MAHIPAL SINGH RATHOR Vs. STATE OF UTTARAKHAND
LAWS(UTN)-2013-7-32
HIGH COURT OF UTTARAKHAND (AT: NAINITAL)
Decided on July 30,2013

Mahipal Singh Rathor and Others Appellant
VERSUS
State of Uttarakhand and others Respondents

JUDGEMENT

- (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, except (1) on account of inefficiency or misbehaviour, or (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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