidate, namely Vijendra Singh was made. In other words, in the present writ petition, the petitioner claims parity with the case of Vijendra Singh. Respondent no.2 filed counter affidavit. The affidavit was duly sworn in by Dr. Pooja Bhardwaj, Director, Ayurvedic and Unani Services Uttarakhand, Dehradun. It was stated therein that the State Government specified the time frame for three months for transferring the students. It is further stated that the representation/application of the petitioner was received on 18th July 2007, wherein illness of her mother was mentioned but no medical certificate was annexed therewith. The case of the petitioner was considered but the same was not covered under the transfer policy of the Government. The case of the petitioner was reconsidered in the light of the order of this Court passed on 26-11- 2007 and the prayer of the petitioner was rejected by a speaking order dated 3-1-2008. A copy of the Government Order dated 29- 12-2006 was annexed with the counter affidavit. A copy of letter dated 8-8-2007 sent by the respondent no.3 to respondent no.2 was also annexed along with the counter affidavit wherein names of four students including the petitioner find place. In paragraph no. 5, the following averments were made by respondent no.2:- “5. That in reply to the contents of para 13 of the writ petition, it is submitted that vide order dated 1-3-2007, after giving relaxation, transfers were made. However, as submitted earlier the representation of the petitioner was received in the office of the Directorate only on 18th July, 2007 and the matter was examined and vide order dated 30th August, 2007 the case of the petitioner was not found fit for transfer as the same was not covered under the transfer policy.” Counter Affidavit was also filed by respondent no.3. In reply to the contents of paragraph no. 17 of the writ petition, the following averments have been made:- “15. That the contents of para no. 17 of the writ petition are not admitted as stated. It is true that Brijendra Singh, who has been transferred along with other students vide order dated 01.03.2007, belongs to same batch to which petitioner belongs i.e. 2006 batch but Brijendra Singh has applied for his transfer much earlier than transfer policy came into existence i.e. 29.12.2006. However the petitioner has not submitted her application for transfer prior to the transfer policy and she has only applied for transfer after the order dated 01.03.2007, when other students including Brijendra Singh were transferred. As such the petitioner’s case is entirely different in comparison of Brijendra Singh and she is not similarly situated as Brijendra singh and others.” It has been reiterated at other places that the students who were transferred vide order dated 1-3-2007 had made their applications prior to the coming into force of transfer police, i.e. 29.12.2006. The petitioner filed her rejoinder affidavit to the counter affidavit of respondent no.3 and it was asserted in paragraph no. 3 that as per Government Order dated 29-12-2006, transfer application was required to be made within three months and the petitioner had made her application on 14-10-2006, i.e. within three months of taking admission. The contents of paragraph no. 13 of the rejoinder affidavit are specific for the purposes of this writ petition. The petitioner has made the following averments therein:- “13. That the contents of paragraph no. 15 of the counter affidavit as stated are not admitted. It is submitted that Vijendra Singh has been transferred on 1-3-2007 and till then as per order dated 3-1-2008 passed by respondent no.1 no transfer policy was ever framed, thus the contents as stated are vehemently denied.” The petitioner has also filed rejoinder affidavit to the counter affidavit filed by respondent no.2. The petitioner has made the following statement in reply to to paragraph no. 5 of the counter affidavit of the respondent no. 2:- “4- That the contents of paragraph no.5 of the counter affidavit are vehemently denied.” On behalf of respondent no. 1 supplementary counter affidavit was filed. The affidavit was duly sworn in by Sri Keshav Desiraju, Principal Secretary, Medical Health and Education, Uttarakhand. In this affidavit it has been stated that Vijendra Singh and certain other students had made their applications prior to the issuance of the transfer policy dated 29-12-2006, while the undated representation of the petitioner was received by the State Government on 2-8-2007. Copy of the representation of the petitioner has been annexed as Annexure No. S.C.A. 4 to the affidavit. It was also stated that the case of the petitioner and Km. Sweta, Neha, Salini and Km. Swati was considered and since all of them had not applied within three months of their admission, the prayer of transfer of the petitioner and four others was rejected. The petitioner has filed supplementary affidavit and along with the same, she has annexed a copy of the receipt of UPC dated 14-10-2006 to show that she dispatched a letter to the respondent no.2. I have heard learned counsel for both the parties and perused the entire material on record including the writ petition, the counter affidavit, rejoinder affidavits and supplementary counter affidavit as also the supplementary affidavit, filed by the parties along with its enclosures. The only thing which emerges out from the record is that the petitioner seeks parity with the transfer of one Vijendra Singh and that too on the basis of the order dated 26-11-2007 passed by this Court. Having heard learned counsel for the parties and having perused the record, I am not inclined to accept the contention of the petitioner for the following reasons:- Firstly by the order dated 26-11-2007 passed by this Court, it was provided that if the similarly situated candidates to the petitioner, are transferred, the petitioner’s case may also be considered, provided the same is in accordance with the Rules. Thus, two things were very necessary to be adhered to-first, similarly situated candidate must have been transferred and secondly, that such a transfer is according to Rules. The petitioner has nowhere stated in unequivocal term either in the writ petition or in the rejoinder affidavits, filed by her, that her case stands on the same footing as that of Sri Vijendra Singh. As against this, there are specific averments of the respondents in their counter affidavits, referred to above, that the case of Vijendra Singh is not similarly situated as that of the petitioner. It is specifically stated by the respondents that the application of the petitioner was received after the expiry of the period of three moths as specified in the transfer policy of the Government dated 29-12-2006. Secondly, in the order dated 02-1-2008 passed by the State Government whereby the representation of the petitioner was considered in the light of the order passed by this Court, it has been specifically mentioned that the transfer of Vijendra Singh and six others was made on ad hoc basis and not under the transfer policy. It is pertinent to mention that out of seven students mentioned in the transfer list (copy Annexure No. 7), six candidates are of 2005 Batch and the only candidate at Serial No.7 (Vijendra Singh) is of 2006 Batch, who belongs to Scheduled Caste category. Moreover, in the letter (copy Annexure No. 5 to the writ petition), which was sent by the respondent no.2 to respondent no.3 regarding transfer of five students including the petitioner, there is no mention of the name of Vijendra Singh, with whom the petitioner claims parity. Thirdly, there is no reliable proof that the application/representation for transfer was submitted by the petitioner on 14-10-2006 as asserted by her. The production of under Postal Certificate is not a proof that the letter so dispatched must reached its destination and that it did contain the particular application/representation. The petitioner could have obtained information under the Right to Information Act 2005 whether her application was received within the time limit, by the respondents. Fourthly, in the order (copy annexure No.7) it is mentioned that the transfer of the seven candidates, which included the name of Vijendra Singh (a candidate of Scheduled Caste of 2006 Batch) was made by extending relaxation in the norms. The Principal Secretary of the Government in his supplementary counter affidavit has specifically stated that the application of Vijendra Singh was received on 19-12-2006. The transfers of those seven candidates were made as special case by relaxing the condition/norms. It was also stated that the representation of the petitioner was received in the State on 2-8-2007. Copy of undated representation (Annexure No. S.C.A. 4) was not denied by the petitioner by way of rejoinder affidavit or otherwise, while it is the own case of the petitioner that she made representation to respondent nos. 1 and 2 on 18-7-2007 and the petitioner herself has annexed undated representation as Annexure No. 4 to the writ petition. The contents of the application (copy Annexure 2 addressed to Secretary, Health Department are the same. The only difference is that the petitioner had enclosed selection certificate and medical certificate along with the application addressed to the Secretary, while the application (copy Annexure no.2) does not contain any enclosures. The petitioner has not even stated in her latter application sent to the Secretary that she had ever made such an application to the respondent no.2 on or about 14-10-2006. Therefore, it is not acceptable that the petitioner had actually made any application within time and that too in parity of the application made by Vijendra Singh. For the reasons and discussion aforesaid, the petitioner has failed to claim parity with the case of Vijendra Singh. The writ petition filed by the petitioner is devoid of merit and is liable to be dismissed. The wit petition is dismissed. Cots easy. (B.S. Verma, J.) RCP