Allahabad High Court
Akanksha Pandey @ Akanksha Shukla vs State Of U.P. Thru. Secy. Basic ... on 19 September, 2023
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2023:AHC-LKO:60111 Court No. - 8 Case :- WRIT - A No. - 6921 of 2023 Petitioner :- Akanksha Pandey @ Akanksha Shukla Respondent :- State Of U.P. Thru. Secy. Basic Education Lko. And 5 Others Counsel for Petitioner :- Amrendra Nath Tripathi,Suresh Kumar Yadav Counsel for Respondent :- C.S.C.,Ran Vijay Singh Hon'ble Pankaj Bhatia,J.
1. Heard learned Counsel for the petitioner and Sri Ran Vijay Singh, learned Counsel appearing on behalf of the respondents no.4, 5 and 6.
2. The present petition has been filed by the petitioner alleging that the petitioner was appointed as an Assistant Teacher in the Junior Basic Schools (Primary Schools) in the year 2009. Subsequently, the petitioner had applied for inter district transfer from Gorakhpur to Varanasi and in terms of the said request, the petitioner was transferred in the year 2012 to District Varanasi and thereafter, the petitioner continued to serve at Varanasi.
3. It is argued by the Counsel for the petitioner that the State Government issued a Government Order dated 02.06.2023 inviting online applications for inter district mutual transfer. In terms of Clause 2(2) and Clause 2(3) of the said Government Order, the female teachers, who had availed the benefit of inter district transfer prior to the marriage, would only be eligible for consideration for the second time, however, in the said Government Order dated 02.06.2023, it was stated that the said decision has been taken in terms of the judgment of this court dated 05.07.2021 passed in Special Appeal Defective No.419 of 2021 (Ajay Kumar vs State of U.P. and others).
4. It is further argued by the Counsel for the petitioner that in terms of the Government Order dated 02.06.2023, the petitioner was entitled to apply for mutual transfer. The petitioner had applied online and was granted a registration number. While filling up the form, the petitioner had also given the options for transfer to the new places. It is argued that subsequently, a notification dated 07.09.2023 was issued for fixing a time limit for pairing the mutual transfer from 12.09.2023 to 20.09.2023. In terms of the said option, it was open for the person seeking mutual transfer to give the 'particular option', with whom, the incumbent wants to pair and wants to seek mutual transfer, however, the process of filling up the form was in four steps. The first step is to fill up the form which the petitioner has already completed. The second step for 'preferring choices' has also been completed, however, when the petitioner reached at the third stage of 'Fill Application', the online portal did not accept the said request for the reasons as recorded on the portal "you are not eligible for mutual transfer."
5. It is argued by the Counsel for the petitioner that although the petitioner was permitted to apply for mutual transfer, however, while giving the option of pairing, the same has been denied for the reason best known to the respondents and thus, the present writ petition has been filed.
6. Sri Ran Vijay Singh, learned Counsel appearing for the respondents no.4 and 5 based upon the instructions argues that the petitioner has no right for transfer and in any case, the case of the petitioner shall be considered after the persons who are exercising the option of transfer for the first time. He argues that in terms of the Government Order and the judgment passed in the special appeal, the petitioner has been permitted to apply for transfer and, thus, no relief as prayed by the petitioner can be granted and the petition is liable to be dismissed.
7. Considering the contentions as recorded above, a perusal of the Government Order dated 02.06.2023 (Annexure-3 to the writ petition) reveals that Clause 5 of the said policy of mutual transfer is permitted subject to the consent of both the persons seeking mutual transfer and the benefits has to be extended based upon the mutual request, even in the clarificatory order dated 07.09.2023 (Annexure-6 to the writ petition), which provided for a cut off date for pairing, no restriction of the nature as argued by Sri Ran Vijay Singh, learned Advocate was specified. The judgment of the Special Appellate Court, which is on record as Annexure-2, had the occasion to consider the appeal arising out of the judgment of the learned Single Judge interpreting Rule 21 and 8 of the Transfer and Posting Rules, the Special Appellate Court recorded its finding, which is as under:
"The counsel appearing for the State has, initially, opposed the appeal, but could not show any provision to prohibit second application for inter-district transfer. In a case where the first application for inter-district transfer is accepted and one is transferred to another district, the Rules do not cast a bar on another application later on to seek inter-district transfer. It is specially when making an application does not create a right of transfer. The transfer, otherwise, affects the employee in order of seniority. The learned Standing Counsel is fair enough to accept that there is no bar under the Rules to prohibit second application for inter-district transfer.
In view of the above, we find that the Government Order, imposing bar on second application for inter-district transfer, is not in consonance with the Rules; rather, de hors the statutory Rules. To that extent, we are entertaining this appeal and causing interference in the directions issued by the learned Single Judge prohibiting second application for inter-district transfer. It is, however, with the clarity that mere making of application would not mean a right to get transferred; rather, it would remain at the discretion of the State Government. It is furthermore that if the Government permits inter-district transfer, the employee would be placed at the bottom of the seniority in the district where he/she is transferred."
8. In terms of the said judgment, Special Appellate Court was of the view that a second application is not barred, however, in the present case, the request of the petitioner is for a mutual transfer. From the Government Order dated 02.06.2023, there appears to be no restriction with regard to the number of times, for which mutual transfer can be sought and only restriction in Clause 2(5) is that it has to be by mutual consent of both the persons seeking transfer. Once the policy does not restrict the consideration of transfer on mutual ground, there appears to be no material for the respondents to take a stand that application for mutual transfer cannot be considered as appears to be the case of the respondents.
9. Clearly the non-uploading from the third stage on the portal shows the denial of the right of consideration which flows from the Government Order dated 02.06.2003. The same being clearly not in consonance of the Government Order dated 02.06.2023 cannot be sustained. .
10. For the reasons recorded hereinabove, the respondents are directed to make a suitable modification to enable the petitioner to upload the document for pairing and shall ensure that the filled form be uploaded/ accepted by the portal.
11. As the last date for considering the request for pairing is expiring tomorrow i.e. 20.09.2023, it is provided that in case, the modifications cannot be done on the portal, the request of the petitioner and the person with whom the petitioner seeks mutual transfer shall be accepted offline and shall be considered thereafter.
12. Sri Ran Vijay Singh, learned Counsel for the respondents no.4 and 5 shall ensure that the order passed today shall be communicated to the respondents today itself for compliance.
13. Copy of this order downloaded from the website of this Court shall be treated to be a certified copy of the order.
Order Date :- 19.9.2023 akverma