Allahabad High Court
Abhilash Kumar Tripathi And 35 Others vs State Of U.P. And 5 Others on 13 February, 2020
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 5 Case :- WRIT - A No. - 2023 of 2020 Petitioner :- Abhilash Kumar Tripathi And 35 Others Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Seemant Singh Counsel for Respondent :- C.S.C.,Pranesh Dutt Tripathi Hon'ble Surya Prakash Kesarwani,J.
Heard Sri Seemant Singh, learned counsel for the petitioners, Sri R.P. Dubey, learned Chief Standing Counsel for the respondent nos. 1 to 4 and Sri Pranesh Dutt Tripathi, learned counsel for the respondent nos. 5 & 6.
The challenge in the present writ petition is to the weightage marks for transfer to female Assistant Teachers as per clause 2(2)(8) of the Government Order dated 2.12.2019.
A Writ-A No. 881 of 2020 (Manoj Kumar & 29 others Vs. State of U.P. & 2 others) involving similar controversy has been dismissed by this Court by order dated 17.1.2020 which is reproduced below:-
"1. Heard Sri Navin Kumar Sharma, learned counsel for the petitioners, learned standing counsel for respondent No.1 and Sri Santosh Kumar, learned counsel for respondent Nos.2 and 3.
2. This writ petition has been filed praying for the following relief:
"(i) Issue a writ, order or direction in the nature of mandamus directing the respondents to delete the column-8 (4) clause of Government Order (Transfer Policy) dated 02.12.2019.
(ii) Issue a writ, order or direction in the nature of mandamus directing the respondents not to extend the benefit of 05 additional quality points to the female teachers."
3. Learned counsel for the petitioners submits that the impugned policy decision of the State-Government for the transfer of Assistant Teachers in Basic Schools run by the U.P. Basic Education Board, is discriminatory inasmuch as a discrimination has been made between male assistant teachers and female assistant teachers in matters of transfer since five marks under Clause 8(4) of the Transfer Policy has been allotted to female teachers and they have been permitted to opt for transfer after one year of service while the same facility has not been extended to male assistant teachers.
4. Learned counsels for the respondents supports the policy decision.
5. I have carefully considered the submissions of the learned counsels for the parties.
6. It is well settled that transfer is not a right of an employee. The service conditions of assistant teachers are provided in the U.P. Basic Education (Teachers) Service Rules, 1981 (hereinafter referred to as 'the Rules 1981'). Rule 21 provides that there shall be no transfer of any teacher from the rural local area to an urban local area or vice versa or from one local urban 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. Rule 8(2) of U.P. Basic Education (Teachers) (Posting) Rules, 2008 specifies minimum years to be served by a newly appointed male teacher and female teacher in backward areas. Clause (c) permits mutual transfer subject to certain conditions, within the district from general block to backward block or vice versa only after the teacher has served for minimum prescribed period. Clause (d) enables the board to entertain application for inter district transfer as an exception with some relaxation to female teachers. Thus, inter district transfer is not a right of any male or female assistant teachers as per rules aforementioned.
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.
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 eighter 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 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. Stae 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.
Order Date :- 13.2.2020 Arif