JUDGMENT Rafat Alam and Vikram Nath, JJ.
1. This appeal arises from the order of learned single Judge dated 26.2.1997 in Writ Petition No. 13128/1981 whereby the writ petition was dismissed.
2. Heard Sri K.A. Ansari, learned counsel for the appellant and Sri R.K. Tiwari learned counsel for the respondents.
3. It appears that the petitioner-appellant was appointed as Asstt. Teacher in Kanya Primary School, Hasanpur district Moradabad on 27.11.1969. She was thereafter promoted on the 1.06.1971 as Asstt. Teacher in the Junior High School. Since her husband was in government service and was posted at Amroha, she moved an application in October 1980 and requested to give her posting at Amroha. The respondent 1 vide order dated 29.10.1980 allowed the request and she was posted as Asstt. Teacher in Panna Lal Balika, Primary School at Amroha. Later on it was realized that the appellant was a teacher of Junior High School which is admittedly higher in rank and had a higher then pay scale than primary school teacher therefore it was directed vide order dated 04.02.1981 to post her in Junior High School. Pursuant thereto the respondent 3 posted her in Junior High School, Kanya Kirmottar Kala, Amroha on 23.2.1981 where she joined and started working. However, on 19.8.1981 all of sudden the respondent 2 recalled the order dated 04.02.1981 and posted earlier her again at earlier place of service in Amroha i.e. Panna Lal Balika Primary School at Amroha. Being aggrieved, the petitioner in preferred the Writ Petition on the ground of reduction in rank and emoluments of salary and that too without notice or opportunity. This Court granted interim order on 22.10.1981 which was confirmed on 08.04.1982. However, learned single Judge dismissed the writ petition on 26.02.1997 on the ground that since her transfer was on her own request and also on her consent to join Primary School and therefore, the same cannot be interfered with. In the special appeal also there was an interim order dated 08.04.1997 restraining the respondents from transferring the appellant. It is thus apparent that appellant has continued in Junior High School in Amroha since 1981.
4. Sri K.A. Ansari, learned counsel for the appellant urged that the transfer of appellant from Junior High School to Primary School is undisputedly adverse to her status and will also adversely affect the emoluments in salary. He further submitted that once she had been transferred to Junior High School at Amroha, the same could not be cancelled. An affidavit has also been filed on 12.2.2004 wherein it is stated that the appellant is continuing in Junior High School by virtue of interim order of this Court initially passed in the writ petition and subsequently passed in appeal and she is now attaining the age of superannuation and is due to retire next year i.e. in 2006.
5. On the other hand, the learned Standing Counsel opposed the appeal and submitted that the appellant had applied for her transfer from Hasanpur to Amroha and had even given her consent for being posted in the primary school. It is further contended that the learned single Judge has also recorded a similar finding while dismissing the writ petition that the petitioner having prayed for transfer to Amroha even on the condition that she was willing to join the primary school as Asstt. Teacher cannot subsequently turn around and claim that posting in primary school was bad.
6. We have considered the submissions advanced on both the sides and have also perused the record and the impugned order passed by the learned single Judge.
7. There is no dispute that the petitioner was a teacher in the Junior High School and was entitled to be posted in any Junior High School. It is also not in dispute that the pay scale of a teacher in a Junior High School is higher than that of a teacher in Primary School. It is not disputed that when petitioner/appellant requested for transfer to Amroha she gave her consent for even joining in a Primary School as a teacher at a lower pay scale. This consent may have been given out of desperation and anxiety to join her husband at Amroha who was posted there. The petitioner/appellant also honoured her commitment to work at lower pay scale and joined the primary school as a teacher at Amroha. Later on as there was a vacancy in a Junior High School at Amroha she was offered that post and where she willingly joined. It is not the case of the respondents that petitioner/ appellant claimed salary of Junior High School teacher for the period she worked as Primary School teacher. However once the petitioner had joined the Junior High School at Amroha some semblance of a right again occurred to her to continue on such post and thereafter again sending her to Primary School would adversely affect her service conditions, which protection she was entitled to under law. Therefore, the order impugned in the writ petitioner adversely affecting her rights could not have been passed without notice and reasonable opportunity of hearing. Admittedly no notice or opportunity was given to her while reverting her from Junior High School to Primary School in Amroha. This aspect of the matter has not been considered by the learned single Judge, who was only swayed by the fact that the petitioner having once given her consent to even join as a teacher of Primary School in the event her request for transfer was accepted, lost her right for ever to be posted in a Junior High School even if a post was lying vacant where she could be adjusted. We are unable to agree with the reasoning of the learned single Judge to the extent indicated above. We are therefore, inclined to allow the appeal as well as the writ petition.
8. There is yet another reason we are not inclined to revert the petitioner/appellant to the primary school. The facts as are borne out from the records are that the petitioner-appellant is continuing in the Junior High School in Amroha since 1981, i.e. almost 24 years, under the interim orders of this Court. She has about a year left for retirement. As stated in the supplementary affidavit filed on 08.04.2004 that she has crossed 60 years of age but is only continuing on account of extended age of service up to 62 years. It would be appropriate in the interest of justice and in the facts of the case that appellant may continue in the Junior High School at Amroha.
9. The special appeal therefore succeeds and is allowed and the judgment and order of the learned single Judge is set aside. The order dated 19.08.1981 passed by respondent 2 is hereby quashed and as a consequence the writ petition also succeeds.
10. However there shall be no order as to costs.