Allahabad High Court
Dinesh Singh vs State Of U P And 2 Others on 12 January, 2023
Author: Ashutosh Srivastava
Bench: Ashutosh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgment Reserved on : 11.11.2022 Judgment Delivered on : 12.01.2023 Court No. - 18 Case :- WRIT - A No. - 9410 of 2022 Petitioner :- Dinesh Singh Respondent :- State Of U P And 2 Others Counsel for Petitioner :- O.P.S. Rathore,Prabhakar Awasthi Counsel for Respondent :- C.S.C.,Archana Singh With Case :- WRIT - A No. - 11629 of 2022 Petitioner :- Rohit Kumar And 7 Others Respondent :- State Of U.P. And 8 Others Counsel for Petitioner :- Man Bahadur Singh Counsel for Respondent :- C.S.C.,Archana Singh,Bhupendra Kumar Yadav,Daya Ram,Nisheeth Yadav,Raghvendra Pratap Singh,Suresh Kumar,Yatindra Kumar Srivastava With Case :- WRIT - A No. - 14321 of 2022 Petitioner :- Punit Kumar Baitha And 317 Others Respondent :- State of U.P. and Another Counsel for Petitioner :- Man Bahadur Singh Counsel for Respondent :- C.S.C.,Archana Singh With Case :- WRIT - A No. - 12948 of 2022 Petitioner :- Kartikey Singh And 18 Others Respondent :- State of U.P. and Another Counsel for Petitioner :- Man Bahadur Singh Counsel for Respondent :- C.S.C.,Archana Singh With Case :- WRIT - A No. - 20372 of 2022 Petitioner :- Shyam Kumar Nirmal And 88 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- O.P.S. Rathore Counsel for Respondent :- C.S.C.,Archana Singh With Case :- WRIT - A No. - 16427 of 2022 Petitioner :- Sachin Gautam And 94 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Man Bahadur Singh Counsel for Respondent :- C.S.C.,Archana Singh With Case :- WRIT - A No. - 20032 of 2022 Petitioner :- Yadvendra Singh And 31 Others Respondent :- State Of U P And 10 Others Counsel for Petitioner :- Vinod Kumar Singh Counsel for Respondent :- C.S.C.,Archana Singh,Arun Kumar,Ashok Kumar Yadav,Nisheeth Yadav,Pranesh Dutt Tripathi,Sanjay Kumar Srivastava With Case :- WRIT - A No. - 16434 of 2022 Petitioner :- Giremdra Singh And 83 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Man Bahadur Singh Counsel for Respondent :- C.S.C.,Archana Singh With Case :- WRIT - A No. - 19572 of 2022 Petitioner :- Abhishek Mishra And 35 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Manish Kumar Niranjan,Arti Singh Counsel for Respondent :- C.S.C.,Archana Singh With Case :- WRIT - A No. - 19526 of 2022 Petitioner :- Vivek Rai And 78 Others Respondent :- State of U.P. and Another Counsel for Petitioner :- Man Bahadur Singh Counsel for Respondent :- C.S.C.,Archana Singh With Case :- WRIT - A No. - 18873 of 2022 Petitioner :- Pranav Mishra And 98 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Chandra Bhushan Yadav,Tej Prakash Yadav Counsel for Respondent :- C.S.C.,Archana Singh With Case :- WRIT - A No. - 18622 of 2022 Petitioner :- Vishnu Pratap Singh And 55 Others Respondent :- State of U.P. and Another Counsel for Petitioner :- Namit Kumar Sharma,Gunjan Sharma Counsel for Respondent :- C.S.C.,Archana Singh With Case :- WRIT - A No. - 15504 of 2022 Petitioner :- Ved Prakash Sharma And 240 Others Respondent :- State Of U P And 2 Others Counsel for Petitioner :- Man Bahadur Singh Counsel for Respondent :- C.S.C.,Archana Singh With Case :- WRIT - A No. - 17759 of 2022 Petitioner :- Abhishek Raj Sahu And 98 Others Respondent :- State of U.P. and Another Counsel for Petitioner :- Man Bahadur Singh Counsel for Respondent :- G.A.,Archana Singh With Case :- WRIT - A No. - 16479 of 2022 Petitioner :- Jayesh Kumar Singh And 18 Others Respondent :- State of U.P. and Another Counsel for Petitioner :- Atmaram Singh Counsel for Respondent :- C.S.C.,Archana Singh With Case :- WRIT - A No. - 15021 of 2022 Petitioner :- Neeraj Kumar Dwivedi And 2 Others Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Rakesh Kumar Mathur Counsel for Respondent :- C.S.C.,Arun Kumar,Mrigraj Singh,Ram Prakash Shukla,Sanjay Chaturvedi,Sanjay Kumar Singh With Case :- WRIT - A No. - 19963 of 2022 Petitioner :- Alok Ranjan Pandey And 47 Others Respondent :- State Of U P And 2 Others Counsel for Petitioner :- Chandra Bhushan Yadav Counsel for Respondent :- C.S.C. With Case :- WRIT - A No. - 15482 of 2022 Petitioner :- Manoj Kumar Verma And 91 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- O.P.S. Rathore Counsel for Respondent :- C.S.C.,Archana Singh With Case :- WRIT - A No. - 14170 of 2022 Petitioner :- Amit Kumar And 59 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Prabhakar Awasthi,Chandra Bhushan Yadav Counsel for Respondent :- C.S.C.,Archana Singh With Case :- WRIT - A No. - 15440 of 2022 Petitioner :- Chandan Mishra And 47 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Chandra Bhushan Yadav Counsel for Respondent :- C.S.C.,Archana Singh With Case :- WRIT - A No. - 15437 of 2022 Petitioner :- Rajat Shrivastava And 468 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- O.P.S. Rathore Counsel for Respondent :- C.S.C.,Archana Singh With Case :- WRIT - A No. - 16240 of 2022 Petitioner :- Lubana Siddiqui And 87 Others Respondent :- State Of U P And 2 Others Counsel for Petitioner :- Chandra Bhushan Yadav Counsel for Respondent :- C.S.C. With Case :- WRIT - A No. - 18042 of 2022 Petitioner :- Vikas Yadav And 68 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Tej Prakash Yadav,Shashank Kumar Counsel for Respondent :- C.S.C,Archana Singh With Case :- WRIT - A No. - 18977 of 2022 Petitioner :- Arvind Kumar Yadav And 82 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Alok Dwivedi Counsel for Respondent :- C.S.C.,Archana Singh With Case :- WRIT - A No. - 21731 of 2022 Petitioner :- Chetan Chauhan And 57 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Vipin Kumar Singh Counsel for Respondent :- C.S.C.,Archana Singh With Case :- WRIT - A No. - 20374 of 2022 Petitioner :- Vikas Kumar And 185 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- O.P.S. Rathore Counsel for Respondent :- C.S.C.,Archana Singh With Case :- WRIT - A No. - 11285 of 2022 Petitioner :- Amit Shekhar Bhardwaj And 49 Others Respondent :- State of U.P. and Another Counsel for Petitioner :- Agnihotri Kumar Tripathi Counsel for Respondent :- C.S.C.,Archana Singh With Case :- WRIT - A No. - 15924 of 2022 Petitioner :- Atul Mishra And 204 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Alok Dwivedi,Sr. Advocate Counsel for Respondent :- C.S.C,Archana Singh With Case :- WRIT - A No. - 14640 of 2022 Petitioner :- Mandeep Singh And 10 Others Respondent :- State of U.P. and Another Counsel for Petitioner :- Shailendra Singh Counsel for Respondent :- C.S.C.,Archana Singh With Case :- WRIT - A No. - 12553 of 2022 Petitioner :- Tarun Shukla And 44 Others Respondent :- State of U.P. and Another Counsel for Petitioner :- Ram Prakash Dwivedi,Gaurav Dwivedi Counsel for Respondent :- C.S.C.,Archana Singh With Case :- WRIT - A No. - 19869 of 2022 Petitioner :- Geetesh Sharma And 115 Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Chandra Bhushan Yadav Counsel for Respondent :- C.S.C. Hon'ble Ashutosh Srivastava,J.
1. These bunch of writ petitions involve common questions of law and fact and are thus being decided by a common order.. The facts of Writ (A) No.9410 of 2022 (Dinesh Singh Vs. State of U.P. & others) is being considered for deciding the controversy involved.
2. Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri O. P. S. Rathore, learned counsel for the petitioner, learned Standing Counsel for the State Respondents and Smt. Archana Singh, learned counsel for the Respondent No.2.
3. The challenge in this writ petition is to an order dated 25.06.2022 passed by the Secretary, Board of Basic Education, U.P., Allahabad, whereby the petitioner has been asked to submit an affidavit declaring therein that he will not claim for his seniority of service in future. A further prayer in the nature of mandamus commanding the respondent to ensure the joining of the petitioner in the newly allotted district Meerut with his seniority from 17.09.2018 i.e. first date of joining as Assistant Teacher in district Aligarh has also been claimed.
4. The fact in brief leading to the filing of the instant writ petition are that the petitioner was selected as an Assistant Teacher, Primary School against the 68500 vacant posts in pursuance to the advertisement published by the State Government vide Government Order dated 09.01.2018. The vacancies were advertised district-wise. The selection of the Assistant Teacher was to be made on the basis of Quality Point comprised of 60% of weightage on Assistant Teacher Recruitment Examination, 10% on High School, 10% on Intermediate, 10% on Graduation and 10% on training qualification. An additional weightage of 2.5 marks per completed teaching year upto a maximum 25 marks, whichever is less was made applicable to Shiksha Mitras as per U.P. Basic Education (Teachers) Services (20th Amendment) Rules, 2017. The petitioner obtained 90 marks in the ATRE-2018 and as per the existing formula secured 67.61 quality point marks.
5. The Secretary, Board of Basic Education issued an advertisement on 19.08.2018 inviting online applications from the selected candidates for appointment and also sought the preferences of districts from the candidates. The petitioner as per his quality point marks was allotted district Aligarh and he appeared before the selection committee in his allotted district. The petitioner was issued an appointment letter on 05.09.2018 by the District Basic Education Officer, Aligarh and he joined at the allotted institution i.e. Primary School, Nagla Kurawali, Development Block Gangiri, District Aligarh. Though the ARTE-2018 was conducted for 68,500 vacancies the Board of Basic Education vide Notification dated 19.8.2018 reduced the vacancies from 68500 to 41556. On account of the reduced vacancies almost 6127 candidates who had cleared the ARTE-2018 were denied selection at first place. The unselected candidates agitated the matter and the Board issued 2nd list of 6127 selected candidates and allotted them districts of their choice without considering their respective merits.
6. The writ petitioner through belonged to reserved (OBC) category but was selected against unreserved vacancy because of his higher merit and as such, is to be treated as MRC (Meritorious Reserved Category) candidate.
7. The arbitrary action of the Board of Basic Education in proceeding to allot the districts to the selected candidates as per their choice without considering their respective merits was assailed by the petitioner in Writ-A No.26132 of 2018 (Naveen Kumar and 52 others versus State of U.P and others) which was decided along with the writ petitions filed by similarly circumstanced candidates leading amongst them being Writ-A No. 19737 of 2018 (Shikha Singh & 48 others versus State of U.P. and others). The leading writ petition of Shikha Singh (supra) was disposed of vide judgment and order dated 29.8.2019 in the following terms:-
"58. In view of the law laid down by the Apex Court, the allotment of district made by the respondents cannot be sustained in so far as it relates to MRC candidates and to that extent, it is quashed.
59. The respondent no. 3 is directed to carry on process of allotment of district to MRC candidates only, treating them to be reserved category candidates only for the purposes of allotment of district of their preference. It is further directed that the MRC candidates who alleged that they have not been allotted district of their preference despite being MRC candidates, may file their applications before the respondent no. 3 within a period of 3 months from today and the respondent no. 3 is directed to consider and pass necessary order, as per law stated hereinabove within next 3 months.
60. The order passed by the respondent no.3 shall be given effect from next academic session, i.e., 2020-21, so that the teaching of students is not suffered.
61. With the aforesaid directions the writ petition is disposed off. "
8. The judgment and order dated 29.08.2019 was assailed in Special Appeals before the Division Bench of this Court leading amongst them, being Special appeal No.274 of 2020 (Amit Shekhar Bhardwaj versus State of U.P. and others). The Division Bench disposed of the Special Appeals by passing the following order on 14.09.2021:-
"26. We have given a thoughtful consideration to the argument advanced from both the sides and looking to the facts that examination was conducted in the year 2018, and, placement/posting being given in the said year and candidates having joined at their respective place of posting in 2018 itself, with the consensus arrived at between the counsels of both the sides as well as consent of the Board, we are proposing to pass the following order :
I. The candidates already selected/posted and working in the respective district of any category, shall not be disturbed.
II. The judgment in favour of the Meritorious Reserved Caste Candidates is not interfered. The petitioners-appellants belonging to Reserved Caste category would submit an application before the Board for change of posting pursuant to the judgment of the learned Single Judge within a period of two months of this judgment. The Board would thereupon process the case and post them as per their choice within two months. This direction would not be applicable in general but limited to the petitioners-appellants whose writ petitions were allowed by the learned Single Judge.
III. The appellants and Intervenors belonging to Open General category shall give option of three districts for their posting which would be considered by the Board within two months. They would be posted in any of the district of their choice subject to availability of the vacancy in the district concerned.
27. The directions given hereinabove are with the consent of the parties thus, it would not be treated to be precedence. If fresh litigation comes, it would not be driven by this judgment.
28. With the aforesaid, the judgment of the learned Single Judge dated 29.08.2019 is modified and the special appeals are disposed of. "
9. In compliance of the decision dated 14.09.2021 of the Division Bench rendered in Special Appeal No.274 of 2020 the Board issued notice dated 01.04.2022 inviting the online application and the petitioner submitted his online application form on 03.04.2022. The Board thereafter on 10.05.2022 issued the District Allocation list of 2908 candidates/ Assistant Teachers in which the name of the petitioner finds place at Sr. No.198 against the District Meerut. Thereafter, the Board has issued the impugned order requiring the petitioner to submit the affidavit.
10. Learned counsel for the petitioner contends that the allocation of the District pursuant to the direction of the Division Bench of this Court cannot be treated to be a case of transfer under the Rules so as to entail the requirement of filing of an affidavit. The provisions of Rule 21 and Rule 22 of the Rules cannot be said to be attracted in the case at hand.
11. The writ petition has been resisted by the respondent No. 2 by filing counter affidavit. Smt. Archana Singh, learned counsel representing the respondent No. 2 contends that in the Special Appeal (Defective) No.865 of 2020 (Board of Basic Education versus Shikha Singh and others) there is no direction of the Court to recon the seniority of the candidates from the back date, rather there is a direction not to disturb the candidate who have already joined which order had been passed with the consent of the parties. Besides the petitioner has himself given an undertaking prior to his joining on the post of Assistant Teacher that he shall not raise any claim for seniority from the back date. In the wake of the above, it is submitted that there is no merit in the writ petition and it is liable to be dismissed.
12. On the basis of the pleadings the question for consideration in the bunch of the writ petitions is that:-
(1) Whether the District allocation under the directions issued by the Court would fall within the ambit of transfer under Rule 21 of the U. P. Basic Education (Teachers) Service Rules, 1981 and resultantly their seniority would be governed by Rule 22 of the aforesaid Rules?
(2) Whether the "undertaking" given in the form of an affidavit relinquishing the claim of seniority in case of fresh district allocation pursuant to the direction issued by this Court would have binding effect?
13. The factual matrix in brief is that the petitioners have knocked the doors of the Court assailing the order/circular dated 25.06.2022 issued by the secretary, Basic Shiksha Parishad, Prayagraj, pursuant to directions issued by the Division Bench of this Court in Special Appeal No. 274 of 2020 (Amit Shekhar Bhardwaj Vs. State of UP and 2 others).
14. The petitioners herein are the selected candidates of Assistant Teacher Recruitment Examination-2018 (herein after referred to as "ATRE-2018.")
15. After being selected in ATRE-2018, the petitioners were allotted different districts through counselling. Being aggrieved by the discrimination in the district allocation the candidates approached this Hon'ble Court by means of Writ-A No.19737 of 2018 (Shiksha Singh and 48 others Vs. State of UP and others) along with other connected matters. The writ petition (supra) came to be decided by this Court vide judgement and order dated 29.08.2019. The operative portion is quoted below:-
57. The allocation of district and appointment and joining of the teachers in their respective districts had been completed in academic year 2018-19. The said posting and allocation of district being contrary to law and in violation of Articles 14 and 16(1) of the Constitution of India, cannot be sustained.
58. In view of the law laid down by the Apex Court, the allotment of district made by the respondents cannot be sustained in so far as it relates to MRC candidates and to that extent, it is quashed.
59. The respondent no. 3 is directed to carry on process of allotment of district to MRC candidates only, treating them to be reserved category candidates only for the purposes of allotment of district of their preference. It is further directed that the MRC candidates who alleged that they have not been allotted district of their preference despite being MRC candidates, may file their applications before the respondent no. 3 within a period of 3 months from today and the respondent no. 3 is directed to consider and pass necessary order, as per law stated hereinabove within next 3 months.
60. The order passed by the respondent no.3 shall be given effect from next academic session, i.e., 2020-21, so that the teaching of students is not suffered.
16. The judgement and order dated 29.08.2019 passed by the writ court was subjected to challenge in Special Appeal No.274 of 2020 (Amit Shekar Bhardwaj) (Supra). The judgement and order dated 29.08.2019 passed by the the writ court was modified vide judgement and order dated 14.09.2021. The operative portion is quoted below.
26. We have given a thoughtful consideration to the argument advanced from both the sides and looking to the facts that examination was conducted in the year 2018, and, placement/posting being given in the said year and candidates having joined at their respective place of posting in 2018 itself, with the consensus arrived at between the counsels of both the sides as well as consent of the Board, we are proposing to pass the following order :
I. The candidates already selected/posted and working in the respective district of any category, shall not be disturbed.
II. The judgment in favour of the Meritorious Reserved Caste Candidates is not interfered. The petitioners-appellants belonging to Reserved Caste category would submit an application before the Board for change of posting pursuant to the judgment of the learned Single Judge within a period of two months of this judgment. The Board would thereupon process the case and post them as per their choice within two months. This direction would not be applicable in general but limited to the petitioners-appellants whose writ petitions were allowed by the learned Single Judge.
III. The appellants and Intervenors belonging to Open General category shall give option of three districts for their posting which would be considered by the Board within two months. They would be posted in any of the district of their choice subject to availability of the vacancy in the district concerned.
27. The directions given hereinabove are with the consent of the parties thus, it would not be treated to be precedence. If fresh litigation comes, it would not be driven by this judgment.
28. With the aforesaid, the judgment of the learned Single Judge dated 29.08.2019 is modified and the special appeals are disposed of.
17. Pursuant to the directions contained in the judgement and order dated 14.09.2021 passed in case Amit Shekar Bhardwaj (Supra) the respondents issued the notice/instructions dated 01.04.2022 for online application for allocation of districts.
18. In response to the notice/instructions dated 01.04.2022, the writ petitioners submitted their online application forms for district allocation. Thereafter, the Board proceeded vide publication dated 10.05.2022 to publish district allocation list in respect of 2908 candidates. Further on 25.06.2022 the Secretary, UP Basic Education Board proceeded to issue circular to all the District Basic Education Officers alleging inter-alia that the seniority of the teacher who has been transferred from one local area to another in accordance with the provisions of Rule 21 shall be placed at the bottom of the list of teachers of the corresponding class or category pertaining to the local area to which he has been transferred, such a person shall not be entitled to any compensation and calling upon them to obtain an affidavit from the respective Assistant Teacher, who is the beneficiary of the district allocation and wants to relieved to join his place of posting to the effect that he/she would not claim seniority at his new place of posting.
19. The circular dated 25.06.2022 issued by the Secretary, U. P. Basic Shiksha Parishad, Respondent No.2, has been impugned in the present bunch of writ petitions.
20. In this backdrop, the learned Senior Counsel contended that the district allocation exercise was undertaken by the Respondent Board pursuant to the directions contained in the judgement and order dated 14.09.2021 passed in case of Amit Shekhar bhardwaj (Supra) thus the Board cannot impose irrational and arbitrary conditions that the petitioners would lose their seniority at the new place of joining.
21. Learned Senior Counsel further contended that the Court found the allotment of district to the teachers selected in ATRE-2018 as de-hors the Rules applicable and directed for fresh allocation of districts and then he contended that this is not the case of inter district transfer and provisions contained in Rule 21 and 22 of the U.P. Basic Education (Teachers) Service Rules, 1981 are not applicable in the present case. The learned Senior Counsel further contended that this is a case of posting and not transfer and thus the petitioners are entitled for seniority in the new district from the first date of their joining in their respective districts. The Learned Senior counsel contended that the rider contained in the order impugned dated 25.06.2022 compelling the petitioners to submit an undertaking in the form of an affidavit relinquishing the seniority in the new place of posting is arbitrary and needs to be quashed.
22. Per contra, Smt. Archana Singh, learned counsel for the Respondent Board submitted that in Special Appeal No.865 of 2020 (Board of Basic Education Vs. Shiksha Singh and Others), the Board took the grounds that the order passed by the writ court would affect the seniority, but the Division Bench of this Court proceeded to dispose of the Special Appeal on consent directing the board not to disturb the candidates who have already joined.
23. The learned counsel for Respondent Board further contended that petitioners themselves accepted the condition and have given an "Undertaking" prior to their joining on the post of Assistant Teacher that they shall not claim seniority from the back date and thus the petitioners are restrained from claiming the seniority from back date. To buttress her submission the learned counsel has relied upon the judgement and order dated 11.03.2022 passed by this Court in Special Appeal No.296 of 2019 and on the case of State of Punjab Vs. Dhanjit Singh Sandhu reported in (2014) 15 SCC 144.
24. Having heard the counsels and having perused the record, this Court finds that the Board was subjected to undertake the fresh exercise of district allocations in respect of the writ petitions subject matter of Special Appeal No.274 of 2020 Amit Shekhar Bhardwaj (Supra) and connected matters after observing that
21. Learned Single Judge while arriving at a finding that Board failed to take into consideration that MRC being higher in merit were not given district of their choice in the reserved category, extended benefit, but overlooked to extend benefit to the candidates of the Open General Category, who were also entitled for the same treatment. Once it is not disputed that the original notified vacancies of 68,500 being reduced to 41,556 after declaration of result, no question arose for allotting districts to candidates of higher merit strictly as per available seats in the first round of counselling and then by releasing the rest of the 26000 and odd seats giving choice to the candidates of second counselling to avail benefit and get district of their choice.
22. Where in a recruitment drive State proceeds to appoint teachers on such mass scale, it is expected from authority like Uttar Pradesh Board of Basic Education to be fair and transparent while making appointments. It is painful to note the way officers of the Board had conducted the recruitment drive, who were entrusted with responsibility of appointment of Assistant Teacher throughout the State of U.P. to have come up by providing/placing the candidates selected at their place of preference as far as possible. Though, only less than three-fourth candidates had qualified against the notified vacancies, the Board even then could not appoint the meritorious candidates at their place of choice.
23. The argument of Sri Ojha that there was no occasion for varying the district-wise vacancies and also increasing vacancies of certain districts disproportionately has force. Once vacancies were notified and was not subsequently varied by any Government Order, no occasion arose to disturb the arrangement made for which recruitment was going to take place.
24. The candidates of Open General Category cannot be denied the benefits which has already been extended to MRC as well as the candidates who were allotted the first choice of their preference, who appeared in the second counselling on the strength that the candidates had already joined at the place of posting and the rules does not permit for transfer.
25. This Court has not only to balance the equity with MRC but also with the candidates having higher merit of the Open General Category, as by denying them their due injustice would be done with them which will legalize the arbitrary action of the officers of the Board.
26. We have given a thoughtful consideration to the argument advanced from both the sides and looking to the facts that examination was conducted in the year 2018, and, placement/posting being given in the said year and candidates having joined at their respective place of posting in 2018 itself, with the consensus arrived at between the counsels of both the sides as well as consent of the Board, we are proposing to pass the following order :
I. The candidates already selected/posted and working in the respective district of any category, shall not be disturbed.
II. The judgment in favour of the Meritorious Reserved Caste Candidates is not interfered. The petitioners-appellants belonging to Reserved Caste category would submit an application before the Board for change of posting pursuant to the judgment of the learned Single Judge within a period of two months of this judgment. The Board would thereupon process the case and post them as per their choice within two months. This direction would not be applicable in general but limited to the petitioners-appellants whose writ petitions were allowed by the learned Single Judge.
III. The appellants and Intervenors belonging to Open General category shall give option of three districts for their posting which would be considered by the Board within two months. They would be posted in any of the district of their choice subject to availability of the vacancy in the district concerned.
27. The directions given hereinabove are with the consent of the parties thus, it would not be treated to be precedence. If fresh litigation comes, it would not be driven by this judgment.
25. This Court finds that it would be treated as appointment under Rule 19 and 20 of the Rules 1981 and it is not a case of transfer as contended by the counsel for the Respondent Board. Rule 21 of Rules 1981 are quoted here under:-
[21. Procedure for transfer - There shall be no transfer of any teacher from the rural local area to an urban local area or vice versa or from one urban local area to another of the same district or from local area of one district to that of another district except on the request of or with the consent of the teacher himself and in either case approval of the Board shall be necessary.]
26. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer is necessary in public interest and to maintain efficiency. No government servant or employee of public undertaking has legal right for being posted at any particular place. According to Rule 4 there shall be separate cadres of service for each local area as defined in Rule 2(1) (i) of Rules, 1981, meaning thereby, strength of the cadre is district wise.
27. There can be no inter district transfer except as provided under Rule 21. Rule 21 provides two conditions, namely, "except on the request" or with the consent of the teacher himself". Rule 22 provides for seniority and is quoted here under:-
"[22. Seniority.- (1) The seniority of a teacher in a cadre shall be determined by the date of his appointment in a substantive capacity :
Provided that, if two or more persons are appointed on the same date their seniority shall be determined in which their names appear in the list referred to in Rule 17 or 17-A or 18, as the case may be.
Note. - A candidate selected by direct recruitment may lose his seniority, if he fails to join without valid reasons when a vacancy is offered to him whether the reasons in any particular case are valid or not shall be decided by the appointing authority.] (2) The seniority of a teacher who has been transferred from one local area to another in accordance with the provisions of Rule 21 shall be placed at the bottom of the list of teachers of the corresponding class or category pertaining to the local area to which he has been transferred, as on the date of orders for transfer are passed, such a persons shall not be entitled to any compensation."
28. Sub-Rule (1) of Rule 22 provides for counting of the seniority of the Assistant Teacher from the date of his appointment in the substantive capacity. Sub-Rule (2) of Rule 22 provides the seniority of the Assistant Teacher on transfer shall places him at the bottom of the list of teachers of the corresponding class or category pertaining to the local area to which he has been transferred.
29. In the present case, none of the petitioners have asked for their transfer rather they have approached the Court against the arbitrary action of the Board. Hence, in the opinion of the Court the case of the petitioners shall be governed by Sub-Rule (1) of Rule 22 and not by Sub-Rule (2) of Rule 22 of Rules, 1981. The first question is answered accordingly.
30. Now coming back to the next question regarding the giving of undertaking in the form of affidavit relinquishing the claim of seniority in case of fresh district allocation. On the perusal of the records this Court is not impressed by the contentions of the counsel of the Respondent Board that once the petitioners have given an affidavit relinquishing their seniority in fresh district allocation and accepted all the conditions with open eyes and as such now the petitioner cannot claim the seniority from back date. The judgement relied upon by the counsel of the Respondent Board is not coming to their aid for the reason that the facts involved in the Special Appeal No.296 of 2019 (Vipin Kumar and others Vs. State of UP. and others) are entirely different.
31. In Vipin Kumar's Case (Supra), the appellants awaited the benefit of the transfer policy introduced by the State Government, permitting transfer of teachers to the district of their choice. The Government Order under which the appellants applied for transfer, was in a nature of a concession, to enable the teachers to go to a local area or district of their choice in accordance with Rule 21 of the Rules, 1981. One of the conditions of the transfer policy provided that in the case of inter district transfer of teachers which is not a matter of right under rule 21 of the Rules, 1981, made on the request of the teacher, the transfer would be allowed, depending on the availability of the vacancies in the district of choice, meaning thereby, that if no post of that grade was available, the transfer could not be permitted. The common feature of the case was that the request of transfer made by the appellants therein could not be considered, because no vacancy existed on the post of Headmaster of a Primary Pathshala or Assistant Teachers, Senior Basic School in the district of choice to which the appellants applied for transfer. In their anxiety to secure a transfer to a district of their choice, the appellants made an application, seeking reversion from their substantive post of Assistant Teacher, Primary Pathshala from their promotional posts in their parent cadres where they were working in different districts in the specified local area.
32. Thereafter, after being transferred and having joined at the transferred place the appellants challenged the undertaking on which the Court observed that the appellants cannot approbate and reprobate and the appellants who had secured benefit under the transfer policy, voluntarily giving up rights, cannot turn around and regain what they had given up. The Court observed as under :
16. In the circumstances, once the appellants want to retain the benefit of transfer that they have secured in terms of the Government Order dated 23.06.2016 to the districts of their choice, they cannot be permitted to take the benefit and rid themselves of the disadvantage that is coupled with it. The appellants cannot have the cake and eat it too. As the rights of the appellants stand, since they want to continue in the district of their choice after securing a transfer under the transfer policy carried in the Government Order dated 23.06.2016, to which they are otherwise not entitled as of right, they cannot claim restoration of their status or pay in the cadre to which they originally belonged. To permit the appellants to do so, would verily violate the firmly established principle that a party cannot be permitted to approbate and reprobate. This principle has been applied by the learned Single Judge in the judgment impugned in the leading appeal, particularly, relying on the decision of the Supreme Court in State of Punjab and others vs. Dhanjit Singh Sandhu, (2014) 15 SCC 144; and in our opinion, rightly so.
33. In the present case, the petitioners have approached this Court against arbitrary action of the Officers of the Board and in these circumstances the undertaking given by the petitioners would not have binding effect and Court finds that the affidavits were given under compulsion to secure joining and not in anxiety to secure transfer to the districts of their choice. The second question is answered accordingly.
34. The writ petition is allowed. The order dated 25.06.2022 passed by the Respondent No.2, is hereby quashed. The respondents are directed to prepare the seniority list according to Sub-Rule (1) of Rule 22 of Rules, 1981 determining the seniority from the date of joining of the petitioners.
35. No order as to costs.
Order Date :- 12.01.2023 pks (Ashutosh Srivastava,J.)