The Punjab and Haryana have put the Chandigarh administration on notice on a plea challenging the appointment of Harbir Singh as the district education officer (DEO).Singh will be replacing Alka Mehta, the incumbent, whose appointment is already under challenge before the high court by former DEO Anujit Kaur. The high court bench of Justice Daya Chaudhary and Justice Meenakshi Mehta has sought UT’s response by August 17.
Facts in Brief:
- The Petitioner, Anujit Kaur, was appointed as Lecturer (English) on 12.02.1987. She was appointed as Principal, w.e.f. 30.08.2007. Then she came to be appointed as Deputy District Education Officer (DDEO) on 22.09.2016 and worked as such upto 24.11.2017. The promotion from the post of DDEO is to the post of DEO was governed by Punjab Educational Service (School and Inspection) (Class-II), Rules 1976. The applicant was accordingly appointed as such vide order dated 24.11.2017.
- Later on, she was transferred to an ex-cadre post of DDAE-I, and Respondent No. 4 (Smt. Alka Mehta) was posted as DEO, vide order dated 26.11.2019.
- The applicant has filed this Original Application under section 19 of the Administrative Tribunals Act, 1985, seeking quashing of the order dated 26.11.2019.
- On 24.12.2019, CAT granted the interim relief to Anujit Kaur and stayed the Education Department’s order, Chandigarh, of transferring her.
- Alka Mehta challenged the interim decision of CAT in Punjab and Haryana High Court.
- On January 6, 2020, Hon’ble High Court stayed the interim order of CAT and allowed the Petitioner, Alka Mehta, to continue in the post of CEO.
- Meanwhile, the Education Department appoints Harbir Singh as the new DEO.
- Anujit Kaur challenged this decision in the Hon’ble High Court. In the latest hearing, the High Court issued notice to the concerned department.
It is also well-settled law that inter-cadre transfers are not permissible. The Hon’ble apex court in the case of Kavi Raj v. Jammu & Kashmir, (2013) 3 SCC 526, Held that an employee could only be transferred to a post against which he is elected which would ensure his stationing, within the cadre of posts, under his principal employer unless his posting is regulated differently by statutory rules, governing his conditions of service. It was also held that in the absence of any such rules, an employee could not be posted or transferred beyond his cadre to which he is selected, without his willingness/readiness.
It was also held that by the Hon’ble Supreme in the case of V Jagannadha Rao v. the State of AP, (2001) 10 SCC 401. It washeld that a government servant is liable to be transferred to a similar post in the same cadre, which is a standard feature incidence of government service, and he cannot be transferred without his consent to another cadre.
Regarding the appointment of Harbir Singh as DEO, Kaur argued that by this appointment, instead of resolving the matter, the education department has passed a fresh order, which will further complicate the matter.She has argued that Singh has been posted as DEO, though he is at a serial number 15 of the gradation list as per departmental seniority list.Kaur argued that being the senior-most in the department should have been allowed to continue on the post. She wants the department to conduct a regular Departmental Promotion Committee (DPC) and award regular promotion to the post of DEO. She is set to retire in September 2020.
Hearing the arguments, Justice Daya Chaudhary and Meenakshi Mehta issued the notice to the Education Department, Chandigarh, to reply by next hearing scheduled on August 17, 2020.
Arguments presented earlier in CAT by the petitioner based on which court stayed the appointment of Alka Mehta:
The counsel of her behalf argued that despite the availability of the eligible candidates in feeder cadre, no meeting of DPC had been convened. Instead, adjustment/transfer orders are issued, posting the incumbents as DEO, without any remuneration.
According to the Punjab Educational Service (School and Inspection General Cadre) Group A Service, Rules 2018 applicable to UT, the post is to be filled-up 100 percent by promotion from among DDEOs and the Principals of Government Senior Secondary Schools. It is pleaded that consciously, in the recruitment rules of 2018, the ex-cadre post of DDAE and DDV has not been included. In the gradation list of Inspection Cadre as on 1.05.2017, the applicant’s name is at S no. 6. It is pleaded that incumbents at serial no 1 to 5 have already been retired. She claims that she is the senior-most eligible candidate in the feeder cadre for promotion to DEO’s post, which she has been occupying since 24.11.2017.
Kaur claimed in her petition that she was the senior-most eligible candidate in the feeder cadre for promotion to the post of DEO, which she had been occupying since November 24, 2017. Further, she had submitted a representation for the promotion in August 2019, but to no avail. While in October 2019, the Education Department had sought to transfer her from the post of DEO to an ex-cadre post of DDVE/DDAE and to post Alka Mehta as the DEO, who was alleged to be a junior to her, against which she had submitted a representation on October 9, 2019.
Kaur had also sought for the issuance of directions to the UT Education department to consider and promote her as DEO, following the Punjab Educational Service (School and Inspection General Cadre) Group A Services Rules, 2018, read with Punjab Educational Service (School and Inspection) (Class-II), Rules, 1976, as applicable to UT Chandigarh with all the consequential benefits, and also not to post her to the ex-cadre post of DDAE or Deputy Director Vocational Education (DDVE), without her consent.
The counsel for Kaur pleaded that she would suffer irreparable loss and injury as she would be forced to perform her duties against a post which was not equivalent to the post of DDE, earlier held by her.
Arguments rejected by CAT:
It was also argued that the pay scales of all the three posts, which were DDEO-II, DDEO-I, and DEO, were the same, and therefore, interchangeable, considering the exigencies of work and administrative grounds. He had further said that they had the same feeder cadre, and the salary of the posts was being met from the state budget of UT Chandigarh, and thus, the relief sought could not be granted.
Arguments Presented by Mehta’s counsel in High Court:
During the hearing of the case, the education department directorate filed its reply in the HC, whereby it was stated that the post of DEO is not promotional. It was mentioned that at present, four deputy director posts in the education department had been filed by way transfer of posting from equivalent positions. It was also submitted that CAT had granted relief to Anujit Kaur without a full quorum.
Senior advocate SD Sharma had argued that CAT had passed the interim order without giving Mehta any opportunity to file a reply. It was also submitted before the HC that the post of DEO and principle bear the same status and are all cadre posts in the UT. Sharma added that Punjab Education (School and Inspection General Cadre) Group A Service Rules 2000 are still applicable in Chandigarh. He stated that the powers of the department concerned are uncontrollable as it is the prerogative of the education department to transfer the employee, and the latter cannot challenge it.
For case specific advice consults with service Law subject matter expert and gets professional Legal advice from Top High Court Service lawyer in Chandigarh Panchkula Mohali. Kharar Derabassi Zirakpur
This post is written by Gourav Kathuria
More on 99888-17966.