Allahabad High Court
Kamini Singh vs State Of U.P. And 3 Others on 13 March, 2018
Equivalent citations: AIRONLINE 2018 ALL 3131
Bench: Dilip B. Bhosale, Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Chief Justice's Court Case :- WRIT - C No. - 8532 of 2018 Petitioner :- Kamini Singh Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Santosh Kumar Singh,Narendra Pratap Singh Counsel for Respondent :- C.S.C.,Ashok Kumar Singh,Mrigraj Singh Hon'ble Dilip B. Bhosale,Chief Justice Hon'ble Suneet Kumar,J.
Heard Sri Narendra Pratap Singh, learned counsel for the petitioner. Learned Standing Counsel for the respondent State, Sri Ashok Kumar Singh, learned counsel for respondent nos. 2 and 3 and Sri Mrigraj Singh, learned counsel for respondent no. 1.
The writ petition is being decided, on consent, without calling for counter affidavit as per Rules of the Court.
Petitioner was appointed Assistant Teacher on 9 November 2015 and posted at Primary School Patkhauli, Block Dumariyaganj, district Siddharth Nagar. Petitioner by the instant writ petition seeks transfer from district Siddharth Nagar to district Jaunpur which is not being considered by the second respondent, Board of Basic Education, U.P. Allahabad (for short 'Board'). Hence, a challenge has been raised declaring sub-clause (d) of sub-rule (2) of Rule 8 of Uttar Pradesh Basic Eduation (Teachers) (Posting) Rules, 20081 ultra vires of the Constitution of India.
Learned counsel for the petitioner submits that Rule 8(2)(d) of Rules 2008 is discriminatory and the classification between married and unmarried female teachers offends equal protection of law guaranteed under Article 14. The facts reflect that petitioner is unmarried having aged parents; mother is suffering from neurological problem and is taking treatment at Sanjay Gandhi Post Graduate Institute of Medical Sciences, Lucknow. It is contended that there is no other person to look after her aged parents, therefore, she seeks transfer from the present place of posting to district Jaunpur i.e. inter-district transfer.
In rebuttal learned Standing Counsel has defended the rule contending that the rule is fair, reasonable and calls for no interference.
Rival submissions fall for consideration.
The Governor in exercise of power under Sub-section (1) of Section 19 of the Uttar Pradesh Basic Education Act, 1972 (for short 'Act 1972') made Rules 2008. The Rules provide detail mechanism for posting of selected candidates to junior basic school and senior basic school under the control of the Board. The Rules has been made applicable to such teachers of junior basic school or senior basic school who shall be appointed or promoted after the commencement of these rules.
Rule 9 provides for the constitution of a Posting Committee comprising of 4 members which is headed by the Principal, District Institution of Education and Training. The function of the Committee is to approve the list prepared under Rule 5, 6 and 7. Rule 5 provides for preparation of the list of selected candidates for the purpose of posting. Rule 6 provides for preparation of list of schools for posting. Rule 8 contemplates posting of the handicapped candidates, female teachers and male teachers and mutual transfers of teachers from one backward block to another. Rule 5, 6 and 8 reads thus:
"5. Preparation of the list of selected candidates for posting: For the purpose of posting, the list of teachers selected in accordance with the provision of the Uttar Pradesh Basic Education (Teacher) Service Rules, 1981 shall be prepared in the manner mentioned herein under-
(a) Handicapped candidates
(b) General candidates
(c) Candidates belonging to Other Backward Classes.
(d) Candidates belonging to Scheduled Castes.
(e) Candidates belonging to Scheduled Tribes.
6. Preparation of the list of school for posting. - The list of schools shall be prepared in the following manner:-
(a) The blocks of the district mentioned in Appendix A shall be identified as general and backward blocks as per Rule 4 and separate lists of teacherless schools will be prepared for these blocks in accordance with the order of English Alphabet. The name of the block will also be mentioned in the bracket with school's name.
(b) The blocks of the district mentioned in Appendix A shall be identified as general and backward blocks as per rule 4 and separate lists of single teacher schools will be prepared for these blocks in accordance with the order of English Alphabets. The name of the block would also be mentioned in the bracket with school's name.
(c) The list of schools other than the schools described in clauses (a) and (b) shall be prepared separately for general and backward blocks in the ascending order of Pupil Teacher Ratio.]"
8. Posting. - (1)(a) Three options for schools shall be asked from the handicapped candidates in order of their merit and after receiving such options the handicapped candidates shall be posted on the basis of options given by them and the vacancies.
(b) Based on the order of their merit, female teachers would be required to submit under their signature option of three schools each from the general and backward block and accordingly, posting would be given in one of these schools.
(c) The posting of male teachers shall be made in accordance with the order of candidates, in the roster prepared under Rule 7.
(2)(a) The newly appointed male teachers shall initially be posted compulsorily in backward areas for a period of at least five years.
(b) Newly appointed female teachers shall also be compulsorily posted in backward areas for a period of at least two years.
(c) Mutual transfers within the district from general block of backward block and vice-versa would be permitted with the condition that the teacher on mutual transfer to a backward block shall have to serve in that block compulsorily for five years. Mutual transfers would be permitted only in case of those teachers who have more than remaining five year's service.
(d) In normal circumstances the applications for inter-district transfers in respect of male and female teachers will not be entertained within five years of their posting. But under special circumstances, applications for inter-district transfers in respect of female teachers would be entertained to the place of residence of their husband or in law's district.
(e) If by virtue of posting of newly appointed or promoted teachers the primary and upper primary schools of backward blocks get saturated i.e., no post of teacher is vacant in these schools, then handicapped and female teachers on their choice can be adjusted against the vacant posts of general blocks from these saturated blocks.
(f) Mutual transfers of male/female teachers from one backward block to another can be considered.
(3) Teachers transferred from one district to another will be given posting as per the provisions of these rules.]"
The list under Rules 5, 6 and 7 is required to be prepared with the approval of the committee referred to in Rule 9.
On reading of the provisions together it is clear that the rules apply to teachers appointed to junior basic school or senior basic school and are to be posted in accordance to the provisions contained therein. Upon identifying general and backward blocks of the district as per Rule 4 separate list of: (i) teacher less schools; (ii) single teacher schools; (iii) schools other than the aforementioned schools shall be prepared in the ascending order of Pupil Teacher Ratio. Upon list of schools being prepared in terms of Rule 6 posting of the teachers is required to be made in terms of Rule 8, accordingly, (i) three option of schools is to be furnished by the handicapped candidates and they shall be posted on the basis of options given by them against the available vacancies; (ii) option of three schools for general and backward blocks is to be furnished by female teachers; (iii) posting of male teachers shall be made in accordance with order of candidates in the roster prepared under Rule 7. The rule further requires that the newly appointed male teachers shall initially be posted compulsorily in rural area for at least five years and the newly appointed female teachers shall be compulsorily posted in backward area for at least for two years. Mutual transfers within the district from general block to backward block and vice versa is permitted subject to the condition that such teacher would have to serve that block compulsorily for five years.
Sub-clause (d) of Sub-rule (2) of Rule 8 provides that in normal circumstances applications for inter-district transfers in respect of male and female teachers shall not be entertained within five years of their posting, but under special circumstances, applications for inter-district transfer, insofar as married female teacher is concerned, application for transfer to the place of residence of their husband or in-laws' district may be considered.
Petitioner is aggrieved by sub-clause (d) of sub-rule (2) of Rule 8 contending that sub-rule is discriminatory for the reason that it makes distinction between unmarried female and married female teacher insofar as it relates to inter-district transfer.
Before we revert back to examine the contention of the learned counsel for the petitioner, it would be apposite to examine the nature of selection, appointment and placement of teachers as contemplated under the U.P. Basic Education (Teachers) Service Rules, 19812 framed under Act 1972.
Rule 8 of Rules, 1981 lays down the minimum educational qualification for appointment as assistant teachers in a basic school. Rule 4 provides that the Board from time to time shall determine the cadre strength of service for Rural Local Area and Urban Local Area within the district. Rule 14 provides for determination of vacancies and preparation of list with reference to the reservation applicable on the post of assistant teacher. Rule 14(1) provides that applications are to be invited from the candidates possessing prescribed training qualification from the district concerned. The list of eligible candidates is arranged with reference to the point of time the candidate had passed the required training course. A candidate passing the training course earlier in point of time is to be placed above the one who had passed the training course later. Candidates passing the course in one particular year are to be arranged in accordance with the quality point marks specified in the Appendix. Rule 14(5) declares that no person would be entitled for appointment unless his or her name is included in the list prepared under sub-rule (2). The list so prepared is forwarded under Rule 14(6) by the appointing authority to the Selection Committee. Rule 16 provides for the constitution of the Selection Committee. Rule 17 and 17(A) lay down the procedure for direct recruitment separately for teachers for imparting education in a language and teachers for other subjects respectively. The rule provides for preparation of list on the basis of quality point marks. Rule 17 and 17-A(2) provide that the select list prepared shall remain valid for one year from the date of its preparation. Rule 19 provides that appointing authority shall make appointment by taking the names of the candidate in the order in which they stand in the list prepared under Rule 17 or 17(A), as the case may be.
From a simple reading of the aforesaid Rules, it is apparent that the post of assistant teacher is a district cadre post and the appointing authority is the District Basic Education Officer. Upon selection, posting of a teacher is to be made as per the provisions of Rules 2008. In other words inter-district transfer is an exception to the general rule pertaining to placement and posting of teachers in blocks within the district is compulsory.
Sub-clause (d) of sub-rule (2) of Rule 8 is in two parts; the main provision mandates that applications for inter-district transfer will not be entertained within five years of posting and in the second part of the rule an exception is carved out to the main provision that for inter-district transfers in respect of married female teachers would be entertained for transfer to the place of residence of their husband or in-laws' district. From bare reading of the aforesaid rule it appears that a married female teachers can seek inter-district transfer. Petitioner is aggrieved not by the main provision that applications for inter-district transfer shall not be entertained within five years but the exception carved out in respect of married female teachers, according to the learned counsel for the petitioner it is arbitrary for the reason that it excludes unmarried female teachers from exercising option of transfer before five years.
In our opinion, submission of the learned counsel for the petitioner lacks merit. Petitioner being unmarried would not fall under the category of married female teacher, therefore, to contend that still she can seek inter-district transfer is not tenable in view of the nature of the job and in particular the district cadre to which the petitioner was appointed upon making a choice of the District. The classification of married and unmarried female teachers for entertaining applications for inter-district transfers is a valid classification and not discriminatory. The rule categorically states that no inter-district transfers shall be entertained within five years of posting and if the contention of the learned counsel for the petitioner is accepted, then, in that event all female teachers, be it married or unmarried, can seek inter district transfer, whereas, their male counterpart would be discriminated by prohibiting them to seek transfer. The proposition would not withstand the test of gender discrimination. In each district, general and backward blocks is identified, thereafter teachers are posted, after obtaining their option, in teacher less schools and single teacher schools. The purpose of the rule requiring posting of teachers compulsorily in backward areas, in the backdrop of the Rules, is to ensure that teachers are available to schools located in backward blocks of the district. The rule does not prohibit inter district transfers, a teacher can seek inter-district transfer after five years of posting, however, in case of married female teachers an exception has been carved out. Since the petitioner is not aggrieved by the main provision, the exception to the rule in our opinion cannot be assailed by the petitioner being violative of Article 14 and 15 of the Constitution. Such a practice to post husband and wife in a district as a matter of policy is a known and followed practice of posting in service jurisprudence.
In our opinion it is not a case of gender discrimination as is being argued by the learned counsel for the petitioner. The sub-rule clearly states that transfer can be sought inter-district by a teacher (male/female) after putting in five years of service, however, an exception has been carved out only in respect of married female teachers. It is merely a valid classification permitting married female teachers to seek inter-district transfer before the expiry of the five years hiatus.
Learned counsel for the petitioner has placed reliance on a decision rendered by the Supreme Court in Savita Samvedi vs. Union of India3, wherein, the circular of the Ministry of Railways providing that married daughter of a retiring official is eligible to obtain regularization of railway quarter if her retiring father has no son. The Court held that the circular to be wholly unfair, gender biased and unreasonable liable to be struck down under Article 14 of the Constitution. The eligibility of a married daughter must be placed at par with an unmarried daughter. In the facts of the given case the married daughter was being discriminated as against the son in allotment of a railway quarter of a retiring employee.
Reliance has been placed on Division Bench decision rendered in Isha Tyagi vs. State of U.P. and others4 in the matter pertaining to reservation of persons provided for descendants of freedom fighters. The conditions stipulated that descendants would include sons, unmarried daughters and son's son. The candidature of the petitioner therein, a grand daughter of a freedom fighter was held ineligible under the rule. The Court held that neither married daughter of the freedom fighter or her children would be disqualified from receiving the benefit of reservation which is otherwise available to them in their capacity as descendants of freedom fighter. The Court observed that "if the marital status of a son does not make any difference in law to his entitlement or to his eligibility as a descendant, equally in our view, the marital status of a daughter should in terms of constitutional values make no difference. The notion that a married daughter who ceases to be a part of the family of her parents upon her marriage must undergo a rethink in contemporary times."
Finally, learned counsel for the petitioner placed reliance on Full Bench decision rendered by the Calcutta High Court in State of West Bengal and others vs. Purnima Das and others5 and other connected petitions. The question before the Court was whether classification brought about by excluding married daughters of a deceased Government employee from the purview of compassionate appointment, was valid. The Court held that for compassionate appointment every such member of the family of the Government employee who is dependent on the earnings of such employee for survival must be considered to belong to 'a class'. Exclusion of any member of a family on the ground that he/she is not so dependent would be justified, but certainly not on the grounds of gender or marital status. If so permitted, a married daughter would stand deprived of the benefit that a married son would be entitled under the Scheme.
In Nation Legal Services Authority vs. Union of India6, the Supreme Court held that any discrimination on the basis of gender identity would be contrary to Articles 14, 15 and 21 of the Constitution.
"82. Article 14 has used the expression "person" and Article 15 has used the expression "citizen" and "sex" so also Article 16. Article 19 has also used the expression "citizen". Article 21 has used the expression "person". All these expressions, which are "gender neutral" evidently refer to human beings. ...Gender identity as already indicated forms the core of one's personal self, based on self-identification, not on surgical or medical procedure. Gender identity, in our view, is an integral part of sex and no citizen can be discriminated on the ground of gender identity.....
83. We, therefore, conclude that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution,...."
The authorities relied upon by the learned counsel for the petitioner is of no assistance. The main part of Rule 8(2)(d) does not discriminate on gender, any teacher can seek transfer outside the district after five years of service, which is applicable to both male and female teachers uniformly, exception has been carved out by the impugned rule in respect of married female teacher to seek transfer after marriage. The rule requiring compulsory posting is to achieve the purpose and policy of providing teachers in schools located in remote areas of the district which ultimately serves the interest of the students and, in particular, teacher less schools. The functioning of schools would come to stand still if request of frequent transfer outside district is entertained, hence, the rules compulsorily requires posting of a teacher for five years before applying for inter-district transfer. The rule uniformly applies to male/female teachers, except married female teacher. The choice of district upon marriage gets altered, therefore, the married female teacher is permitted by the impugned rule to seek inter-district transfer in the changed circumstances due to her marital status.
When a law is challenged as denying equal protection; the question for determination by the Court is not whether it has resulted in inequality, but whether there is some difference which bears a just and reasonable relation to the object of legislation. Mere differentiation or inequality of treatment or inequality of burden does not perse amount to discrimination within the inhibition of the equal protection clause. To attract the operation of the clause it is necessary to show that the selection or differentiation is unreasonable or arbitrary; that is it does not rest on any rational basis having regard to the object which the rule making authority has in view. When, therefore, a law is challenged as offending against the guarantee in Article 14, the first duty of the Court is to examine the purpose and policy of the Act/Rule, to be ascertained from an examination of its title, preamble and provisions and then to discover whether the classification made by the law has a reasonable relation to the object which the legislature/rule making authority seeks to obtain. (Vide: Suraj Mall v. Biswanath7, Kedar Nath Bajoria v. State of West Bengal8, P.B. Roy vs- Union of India9,) For the reasons stated herein above, the challenge raised to the vires of sub-clause (d) of sub-rule (2) of Rule 8 of Rules 2008 fails. The writ petition being devoid of merit is, accordingly, dismissed.
It is clarified that no other point or ground was pressed.
No cost.
Order Date :- 13.3.2018
S.Prakash
(Suneet Kumar,J) (Dilip B Bhosale,CJ)