Uttarakhand High Court
Smt Vimla Devi vs District Chief Education Officer ... on 24 August, 2015
Author: V.K. Bist
Bench: K.M. Joseph, V.K. Bist
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No. 415 of 2015
Smt. Vimla Devi. ............ Appellant
Versus
District Chief Education Officer & others. ............. Respondents
Mr. M.S. Chauhan, Advocate for the appellant.
Mr. H.M. Bhatia, Brief Holder for the State of Uttarakhand / respondent Nos. 1 to 4.
Mr. R.P. Nautiyal, Senior Advocate, assisted by Mr. B.S. Koranga, Advocate for
respondent No. 5.
JUDGMENT
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble V.K. Bist, J.
Dated: 24th August, 2015 K.M. JOSEPH, C.J. (Oral) Appellant is the writ petitioner. The prayers sought in the writ petition are as follows:
"a) issue a writ or order in the nature of certiorari quashing the impugned adjustment order dated 22.06.2015 (contained as annexure no. 5 to this writ petition).
b) Issue a writ, order or direction in the nature of mandamus directing the respondent not to disturb the petitioner from the present place of working."
2. The appellant was promoted as Assistant Teacher (LT Grade) Sanskrit by order dated 17.11.2011 and she was transferred from Government Primary School, Vidoly, Chamoli, to Government High School, Jhirkoti, Chamoli, on the post of Sanskrit. In the meantime, it appears that respondent No. 5 had also been promoted as Assistant Teacher (LT Grade) Sanskrit and she was transferred from Government Primary School, Jakheat, Chaurasain, Chamoli, to Government High School, Kanol, District Chamoli, by order dated 18.10.2011. It appears that the said order came to be amended and, in place of Kanol, District Chamoli, respondent No. 5 came to be posted at Government High School, Jhirkoti, Chamoli, i.e. the very same school to which the appellant was also posted. The appellant was given promotion prior to the posting of respondent No. 5. It so happened that respondent No. 5 joined at 2 Jhirkoti on 22.11.2011. Therefore, by the time the appellant appeared to join at Jhirkoti in the post of Assistant Teacher (LT Grade) Sanskrit, respondent No. 5 had already joined. Thereafter, by the impugned order dated 22.06.2015, appellant has now been transferred by way of adjustment.
3. The learned Single Judge found that, in view of the fact that there was a report by the District Education Officer dated 19.11.2011 that the post of Sanskrit Teacher was not vacant in the Inter College to which respondent No. 5 was originally posted, the Additional Director passed the order by which respondent No. 5 was posted at Jhirkoti. Still later, it appears that, on 25.11.2011, an order was passed by the Additional Director by which the appellant was adjusted in Jhirkoti itself on the post of Assistant Teacher (Hindi). There was, however, a stipulation that, as and when the post of Sanskrit Teacher falls vacant in the district, she shall be adjusted against the said vacancy. The impugned order is order dated 22.06.2015 by which the appellant is, now, posted in the district in the post of Assistant Teacher (LT Grade) Sanskrit. This was done in consonance with the earlier order dated 25.11.2011, as per which order, apparently, appellant was permitted to continue at Jhirkoti, but as Assistant Teacher (Hindi) till the vacancy in Sanskrit arose. The learned Single Judge, accordingly, found no merit in the writ petition and dismissed the writ petition.
4. We have heard Mr. M.S. Chauhan, learned counsel for the appellant; Mr. R.P. Nautiyal, learned Senior Counsel for respondent No. 5; and Mr. H.M. Bhatia, learned Brief Holder for the State.
5. The learned counsel for the appellant would complain that the appellant should not have been adjusted in the manner it was done. It is submitted that, actually, there was a vacancy of Assistant Teacher, Sanskrit, in the original School, where respondent No. 5 was given posting on promotion and that is wrongly reported and, therefore, the appellant, who was promoted earlier than respondent No. 5 and who was 3 given 20 days' joining time, was deprived of the right to join in the said vacancy as Assistant Teacher (LT Grade) Sanskrit. It is, therefore, submitted that the appellant cannot be, now, asked to move out.
6. Per contra, the learned Senior Counsel for respondent No. 5 would point out that, in the original school, to which respondent No. 5 was posted, somebody else was already posted and that necessitated the amendment in the order and the appellant also made a request for being permitted to join as Assistant Teacher (Hindi). The learned Brief Holder for the State would also submit that, not having challenged the order dated 25.11.2011, it is not open to the appellant to challenge the order dated 22.06.2015, which is only a consequential order.
7. We notice that the appellant, though was promoted and given posting at Jhirkoti, could not join in the said vacancy, as, prior to her joining, respondent No. 5 had joined in the said vacancy as Assistant Teacher Sanskrit. That came about on the basis of an order passed by which the original posting of respondent No. 5 was done away with and respondent No. 5 was posted as Assistant Teacher, Sanskrit. That order is not in challenge. Thereafter, it appears that, on the basis of order dated 25.11.2011, appellant was permitted to continue as Assistant Teacher (LT Grade) Hindi though she was given a promotion as Assistant Teacher (LT Grade) Sanskrit. This appears to have been only a temporary arrangement and, under that arrangement, appellant derived the benefit of continuing in the school for a period of four years; and, again, in terms of the same order, when the vacancy of Assistant Teacher in Sanskrit arose in the district, appellant was adjusted and was posted in the said vacancy.
8. Having set out the facts as above, we see no ground at all to interfere with the judgment of the learned Single Judge. The appellant not having challenged the earlier order in 2011 by which respondent No. 5 was given the posting and also having taken the advantage of order dated 25.11.2011, cannot be permitted to raise a challenge to order dated 4 22.06.2015, which is only a consequential order. Therefore, we see no ground to interfere.
9. The appeal fails and it is dismissed. No order as to costs.
(V.K. Bist, J.) (K.M. Joseph, C. J.)
24.08.2015 24.08.2015
G