Kamal Singh and others v. State of Uttarakhand and others

prepared and impugned in the writ petition. Learned Senior Counsel for the interveners also raised the following points in his submissions:- 5 (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 6 also 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 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 of mandal/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 9 intended 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. 10

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 11 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. Avneet/ (Ravindra Maithani, J) 05.04.2025