- (1.) D. K. Seth, J. By an order dated 18th July, 1995, the petitioner was transferred from Government Inter College, Jhipa, Al-mora, to Government Inter College, Rudrapur, Nainital, which is Annexure RA-2 to the rejoinder- affidavit. By another order, dated 18th July, 1995 which is An nexure RA-3 to the rejoinder-affidavit, the respondent No. 5 was transferred from the same College at Rudrapur, Nainital to Government Inter College, Dharchula, Pithoragarh. Pursuant to the said order con tained in Annexure RA- 2, the petitioner had joined at Rudrapur on 28th July, 1995 and got his children admitted in different schools which are mentioned in the writ petition. The respondent No. 5 did not join the most of his transfer and moved Writ Petition No. 28556 of 1995 challenging the said order which was dismissed by order dated 11th October 1995 which is Annexure 2 to the writ petition. Thereafter on the basis of the representation made by respon dent No. 5, by an order dated 13th Decem ber 1995, the respondent No. 5 was attached to Government Inter College, Rudrapur on the ground that the respondent No. 5 in his representation had pointed out that there are about 300 students in Maths and con sidering the difficulties of the students in the said school as well as that of respondent No. 5, the said order of attachment was passed. In the order of attachment, it was pointed out that if there is any post vacant, in that event, he will be attached to such vacant post. Thereafter the respondent No. 5 made a further representation on the basis whereof, by an order dated 9th August 19%, the respondent No. 5 was retransferred to Rudrapur while the petitioner was trans ferred to Government Inter College, Jhipa, Almora. This order was challenged by the petitioner in Writ Petition No. 27732 of 19%. By an order dated 27th August 1996. the said writ petition was dismissed with the observation that he may make a repre sentation before the respondent No. 3 and the same may be considered by the con cerned authority accordingly in the light of the observations made therein. It was also pointed out that if necessary, the respon dent No. 3 may pass appropriate order stay ing the order of transfer till the next educa tional session. In the said order, the opera tion of the order was stayed for one month or till a fresh order is passed. A Special Appeal was preferred against the said order being Special Appeal No. 678 of 19%. By an order dated 18th September, 1996, only that part of the order by which the operation of the order was stayed was set aside. There after the petitioner's representation was considered and disposed of by order dated 8th November 1996 which is Annexure 18 to the writ petition. It is this order which has since been challenged in the present writ petition.
(2.) LEARNED counsel for the petitioner challenges the said order on the ground that the petitioner had joined the post and got his children admitted in the schools at Rudrapur, therefore, he could not have been transferred in mid session only in con sideration of representation of respondent No. 5 though the agrees that on administra tive necessity, he may be transferred. But only in order to accommodate the respon dent No. 5, the petitioner could not be transferred. Inasmuch as according to him, to accommodate one, the other cannot be put to difficulty for no fault on his part particularly when he had complied with the order of transfer while the respondent No. 5 did not comply with the same and his at tempt to get the order stayed had failed. He further contends that in the order the ques tion of study of the children of the petitioner and respondent No. 5 had been compared and preference was given to respondent No. 5 though in the facts and circumstances of the case, such preference ought to have been given to the petitioner. He also contends that since the petitioner had joined the post, therefore, the said order of transfer could not have been recalled. He further contends that an enquiry was pending against the respondent No. 5. But the respondent No. 5, though had admitted that complaints were filed, according to the learned counsel for the petitioner, nothing has been produced to show that the enquiry is dropped. He further contends that once he has been at tached and he was paid salary for nine months from the funds of the Government Inter College Jhipa, for no apparent reason, the petitioner could not have been shifted only to accommodate the respondent No. 5. The learned counsel for the petitioner fur ther contends that in view of the policy of transfer which is applicable in the case of the petitioner and respondent No. 5, as con tained in Annexure 1, normally a person is posted for a period of three years and after completion of the said three years, he may be transferred else where. Admittedly, both the petitioner and respondent No. 5 had completed five years of stay in their respec tive places of transfer. Therefore, in normal course, there is nothing to oppose the order of transfer. Mr. B. D. Mandhyan, learned coun sel for respondent No. 5, on the other hand, contends that the Government Order con tained in Annexure 1 may be a policy decision on transfer but the same has no statutory force and, as such, no reliance can be placed thereon. Though the admits that respondent No. 5 was for more than 5 years at Rudrapur but there are at least 22 teachers, who, no points out from a certifi cate issued by the Principal and the state ment made in the counter-affidavit, had been continuing at Rudrapur for a period of over 5 years extending to 25 years. He fur ther points out that the transfer having been made by the authorities who had in them the authority to transfer this Court cannot in terfere with the said order of transfer in exercise of writ jurisdiction unless it is shown that the said order is mala fide or is violative of any provision of law. He con tends that the respondent No. 5 was trans ferred on account of a complaint against him and as soon as the complaint was found to be false, the ground for transfer having become non-est, the order of transfer has been rightly recalled. Since the petitioner was accommodated at the place of respon dent No. 5, the moment the ground for transfer of respondent No. 5 becomes non-est, the petitioners is liable to go back to his own post. He further contends that the petitioner has not yet been confirmed, in his service, therefore, he cannot be transferred. I have heard both the learned coun sels extensively. So far as the question of transfer on account of complaint, as con tended by respondent No. 5 is concerned, the same does not find place in either of the order of transfer contained in Annexures RA-2 and RA-3 in his favour. The order of transfer, as it appears from Annexures RA-2 and RA-3 are general transfers of several persons from one place to another. Though the petitioner was transferred in place of respondent No. 5 but the respondent No. 5 was transferred to some other place and not in place of the petitioner. The policy of transfer, as contained in Annexure 1, may not have statutory force, but still then it is a policy of the Government laying down the guideline in which transfers are being made. Now general order of transfer having been passed in respect of many other persons, it cannot be said that similar order cannot be passed against the respondent. When others are subjected to transfer, the respondent No. 5 cannot claim a special right of not being transferred. Where many other teachers who have continued for over 5 years, even upto 25 years, have not been transferred, the respondent No. 5 cannot be said to be discriminated solely on that ground vis-a-vis the petitioner when the petitioner himself has been subjected to such transfer. The first order by which the petitioner was sought to be attached to Jhipa appears to have been passed in on the ground that there were 350 students in the College whereas from the statement made in paragraph 11 of the counter-affidavit, it appears that there are only 259 students. Therefore, the said order appears to have been based on wrong premises as pleaded by respondent No. 5. Then again once he having been attached to the same college against a vacancy, if there be any, there could not have been any ground to recall the order of transfer of the petitioner on a sub sequent representation. Inasmuch as the at tachment was made in consideration that there was requirement of another teacher in Maths on the basis of the strength of the students. The said attachment was made having regard to the hardship suffered by respondent No. 5. But while passing the subsequent order contained in Annexure 7, the hardship of the petitioner was not taken into account. While considering the hardship of respondent No. 5, the hardship of the petitioner was also to be taken into account since the said order of retransfer of respondent No. 6 has no where pleaded to be on administrative exigency. On the other hand, it was on the basis of a representation and in consideration of the hardship of the respondent No. 5. In such cases, the hardship of the other incumbent is also to be taken into account. However, in the second order contained in Annexure 18 a compara tive study of the hardship had been taken into account. It appears from the said order that three of the children of the petitioner were reading in Class VII, V and I respec tively at Rudrapur while two of the children of respondent No. 5 were reading in Class VI and B. Sc. I Year respectively. At the same time, the children of respondent No. 5 had been reading in the same Schools or Col leges when the order of transfer was passed at the beginning of the session. The respon dent No. 5 did not join the post and unsuc cessfully attempted to get the order of trans fer quashed through the writ petition which stood dismissed and made a further repre sentation by whish obtained an order of attachment allegedly on the ground that there are 350 students requiring the necessity of another teacher at Rudrapur. There fore, he himself was responsible for the con tinuance of his children at Rudrapur whereas the petitioner had joined in com pliance of the order of transfer and got his children admitted in the said School bring ing them from Jhipa. The order also records an observation that the order dated 27th August 1995 passed in Writ Petition No. 27732 of 1995 was set aside by the Division Bench in Special Appeal No. 678 of 1996. It was only the stay of the operation of the order of transfer was set aside and not the whole order dated 27th August 1996. There fore, the order dated 27th August 1996 directing the respondents to consider the case of the petitioner remains intact. But nothing has been reflected on the same.
(3.) SINCE neither in the order of transfer nor in the order of attachment nor in the subsequent two orders on the respective representations of respondent No. 5 and the petitioner, it has never been pointed out that the order of transfer of respondent No. 5 was passed on the ground of pendency of any enquiry, it is not necessary to go into that question even though both the learned counsels had addressed on the same. In the absence of any material in the order of transfer or in the representation that the original order of transfer was based on the complaint of respondent No. 5, the conten tion that the complaint having been proved false, the basis have become non-est can not stand to reason. In the facts and circumstances of the case, since the attempt of the respondent No. 5 to challenge the order of transfer stands unsuccessful by reason of the dis missal of the writ petition, no ground chal lenging the order of transfer can remain open to be agitated by him on the ground that many of the teachers have been serving for over 5 years at Rudrapur. Therefore, that ground also is no more open to the petitioner so far as the order of transfer originally issued is concerned. In the facts and circumstances of the case, no reason has been pointed out as to which factor weighed with the respondents in accommodating the petitioner at Rudrapur even after the order of transfer was issued as it appears from the order of transfer or administrative exigency by way of general transfer along with others and what special circumstances had led the authority to recall the order of transfer of the petitioner in particular has not been disclosed. There are scope of or reason to suspect that only on extraneous considera tion the order was passed for accommodat ing the petitioner simply on the ground of his representation without taking into ac count the hardship of the petitioner and that too through two successive orders, namely, Annexures '3' and '7' respectively.;