Allahabad High Court
Aradhana And Another vs State Of U.P. And 5 Others on 5 August, 2021
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 39 Case :- WRIT - A No. - 9177 of 2021 Petitioner :- Aradhana And Another Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Santosh Kumar Shukla,Neeraj Kumar Counsel for Respondent :- C.S.C.,Shashi Kant Verma Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Mrs. Sadhna Rani (Thakur),J.
By means of the present writ petition the petitioners seek to challenge Clause-13 of the Government Order dated 02.12.2019 whereby restriction has been imposed regarding the transfer and posting of the Assistant Teachers working in the Basic schools run by the Basic Shiksha Parishad. The transfer policy for the year 2019-20 promulgated by the Government Order dated 02.12.2019 contains Clause-'13' as under:-
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The contention of the learned counsel for the petitioners is that Clause-'13' of the transfer policy is in contradiction to the transfer and posting Rules, 2008 pertaining to the field. The relevant Rule 8 of the Rules, 2008 is to be quoted hereunder:-
"8. Posting - (1) (a) Three options for schools shall be asked from the handicapped candidates in order of their merit and after receiving such option the handicapped candidates shall be posted on the basis of option given by them and the vacancies.
(b) Based on the order of their merit, female teachers would be required to submit under their signature option of three schools each from the general and backward block and accordingly, posting would be given in one of these schools.
(c) The posting of male teachers shall be made in accordance with the order of candidates in the roster prepared under Rule 7.
(2)(a) The newly appointed male teachers shall initially be posted compulsorily in backward areas for a period of at least five years.
(b) Newly appointed female teachers shall also be compulsorily posted in backward area for a period of at least two years.
(c) Mutual transfers within the district from general block and backward block and vice-versa would be permitted with the condition that the teacher on mutual transfer to a backward block shall have to serve in that block compulsorily for five years. Mutual transfers would be permitted only in case of those teachers who have more than remaining five year's service.
(d) In normal circumstances the applications for inter-district transfers in respect of male and female teachers will not be entertained within five years of their posting. But under special circumstances, applications for inter-district transfers in respect of female teachers would be entertained to the place of residence of their husband or in law's district.
(e) If by virtue of posting of newly appointed or promoted teachers the primary and upper primary schools of backward blocks get saturated i.e. no post of teacher is vacant in these schools, then handicapped and female teachers on their choice can be adjusted against the vacant posts of general blocks from these saturated blocks.
(f) Mutual transfers of male/female teachers from one backward blocks to another can be considered.
(3) Teachers transferred from one district to another will be given posting as per the provision of these rules."
Sub-rule-'(2) (b)' of Rule 8 of the Rules, 2008 has been placed before us to submit that newly appointed female teachers are compulsorily posted in backward area for a period of at least two years and the restriction on inter-district transfer within the period of two years (for female teachers) is subject to the condition provided in Clause-'(2)(d)' which provides that under special circumstances, applications for inter-district transfers in respect of female teachers would be entertained to transfer them to the place of residence of their husband or in-laws. The submission is that further restriction put by the Government Order under Clause-'13' in the matter of transfer and posting in Certain districts (mentioned therein) has no rationale. The contention is that the restriction in Clause-'13' of the Government Order for the districts indicated therein is in contradiction to Rule 8 of Rules, 2008, which permits transfer in exceptional circumstances. The Clause-'13' of Government Order dated 02.12.2019 is coming in the way of the petitioners and their applications seeking transfer had been wrongly rejected.
Insofar as the order of rejection of the transfer applications moved by the petitioners, in our considered view, the remedy before the petitioners lies elsewhere.
As regards the challenge to Clause-'13' of the Government Order, we may note that the Transfer and Posting Rules, 2008 and the Government Order dated 02.12.2019 have come up for consideration before the learned single Judge of this Court in Writ-A No. 878 of 2020 connected with other matters wherein challenge was to the refusal to entertain the application for inter-district transfer. It has been held therein that no Assistant Teacher is entitled to seek transfer as a matter of right. The Transfer and Posting Rules, 2008 is in the nature of exception to the rule of appointment under the Recruitment Rules, 1981. The transfer under the Rules, 2008 by 'request' and 'consent' of the Assistant Teacher is circumscribed by the exceptional circumstances mentioned therein.
Further, the Posting Rules, 2008 makes it mandatory on the new incumbent to work in backward area for a period of five years (in case of male) and two years (in case of female). Exception to the said rule, however, has been given in Clause-'(2)(d)', which provides that in exceptional circumstances, relaxation in the condition mentioned in Clause - '(2)' of Rules, 2008 can be given in favour of a female candidate for posting in the place of residence of spouse/inlaws.
Clause-'13' of the Government Order, however, provides that from the districts namely Siddharthnagar, Shravasti, Bahraich, Sonbhadra, Chandauli, Fatehpur, Chitrakoot and Balrampur, only such number of teachers would be transferred as the number of requests for transfer from other districts to the said Districts are received.
A careful reading of Clause-'13' of the Government Order dated 02.12.2019, thus, indicates that the said restriction has been put in order to maintain the teacher-student ratio so that the work of imparting education to the children in these areas do not suffer. The said restriction cannot be said to be in contradiction to Clause - '(2) (d)' of Rule 8 of Posting Rules, 2008 or without any rationale or nexus to the object sought to be achieved.
The arguments of the learned counsel for the petitioners that Clause-'13' of the Government Order is in contradiction to Clause (2) (d) of Rule 8 of the Posting Rules, 2008, therefore, is unsustainable. The challenge to the validity of the Government Order is, therefore, turned down.
As noted above, in case of any arbitrary action of the respondents in rejecting the request of transfer of the petitioners in violation of the Rules, 2008, it is open for them to challenge the same before the appropriate court. .
The writ petition is, accordingly, dismissed.
Order Date :- 5.8.2021 gp