MAHIPAL SINGH RATHOR Vs. STATE OF UTTARAKHAND
HIGH COURT OF UTTARAKHAND (AT: NAINITAL)
Mahipal Singh Rathor and Others
State of Uttarakhand and others
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(1.) All the petitioners in the above bunch of writ
petitions are teachers working in different Government
Schools in the State of Uttarakhand. These teachers
belong to various grades of schools. Some of them are
teachers in primary schools or upper primary schools.
Others are teachers in Government Higher Secondary
Schools or Government Intermediate Colleges. The
common factor in all these writ petitions is that all the
petitioners are presently aggrieved by their transfer from
one Government School to another. Another factor which
is common to all these writ petitions is that such transfer
orders have been passed by the Education Authorities in
the State of Uttarakhand in accordance with the Transfer
Rules framed for teachers in the year 2013, which are
known as Uttarakhand Teacher (Schools Education) First
Appointment, Promotion and Posting on Transfer Rules,
2013 (hereinafter referred to as Transfer Rules).
(2.) Although in some of the writ petitions, the vires of
the Transfer Rules has also been challenged, with a
prayer that the Transfer Rules, 2013 itself be declared
unconstitutional, yet in majority of the writ petitions
what is under challenge is the system of "grading" and
the "points" given to both schools and to its teachers who
are teaching in such schools, which has formed the basis
of these transfers. The petitioners while challenging these
grading contained in Rule 4 of the Transfer Rules, 2013
have called it arbitrary, illegal, irrational and illogical.
(3.) It is an admitted position that prior to Transfer
Rules framed in 2013, the transfer of teachers in the
State of Uttarakhand was being made on the basis of
policies formulated in terms of Government Orders,
which were being issued from time to time. There were no
rules governing transfer of such teachers. In fact, to put
it plainly, the transfer being an incidence of service in
public employment and it being such an essential
component of the whole system of Government service,
there need not be specific rules governing transfer or
giving powers to the authority or even elaborating who
would become liable for transfer and when and where!
The parameters which govern service and transfer of
teachers are already there in Fundamental Rule 15 which
reads as under :
"15. (a) A Government servant may be
transferred from one post to another; provided that,
(1) on account of inefficiency or misbehaviour,
(2) on his within request,
a Government servant shall not be transferred
substantively to, or, except in a case covered by
Rule 49, appointed to officiate in, a post carrying
less pay than the pay of the permanent post on
which he holds a lien, or would hold a lien had his
lien not been suspended under Rule 14.
(b) Notwithstanding anything to the contrary
contained in these Rules, the Governor may in the
public interest transfer a Government servant to a
post in another cadre or to an ex-cadre post.
(c) Nothing contained in clause (a) of this Rule
or in clause (13) of Rule 9 shall operate to prevent
the retransfer of a Government servant to the post
on which he would hold a lien, had it not been
suspended in accordance with the provisions of
clause (a) of Rule 14.]"
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