Allahabad High Court
The Basic Education Board And 2 Others vs Preeti And 4 Others on 12 July, 2022
Bench: Pritinker Diwaker, Ashutosh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 29 Case :- SPECIAL APPEAL DEFECTIVE No. - 235 of 2022 Appellant :- The Basic Education Board And 2 Others Respondent :- Preeti And 4 Others Counsel for Appellant :- Archana Singh Counsel for Respondent :- Shantanu Khare Hon'ble Pritinker Diwaker,J.
Hon'ble Ashutosh Srivastava,J.
Civil Misc. Delay Condonation Application No. 01 of 2022:
Heard.
This is an application to condone the delay of 64 days in filing the appeal. The reasons for delay in filing the appeal has been satisfactorily explained in the affidavit filed in support of delay condonation application. The delay condonation application is allowed. The appeal is treated to be filed within time. Order on Appeal:
This intra-court appeal has been filed questioning the legality, propriety and correctness of the judgment and order dated 30.3.2022 passed by the learned Single Judge in Writ-A No. 10680 of 2021 (Preeti and another versus State of U.P. and 5 others) whereby the writ petition has been allowed and a writ of mandamus has been issued to the authority concerned to pass a mutual transfer order transferring the petitioner / respondent No. 1 from Junior Basic School, Tapri Kalan, Saharanpur (U.P.) to Junior Basic School of District Gautam Budh Nagar and the petitioner / respondent No. 2 from Junior Basic School of District Gautam Budh Nagar to Junior Basic School, Tapri Kalan, Saharanpur (U.P.) within three weeks from the date of production of a certified copy of the order.
Records reveal that the writ petitioner / respondent Nos. 1 and 2 were selected and appointed as Assistant Teachers pursuant to the recruitment exercise taken by the appellant Board in the year 2017-18. The petitioner / respondent No. 1 was appointed on 1.11.2018 at Prathmik Vidyalaya, Tapri Kalan, Development Block Balia Kheri, District Saharanpur while the petitioner / respondent No. 2 was appointed on 8.2.2018 at Prathmik Vidyalaya Nagla Bhatona, Development Block Jewar, District Gautam Budh Nagar. The husband of the petitioner / respondent No. 1 is an employee of the Delhi Judicial Academy and as such, she desired to be posted at Gautam Budh Nagar which is close to Delhi. Likewise, the petitioner / respondent No. 2 desired to be posted at Saharanpur of which place, he is a permanent resident.
It is not in dispute that the State Government issued a Government Order dated 2.12.2019 providing for inter district transfers for which the applications were to be submitted on or before 20.1.2020. The Government Order provided that male teachers who had completed three years minimum service as regular teacher and female teachers who had completed minimum one year service were eligible to apply for inter district transfer. The petitioner / respondent Nos. 1 and 2 though were desirous of the mutual transfer could not apply for mutual transfer as the minimum period of service was not fulfilled. Subsequently, a clarification in respect of the Government Order dated 2.12.2019 was issued on 16.2.2021 and the time limit / restriction for applying online for mutual transfers was done away with. The petitioner / respondent No.1 filed application on 03.03.2021 seeking inter district transfer while the petitioner / respondent no.2 applied on 05.03.2021. When no action was taken by the authorities, the petitioners / respondent nos.1 &2 approached the learned Single Judge by filing the writ petition.
The writ petition was resisted by the appellants by stating that the Government Orders were issued in compliance of the order passed in Writ Petition No.878 of 2020 (Divya Goswami Vs. State of U.P.) and after the last date fixed under the Government Order for inter district transfer, no inter district transfer has been done. At present, no policy is in existence regarding inter district transfer or mutual transfer and the claim of the petitioner / respondent Nos. 1 & 2 could not be considered for want of online application by the petitioner / respondents. Further, it was stated that the marks obtained by the petitioners for transfer were less than the cut off marks provided for inter district transfer and as such, they could not be transferred to the district opted by them. It was also the case of the appellants / respondents in the writ petition that no inter district transfer was permissible during the mid academic session.
The learned Single Judge upon consideration of the rival submissions of the parties concluded that the rejection of the claim of the petitioners for mutual transfer on the ground that the petitioners did not submit application for mutual transfer online was not sustainable inasmuch as the fault of the petitioners in not submitting the application form online was attributable to the respondent / appellants themselves as the Government Order dated 02.12.2019 by virtue of para 2(1)(a) limited the applicability of the Government Order to male teachers who had completed 03 years service while female teachers who had completed 02 years which restriction was done away by the subsequent Government Order dated 16.02.2021. As soon as the petitioners became eligible to submit application in view of the Government Order dated 16.02.2021, both the petitioners submitted application for grant of mutual transfer.
The learned Single Judge also repelled the contention of the appellants that mid session transfers could not be permitted on account of the judgment in the case of Divya Goswami's case inasmuch as the rider imposed by the judgment was not attracted to the case of the petitioners as in case of mutual transfer the teachers who seek mutual transfer replaces one teacher by another and studies of students are unaffected.
The learned Single Judge while considering the judicial pronouncements of this Court in Anuradha Kumar Tripathi Vs. State of U.P. & others (Writ -A No.4950 of 2018) and in Tej Pratap Singh Yadav Vs. State of U.P. and 3 others (Writ-A No.3967 of 2021) ruled that the power under Rule 8(2)(d) of the U.P. Basic Education (Teachers Posting) Rules, 2008 have been conferred upon the Authorities to exercise the same in exceptional and extraordinary circumstances and the application for transfer could be considered by the Authorities. The learned Single Judge further proceeded to observe that the case of Divya Goswami did not put any rider for consideration of mutual inter-district transfer as suggested by the appellants / respondents. The learned Single Judge further went on the hold that if no mid-session transfer is permissible it will make the power to consider transfer under Rule 8(2) (d) of the 2008 Rules redundant and that the denial of mutual transfer on the ground that the petitioners / respondents secured less marks than the cut off marks has no nexus with the object sought to be achieved while considering the application of a mutual transfer.
The learned Single Judge thus concluded that the denial of mutual inter district transfer to the petitioners / respondent nos.1 & 2 was illegal and arbitrary and, accordingly, proceeded to issue the impugned directions and allow the writ petition.
Having heard learned counsel for the parties and having gone through the impugned judgment and order of the learned Single Judge, we find that the reasoning adopted by the learned Single Judge to arrive at the conclusion in the peculiar facts and circumstances that stood attracted to the case of the writ petitioner / respondent nos.1 & 2 cannot be faulted so as to warrant an interference in the same. The Intra Court Appeal fails and is, accordingly, dismissed. However, since the learned Single Judge has passed the order allowing the writ petition and issuing the impugned directions in the peculiar facts of the case, the decision of the learned Single Judge may not be treated as a precedent.
Order Date :- 12.7.2022
Ravi Prakash
(Ashutosh Srivastava, J.) (Pritinker Diwaker, J.)