Uttarakhand High Court
Kamal Singh And Others vs State Of Uttarakhand And Others on 5 April, 2025
Author: Ravindra Maithani
Bench: Ravindra Maithani
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/S) No. 331 of 2025
Kamal Singh and others ........Petitioner
Versus
State of Uttarakhand and others .....Respondents
Present:-
Mr. Vinay Kumar, Advocate for the petitioners.
Mr. Ganesh Kandpal, Deputy Advocate General with Mr. Narain
Dutt, Standing Counsel for the State.
Mr. K.P. Upadhyaya, Senior Advocate assisted by Mr. V.P.
Bahuguna, Advocate and Mr. Sandeep Tiwari, Advocate for the
interveners.
Hon'ble Ravindra Maithani, J. (Oral)
The challenge in this petition is made to the Standard
Operating Procedure (“SOP”) dated 23rd December, 2024 issued by
the respondent no. 1 with regard to cadre transfer of Assistant
Teacher LT Grade. The challenge is also made to a communication
dated 6th March, 2025 made by the Director, Secondary Education,
Uttarakhand by which it was conveyed that the transfer order
pursuant to cadre transfer of Assistant Teacher LT Grade will be
distributed by the Minister.
2. The petitioners are guest teachers working in different
schools in the Sate of Uttarakhand.
3. It is the case of the petitioners that in the
State of Uttarakhand, the transfers of Government servants
are governed by the Uttarakhand Annual Transfer of Public
2
Servants Act, 2017 (“the Transfer Act, 2017”). It provides for transfer
of Government servants under different categories and in different
manners. The transfer session starts from 1st April and ends on 31st
March of subsequent year. But, in between, on 23.12.2024, the
impugned SOP has been issued by the respondent no. 1 for
facilitating the transfer of Assistant Teachers LT Grade by change of
region/cadre and it has been permitted to such teachers, who have
rendered five years satisfactory service in their cadre/region.
4. According to the petitioners, the service rules, which
govern the services of teacher is Uttarakhand Subordinate Education
(Trained Graduate Category) Service Rules, 2014 (“the 2014 Rules”).
The 2014 Rules provide that there will be a separate cadre of General
Branch and Women Branch in each region. Rule 4(2) of the 2014
Rules mentions that the number of members in service in a Division
will be same as has been mentioned by the Government from time to
time. It is the case of the petitioners that the applicants, who have
been proposed for transfer as per the SOP from one region to another
are not equal. The impugned SOP is also not in accordance with law
because it has been issued in violation of the provisions of the
Transfer Act, 2017, as any deviation or relaxation or change in the
provisions of the Transfer Act, 2017 can only be made by a
Committee headed by the Chief Secretary under Section 27 of the
Transfer Act, 2017.
5. When the matter was heard on 11.03.2025, notices were
issued and the matter was fixed for final hearing. The Court also
granted interim order and the effect and operation of the impugned
3
order was stayed. Thereafter, intervention applications have been
received. Objections have been filed by the interveners. The matter
was heard on interim relief application.
6. On 04.04.2025, when the matter was taken up, learned
counsel for the parties submitted that the matter may be finally
decided based on the material available on record. The matter was
heard yesterday and continued today.
7. Heard learned counsel for the parties and perused the
record.
8. Learned counsel for the petitioners would submit that
the Transfer Act, 2017 is a self-contained complete Act, which makes
provision with regard to shifting of Government employees in terms
of transfer, promotion, etc.; it also contemplates relaxations in terms
of change of cadre also; but, for that purpose, a Committee
constituted under Section 27 of the Transfer Act has to take
decision, which is headed by the Chief Secretary. He would raise the
following points in his submissions:-
(i) All the contingencies that are supposed to be met
by the impugned SOP are already contained in the
Transfer Act, 2017.
(ii) The grounds for change of cadre as given in SOP
are one and the same as given in the Transfer Act,
2017.
4
(iii) The impugned SOP is another process for transfer,
which could not have been done by the
respondents.
(iv) The SOP is teacher centric; it does not take care of
the students; if teachers are transferred from one
region to another region, the SOP does not make
provision as to how the position, from where a
teacher is shifted, will be filled up?
(v) Rule 4 of 2014 Rules could have been relaxed by
an order in view of Rule 27 of the 2014 Rules;
there is no need to issue an SOP for that purpose.
(vi) The SOP is, in fact, subject to the conditions as
given under Section 17 of the Transfer Act, 2017.
Therefore, it is argued that the SOP needs to be
quashed.
9. On the other hand, learned Senior Counsel appearing for
the interveners would submit that Rule 4 of the 2014 Rules has
already been amended now and a proviso has been added to Rule 4
of the 2014 Rules, which permits inter-cadre transfer only to such
teachers, who have completed five years of satisfactory service. It is
also argued that proviso to Rule 4(1) of the 2014 Rules also makes
provision that for that purpose an SOP shall be prepared; it has been
prepared and impugned in the writ petition. Learned Senior Counsel
for the interveners also raised the following points in his
submissions:-
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(i) The Transfer Act, 2017 is a general provision
applicable to all services.
(ii) The 2014 Rules are statutory rules, which have
force of law.
(iii) Rule 4(1) of the 2014 Rules has been amended in
the year 2024, by which a proviso has been added
and a provision for inter-cadre transfer has been
added into it; it is subsequent to the Transfer Act,
2017, therefore, it shall have overriding effect.
(iv) The Transfer Act, 2017 is a general statute,
whereas the 2014 Rules are specific to the
Assistant Teachers; in that eventuality also, the
statutory rules, which are specific in nature shall
prevail.
(v) Both the Transfer Act, 2017 and Rule 4(1) of the
2014 Rules act in different sphere; there is no
inconsistency. He would submit that the Transfer
Act, 2017 though also makes provision with
regard to inter-cadre transfer under certain
contingencies and subject to the provisions as
contained under Section 17 of the Transfer Act,
2017. But, he would submit that Rule 4(1) of the
2014 Rules makes provision in the service rules
itself that any teacher, who has completed five
years satisfactory service may apply for his
transfer, irrespective of any contingency. He would
6also submit that the petitioners have no locus
standi to challenge the SOP.
10. Undoubtedly, the Transfer Act,2017 makes elaborate
provisions with regard to transfer. It also makes provisions with
regard to transfer on the basis of request. Section 17 of the Transfer
Act makes provision in this regard. Section 17(2) (e) of the Transfer
Act and its proviso make proviso in regard to change of cadre. It
reads as follows:-
“17. Consideration on transfer proposals by transfer
committee (1) ……………
(2)………
(a)………
(b)……..
(c)……
(d)………
(e) Transfers shall be made only against cadre
post/ places and shall not be made against the post
/places which are out of the cadre (such as, inter
district/inter divisional transfers for district/
divisional cadres):
Provided that cadre change/out of cadre
transfer of any employee shall be allowed in case of
marriage between two employees or displacement of
employee due to acquisition of properties for
development projects/natural calamity subject to
the condition that such employee shall be treated as
junior most in the new cadre and approval of the
committee constituted under section 27 shall be
necessary to obtain.”
11. There is a complete procedure under Section 27 of the
Transfer Act, 2017 with regard to deviation or relaxation in respect of
7
any transfer. The Committee so constituted under this Section has to
take a decision, which further requires approval.
12. A perusal of the proviso to Section 17(2)(e) of the
Transfer Act, 2017 makes it abundantly clear that change of cadre
transfer is permissible under certain circumstances. The Transfer
Act, 2017 may be termed as a general statute applicable to all
services. The 2014 Rules are specific and are applicable to the
Assistant Teacher LT Grade in the State.
13. Rule 4 of the 2014 Rules reads as follows:-
“4(1) There shall be one cadre of general and women branch
in every mandal under this rules:
Provided that those assistant teacher LT, who have
completed 5 years of satisfactory service in their parent
cadre (the cadre in which they are appointed), shall, after the
approval of the Government, get onetime benefit ofmandal/cadre change in entire service period. The
Government shall lay down the SOP regarding the procedure
to be followed for the mandal/cadre change.”
14. It is admitted that the proviso to Rule 4(1) of the 2014
Rules were added in the year 2024. This is subsequent in point of
time to the Transfer Act, 2017.
15. In the case of Yakub Abdul Razak Memon v. State of
Maharashtra through CBI, Bombay, (2013) 13 SCC 1, the Hon’ble
8
Supreme Court discussed the effect of two Acts in their application
and observed as follows:
“1516. A statute must be interpreted having regard
to the purport and object of the Act. The doctrine of
purposive construction must be resorted to. It would not be
permissible for the court to construe the provisions in such
a manner which would destroy the very purpose for which
the same was enacted. The principles in regard to the
approach of the court in interpreting the provisions of a
statute with the change in the societal condition must also
be borne in mind. The rules of purposive construction have
to be resorted to which would require the construction of the
Act in such a manner so as to see that the object of the Act
is fulfilled; which in turn would lead the beneficiary under
the statutory scheme to fulfil its constitutional obligations. It
is the duty of the court to adopt a harmonious construction
by which both the provisions remain operative.
[Vide Cantonment Board, Mhow v. M.P. SRTC [(1997) 9 SCC
450 : AIR 1997 SC 2013] , Bharat Petroleum Corpn.
Ltd. v. Maddula Ratnavalli [(2007) 6 SCC 81] and Krishna
Kumar Birla v. Rajendra Singh Lodha [(2008) 4 SCC 300]1517. Where two statutes provide for overriding
effect on the other law for the time being in force and the
court has to examine which one of them must prevail, the
court has to examine the issue considering the following two
basic principles of statutory interpretation:
1. Leges posteriores priores contrarias abrogant (later
laws abrogate earlier contrary laws).
2. Generalia specialibus non derogant (a general
provision does not derogate from a special one.)1518. The principle that the latter Act would prevail
the earlier Act has consistently been held to be subject to the
exception that a general provision does not derogate from a
special one. It means that where the literal meaning of the
general enactment covers a situation for which specific
provision is made by another enactment contained in the
earlier Act, it would be presumed that the situation was
9intended to continue to be dealt with by the specific
provision rather than the later general one.
1519. The basic rule that a general provisions should
yield to the specific provisions is based on the principle that
if two directions are issued by the competent authority, one
covering a large number of matters in general and another to
only some of them, his intention is that these latter
directions should prevail as regards these while as regards
all the rest the earlier directions must be given effect to.
……………………………………………………………………
……………………………………………………………………………
……………………………………………………………………………
1522. Thus, where there is inconsistency between
the provisions of two statutes and both can be regarded as
special in nature, the conflict has to be resolved by reference
to the purpose and policy underlying the two enactments
and the clear intendment of the legislature conveyed by the
language of the relevant provisions therein. (Vide Ram
Narain v. Simla Banking and Industrial Co. Ltd. [AIR 1956 SC
614] , J.K. Cotton Spg. & Wvg. Mills Co. Ltd. v. State of
U.P. [AIR 1961 SC 1170] , Kumaon Motor Owners’ Union
Ltd. v. State of U.P. [AIR 1966 SC 785] , Sarwan
Singh v. Kasturi Lal [(1977) 1 SCC 750] , U.P. SEB v. Hari
Shankar Jain [(1978) 4 SCC 16 : 1978 SCC (L&S) 481]
, LIC v. D.J. Bahadur [(1981) 1 SCC 315 : 1981 SCC (L&S)
111] , Ashoka Mktg. Ltd. v. Punjab National Bank [(1990) 4
SCC 406 : AIR 1991 SC 855] and T.M.A. Pai
Foundation v. State of Karnataka [(2002) 8 SCC 481] .)”
16. In the instant matter, the service rules of 2014 have
been amended in the year 2024, which provides for inter-cadre
transfer and only those Assistant Teachers LT Grade, who have
completed five years of satisfactory service are eligible for that. The
2014 Rules also mandates that an SOP shall be prepared for that
purposes, which was made on 23rd December, 2024, which is
impugned.
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17. In fact, both the provisions of the Transfer Act, 2017 and
SOP as prepared under Rule 4(1) of the 2014 Rules, act in different
areas. Their area of operation is not one and the same. Seeking
transfer out of cadre may also be granted under Section 17(2)(e) of
the Transfer Act, 2017. But, it is confined to certain contingencies.
Perhaps such transfers may be sought by the Assistant Teachers,
who have completed only one year or two years service. That is an
exigency. Such requests need to be processed under Section 27 of
the Transfer Act, 2017 and after certain approvals only, such
requests can be processed.
18. But, now by virtue of proviso to Rule 4(1) of the 2014
Rules, the horizon has been widened. Any Assistant Teacher, who
has completed five years of satisfactory service may apply for such
transfer. How it is to be processed, for that purpose an SOP has been
prepared. In fact, the SOP supplements the provisions of the
Transfer Act, 2017. It is not inconsistent in any manner with any
provision of law. The SOP has been formulated under the statutory
rule.
19. An argument has been made that the impugned SOP
does not make provision for replacement of such teachers, who are
transferred under the SOP. This Court cannot calculate each and
every vacancy and the procedure for filling up the vacancy after
shifting of teacher. It may be left to the discretion and wisdom of
those authorities, who would implement the SOP.
20. The Rules of 2014 has statutory force. It is specific in
nature. The Transfer Act, 2017 is general in nature. Therefore, the
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SOP that has been made under the proviso to Rule 4(1) of the 2014
Rules may not be questioned on any grounds whatsoever. Therefore,
this Court does not see any reason to make any interference. While
allowing the intervention applications, the writ petition deserves to
be dismissed.
21. Intervention applications (IA Nos. 1 of 2025, 2 of 2025
and 3 of 2025) are allowed.
22. The writ petition is dismissed accordingly.
(Ravindra Maithani, J)
05.04.2025
Avneet/
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