Allahabad High Court
Rajesh Kumar vs State Of U.P. And 3 Others on 9 July, 2020
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 38 Case :- WRIT - A No. - 5213 of 2020 Petitioner :- Rajesh Kumar Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Neeraj Shukla Counsel for Respondent :- C.S.C.,Arun Kumar Hon'ble Vivek Agarwal,J.
Heard Sri Neeraj Shukla, counsel for the petitioner and Sri Arun Kumar, learned counsel appearing for the respondent nos.3 and 4.
Petitioner has filed this petition claiming therein that petitioner was earlier working in Junior High School, Faizullaganj, Block-Pooranpur, District-Pilibhit on 11.05.2011. On 27.05.2013, State Government issued a transfer policy for transferring the teachers of the Institutions run by Basic Shiksha Parishad in pursuance of the transfer policy dated 27.05.2013. Petitioner was transferred to District- Gorakhpur vide order dated 11.07.2013. It is petitioner's contention that he was informed by the District Basic Education Officer, Gorakhpur that the batchmates of the petitioner functioning in the District-Gorakhpur at that time were not promoted and, therefore, petitioner has to go to his district from where he was transferred or he will have to work on a demoted post as an Assistant Teacher available at that time in district-Gorakhpur. Petitioner in para-10 of the writ petition has mentioned that he was left with no other option but to approach his district i.e. Pilibhit for the required order as per the direction issued by the District Basic Education Officer, Gorakhpur. Petitioner's contention is that since transfer has been made in terms of the policy, therefore his Grade-pay could not have been reduced from Rs.4600 to Rs.4200. Petitioner is entitled to pay protection.
In support of this contention, petitioner has placed reliance on the order dated 06.12.2018 passed in Writ-A No.25804 of 2018 and order dated 08.08.2019 passed inn Writ-A No.14899 of 2019 and has sought a relief that he be paid salary with Grade-pay of Rs.4600 as he was getting before his transfer to District-Gorakhpur.
Sri Arun Kumar, learned counsel appearing for respondent nos.3 and 4 submits that case of the petitioner is different from what has been canvassed by the petitioner and petitioner is not entitled to any relief.
It is submitted that as per the transfer policy dated 27.05.2013 as contained in Annexure-3, there is a specific provision that persons seeking transfer will be transferred in the desired district only when in the concerned district where a person is seeking transfer, persons of his batch are working on the equal post. It is submitted that admittedly in District-Gorakhpur where petitioner sought transferred, his batcmates were not promoted to the Grade-pay of Rs.4600 and petitioner was given an option to either revert back to the district from where, he was transferred i.e. district-Pilibhit or in the alternative except the position as was obtaining in relation to his batch-mates.
At this stage, learned counsel submits that with a view to enjoy his transfer to District-Gorakhpur, petitioner had gone back to district-Pilibhit, got himself reverted in the Grade-pay of Rs.4200 as is apparent from Annexure-10, which is a Last Pay Certificate issued by Block Education Officer, Pooranpur, Pilibhit and thereafter joined at Gorakhpur in the Grade-pay of Rs.4200.
In view of such facts, now at this distance of time it is not open to the petitioner to claim relief and these facts have not been appreciated or were not brought to the notice of the co-ordinate bench when orders were passed in Writ-A No.25804 of 2018 and Writ-A No.14899 of 2019.
At this stage, Sri Shukla submits that under similar facts and circumstances, Secretary, U.P. Basic Education Council, Allahabad has passed orders and has allowed pay protection. He has drawn attention of this court to order no. Basic Shiksha Parishad/5468/2018-19 dated 23.07.2018, relevant portion of the order is reproduced hereinunder:-
";kphx.kksa }kjk izLrqr izR;ksosnu ,ao vki }kjk izLrqr vk[;k ds voyksduksijkUr ;g rF; izdk'k esa vk;k fd ;kphx.kksa dk vUrtZuinh; LFkkukUrj.k izns'k ds fofHkUu tuinksa ls tuin tkSuiqj ds fy, ifj"kn ds fofHkUu vkns'kksa }kjk fd;k x;kA pwafd ;kphx.kksa dh inksUufr vius dk;Zjr tuin esa gks pqdh Fkh vkSj ml cSp ds fu;qfDr f'k{kdksa dh tuin tkSuiqj esa inksUufr ugha gq;h Fkh] ,slh fLFkfr esa ;kphx.kksa }kjk vius dk;Zjr tuinksa ls viuk inkour ysdj tuin tkSuiqj esa dk;ZHkkj xzg.k fd;kA ;kphx.kksa dk dFku gS fd budk osru ,y0ih0lh0 ds vk/kkj ij u fu/kkfjr djrs gq, inkuour in dk fu/kkZj.k fd;k x;kA tcfd c<+k gqvk osru fdlh Hkh n'kk esa de ugha fd;k tk ldrk gSA mDr ds lEcU/k esa lwP; gS fd ;kphx.kksa dks Pay Protection dk ykHk fn;k tkuk pkfg;sA vr% ,y0ih0lh0 (vfUre osru izek.k i=) ds vk/kkj ij u;s tuin esa osru dk vkx.ku dj Pay Protection ds fu;eksa dk ikyu fd;k tkuk pkfg,A mDr ds lEcU/k esa vkidks funsZf'kr fd;k tkrk gS fd ;kphx.kksa dks vfUre osru izek.k i= (,y0ih0lh0) ds vk/kkj ij osru vkWx.ku dj Pay Protection ds fu;eksa dk ikyu djrs gq, osru Hkqxrku djus dh dk;Zokgh dj ek0 mPp U;k;ky; ds vkns'k dk vuqikyu lqfuf'pr djsaA"
At this stage, learned counsel for the respondent nos.3 and 4 has drawn attention to the Last Pay Certificate as contained in Annexure-10, relevant portion on which is reproduced hereinunder:-
"नोट- उक्तवत भुगतान माह जून 2013 में किया गया। सम्बन्धित अध्यापक के द्वारा शपथ प्रस्तुत किये जाने पर BSA महोदय के आदेश स० 3811-16/2013-14 दि० 22.7.2013 के द्वारा पदावनति किये जाने पर निम्नवत वेतन देय है।
ग्रेड पे - 4200 बैन्ड पे -10560 बेसिक पे -14760"
Thus, it is evident that petitioner himself had furnished an affidavit before the B.S.A. and vide order dated 22.07.2013, petitioner was demoted and then his pay was fixed in the Grade-pay of Rs.4200. Thus, there is no question of any pay protection because once petitioner sought transfer in a district of his own choice and decided to forego his promotion in the district where he was functioning on account of the fact that his batchmates were not promoted in the district of his choice where he sought his transfer, therefore, in terms of the order dated 27.05.2013 Clause-6 which reads as follows:
"6. स्थानान्तरण चाहने वाले अध्यापकों का उनके द्वारा वांछित जनपद में केवल उसी स्थिति में स्थानान्तरण किया जायेगा जबकि उस जनपद में सम्बन्धित अध्यापक के बैच के अध्यापक भी समान पद पर कार्यरत हों।"
In view of the aforesaid clause, petitioner was not entitled to any pay protection because he had voluntarily foregone the promotion in the Grade-pay 4600 and opted for his demotion in the Grade-pay of Rs.4200 so that he could have been accommodated in the district of his own choice and also there is no challenge to the L.P.C. which contains a note regarding the motion.
Law in regard to protection of pay is well settled as has been laid down in case of Comptroller and Auditor General of India Vs. Farid Sattar as reported in (2000) 4 SCC 13 wherein, it has been held that where a person on his own volition seeks transfer on certain terms and conditions accepted by him and the terms and conditions of unilateral transfer are very clear and there is no ambiguity in it. The terms and conditions provided that the respondent on transfer could be appointed to a post which is lower to the post which he was occupying prior to his transfer in such a situation, the pay of the respondent had to be fixed with reference to the lower pay scale and not with reference to the pay drawn by him in the higher posts. In para-6, it has been specifically mentioned that under the terms and conditions of the transfer the pay which the respondent was drawing on the higher post was not required to be protected when he joined the lower post of accountant.
The facts of this case decided by Hon'ble Supreme Court are applicable in all force to the facts of the present case and once the petitioner himself had foregone promotion in the Grade-pay to Rs.4600 and opted for his promotion in the Grade-pay of Rs.4200, he is estopped from claiming dual advantage of transfer to a district of his own choice and drawing of higher Grade-pay from which he was demoted in terms of the policy so to be accommodated in the district of his own choice.
Thus, the orders on which petitioner has placed reliance are of no relevance for the present and the principles of pay protection will not be applicable in the case of the petitioner because once he was demoted then he was not drawing the salary in the Grade-pay of Rs.4600.
Accordingly, petitioner has failed to make out a case for pay protection and, therefore, petition fails and is dismissed.
Order Date :- 9.7.2020 Ashutosh