Allahabad High Court
Smt. Shivangi Gupta vs State Of U.P. Thru Addl.Chief Secy. ... on 11 December, 2019
Equivalent citations: AIRONLINE 2019 ALL 2413
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 20 Case :- SERVICE SINGLE No. - 26855 of 2019 Petitioner :- Smt. Shivangi Gupta Respondent :- State Of U.P. Thru Addl.Chief Secy. Basic Edu. Lko. & Ors. Counsel for Petitioner :- Karuna Shanker Rastogi,Karuna Kant Gupta Counsel for Respondent :- C.S.C.,Ajay Kumar Hon'ble Abdul Moin,J.
1. Rejoinder affidavit filed today be kept on record.
2. Heard learned counsel for the petitioner, learned Additional Chief Standing Counsel and Sri Ajay Kumar, learned counsel appearing for respondents No.2 to 4.
3. Under challenge are the orders dated 23.4.2019 and 9.8.2019, copies of which are Annexure-3 and 4 respectively to the petition, passed by respondent No.1 by which the claim of the petitioner for mutual transfer from district Hardoi to Shahjahanpur has been rejected. A further prayer is for a mandamus commanding the respondents No.1 and 2 to consider the claim of the petitioner for her transfer from district Hardoi to district Shahjahanpur.
4. Learned counsel for the petitioner contends that the petitioner is working as Assistant Teacher in Upper Primary School Sunderpur (Behsari), Block and Tahsil Sandila, District Hardoi. The petitioner claims that her mother-in-law is suffering from serious ailments. Taking this into consideration and also considering Rule 8 of the Basic Education (Teachers) (Posting) Rules, 2008 (hereinafter referred to as the 2008 Rules), the petitioner staked her claim for being transferred to Shahjahanpur. When her application was not being considered, she preferred Writ Petition (S/S) No.20016 of 2018 In re: Smt. Shivangi Gupta vs. State of U.P. and others. This Court vide judgment and order dated 13.7.2018, a copy of which is Annexure-1 to the writ petition, disposed of the petition with liberty to the petitioner to file a fresh representation for her grievance before the respondent No.1 and the respondent No.1 was directed to pass appropriate, reasoned and speaking order within six weeks. When the representation of the petitioner was rejected by the respondent No.1 by passing an order dated 14.12.2018, a copy of which is Annexure RA-1 to the rejoinder affidavit, the petitioner preferred Writ Petition (S/S) No.1658 of 2019 In re: Smt. Shivangi Gupta vs. State of U.P. and others before this Court. This Court vide judgment and order dated 24.1.2019, a copy of which is Annexure-2 to the writ petition, quashed the impugned order of rejection dated 14.12.2018 and also held that since the case of the petitioner is of mutual transfer and such cases can be considered by the authority concerned strictly as per 2008 Rules, therefore, the respondent No.1 was directed to pass an appropriate order strictly in the light of the 2008 Rules within a specified time. Subsequent thereto, the respondent No.1 has proceeded to pass the impugned order dated 23.4.2019 followed by another order dated 9.8.2019 primarily reiterating the same grounds as have been taken in the earlier order dated 23.4.2019 rejecting the claim of the petitioner for mutual transfer on the ground that Rule 8 of the 2008 Rules does not contain any provision for inter-district mutual transfer.
5. Learned counsel for the petitioner contends that both the orders are patently bad in the eyes of law reflecting patent non application of mind inasmuch as Rule 8(2)(f) of the 2008 Rules contains a provision for mutual transfer of male/female teachers from one backward block to another and as such, rejection of the claim of the petitioner by the impugned orders contending that Rule 8 of the 2008 Rules does not contain any provision for mutual transfer cannot be sustained and the impugned orders merit to be quashed on this ground alone. Placing reliance on Rule 8 of the 2008 Rules, learned counsel for the petitioner contends that Rule 8(2)(f) of the 2008 Rules does not contain any stipulation that such mutual transfer is to be made only within the district rather there is no such provision under Rule 8 prohibiting inter-district mutual transfer and the only thing contained in Rule 8(2)(f) of the 2008 Rules is consideration of mutual transfer of male/female teacher from one backward block to another. As such, the impugned orders are against the provisions of 2008 Rules and are not legally sustainable in the eyes of law.
6. On the other hand, learned Additional Chief Standing Counsel along with Sri Ajay Kumar, learned counsel for respondents No.2 to 4 contend that Rule 8 of the 2008 Rules more particularly sub-Rule 2(f) would only be applicable with respect to mutual transfer within the district and thus the impugned orders rejecting the claim of the petitioner for mutual transfer from district Hardoi to Shahjahanpur on the ground that Rule 8 does not provide inter-district mutual transfer is perfectly valid in the eyes of law and there is no error or infirmity in the same. Sri D.C. Pathak, learned Additional Chief Standing Counsel also submits that now in terms of paragraph 14 of the Government Order dated 2.12.2019 teachers can apply for the purpose of mutual transfer on the official website of the department and thereafter the said application can be considered.
7. Heard learned counsel for the parties and perused the record.
8. From a perusal of record, it comes out that the petitioner is working as Assistant Teacher in district Hardoi. She had applied for mutual transfer to district Shahjahanpur with one Smt. Preeti Devi who was working as Assistant Teacher in Upper Primary School, Mohammadpur Hara Block Tilhar, District Shahjahanpur. When her application was not considered, she approached this Court and this Court vide judgment and order dated 13.7.2018 had required the respondent No.1 to pass a reasoned and speaking order on the representation of the petitioner. The representation of the petitioner was rejected by the respondent No.1 vide order dated 14.12.2018 by contending that there is no provision for inter-district mutual transfer under the rules. The said order was challenged by means of Writ Petition No.1658 of 2019. This Court considered Rule 8 of the 2018 Rules and thereafter required the respondent No.1 vide judgment and order dated 24.1.2019 to again consider the case of the petitioner strictly in accordance with the 2008 Rules which has resulted in two impugned orders being passed by the respondent No.1 by which the claim of the petitioner has been rejected on the ground that Rule 8 of the 2008 Rules does not provide for inter-district mutual transfer.
9. Rule 8 of the 2008 Rules, for the sake of convenience, is reproduced below:-
"8. Posting. - (1)(a) Three options for schools shall be asked from the handicapped candidates in order of their merit and after receiving such options the handicapped candidates shall be posted on the basis of options 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 areas for a period of at least two years.
(c) Mutual transfers within the district from general block of 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 block to another can be considered.
(3) Teachers transferred from one district to another will be given posting as per the provisions of these rules."
10. Sub-Rule (2)(b) of Rule 8 of the 2008 Rules provides that newly appointed female teachers shall also be compulsorily posted in backward areas for a period of at least two years. Sub-Rule (2)(c) of Rule 8 provides for mutual transfer within the district from general block of backward block and vice-versa with certain conditions. Sub-Rule (2)(f) of Rule 8 provides for consideration of mutual transfer of male/female teachers from one backward block to another. There is no stipulation or prohibition in Rule 8(2)(f) of the 2008 Rules restricting the operation of sub-Rule (2)(f) of Rule 8 of the 2008 Rules to only intra district mutual transfer as is sought to be contended by the learned Additional Chief Standing Counsel at the time of his argument. The said rule is clear and categoric and provides that mutual transfer from one backward block to another can be considered. It is not the case of the respondents that the case of mutual transfer of the petitioner with one Smt. Preeti Devi from district Hardoi to Shahjahanpur and vice versa does not fall within the backward block as stipulated in sub-rule 2(f) of the Rule 8 of the 2008 Rules. It is well settled proposition of law that the words of the statutes/rules are to be read as written and nothing more can be read into the words and nothing more can be added or subtracted in the plain words of the statute/rule. Accordingly, once sub-rule 2(f) of Rule 8 of the 2008 is clear then the rejection of the claim of the petitioner for her mutual transfer from Hardoi to Shahjahanpur on the ground that 2008 Rules does not provide for inter-district transfer cannot be appreciated by this Court.
11. Further, the respondents have also issued the Government Order dated 2.12.2019 which in paragraph 14 provides for consideration of cases for inter-district mutual transfer. Accordingly, there is no valid justification for passing the impugned order rejecting the claim of the petitioner for inter-district transfer on the ground that there is no provision in the 2008 Rules for inter-district mutual transfer.
12. Taking into consideration the aforesaid discussion, the writ petition is allowed. A writ of certiorari is issued quashing the impugned orders dated 23.4.2019 and 9.8.2019, copies of which are Annexure-3 and 4 respectively to the petition. A writ of mandamus is issued commanding the respondent No.1 to consider the case of the petitioner for transfer from district Hardoi to Shahjahanpur on mutual basis with one Smt. Preeti Devi taking into consideration the observations made above. Let such consideration be made by the respondent No.1 within a period of four weeks from the date of receipt of a certified copy of this order.
Order Date :- 11.12.2019 Rakesh (Abdul Moin, J.)