GURMIT BHUTIA Vs. STATE OF SIKKIM
LAWS(SIK)-2010-9-16
HIGH COURT OF SIKKIM
Decided on September 06,2010

GURMIT BHUTIA,Chewang Bhutia,Laden Lepcha,Lackchung Lepcha,Chewangzum Bhutia,Sonam Loday Bhutia Appellant
VERSUS
STATE OF SIKKIM,Secretary, Human Resource Development Department,Special Secretary, Human Resource Development Department,Additional Secretary, H.R.D. Department Respondents

JUDGEMENT

DINAKARAN,CJ - (1.) THE petitioners are language teachers. They are challenging the impugned proceeding dated 13.03.2010 passed by the Special Secretary, Human Resource Development Department, Government of Sikkim, Gangtok, which in our considered opinion, on the face of it, is an order of transfer simpliciter, as there is nothing mala fide or arbitrary in it.
(2.) HOWEVER , Ms. Doma T. Bhutia, the learned counsel appearing for the petitioners invites our attention to the note- sheet dated 13.03.2010, the relevant portion of the same reads hereunder: "In continuance of the above proposal at prepage, we have received another recommendation for transfer and posting of Language Teachers from the office of the Hon'ble Minister WS and PHED and Transport Department, Government of Sikkim, along with the recommendation of Hon'ble MLA, 21, Gnathang Machong Constituency, which may be seen at cp-1-3." 2.1 It is true that the said note-sheet was not only signed by the Joint Secretary (Administration) but also approved by the Hon'ble Minister, Human Resource Development Department, Government of Sikkim. 2.2 Inviting our attention to the said note-sheet, the learned counsel for the petitioners contends that the impugned order of transfer was made only pursuant to and on the strength of such recommendation, referred to above, and is therefore mala fide, and that the petitioners have no grievance against the Hon'ble Minister, WS and PHED and Transport Department or against the Area MLA, 21-Gnathang Machong Constituency, but are aggrieved by the Human Resource Development Department, which has acted arbitrarily against the petitioners. In this regard, by an Order dated 03.09.2010, we had directed the Special Secretary, HRDD, to explain the circumstances under which the impugned order of transfer was made. Pursuant to the said direction, the Special Secretary, HRDD, Government of Sikkim, has filed an affidavit dated
(3.) 09.2010, the relevant portion of the same is as under: "3. It is submitted that a recommendation for transfer and posting of language teachers were received from the office of the Minister, Water Security and Public Health Engineering Department and Transport Department and also from M.L.A., 21 Gnathang, Machung Constituency. The matter was deliberated amongst the officers concerned and it was decided that since the transfer to be affected was based on the recommendation of the area M.L.As and not on complaint against the said teachers, the proposal was put up before the Government for their consideration. 4. That this answering respondents would also like to place on record that the Department has not received any complaint against the petitioners as well as the respondents teachers either from the Minister concerned or from the MLA nor from public. The Department had mooted the proposal for transfer of the petitioners as being done in all other cases in a routine manner and not on the basis of any complaint or pressure from any authority. 5. As evident from the above, the said transfer was affected on the recommendation of the area MLAs and not based on complaint or on the direction/behest of higher authority. In other words, the transfer were affected in a routine manner and not arbitrarily or with mala fide intention as alleged by the petitioners." 4. Ms. Doma T. Bhutia, the learned counsel for the petitioners, in the light of the said affidavit dated 04.09.2010, derived strength and contends that the impugned order of transfer was based on the recommendations of the Area MLA and, therefore, the same is arbitrary and mala fide. She further contends that the impugned order of transfer is also contrary to the guidelines issued by the Government on 10.07.2009, as per which - (i) The teachers who have crossed more than five years in a particular school may be transferred wherever required. (ii) The teachers who are above 50 years of age will not be transferred. (iii) The "first come first go" policy will be adopted in all cases. (iv) The recommendation of Head of Schools is also needed in case of posting of excess teachers. (v) Married teachers/husband/wife to be posted in nearby area. 4.2 The learned counsel for the petitioners further submits that the above guidelines should be strictly followed. In addition to the above contention, the learned counsel for the petitioners also complains that the petitioners have also been arbitrarily deprived of their Transfer Allowance (TA) and Dearness Allowance (DA), which are admissible under the Rules. ;


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