Allahabad High Court
Divya Goswami vs State Of U.P. And 3 Others on 3 November, 2020
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R Reserved on 15.10.2020 Delivered on 3.11.2020 Court No. - 74 Case :- WRIT - A No. - 878 of 2020 Petitioner :- Divya Goswami Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Navin Kumar Sharma Counsel for Respondent :- C.S.C.,Jai Krishna Tiwari Connected with Case :- WRIT - A No. - 300 of 2020 Petitioner :- Jai Prakash Shukla And 9 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Seemant Singh Counsel for Respondent :- C.S.C. And Case :- WRIT - A No. - 8479 of 2020 Petitioner :- Shashi Singh Respondent :- State Of U P And 2 Others Counsel for Petitioner :- Navin Kumar Sharma Counsel for Respondent :- C.S.C.,Vikram Bahadur Singh And Case :- WRIT - A No. - 8474 of 2020 Petitioner :- Pratiksha Sinha Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Navin Kumar Sharma Counsel for Respondent :- C.S.C.,Chandrakesh Rai And Case :- WRIT - A No. - 8478 of 2020 Petitioner :- Sonia Mishra Respondent :- State Of U P And 2 Others Counsel for Petitioner :- Navin Kumar Sharma Counsel for Respondent :- C.S.C.,Chandrakesh Rai And Case :- WRIT - A No. - 796 of 2020 Petitioner :- Mohani Chaturvedi Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Arvind Kumar Singh Counsel for Respondent :- C.S.C.,Pankaj Kumar Tyagi,Sanjay Kumar Singh And Case :- WRIT - A No. - 816 of 2020 Petitioner :- Smt. Meenu Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Arvind Kumar Singh Counsel for Respondent :- C.S.C.,Yatindra,Yogendra Singh Bohra And Case :- WRIT - A No. - 821 of 2020 Petitioner :- Rashmi Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Arvind Kumar Singh Counsel for Respondent :- C.S.C.,Prem Prakash Yadav,Satish Chandra Yadav And Case :- WRIT - A No. - 863 of 2020 Petitioner :- Nitu Pathak Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Arvind Kumar Singh Counsel for Respondent :- C.S.C.,Pankaj Kumar Tyagi,Sanjay Kumar Singh And Case :- WRIT - A No. - 1207 of 2020 Petitioner :- Seema Gautam Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Arvind Kumar Singh Counsel for Respondent :- C.S.C.,Shyam Krishna Gupta,Vijai Kumar Srivastava And Case :- WRIT - A No. - 1210 of 2020 Petitioner :- Smt. Meenu Singh Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Satya Prakash Singh,Bajrang Bahadur Singh Counsel for Respondent :- C.S.C.,Akhilesh Chandra Srivastava And Case :- WRIT - A No. - 1216 of 2020 Petitioner :- Kavita Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Arvind Kumar Singh Counsel for Respondent :- C.S.C.,Jai Krishna Tiwari,Shivam Yadav And Case :- WRIT - A No. - 1221 of 2020 Petitioner :- Jyoti Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Arvind Kumar Singh Counsel for Respondent :- C.S.C.,Ajay Kumar Sharma,Pranesh Dutt Tripathi And Case :- WRIT - A No. - 1269 of 2020 Petitioner :- Arti Gupta Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Arvind Kumar Singh Counsel for Respondent :- C.S.C.,Chandrakesh Rai,Sanjay Kumar Singh And Case :- WRIT - A No. - 1374 of 2020 Petitioner :- Manisha And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Agnihotri Kumar Tripathi Counsel for Respondent :- C.S.C.,Ajay Kumar Sharma,Ram Bilas Yadav,Shashi Kant Verma And Case :- WRIT - A No. - 1459 of 2020 Petitioner :- Priti Sharma Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Arvind Kumar Singh Counsel for Respondent :- C.S.C.,Jai Krishna Tiwari,Sanjay Kumar And Case :- WRIT - A No. - 1766 of 2020 Petitioner :- Shikha Nupur Shukla Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Arvind Kumar Singh Counsel for Respondent :- C.S.C.,Bhanu Pratap Singh,Jay Ram Pandey And Case :- WRIT - A No. - 1781 of 2020 Petitioner :- Shabina Begum Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Arvind Kumar Singh Counsel for Respondent :- C.S.C.,Akhilesh Chandra Srivastava,Pankaj Kumar Singh And Case :- WRIT - A No. - 1843 of 2020 Petitioner :- Shahista Jafri Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Sheeba Rizvi Counsel for Respondent :- C.S.C.,Satish Chandra Yadav And Case :- WRIT - A No. - 1894 of 2020 Petitioner :- Usha Kiran Pandey Respondent :- State Of U P And 3 Others Counsel for Petitioner :- Sanjay Kumar Mishra Counsel for Respondent :- C.S.C.,Ram Bilas Yadav And Case :- WRIT - A No. - 1907 of 2020 Petitioner :- Rishikesh Pratap Singh Yadav Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Satyendra Narayan Singh,Prakash Chandra Tripathi Counsel for Respondent :- C.S.C.,Arun Kumar And Case :- WRIT - A No. - 1979 of 2020 Petitioner :- Ghadeer Zohra Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Sheeba Rizvi Counsel for Respondent :- C.S.C.,Yogendra Singh Bohra And Case :- WRIT - A No. - 1994 of 2020 Petitioner :- Roopa Rani And 29 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Hridai Narain Pandey Counsel for Respondent :- C.S.C.,Sanjay Kumar And Case :- WRIT - A No. - 2291 of 2020 Petitioner :- Geeta Gupta Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Anil Kumar Singh Bishen Counsel for Respondent :- C.S.C.,Arun Kumar Pandey,Mrigraj Singh And Case :- WRIT - A No. - 2322 of 2020 Petitioner :- Samta Sachan Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Agnihotri Kumar Tripathi Counsel for Respondent :- C.S.C.,Bhola Nath Yadav And Case :- WRIT - A No. - 2323 of 2020 Petitioner :- Vinit Kumar Singh And 15 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Anil Kumar Singh Bishen Counsel for Respondent :- C.S.C. And Case :- WRIT - A No. - 2466 of 2020 Petitioner :- Rakesh Kumar Chaturvedi Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Arvind Kumar Singh Counsel for Respondent :- C.S.C.,Bhanu Pratap Singh,Jay Ram Pandey And Case :- WRIT - A No. - 2469 of 2020 Petitioner :- Smt. Anju Jha Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Navin Kumar Sharma Counsel for Respondent :- C.S.C. And Case :- WRIT - A No. - 2471 of 2020 Petitioner :- Smt. Seema Pandey Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Navin Kumar Sharma Counsel for Respondent :- C.S.C.,Arun Kumar And Case :- WRIT - A No. - 2473 of 2020 Petitioner :- Smt. Kalpana Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Sandeep Srivastava,Navin Kumar Sharma Counsel for Respondent :- C.S.C.,Sanjay Kumar Singh And Case :- WRIT - A No. - 2516 of 2020 Petitioner :- Priyanka Nayak Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Arvind Kumar Singh Counsel for Respondent :- C.S.C.,Arun Kumar,Krishna Kumar Chand And Case :- WRIT - A No. - 2525 of 2020 Petitioner :- Rupali Sharma And 8 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Arvind Kumar Singh Counsel for Respondent :- C.S.C.,Arun Kumar And Case :- WRIT - A No. - 2688 of 2020 Petitioner :- Shilpi Srivastava Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ravindra Prakash Srivastava Counsel for Respondent :- C.S.C.,Awadhesh Kumar And Case :- WRIT - A No. - 3742 of 2020 Petitioner :- Alka Gupta Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Surya Prakash Pandey,Ajay Tripathi Counsel for Respondent :- C.S.C.,Mohd Shere Ali And Case :- WRIT - A No. - 4185 of 2020 Petitioner :- Shiva Dixit Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Shyam Chandra Pandey,Vinay Singh Counsel for Respondent :- C.S.C. And Case :- WRIT - A No. - 4333 of 2020 Petitioner :- Sangeeta Gagwar Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- R P Rajan Counsel for Respondent :- C.S.C.,Pradeep Singh Sengar And Case :- WRIT - A No. - 2408 of 2020 Petitioner :- Arati Tiwari Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Navin Kumar Sharma Counsel for Respondent :- C.S.C.,Chandrakesh Rai And Case :- WRIT - A No. - 2411 of 2020 Petitioner :- Kalpana Bajpayee Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Sandeep Srivastava,Navin Kumar Sharma Counsel for Respondent :- C.S.C.,Sanjay Kumar Singh And Case :- WRIT - A No. - 2429 of 2020 Petitioner :- Ritu Sinha Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Sandeep Srivastava,Navin Kumar Sharma Counsel for Respondent :- C.S.C.,Sanjay Kumar Singh And Case :- WRIT - A No. - 2432 of 2020 Petitioner :- Ragini Srivastava Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Sandeep Srivastava,Navin Kumar Sharma Counsel for Respondent :- C.S.C.,Sanjay Kumar Singh And Case :- WRIT - A No. - 2442 of 2020 Petitioner :- Abhay Singh Kushwaha And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Akash Deep Srivastava,Udai Chandani Counsel for Respondent :- C.S.C. And Case :- WRIT - A No. - 2463 of 2020 Petitioner :- Kapil Kumar Kannoujiya Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Arvind Kumar Singh Counsel for Respondent :- C.S.C.,Amit Shukla,Pranesh Dutt Tripathi And Case :- WRIT - A No. - 2927 of 2020 Petitioner :- Pramod Kumar Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Satyaveer Singh Counsel for Respondent :- C.S.C.,Arun Kumar And Case :- WRIT - A No. - 3464 of 2020 Petitioner :- Aradhana Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Anil Kumar Singh Bishen Counsel for Respondent :- C.S.C.,Arun Kumar And Case :- WRIT - A No. - 3366 of 2020 Petitioner :- Dipti Bhargav Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ram Kishore Pandey,Himanshu Raghav Pandey Counsel for Respondent :- C.S.C.,Ram Bilas Yadav,Yatindra Hon'ble Ajit Kumar,J.
1. Heard Sri R.K. Ojha, learned Senior Advocate assisted by Sri Arvind Kumar, Sri Navin Kumar Sharma, Sri H.C. Pandey, Sri S.K. Mishra, Sri S.P. Singh, Sri Aghonotri Kumar Tripathi, Sri Ranvijay Singh and other respective Advocates appearing for respective petitioners in this bunch of petition and Sri Ajit Kumar Singh, learned Additional Advocate General assisted by Sri Amit Verma, learned Standing Counsel for State, Sri J.K. Tiwari, Sri Sanjay Kumar Singh, Sri Pradeep Singh Senger, Sri Vikram Bahadur Singh, Sri S.K. Verma, Sri Sanjay Kumar, Sri Satish Chand Yadav, Sri Ashok Kumar Yadav, Sri R.P. Shukla, Sri Bhupendra Kumar Yadav, Sri Arun Mishra, Sri Sanjay Chaturvedi, Sri R.P. Singh, Sri Akhilesh Chand Srivastava, learned counsel for Basic Siksha Parishad and respective District Basic Education Officers.
2. This bunch of petitions raises question to the stand of the State Government and the U.P. Basic Education Board in denying registration of Assistant Teachers male and female working in various junior basic and Senior basic Schools run by Basic Siksha Parishad, qua their requests for inter district transfer.
3. The germane to the issue in lis lies in the Government order dated 2.12.2019, issued by the State Government laying down criteria for eligibility of Assistant Teachers for inter district transfer.
4. Since only legal issue is required to be addressed to, in the present case qua eligibility and consideration of the request of the Assistant Teachers for transfer in the light of the U.P. Basic Education (Teachers) Service Rules, 1981(hereinafter referred to as Recruitment Rules, 1981), as amended in the year 2012 and the U.P. Teachers Posting Rules, 2008 (hereinafter called as Posting Rules, 2008), this Court does not consider it necessary to go into the facts pleaded in writ petitions of respective petitioners except the fact that pursuant to the Government Order dated 2.12.2019, the respondents invited applications from teachers for transfer and the petitioners are before this Court, who have been refused registration for consideration for inter district transfer in view of Clauses 15 and 16 of the said Government Order.
5. The undisputed legal position admitted to the respective parties is that the teachers appointed under the Recruitment Rules, 1981 to various Junior Basic and Senior Basic Schools of Basic Education Board form a separate District Based cadre and their inter se seniority is, accordingly, determined and there is no provision under the Recruitment Rules,1981 which may provide for the post to be transferable except by virtue of acceding to the requests of teachers under Rule 21 of Recruitment Rules 1981. Prior to the 15th amendment made in the said Rules vide notification dated 31.8.2012 Rule 21 read as under:
"21- Procedure for Transfer- Any teacher who is working as assistant teacher/ head master in schools governed by the Board on October, 2011 may submit his/ her option/ application once in his/ her service period for transfer from one district to another district on the proforma laid down by the Board in the manner prescribed by it, which shall be effective till his/ her transfer is executed:-
(i) On and from the commencement of the Uttar Pradesh Basic Education (Teachers' Service) (Thirteen Amendment) Rules, 2011 headmasters/ teachers who are willing to seek inter district transfer shall have to submit their options/ applications till December 31, 2011. The options/ applications for transfer received by the Board shall be listed in accordance with opted district wise by the Board in order of their date of substantive appointment.
(ii) the inter-district transfer of teachers shall be considered in the following order of preference:-
(a) Female teacher who applies for transfer on marriage basis.
(b) Female teacher who applies for transfer in a district other than her home district.
(c) Female teacher who applies for transfer in her home district.
(d) Male teacher who applies for transfer in a district other then his home district.
(e) Male teacher who applies for transfer in his home district.
(iii) For transfer of teacher working in schools government by the Board three options of districts in order of preference shall be obtained on one application Form laid down by the Board.
(iv) Teacher willing for transfer, if working as head master in primary schools and assistant teacher in uppar primary schools after promotion their transfer shall be considered in the applied/ opted district, only when the teachers appointed in the same year have pot promotion. The transfer of head teacher of upper primary schools shall not be permitted.
(v) The female teacher willing for transfer according to the order of preference prescribed in clause ii) above shall be transferred, on the basis of first option given by them, in applied/ opted district in order of their seniority. After that they shall be transferred on the basis of their second option, and remaining female teachers shall be transferred on the basis of their third option. Thereafter transfer of male teachers shall be considered on the basis of their seniority, in the district on the vacant posts available against sanctioned posts in respective district.
(vi) No option shall be accepted after 31-12-2011 the date prescribed for the submission of application/ option by the teacher for inter-district transfer. It shall be the last opportunity for the teachers to submit their applications/ options for inter-district transfer. The teachers who have not submitted their option till the stipulated date, the right to give option thereof shall stand expired.
(vii) In accordance with the above procedure, the teachers by whom the option for their transfer have been submitted, this rule shall stand infructuous for them after the execution of their transfer on the aforesaid basis.
(viii) The facility of this rule shall not be admissible to the teachers appointed after dated 31-10-2011."
6. After 5th amendment Rule 21 as exists today is reproduced hereunder:
"21-Procedure for transfer- There shall not 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."
7. Since the rule now does not lay down any criterion for eligibility and consideration of request for transfer, the State Government has brought in transfer policies from time to time in aid to the Rule 21, laying criteria for eligibility and modus operendi qua consideration of request for transfer, if made by an Assistant Teacher. It is necessary here to refer to the Government Order dated 13.6.2017 which vide clauses 3 to 8 of it prescribed both eligibility criteria and the consideration of request for transfer and the method and manner for consideration thereof. The transfer policy of 13.6.2017 clearly provided that teachers would be entitled to apply if in the year of application have completed five years satisfactory service on or before 31st March and had not been conferred with the benefit of inter district transfer in the past and further they must not have been held guilty and punished in any disciplinary proceedings in the past. Clause 3.3 further provided that up to 25% of the existing vacancies the inter district transfer will be facilitated and the districts where more than 15% of the vacant positions exist in respect of such districts teachers working there shall not be transferred. Clause 8 which prescribed for quality point marks in respect of various categories like disabled persons, persons suffering from incurable disease/ serious disease, ladies and one mark for every year of service already rendered but to the maximum of 35 marks was to be awarded to every Assistant Teacher applying for inter district transfer.
8. The said government order came to be amended on 20.9.2017 whereby the five year rider in respect of disabled persons was removed. The said Government Order dated 13.6.2017 came to be questioned before this Court by a number of Assistant Teachers, both male and female, and all the writ petitioners were heard in a Bench with Writ A No. 14395 of 2017 (Smt. Ruchi Vs. State of U.P and others) as the leading case. In those writ petitions, basic challenge was to the Government Order that laid down transfer policy in terms of restrictions made on inter district transfer and majority of petitioners were female teachers.
9. While the writ petitions were still pending, yet another Government Order was issued on 5.2.2018 whereby relaxations were given in respect of Assistant Teachers female qua the bar of five years from the date of initial appointment, but of course in exceptional circumstances and subject to availability of the vacancies. Yet another Government Order was issued on 29.3.2018 in respect of aspirational districts identified under the Aspirational District Scheme of the Government of India and eight districts as such came to be identified. A moratorium of two years was created after the fulfillment of all the vacancies, in respect of eligibility of teachers to seek transfer. Certain amendments were further made in the transfer policy in respect of aspirational district vide Government Order dated 10.6.2018. Since the Government Order dated 13.6.2017 provided exemption to the request made by female Assistant Teachers from five years restriction in exceptional circumstance and the challenge was to the said provision besides, challenge to other provisions, issue regarding condition No. 8(2)(d) was taken to have become infructuous and so while dealing with question No. A and further the conditions imposed by the Government Order on inter district transfer, if already opted, to deny subsequent transfer request, it was held to be not surviving.
10. The said judgment came to be challenged by means of intra court appeal being Special Appeal No. 870 of 2018 that came to be decided along with several other connected Special Appeals by the Division Bench of this Court vide judgment and order dated 4.10.2018 and affirmed the judgment of learned Single Judge.
11. So the question of Government Policy and conditions laid therein and the changes from time to time made though were questioned before this Court in the aforesaid writ petitions and special appeals but the challenge was put to an end in respect of teachers of Aspirational District and the rights of the Assistant Teachers to seek inter district transfer. It is worth noticing here that the Clause which provided for one time exercise of option for inter district transfer had remained intact even during subsequent amendments.
12. This bunch of writ petitions now challenge the Government Policy brought into force vide Government Order dated 2.12.2019 almost in the same way as was brought into force vide Government order dated 13.6.2017. The ground of challenge this time is again the same as to whether the Government can lay down condition for the teachers who have already opted for transfer once successfully, to disentitle them from making request for transfer again. It is worth noticing that this condition is not applicable in respect of those who have applied in the past and were unable to get transferred, and also in respect of spouse of paramilitary force, CRPF, CISF, SSB, Assam Rifle, ITBP, BSF and those who are disabled/ suffering from incurable / serious disease and in matters of single parents as well.
13. There are two sets of petition challenging the Government Order dated 2.12.2019. One set of petition is by Assistant Teachers female category who question the condition No. 15 on the ground that it violates absolutely U.P. Basic Education (Teacher) (Posting) Rule, 2008 and is also in derogation of the rights created in favour of Assistant Teachers for seeking transfer under Rule 21 of 1981 Rules; and the second set of petition is by Assistant Teachers male category which questions the condition contained in Clause 16 of the Government Order dated 2.12.2019 on similar lines.
14. Learned Advocates appearing for their respective petitions in both sets of petitions submit that the conditions are (a) arbitrary being violative of Article 14 of the Constitution of India (b); the Recruitment Rules 1981 do not lay down any restriction upon exercise of request for transfer vide Rule 21 and without amending the said Rules, such restrictions cannot be laid down by means of an executive order like Government Orders as it would amount to travelling beyond the rules, inasmuch as, no provision of transfer can be de hors the provisions of Posting Rules, 2008; (c) there is no rationale for laying down such condition as it has no nexus with the object sought to be achieved and above all (d) no prejudice is caused to any teacher, working in such institutions as transferee is placed at the bottom of the seniority in the district cadre.
15. Per contra it has been argued by learned Additional Advocate General that this Court in this petition may not go into the question of consideration of request for transfer as a matter of right, as the said controversy of transfer has already stood concluded in the detailed judgment of this Court in the case of Smt. Ruchi (supra) and others and the connected matters (supra)and the judgment of the Division Bench in Special Appeal of Smt. Shikha Singh and others Vs. State of U.P. and others and connected special appeals.
16. It is also argued by learned Additional Advocate General that the Government order being questioned here in this petition and several other connected matters, had already been challenged before this Court vide Writ A No. 2023 of 2020 (Abhilash Kumar Tripathi Vs. State of U.P. and others) and the writ petition has been dismissed on merits upholding the Government Order and this judgment has also been followed in case of Manoj Kumar and others Vs. State of U.P (Writ A No. 881 of 2020). It is argued by learned Additional Advocate General that once the Government Order had been challenged before this Court and the Court upheld the Government Order/ Government Policy as such, it will be taken to have upheld the transfer policy in its entirety. He argued that it was always open for the petitioners in those cases to have challenged other clauses of the Government order if they were aggrieved but no piecemeal challenge is permissible. One cannot be permitted to raise the plea that a particular provision was earlier challenged but the provisions now under challenge are different, to bring in further litigation because it will amount to multiplicity of litigation and there will be no end to it.
17. He has drawn the attention of the Court to the order passed in Writ Petition No. 2023 of 2020 (Abhilash Kumar Tripathi Vs. State of U.P. and others) wherein vide paragraphs: 9,10,11, 12, 13, 14 and 15 the Court has held that transfer is a matter of policy and since Rule 21 does not create absolute right, the transfer policy cannot be struck down on the ground that different policy would have been more scientific or logical one. Paragraphs 9 to 15 of the judgment are reproduced hereunder:
"9. The impugned transfer policy dated 02.12.2019 is a policy decision of the State Government. The State Government has taken a policy decision in its wisdom to give some weightage or preference to female assistant teachers for transfer which may be for variety of reasons including social reasons. Clause (2) of para-8 provides for 10 quality point marks to differently abled assistant teachers. Clause (3) provides for 10 point quality marks to those teachers who is either himself or his/ her spouse or children are suffering from the specified critical diseases. Clause (4), which has been challenged in the present writ petition, provides for 5 quality point marks to female teachers. Clause (5) provides for 10 quality point marks to such male or female teachers whose spouse is in government service. Clause (6) provides for five quality point marks to single parents, e.g. widow/ widowed/ divorced etc. Clause (7) provides for 5 quality point marks to teachers who received national award and 3 quality point marks to teachers who received State award.
10. Thus, clause (2) to (6) of paragraph- 8 of the impugned policy decision provides for some weightage by means of quality point marks to eligible teachers for transfer who either on account of physical disability or serious ailments or special circumstances or social reasons, need to be given some preference in transfer of the districts opted by them for transfer. The aforesaid policy decision of the State Government is logical. It is neither grossly arbitrary nor unfair nor unreasonable nor irrational. It is not violative of any of the provisions of the Constitution or contrary to the statutory provisions. Therefore, the clause (4) of paragraph-8 of the policy decision/ government order dated 02.12.2019, cannot be interfered. This is also the ratio of decision of Hon'ble Supreme court in the case of Ehsan Khalid vs. Union of India and others, 2014 (13) SCC 356 (Paras-8 and 9).
11. Thus, the State Government is entitled to make pragmatic adjustments and policy decision, which may be necessary or called for under the prevalent peculiar circumstances. The court cannot strike down a policy decision or any clause thereof, merely because it feels that another decision would have been fairer or wiser or more scientific or logical. It is neither within the domain of the courts nor the scope of judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. The court cannot strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical. Reference in this regard to the aforesaid settled principles of law may be had to the judgments of Hon'ble Supreme Court in the case of Netai Bag vs. State of West Bengal, (2000) 8 SCC 262 (para-20), Ram Singh Vijay Pal Singh vs. State of U.P. and others, (2007) 6 SCC 44 (para-12), Balco Employees Union (registered) vs. Union of India, (2002) 2 SCC 333 (para-33 to 46), Pearless General and Investment and others vs. Reserve Bank of India, (1992) 2 SCC 343 (para-31), Premium Granites vs. State of Tamilnadu, (1994) 2 SCC 691, R.K. Garg vs. Union of India, (1996) 2 SCC 405 (para-7) and Bhavesh D. Parish vs. Union of India, (2000) 5 SCC 471 (para-26), Narmada Bachao Andolan and others vs. Union of India, (2000) 10 SCC 664 (para-229) and M.P. Oil Extraction vs. State of M.P. (1997) 7 SCC 592 (para-41) and State of Punjab vs. Ram Lubhaya Bagga, (1998) 4 SCC 117 (para-25).
12. In the case of Union of India vs. Shankar Lal Soni, (2010) 12 SCC 503 (para-18) Hon'ble Supreme Court explained its judgment in the case of Ram Singh (supra) and held that decision to grant a certain concession or certain benefit and the conditions for their grant are matters for the administrators alone and the court should not interfere in the matter on the premise that it was of the opinion that some of the conditions imposed were not justified.
13. In view of the above discussion and considering the law laid down by the Hon'ble Supreme Court in various judgments including in the case case of M.P. Oil Extraction (supra), it can be safely concluded that the executive authority of the State must be held to be within its competence to frame a policy for the administration in basic schools unless the policy framed is absolutely capricious and not being informed by reason whatsoever and arbitrary. A policy decision can also not be sustained if policy offends constitutional provisions or comes into conflict with any statutory provision. In other words, a policy decision is in the domain of the executive authority of the State. The court should not embark on the unchartered ocean of public policy and should not question the efficacy or otherwise of such policy so long it does not offend any of the provisions of the Constitution of India or Statute.
14. The impugned paragraph of the government order/ policy decision dated 02.12.2019 neither offends Article 14 of the Constitution of India nor offends other constitutional provisions nor it is in conflict with any of the provisions of the Rules. Therefore, no interference can be made by this court.
15. For all the reasons afore-stated, I do not find any merit in this writ petition. Consequently, the writ petition fails and is hereby dismissed."
Respectfully following the order passed in the case of Manoj Kumar (supra), this writ petition is also dismissed."
18. Learned Additional Advocate General has further relied upon various judgments like M.P. Oil Extraction and another Vs. State of U.P. and others Civil Appeal No. 4313 of 1997; Neti Bag and others Vs. State of U.P. and others in Civil Appeal No. 5447 of 2000; Ram Singh Vijay Pal Singh and others Vs. State of U.P. and others in Civil Appeal No. 2300 of 2007; Union of India Vs. Shankar Lal Soni and another in Civil Appeal No. 4578 of 2006 and order of this Court in the case of Ehasn Khalid Vs. Union of India through Secretary being Writ Petition No. 429 of 2013.
19. Having heard learned counsel for respective parties at length, I find that both the Government Orders dated 13.6.2017 amended from time to time and 2.12.2019 contain almost similar conditions to make the Assistant Teachers eligible to seek request for inter district transfer taking recourse to Rule 21 read with Posting Rules, 2008.
20. The issue qua condition of one time option for transfer brought into force under the government has remained alive only on account of the fact that this condition in the earlier government order dated 13.06.2017 was withdrawn and the issue framed by this Court has remained unanswered and the second issue that is requested to be addressed to, is with regard to the Assistant Teacher female category in view of social structure of the society in this country as a lady teacher who is in employment also runs household activity and so there can be various factors which require to be considered to exempt the female teachers from the clutches of this condition of one time exercise of option for transfer in the entire service career.
21. On the question of preliminary objection of the learned Additional Advocate General that once the Government Order has been upheld in earlier litigation and may be only certain issues were raised, it is not open for the petitioners to again and again challenge the same Government Order on different different grounds. It is argued by the petitioner's counsel that in a litigation wherein a number of issues were raised and judgment is limited to certain issues and the other issues remained unanswered such issues can always be questioned by other litigants and the principles of res judicata or constructive res judicata will not be attracted in such a situation.
22. In view of the above, therefore, three following issues are required to be determined :
(A). Whether the judgment in the case of Smt. Ruchi Vs. State of U.P. and others, Abhilash Kumar Tripathi followed in Manoj Kumar and 29 others Vs. State of U.P. and others Writ A No. 881 of 2020 conclusively uphold the Government Order/ Transfer Policy dated 2.12.2019 and whether determination is having the effect of a binding precedent;
(B). Whether restrictions, in the form of one time right to get inter district transfer is a valid condition and has nexus with the objectives sought to be achieved and, therefore, unquestionable; and in such an event whether the female Assistant Teacher in the female category did require to be exempted from this one time inter district transfer right in the entire service carrear; and (C) The scope and effect of statutory Rules framed under Section 19 of U.P. Basic Education Act, 1972 and whether such Rules having already occupied the field, have to be read in supersession to the provision contained under government order, to the extent of latter being inconsistent.
23. Issue No. A:- This issue is basically based upon the argument advanced by the learned Additional Advocate General on behalf of the State that these petitions questioning the Government Order are not maintainable for the reason that in the case of Abhilash Kumar Tripathi (supra) the Court has upheld the Government Order dated 2.12.2019 as not offending Article 14 of the Constitution nor, was in any manner, in conflict with any of the provisions of the Act or the Rules. He submits that since identical issues were there in Smt. Ruchi's case (supra) and the judgment given in that case having been approved in appeal shall have also the effect of binding precedent.
24. The legal position for attracting the principles of res judicata and constructive res judicata provided for under Section 11 of Code of Civil Procedure has been time and again reiterated in the judgments of Apex Court and of this Court, that for having a judgment to have a binding effect on a controversy between the same parties, would mean a conclusive settlement of the issue between the same parties and in case if a judgment is in rem in respect of a policy decision qua public interest, such judgment should conclusively decide the point in controversy. Elaborating the principles of res judicata and constructive res judicata the eight judges larger Bench of Supreme Court (as it then used to be referred to as such), in Pandit M.S.M. Sharma Vs. Dr. Shree Krishna Sinha & others (AIR 1960 SC 1186) vide paragraphs 5,6, 7, 8 and 9 has held thus:
"5. The ground of attack raise substantially the same questions that were agitated on the previous occasions in this Court. It was contended before us that the petitioner, as a citizen of India, had the fundamental right of freedom of speech and expression which included the freedom of obtaining the earliest and most correct intelligence of the events of the time including the proceedings of a Legislature and publishing the same and that no Legislature of a State could claim a privilege so as to curtail that right. It was, therefore, contended that the majority decision of this Court in Writ Petn No. 122 of 1958: (AIR 1959 SC 395) was wrong. In this connection it was also contended that the rule of construction adopted by this Court in its previous decision had been wrongly applied. It was further contended that even if the House of a State Legislature had the same powers, privileges and immunities as those of the House of commons, those will be only such as were being actually exercised at the date of the commencement of the Constitution and the right to prevent publication of its proceedings was not one of those powers, privileges or immunities. An appeal was also made to Art. 21 of the Constitution and it was contended that no citizen could be deprived of his personal liberty, except in accordance with the procedure established by law. Hence, it was further contended that the mala fide act of respondents `1 and 2 calling upon the petitioner to show cause was a threat to his fundamental right, and finally, it was contended that after several prorogations the previous proceedings for breach of privilege were dead and the House of the Assembly had, therefore, no power or jurisdiction to issue the fresh notice in accordance with the motion of November 23, 1959 reviving the proceedings.
(6) It will thus appear that in the present proceedings also the very same questions which were discussed and decided in Writ Petition No. 122 of 1958: (AIR 1959 SC 395) are sought to be raised once again. In effect, it is sought to be argued that the previous decision of this Court has proceeded on a wrong appreciation of the legal position. In short, it is insisted that the petitioner has the fundamental right of publishing the proceedings of the Bihar Legislature and that the Legislature has no power to restrict or control the publication of its proceedings.
(7) The Government Advocate of Bihar on behalf of the opposite party, has contended, in the first instance, that the present writ petition against the parties, namely the Chairman and the members of the Committee of Privileges, respondents 1 and 2, is barred by the principle of res judicata and, therefore, not maintainable. His contention also is that the writ cannot issue either against an individual member or against the House of the Legislature as a whole in respect of what has been done by it in exercise of its privilege of prohibiting or, at any rate, controlling the publication of its proceedings.
(8) On behalf of the petitioner it was contended by Mr. Basudeva Prasad that respondent No. 2, the Committee of Privileges, has been reconstituted as aforesaid after the first decision of this Court which is sought to be availed of as res judicata and that therefore the rule of res judicata is inapplicable. In this connection it may be pointed out that in Writ Petn. No. 122 of 1958 (AIR 1959 SC 395), Sir Krishna, Sinha, Chief Minister of Bihar, was impleaded as opposite party No. 1 in his capacity as the Chairman of the committee of privileges of the Bihar Legislative Assembly and opposite party No. 2 was cited as Committee of privileges, Bihar Legislative assembly, without any names being given. In the present writ petition, opposite party no. 1 is the same. Opposite party No. 2 is impleaded as the (new) Committee of privileges of Bihar Legislative assembly and then a number of names are given including that of Dr. Sir Krishna Sinha, the Chief Minister as chairman. Would it make any different that though opposite party No. 2 is the committee of Privileges, its personnel is different from that of Committee of Privileges constituted as it was in 1958? In our opinion, it does not make any difference. So long as the Assembly remains the same it is open to the Assembly to reconstitute its committees according to the exigencies of the business of assembly. The committee of privileges is one of the agencies through which the assembly has to transact its business. It is really the Assembly as a whole which is proceeding against the petitioner in purported exercise of its powers, privileges and immunities as held by this Court in its judgment in Writ petn. No. 122 of 1958 (AIR 1959 SC 395). This Court has laid it down in the case of Raj Lakshmi Dasi V. Banamali Sen 1953 SCR 154 (AIR 1953 SC 33) that the principle of underlying res judicata is applicable in respect of a question which has been raised and decided after full contest even though the first tribunal which decided the matter may have no jurisdiction to try the subsequent suit and even though the subject matter of the dispute was not exactly the same in the two proceedings. In that case the rule of res judicata was applied to litigation in land acquisition proceedings. In that case the general principles of law bearing on the rule of res judicata, and not the provision of S. 11 of the Code of civil Procedure were applied to the case. The rule of res judicata is meant to give finality to a decision arrived at after due contest and after hearing the parties interested in the controversy. There cannot be the least doubt that, though co-nomine opposite party No. 2 were not the same, but there is no escape from the conclusion that the committee of Privileges is the same committee irrespective of its personal at a given time so long as it was a committee constituted by the same legislative Assembly. The question decided by this Court on the previous occasion was substantially a question affecting the whole Legislature of the State of Bihar and was of general importance and did not depend upon the particular constitution of the committee of privileges. It cannot, therefore be said that the question decided by this Court on the previous occasion had not been fully debated and had not been decided after due deliberation. There was difference of opinion and one of the judges constituting the court had another view only shows that there was room for difference of opinion. It was a judgment of this Court which binds the petitioner as also the Legislative Assembly of Bihar. For the application of the general principles of res judicata, it is not necessary to go into the question whether the previous decision was right or wrong.
(9) In our opinion, therefor, the questions determined by the previous decision of this Court cannot be reopened in the present case and must govern the rights and obligations of the parties which, as indicated above, are substantially the same. It is manifest therefore, that the petitioner has no fundamental right which is being threatened to be infringed by the proceedings taken by the opposite party."
25. The above judgment still holds the field.
26. Applying the above exposition of law to the facts of the present case, what I find is that in the case of Abhilash Kumar Tripathi and Manoj Kumar and others (supra), column 8 (4) of clause 8 of the Government Order was in issue which classifies female teachers as a sub class within the class of teachers and offer them five marks additionally for the purpose of quality point marks to make the Assistant Teachers to succeed in their request for transfer on merits. While having discussed the issues involved vide Paragraphs 2, 3 and 4 of the judgment, which have been quoted above, this Court in the said judgment vide paragraphs 8 and 14 had held thus:
"8. The government policy/ government order in question dated 02.12.2019 is in the nature of concession permitting inter district transfer. None of the petitioners have any statutory right of inter district transfer. The State Government may even withdraw this concession. The assistant teachers intending to take benefit of the aforesaid government order dated 02.12.2019 granting concession subject to certain conditions, have no right to dictate conditions or to say that a particular condition or conditions should be deleted. This view is supported by law laid down in the case of Union of India Vs. Shankar Lal Soni, (2010) 12 SCC 563.
14. The impugned paragraph of the government order/ policy decision dated 02.12.2019 neither offends Article 14 of the Constitution of India nor offends other constitutional provisions nor it is in conflict with any of the provisions of the Rules. Therefore, no interference can be made by this court."
27. In the present petition vide prayer (i) and (v) it has been prayed thus:
"(i) issue a writ, order or direction in the nature of mandamus directing the respondents to remove the condition reflecting at Clause-16 of Transfer Policy dated 02.12.2019 as well as Clause-14 of Guideline regarding inter-district transfer and also extend the benefit of Rule-8(2) (d) of U.P. Basic Education (Teachers) (Posting) Rules, 2008 as well as Rule 21 of U.P. Basic Education (Teachers) Service Rules, 1981 to the petitioner.
(v) Issue a writ, order or direction in the nature of certiorari quashing the Clause-16 of Transfer policy dated 02/12/2019 as well as Clause-14 of guideline regarding inter-district transfer."
28. It is admitted to all the learned Advocates appearing for respective parties in other connected matters that issues as have been raised in the above leading petition and prayers sought for, are same in all the matters.
29. Before I conclude my findings on the basis of above facts and exposition of law on principles of res judicata and binding precedent, I must refer to the judgment of the learned Single Judge in the case of Smt. Ruchi Vs. State of U.P and others Writ A No. 14395 of 2018 and connected matters in which similar controversy was involved regarding applicability of one time option for transfer rule in the entire service carrear. In the said bunch of cases the Government Order dated 13th June, 2017 was in question. Clause-3 of the Government Order dated 13.6.2017 ran as under:
"3& ,sls fu;fer f'k{kd tks vius rSukrh@dk;Zjr tuin esa vkosnu ds o"kZ esa 31 ekpZ rd U;wure 5 o"kZ dh larks"ktud lsok iw.kZ dj pqds gks rFkk blls iwoZ muds }kjk vUrtZuinh; LFkkukUrj.k dk ykHk u fy;k x;k gks ,oa muds fo:) iwoZ esa lafLFkr fdlh foHkkxh; dk;Zokgh esa mUgsa nf.Mr u fd;k x;k gksA"
30. Question No. A was framed by this Court in the said judgment in following terms:
"Whether restriction on inter-district transfer has been validly imposed by the Government Order dated 13.06.2017 on teachers who have earlier taken benefit of inter-district transfer?"
31. The Government Order dated 13.6.2017 came to be modified partially vide another Government Order dated 20.9.2017 in which exemption from five years of satisfactory service was granted to differently abled persons in case they applied for transfer and there was no other modification to any of the other clauses. The Government Order came to be further modified vide another Government Order dated 6.2.2018 which further provided exemption only to female teachers from five year bar, keeping in tune with Rule 8(2) (d) of the U.P. Basic Education (Teachers) (Posting) Rules, 2008. Thus, again no exemption was granted in respect of Clause-3 of the Government Order dated 13.6.2017 and the Government order dated 13.6.2017 modified on 20.9.2017 came to be further modified on 5.2.2018 only to the extent referred to hereinabove. However, the question No. A was held to be no more surviving. The Court vide paragraphs 17 and 18 of the judgment held thus:
"17. The arguments of learned counsels for the petitioners on this question are wholly misconceived inasmuch as Government Order dated 13.06.2017 as amended by Government Order dated 20.09.2017, was further amended by the afore-quoted Government Order dated 05.02.2018, whereby the position as is existing under Rule 8 (2) (d) has been reiterated and the restrictions imposed under the Government Order date 13.06.2017, have been withdrawn.
18. Since the Government Order itself has been amended by the State Government and application of all eligible candidates in terms of the Rules have been considered, therefore, this question does not survive."
32. It transpires that because a large number of petitions were preferred by female teachers only, and exemption from the bar of five years was granted, the issue was dropped and it appears that since the petitioners in those petitions were quite satisfied with the one time option for transfer exercise facility granted in that Government order, so the question No. A as was framed, was not insisted upon and was not decided and unlike the male teachers in those bunch of petitions there were not so many male teachers in those cases and so there was no insistence to decide the question as was framed. Thus, the said judgment shall not have traits of a binding precedent qua controversy involved in these petitions.
33. Thus, the factual position that emerges out from the above discussion is that the question of one time option for transfer facility in the entire service career was neither decided in the case of Ruchi Sharma (supra), nor in the case of Abhilash Kumar Tripathi followed in Manoj Kumar. The petitioners here are also different from the petitioners in these cases where the Government order dated 2.12.2019 was in issue, therefore, the principle of res judicata or constructive res judicata does not have any application either. Under the circumstances the preliminary objection regarding maintainability of the second writ petition questioning different clauses of same Government Order, which was under challenge in the case of Abhilash Kumar Tripathi (supra), is rejected. Hence, the issue stands decided against the State respondents.
34. Issue No. B and C:- Since both these issues are related to each other and require discussion on various provisions contained under the posting Rules, 2008, as well as those contained under the Government Order dated 02.12.2019, both these issues are being decided together.
35. As quoted herein above, clause 3 of the Government Order dated 13.6.2017 clearly provided for one time exercise of option for inter district transfer, the similar provision is also contained under the Government Order dated 2.12.2019. Clause-16 of the Government Order dated 2.12.2019 is reproduced hereunder:
"¼16½ vUrtZuinh; LFkkukUrj.k dk iwoZ es ykHk ysus okys vH;FkhZ] ftudk LFkkukurj.k gks pqdk gS] iqu% vkuykbu LFkkukUrj.k gsrq vkosnu djus gsrq ik= ugha gksaxsA ijUrq ;g izko/kku ,sls vH;fFkZ;ksa ij] tksfd iwoZ esa vUrtZuinh; LFkkukUrj.k gsrq vkWuykbu vkosnu dj pqds gS ijUrq vlQy jgs gS@ Hkkjrh; lsuk@ ok;q lsuk@ ukS lsuk@ v/kZ lSfud cyks ;Fkk] CRPF/ CISF/ SSB/ ASSAM RIFLES/ ITBP/ NSG/ BSF/ fnO;kaxks@vlk/; jksxh rFkk ,dy ekrk&firk (Singls Parents) ls lEcfU/kr izdj.kksa ij ykxw ugha gksxkA"
36. In order to find answer to the issues it is necessary to discuss the mandate of the legislature in determining cadre of Assistant Teacher in junior and senior basic schools, under the Basic Education Act, 1972 and the Recruitment Rules, 1981 framed for selection and appointment of such teachers, Posting Rules, 2008. While Basic Education Act, 1972 lays down broad based scheme for running basic education system in the State, it provides for recognition of the various schools be junior or senior basic schools, either to be run by Basic Education Board or by private management and absolute executive control over them. In order to facilitate the appointment and selection against the vacancies of assistant teachers both in junior basic schools and senior basic schools, run by Basic Education Board created and constituted under the Basic Education Act, 1972, exercising power under Section 19 of the Basic Education Act, 1972, the Recruitment Rules, 1981 were framed and further Posting Rules came to be framed in the year 2008 which further specify the period of posting in various areas like in rural areas as well as in urban areas. Further with the enforcement of Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as Act, 2009) which prescribes pupil teacher ration (for short PTR), the Posting Rules, 2008 came to be amended in the year 2010 so as to achieve the objectives set forth in Act, 2009.
37. The amendments that have been brought into existing Posting Rules are quite drastic in nature and will be discussed later on. This Court in the case of Smt. Ruchi (supra) has clearly held that Assistant Teachers working in various junior and senior basic schools do not have either the right for consideration of their transfer application or right of transfer. Vide paragraph-19 and paragraph 28 the Court had held thus:
"19. It is settled law that transfer is not a right. As per Rule 4 of the Rules 1981, the service cadre of the petitioners is the local area of the respective district. Their appointing authority is the concerned District Basic Education officer. In view of Rule 21 of the Rules 1981, the Assistant Teachers of basic schools run by the Board cannot be transferred from 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. Rule 8 (2) (d) of the Rules 2008 also does not confer any right of inter-district transfer. On the contrary it provides that in normal circumstances, the applications of inter-district transfer in respect of male and female teachers will not be entertained within five years of their posting. However, an exception has been provided in respect of female teachers that in special circumstances their applications of inter-district transfer would be entertained to the place of residence of their husband or in-laws' district. Rule 21 read with Rule 8 (2) (d) of the Rules 1981 clearly indicates that teachers have no right for inter-district transfer.
"28. In view of the above discussion, the question No. (b) is answered as under:
Petitioners do not have any right for transfer or a right for consideration of their application for transfer. Applications for inter-district transfer may be entertained by the competent authority only if such applications for inter-district transfer are within the four corners of the provisions of the Rule 21 of the Rules, 1981 read with Rule 8(2) (d) of the Rules, 2008 and the guidelines framed by the Board for transfer"
38. The Division Bench in appeals arising of the said judgment has in the judgment dated 4.10.2018 rendered in bunch of special appeals the leading being Special Appeal No. 870 of 2018 Smt Sikha Singh and 24 other Vs. State of U.P. and others, has clearly held thus:
"On going through the provisions applicable, we do not find any merit in these appeals. As the threshold, it would be appropriate to state that Rule 21 of the Rules, 1981, on its face, does not create any substantive rights in favour of the appellants-petitioners. Rule 21, as a matter of fact, provides a relaxation with necessary checks for transfer of a teacher from one district/ local area to other district/ local area, which is otherwise not permissible by statute. It is well settled that relaxation to rules in normal course cannot be claimed as a matter of right.
In view of it, we are having no hesitation in affirming the finding given by learned Singh Bench that Rule 21 of the Rules, 1981 does not create any legally enforceable right in favor of the appellants. However, this issue under consideration is that whether denial of such relaxation to the Assistant Teachers working in aspirational districts shall be justifiable when the teachers working in the other districts are having choice to claim relaxation for their transfer from one district/ local area to other district/ local area.
In other words, precisely, the issue before us is whether the decision of the Government of Uttar Pradesh is circulated under the Circular dated 10.06.2018 is irrational, arbitrary and discriminatory, being not founded on a reasonable criteria having nexus with the object sought to be achieved. As already stated, the aspirational districts are the districts identified by the Government of India to meet extreme left upsurge in several districts of the country including 8 districts in the State of Uttar Pradesh. As per the Programme, the State Government is required to have intensive operations in the field of education, health, nutrition, agriculture and water resources, financial inclusions, skill development and basic infrastructure. To have such operations, need of teachers is highly desirable. Pertinent to notice that as per the programme of the Government, a huge budget is assigned to the field of education and a complete transformation of socio economic status of the area is required to be made. The transformation is desired to be satisfied upto the year 2022. The Ministry of Human Resource Development under the programme aforesaid has rendered several schemes for the aspirational districts. The Government of Uttar Pradesh has also taken initiatives for aspirational districts by making District Action Plan. The District Action Plan relates to different identified sectors including the education. To execute the programme aforesaid, need of teachers is essential and, looking to that, the Government has decided not to extend relaxation as per Rule 2 of the teachers working in aspirational districts. The decision of the Government, as such, is based upon reasonable criteria and that does not suffer from any such wrong that may be termed and treated as unjust or arbitrary.
At the cost of repetition, it would be appropriate to state that Rule 21 is only a relaxation clause and that in no manner creates any substantive enforceable legal rights sufficient to issue a writ in the nature of mandamus.
So far as Rule 8 (2) (d) of the Rules, 2008 is concerned, suffice it to state that that too does not create any right in favour of the appellants. A plain reading of the Rule aforesaid makes it clear that this too is an exception to the general rule of not transferring a person from one district to other district in normal course.
In light of whatever stated above, the appeals lacks merit, hence the same are dismissed."
39. In view of the above, therefore, the legal position that emerges out qua the rights of the Assistant Teachers in the matter of claim of inter district transfer is that the Assistant Teachers do not enjoy any indefeatable right to claim inter district transfer and further that the Government has absolute power to prescribe for modus operendi to consider such request for transfer by bringing in comprehensive transfer policy and the guidelines for enforcement thereof and I may add, of course, keeping in tune with the Posting Rules, 2008 as amended in 2010 and further in the spirit with which the Basic Education Act, 1972 has been enacted and the Recruitment Rules, 1981 have been framed.
40. Once it stands settled that an Assistant Teacher does not have an indefeatable right to claim inter-district transfer, the question now for determination is as to how far Government can impose restrictions and request for transfer can be conditioned by bringing in government policy and guidelines so as to achieve objectives set forth under the Basic Education Act, 1972 and Right to free Education Act, 2009. Both under the Government Order dated 13.6.2019 and under the present Government Order in question there has been one common condition that it will be one time option for seeking inter district transfer in entire service career, in terms of the policy, meaning thereby no second time exercise is permissible. Here at the cost of repetition, it is necessary to refer to Rule 21 of the Rules, 1981 that contain provision for transfer. Rule 21 is reproduced hereunder:
"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 form 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."
41. From a bare reading of the aforesaid provision, it is clear that there is no rule of transfer as such to transfer the Assistant Teachers from rural areas to urban areas or vice-versa or from urban area to another urban area of the same district or from one local area of one district to local area of another district, and the only exception is that if the Board approves for a request of transfer made by a teacher. Either the request if made or the consent that a teacher himself has given for transfer, it would mean only a rule of exception to the general rule. When one talks of exception to the general rule, it means ordinarily the exception will not come into force. The exceptional circumstances have not been prescribed for under Rule 21. Here, at this stage aid will have to be taken of the Posting Rules 2008.
42. Relevant Rule 8 of the Posting Rules 2008 is reproduced 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 teahcers will not be entertained within five years of their postig. 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."
(Emphasis Supplied)
43. Rule 8(2) (c) provides for only mutual transfer from backward developed block to normal development block and vice versa provided a teacher has already spent five years in any backward developed block and then mutual transfer will be approved only in respect of a teacher who must be having five year service left in his career. Rule 8(2) (d) further prescribes that for a period of five years no request for inter district transfer will be considered. However, in special circumstances the request in respect of female teachers would be considerable for the place of husband or in-laws. So Posting Rules vide Rule 8 (2) (c) and 8(2) (d) provide for intra district mutual transfer and in respect of inter district transfer, the eligibility is that a male teacher must have rendered five years of service and the female teacher has been exempted from this bar of five years of service. Since the issue is not of intra district transfer before this court, I am not going into the question of eligibility in case of intra district transfer. Clause 15 and 16 of the Government Order dated 2.12.2019 are in issue and while Clause 15 which specifically provides for a bar to apply for inter district transfer in respect of teachers who have already availed the benefit of inter district transfer in the past, an the exception is carved out in Clause-16 again in respect of female teachers, and disabled persons.
44. The argument advanced is that provision of one time exercise of option for transfer is arbitrary, illegal having no nexus with the objectives sought to be achieved, and so this provision, as it exists in its present form, may be struck down.
45. I have already discussed above that this court both vide Single Bench judgment and Division Bench has clearly held that right to transfer is not an indefeatable or vested right and the Government can always provide for condition to regulate the transfer policy and as I have already held above that there is no compulsory rule for transfer under the Recruitment Rules 1981 for it clearly provides that there shall be no transfer of Assistant Teachers and the exception is cases of request and consent with the approval of the board and such request and consent have further been conditioned by the Posting Rules, 2008. Under the circumstances one can safely arrive to a conclusion that the right which is not a vested right created or prescribed for under the Rules, it needed to be regulated and conditioned reasonably and be made subject to reasonable restrictions in terms of special or exceptional circumstances. The Posting Rules, 2008 having suitably been amended to achieve the objectives set forth under the Right to Free Education Act, 2009, the cadre of Assistant Teacher being district based, as the teacher whose request for inter district transfer is accepted, is placed at the bottom of the seniority of the district, all this is clearly indicative of the transfer policy being by and large in tune with the provisions contained under Act of 1972 and the Posting Rules,2008, in so far as competence to frame guidelines and placing thereby reasonable restrictions are concerned.
46. Thus the issue left to be decided is whether restriction of one time exercise of option for transfer is a reasonable restriction or unreasonable and discriminatory to be struck down.
47. I have already referred to the above posting rules that provided for two exceptional circumstances under which a request for inter district transfer can be acceded to even prior to completion of five years service and that is (a) in case of disabled persons; (b) in case of female teacher. Thus, sub-classification in terms of disable persons and female teachers cannot be held to be irrational one as they are so circumstanced. Social fabric of our society by and large cast onerous duty upon a female to deal with the household affairs, to manage it and to look after even the elderly persons. One will never imagine nor, hope for a society when a female would marry an unemployed male with the approval of the society to make the male manage only household affairs and nursing of the elderly persons at home. An advanced and cultured society would expect the couple to have respect for each other's profession and work and further mutual contribution back at home. Thus, the female teachers can be so circumstanced that she needed to look after the elderly persons to seek transfer and thus, after marriage spouse's place or in-laws' place may be a compelling circumstance and so they may have to have a second time option also if already exercised previously before marriage for parent's dependency but then I have reservations in approving a provision that provides for a female dependents belonging to armed forces, paramilitary forces or Border Security Forces or a person suffering from any disability or serious incurable disease or a disabled person to exercise option for inter district transfer for any number of times.
48. While the female Assistant Teachers may be required to be transferred to another districts to look after the single parents then one option can be permitted before their marriage but after marriage only one transfer is enough. However, in case of female teachers whose husbands are in armed forces or in paramilitary forces or Border Security Force, then entertainment of applications for transfer of such teachers for different posting of their husbands at an interval of every three or four years can result in serious jolt to the objectives set forth under the Act of 2009 and the Posting Rules, 2008. The provision should be such that there would be only one time transfer option to be exercised by an Assistant Teacher and the only exception should be for the second time in case if one is suffering from any serious incurable disease or such serious disease that needed medical help and sustained medical treatment. This option of second time should be an exception to the general rule of transfer in respect of categories of teachers whether male and female or disabled persons.
49. Coming back to the issue of one time exercise of option for transfer in the entire service time, I find such a condition is reasonable one and having nexus with the objectives set forth under the Basic Education Act, 1972, Right to Free Education Act, 2009 and the Recruitment Rules, 1981 and Posting Rules, 2008 for the reasons to follow.
50. The posting rules have existed for so many years in furtherance of the objectives set forth in the Act, 2009 which speaks of maintaining PTR (Pupil Teachers Ratio). Maintenance of pupil teacher ration/PTR should be a mandatory requirement in a State which has huge number of under developed blocks in rural areas. Majority of our population lives in rural areas of the State and ratio of dropouts in these areas is very high in percentage. People still depend upon agriculture and people still in this 21st Century do not give much importance to education than agriculture and related activities, it being the only source of livelihood. Even there are junior basic schools in rural areas that are not having motorable road and one has to walk through agricultural fields. Unless a teacher stays in such school with his /her sustained effort to convince parents to send their wards to school compulsorily and conduct such activities that interests children and creates faith in teacher and consequently love for education, one would hardly turn up to school. It is an issue of more psychological effect than physical to run rural area schools and government has to fight very hard with odds to make people literate. We take such jobs as a mere service, an employment to earn livelihood but it is a herculean task for any Government to maintain PTR and it is a must and that is why this assistant teacher cadre is district based and transfer even from block to another has not been made a rule. Neither this Court will nor, permit the government to spoil the system of elementary education by making this service transferable throughout the State and defeat the very objectives set forth under the Act, 1972 and Act 2009. Transfer being an exception, the state can regulate it by confining it to one time option exercise and I do not find any thing unreasonable or irrational in it.
51. Thus, while upholding the rule of one time exercise of option for inter district transfer I am not convinced with the remaining part of the provision contained under Clause-16 of the Government Order dated 2.12.2019 to the extent it provides for application for transfer to be entertainable for any number of times in respect of teachers whose spouse belong to the armed forces, Paramilitary Forces or Border Security Force, disabled person and female teachers with single parents. They are required to be conditioned by one time transfer option exercise and the only exception applicable would be if one suffers from any incurable disease or serious disease that requires urgent medical help and sustained medical therapy in that regard only, or female who applies for second time in case if she married after getting into service and had already exercised earlier option for parents dependency prior to her marriage. Clause 15 of the Government Order dated 2.12.2019 shall be read down in the light of the above observations.
52. Various clauses of the Government order cannot be read in isolation from the Posting Rules, 2008 and needed to be examined so as to ensure that statutory rules have supremacy in the area/ field occupied by such rules. What I notice is that while the Posting Rules provide for transfer as exception to Rule 21, Clause 16 of the Government Order mitigates it quite violently and, in the considered opinion of the Court, is also in conflict with Clause-15 of the Government Order which provides for inter district transfer option in respect of male or female teachers whose spouse is working in CRPF, Armed forces, paramilitary force, Border Security Force or National Security Guard only, once in lifetime career. What I further notice from the Posting Rule is that the transfer application would be acceptable only if a teacher has rendered five years service and only exception in respect of the female teachers is for her husband's or in-laws' residence. I find that this Rule 8(2) (d) of the Posting Rules is in consonance with Rule 8(2) (a) in respect of male teachers, in so far the female teachers are concerned, while 8(2) (b) provides for their minimum two years satisfactory service in the backward areas but Rule 8 (2) (d) provides for inter district transfer facility to them prior to five years. However, under the Government Order, for the reasons best known to the executive, it is provided that only for three years of continuous posting at a place as a condition to make male teacher eligible for transfer and for male female teachers only one year and the teacher belonging to disabled person category, have further been exempted from this three years and one year of satisfactory service at place of posting. This government policy to further curtail the period of posting is quite opposed to the Posting Rules, 2008 as amended in 2010 and in the considered opinion of the Court, again the provision under the Government Order cannot override the provisions of statutory rules. The settled legal position is that even if statutory rules are framed, executive instructions, directions or government orders can be issued to supplement the Rules. Both can go side by side and executive instructions/ directions shall be in aid to the rules. Thus, executive instructions/ directions can supplement the rules. If rules leave certain things to the discretion of the competent authority, then of course, executive direction can be issued. If restrictions on certain things have not been imposed, in the considered opinion of the Court the executive is well within its competence to issue necessary directions/ circulars/ notifications providing for restrictions. In my above view, I find support from the judgment of a larger bench of Supreme Court (as it then used to be called) consisting of five Judges in the case of Sant Ram Sharma v. State of Rajasthan and others (AIR 1967 SC 1910) wherein vide paragraph 7 the Court has held thus:
"We proceed to consider the next contention of Mr. N.C. Chatterjee that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in the Rules already framed. We are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed."
(Emphasis supplied)
53. Applying the above principle, I uphold the government order in so far as it enlarges the scope of Rule 8(2)(d) by bringing within its fold male teachers as spouse besides female teachers whose spouses are in defence force/ Paramilitary Force/ Border Security Force / N.S. G. etc. under clause 15 of the Government Order.
54. However, it is equally settled that executive instructions or direction can only supplement the rules but can not supplant it. In the case of B.N. Nagarajan v. State of Mysore AIR 1996 SC 1942, five judges larger bench (as it then used to be referred as such) while upholding competence of executive to act under Article 162 of the Constitution, even while rules were not framed under Article 309 of the Constitution, held in the concluding part of paragraph 5 of the judgment thus:
"We see nothing in the terms of Article 309 of the Constitution which abridges the power of the executive to act under Art. 162 of the Constitution without a law. It is hardly necessary to mention that if there is a statutory rule or an act on the matter, the executive must abide by that act or rule and it cannot in exercise of the executive power under Art. 162 of the Constitution ignore or act contrary to that rule or act."
(emphasis supplied)
55. Again in the case of Public Service Commission, Uttaranchal v. Jagdish Chandra Singh Bora and others [(2014) 8 SCC 644] the Apex Court vide para 28 clearly held:
"28. However, we find substance in the submission made by Mr. C.U. Singh that 2004 clarification would not have the effect of amending 2003 Rules. Undoubtedly, 2004 clarification is only an executive order. It is settled proposition of law that the executive orders cannot supplant the rules framed under the proviso to Article 309 of the Constitution of India. Such executive orders/instructions can only supplement the rules framed under the proviso to Article 309 of the Constitution of India. Inspite of accepting the submission of Mr. C.U. Singh that clarification dated 29th April, 2004 would not have the effect of superseding, amending or altering the 2003 Rules; it would not be possible to give any relief to the respondents. The criteria under the 2003 Rules governs all future recruitments. We have earlier already concluded that no vested right had accrued to the respondents, the trained apprentices, under the 2001 Rules. We do not accept the submission of Mr. C.U. Singh that the claim of the respondents (trained apprentices) would be covered under the 2001 Rules by virtue of the so called amendment made by 2003 Rules. We are of the opinion that the High Court committed an error, firstly, in holding that the 2003 rules are applicable, and secondly, not taking into consideration that all the posts had been filled up by the time the decision had been rendered."
(emphasis supplied)
56. Now examining the provision as contained in clause 2 (1)(A),(B), 16 and 17 of the government order dated 02.12.2019 from the above legal angle, I find that the condition as prescribed under these clauses are in absolute conflict with rule 8(2)(a)(b) and (d) of the Posting Rules, 2008. Rule 8(2)(a) provides for compulsory posting for five years of male teacher in backward areas and 8(2)(b) provides two years compulsory posting for female teachers in backward areas and Rule 8(2)(d) provides that no request for transfer will be entertained before five years in case of both male and female teachers with exception in case of female teacher for the residence of husband or in laws. However, vide clause 2(1)(A), and 1(B) the above provisions of Posting Rules have been supplanted which could not have been done by such executive directions. Restrictions already existing under statutory rules framed under Section 19 of Basic Education Act, 1972 could not have been modified by such exercise of executive discretion in issuing directions. A harmonious construction of Rule 8 (2)(b) and rule 8(2)(d) leads to inevitable conclusion that while five years bar is relaxed in favour of female teachers but bar of two years of compulsory posting in a backward block is a must before application for transfer is made by her.
57. Further, clause 16 of the government order is in conflict with clause 15 of the government order itself. While in case of spouse in defence force/ Paramilitary Force/ Border Security Force / N.S. G. etc. the option for inter district transfer can be exercised only once. Clause 16 extends exception to that very category besides those suffering from incurable or serious disease or single parent cases.
58. If clause 16 is sustained in the manner it is framed, it will render clause 15 redundant. Still further this clause is discriminatory as it provides for any number of times to entertain applications for transfer because an spouse can keep transferring being in defence force/ Paramilitary Force/ Border Security Force / N.S.G. etc. and so also it favours differently abled persons for the same benefit. Thus, if this clause is upheld it will also defeat the very objectives set forth under the Basic Education act 1972, Right to Free and compulsory Education Act, 2009, recruitment Rules, 1981 and Posting Rules, 2008 as amended in 2010. I have already held earlier above in this judgment that Clause 15 of the Government Order dated 2.12.2019 shall be read in the light of the observations made giving more than one opportunity to exercise option for transfer to female teachers for they may be specially circumstanced.
59. In view of the above clauses 2(1) (A),(B), 16 (partially) and 17 of the Government Order dated 2.12.2019 are held void being contrary to and in conflict with rule 2 (a) (b) and 2 (d) of the Posting Rules, 2008. However, condition of one time exercise of option for transfer as contained in clause16 is upheld and clause 16 would be void save for the above condition. The Government, therefore, needed to bring in comprehensive transfer policy in tune with and in consonance with the Posting Rules, 2008 and the Act of 1972 read with Right to Free Education Act, 2009.
60. Since I have already held that except for a circumstance where female Assistant Teacher can avail the option for inter district transfer for second time if in case she is married subsequent to joining of service and having already exercised option for transfer successfully in the past, no second time transfer option should be admissible to such teachers and insofar as medical ground is concerned, for a teacher to be suffering from such an incurable or serious disease that requires medical help and sustained medical treatment in such an exceptional circumstance a further opportunity to exercise of option for transfer should be made available to such teachers irrespective of the categories without any exception and, accordingly, the issue Nos. B and C stand answered.
61. At this stage, I may refer to an order of this Court passed in Writ A No. 8075 of 2018 as I have been apprised of during hearing in which this Court has allowed the writ petition of one Kumkum. I have gone through this order and found that in the said case the petitioner was directed to apply in terms of Rule 8 (2) (d) of the Posting Rules, 2008 and there was a direction for consideration and, therefore, I do not find that such order decides any such issue as raised in this petition nor, any such order can be said to have a binding effect. I have also been remained of one my own order in the case of Smt. Deepti Vs. State of U.P. and others Writ Petition No. 2799 of 2018 and after going through that order, I find that I had simply issued a direction to consider the application for transfer under Rule 8(2) (d). So there was simple direction for consideration of the application of the petitioner in the light of the provision contained in Rule 8(2) (d) of the Posting Rules.
62. As I find that Rule 21 of the Recruitment Rules, 1981 does not explain the word ''request and consent' occurring thereunder for the purposes of transfer and posting rules have circumscribed them partially by making it specific in respect of female teachers for the residence of their husband/ in-laws for the purposes of inter-district transfer with further restrictions qua eligibility of five years service to seek inter-district transfer and further restriction imposed under the Government orders particularly dated 2nd December, 2019 which is in issue, by putting a condition that once option for transfer is exercised successfully, such a teacher would not be eligible to seek transfer for the second time except in cases of teachers whose spouse is working in Indian Armed Forces/ Paramilitary Forces/ CRPF/ CISF/ SSB/ Assam Rifles/ ITBP/ NSG/ BSF/ differently abled persons and those suffering from serious incurable diseases and single parents, have all created situation of utter confusion amongst the teachers who are aspiring for inter-district transfer.
63. A conjoint reading of Rule 21 with Rule 8 of Posting Rules, 2008 and clauses 1, 2, 6, 11, 14, 15, 16 and 17 of the Government order dated 2nd December, 2019 following principles emerge regarding eligibility and rights qua the applications of the teachers for inter-district transfer:-
(1). No Assistant Teacher is entitled to seek transfer as a matter of right and so rule of transfer is exception to the rule of appointment under Recruitment Rules, 1981 and Posting Rules, 2008.
(2). Transfer by ''request' and ''consent' of Assistant Teachers is, therefore, circumscribed by exceptional circumstances such as incurable/ serious diseases requiring urgent medical help and sustained medical treatment, physical disability, spouse working in certain forces, single parent dependency etc. (3). The posting rules make it compulsory for a new incumbent to work for five years at a place of posting in case of male teacher in backward areas and two years in case of female teachers in backward areas and that for five years from the date of joining there will be no consideration for inter-district transfer, however exception is drawn in favour of female candidate for spouse posting/ residence of in-laws.
(4). Once option for inter-district transfer has been successfully exercised by a candidate, meaning thereby he/she is offered the place of posting of transfer in one of the districts given in the option column of the application for transfer, such teacher would not be entitled to apply again for inter-district transfer, of course, this condition has been made subject to relaxation given in clause 16.
64. Since in this judgment I have already held Clauses 2(1)(A),(B) of the Government order dated 2nd December, 2019 to be contrary and in conflict with the statutory rules contained under the posting Rules, 2008 and clause 16 to be contradictory to the clause 15 of the Government order and also defeating the very objective sought to be achieved under the posting rules, 2008 in the light of the objectives set forth under the Right to Free Education for all Act, 2009 and Clause 15 of the Government Order dated 2.12.2019 be read down in the light of the observations made earlier in this judgment for female candidates as they may be specially circumstanced, I come to conclude with following observations/ directions to be necessarily kept in mind before finalizing the list of teachers seeking inter-district transfer:-
(I) No inter district transfer shall be done in the mid of the academic session.
(II) Transfer application should be entertained strictly in the light of the provisions as contained in Rule 8(2)(a) (b) and (d) of the Posting Rules, 2008.
(III) Once a teacher has successfully exercised the option for inter district transfer, no second opportunity shall be afforded to any teacher of any category except in case of female teacher who has already availed benefit of inter district transfer on the ground of parents dependency, prior to her marriage. However, in case if the marriage has taken place then she will have only one opportunity to exercise option for inter district transfer either on the ground of parents dependency or spouse residence/ in-laws residence.
(IV) In case of grave medical emergency for any incurable or serious disease that may as of necessity, require immediate medical help and sustained medical treatment, either personally or for the spouse, a second time opportunity to apply for inter district transfer should be afforded to such a teacher even if he/she had exercised such option for inter district transfer for any other reason in the past.
(V) Application of differently abled person should have very sympathetic consideration looking to physical disability but they should also have only one time opportunity to exercise option for inter district transfer. In case of female teachers, such exception would apply, as referable to rule 8(2) (d) of Posting Rules, 2008.
(VI) In case of female teacher's right to seek transfer, relaxation given under Rule 8(2)(d) shall be read with rule 8(2) (b) and relaxation shall, therefore, be subject to rule 8(2) (b).
(VII) Save as observed and directed herein above (Direction Nos.III, IV and V), no second opportunity to exercise option for inter district transfer be made available to any candidate of any category whatsoever.
(VIII) The exercise of inter-district transfer since is exception to the general rule of appointment and posting, every application for transfer has to be addressed to by the competent authority keeping in mind the objectives set forth under the Act, 2009 and Posting Rules, 2008 as amended in the year 2010 and must be acceded to citing a special circumstance specific to the case considered.
65. The applications for inter-district transfer that are pending before the State Government pursuant to the Government order dated 2nd December, 2019, their consideration shall abide by the observations/ directions as contained hereinabove in this judgment.
66. All the writ petitions stand disposed of with the aforesaid observations and directions.
Order Date :- 3.11.2020 Nadeem Ahmad