Allahabad High Court
Shubhra Singh vs State Of U.P. And 4 Others on 19 July, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:143672 Court No. - 35 Case :- WRIT - A No. - 10046 of 2023 Petitioner :- Shubhra Singh Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Awadhesh Kumar Singh,Abhai Kumar Singh Counsel for Respondent :- C.S.C.,Gagan Mehta Hon'ble Vikas Budhwar,J.
Heard Sri H.N. Singh learned Senior Advocate assisted by Sri A.K. Singh learned counsel for the petitioner as well as Sri P.K. Shahi learned Additional Chief Standing who appears for respondents No. 1 and 2 and Sri Gagan Mehta learned counsel who appears for the third respondent.
This Court while entertaining the writ petition on 02.06.2003 sought response from the respondents and issued notice to respondents No. 4 and 5 by RPAD as well as by normal mode. There is an office report dated 07.06.2023 that notices have been issued to respondents No. 4 and 5 by RPAD and ordinary process fixing 12.07.2023. On 11.07.2023 there is an office report that in compliance of the Court's order dated 02.06.2003 the service report as per postal tracking is that, delivery of the notice is confirmed upon respondent No. 5 but not to respondent No. 4, also no unserved notice is received in the office as yet.
The case of the writ petitioner is that pursuant to the selections conducted by the third respondent, U.P. Higher Education Services Commission, Allahabad now Prayagraj and recommendation dated 02.05.2020 the writ petitioner claims to have been appointed as Lecturer (Sanskrit) in fourth respondent institution, Hindu Post Graduate College, Zamania, Ghazipur. It is further the case of the writ petitioner that he assumed the charge on the said post on 06.05.2010 in the fourth respondent institution. As per the writ petitioner in the wake of the provisions contained under Uttar Pradesh Aided Colleges Transfer of Teachers Rule, 2005 the writ petitioner's claim needs to be considered for transfer in any other institution subject to fulfillment of the conditions as envisaged under rule 4 of the 2005 rules. According to the writ petitioner she sought transfer from fourth respondent institution to fifth respondent institution namely Lal Bahadur Shastri Post Graduate College, Mughal Sarai, Chandauli and in this regard the petitioner obtained no objection certificate from the fourth respondent institution on 25.04.2022 and fifth respondent institution on 09.06.2022. In para 9 of the writ petition the writ petitioner further asserts that she after fulfilling all the formalities as provided therein became eligible for being considered for transfer and his papers were forwarded to the second respondent, Director of Higher Education, U.P. Prayagraj for getting it further transmitted to the State Government. In para 10 of the writ petition it has been further asserted that a request for single transfer was also made by the fifth respondent for granting necessary permission on 24.06.2022.
Since there was total inaction on the part of the respondent which compelled the writ petitioner to prefer Writ A No. 10233 of 2022 (Dr. Shubhra Singh Vs. State of U.P. & 4 Others) which came to be disposed of on 03.08.2022 directing the second respondent, Director of Higher Education, U.P. Prayagraj to consider the application of the petitioner dated 02.07.2022 and to forward the same to the first respondent therein namely, Secretary, Higher Education Government of U.P. who was enjoined to decide the claim of the writ petitioner within one month from the date of production of the certified copy of the order. The writ petitioner claims to have forwarded the said documents before the respondents, however, now by virtue of the order dated 20.04.2023 the first respondent, Additional Chief Secretary, Shiksha Anubhag-3, U.P. Government, Lucknow has proceeded to negate the claim of the writ petitioner.
Challenging the order dated 20.04.2023 passed by the third respondent as well as seeking direction to allow the proposal/request for the transfer of the writ petitioner to the fifth respondent institution from the fourth respondent institution the writ petitioner has filed the present writ petition.
The writ petition was entertained on 02.06.2023 wherein the following order was passed.-
"The contention of the learned counsel for the petitioner is that the order dated 20.04.2023 passed by the first respondent proceeds on misconception of facts and law, particularly, in view of the fact that there exists a statutory enactment by the name of Uttar Pradesh Aided College Transfer of Teachers Rules, 2005, according to which transfer from one institution to another institution is permissible, subject to the no objection by both the institutions and though the pay-protection is to be given, but the transferred teacher would be placed below in seniority in the institution, wherein he seeks to himself/ herself transferred.
Learned counsel for the petitioner submits that no objection of the place from where the writ petitioner was transferred was accorded on 25.04.2022 and on 09.06.2022, the institution, where she wanted to be transferred was issued, however, now the impugned order has been passed, whereby relying upon an advertisement, issued subsequently on 09.07.2022, the claim of the petitioner has been negated.
Matter requires consideration.
Issue notice to Respondents no. 4 and 5 by R.P.A.D. as well as by normal mode.
All the respondents may file their response within a period of one month. Rejoinder, if any, may be filed within a week thereafter.
Put up this case as a fresh case on 12.07.2023."
Thereafter, the matter was taken up on 12.07.2023 wherein this Court proceeded to pass the following order.-
"Today when the matter has been taken though Sri Gagan Mehta is armed with the instructions who appears for respondent No. 3 however, learned Standing Counsel who appears for respondents No. 1and 2 sought time to seek instructions.
There is an office report that pursuant to the order dated 02.06.2023 steps were taken and notices were issued on 07.06.2023 upon the fourth and the fifth respondents and as per the report dated 11.07.2023 service report is that delivery of notice is confirmed to the respondents but not to respondent No. 4 as no unserved notice is received in the office as yet.
Put up this case as fresh on 19.07.2023 by which time Sri Pradeep Kumar Shahi learned Standing Counsel shall obtain instructions."
Sri H.N. Singh learned Senior Advocate appearing on behalf of the writ petitioner has submitted that the order dated 20.04.2023 passed by the first respondent proceeds on misconception of facts and law particularly in view of the fact that it completely overlooks the statutory provisions governing the field. The submission of Sri H.N. Singh learned Senior Counsel is that so far as the transfer of the teachers of aided college are concerned they are governed by rules by the name and the nomenclature of Uttar Pradesh Aided Colleges Transfer of Teachers Rule, 2005 which have been enacted in exercise of powers under Section 32 of the Uttar Pradesh Higher Education Service Commission Act, 1980 and for the said proposition he seeks to rely upon Rule 4 the same is quoted hereunder.-
"4. Conditions of transfer.-(1) Teachers appointed on regular basis and holding lien as permanent teachers shall be entitled to transfer after 10 years of service only once in the whole service period.
(2) The transferred teacher shall become the employee of the college to which he has been transferred and his service conditions shall be governed by the statutes of the University concerned.
(3) The protection of salary of the teacher shall be admissible but the service rules of the new employer shall be applicable to such teacher.
(4) The transferred teacher, shall be the juniourmost teacher of his cadre working on the date of his joining in the college concerned.
(5) The teachers shall be transferred against such posts for which salary is paid from the salary account. The management of the college before giving its consent to any teacher shall ensure that no enquiry or any proceeding is pending against the teacher concerned and the post to which he has been considered to be appointed by transfer shall not be advertised by the Uttar Pradesh Higher Education Services Commission.
(6) The transfer application for single/mutual transfers from one college to the other shall be submitted to the Director, Higher Education through the Management legally constituted and approved by the University along with the written consent of both the two Managements. The Director, Higher Education shall submit this recommendation to the Government within one month from the date of receipt of the application. The Government shall take decision either on the basis of recommendation of the Director or on its own.
(7) No Travel Allowance shall be admissible to the teachers against such transfers.
(8) The Manager of the former institution shall send its Service Book, Character Rolls Leave Account, G.P.F., Group Insurance Account and last pay certificate countersigned by the District Inspector of Schools/ Regional Higher Education Officer, as the case may be, to the Regional Higher Education Officer of the Region concerned and to the Director, Higher Education."
Sri Singh learned Senior Advocate who appears for the writ petitioner has also relied upon the provisions of the Uttar Pradesh Higher Education Service Commission ((Procedure for Selection of Teachers) Rules, 2014 which stood notified in Gazette on 22.04.2014 which even in fact have been enacted under Section 31 of the 1980 Act and in this regard he relies upon Rules 4 and 5 which is quoted hereinbelow.-
"4. Determination and Intimation of vacancies.-(1) The management shall intimate the existing vacancies and the vacancies are likely to be caused during the course of t ensuing academic year, to the Director at such time and in such manner, as may be prescribed.
Explanation.- The expression academic year means the period of 12 months commencing of July 1st.
The Director shall notify to the Commission at such time and in such manner as may be prescribed a subject-wise consolidated list of vacancies intimated to him from all colleges.
(2) After advertising the vacancies notified from the Director of Higher Education there will be no transfer on such post. In special circumstances if any transfer made under single transfer rule that will be informed at once to the Commission necessary and the post which will be vacant due to single transfer rule will be vacant post on the place of the post filled by the single transfer rule, and will become the part of vacancies notified by Director of Higher Education earlier, but it is clear that the single transfer will not be made once the process of selection commenced.
5. Notification of vacancies, submission of application and indication of preference.- The Commission shall advertise the vacancies in three issues of at least three newspapers and detail of which shall be given in Ayog website. Such advertisement shall inter alia, indicate the total number of vacancies as also the number of vacancies in women's colleges and other colleges separately, like U.G. and P.G. college. It require, the candidates to apply in prescribed form and to give, the choice of the colleges in order of preference same shall be binding for selectee:
Provided that if Commission fail to initiate selection within three year of advertisement. Commission can cancel the advertisement, with right to go for fresh advertisement."
The thrust of the submission of the learned counsel for the writ petitioner is that as per Rule 4 of 2005 Rules the teacher appointed on regular basis and holding lien as permanent teacher shall be entitled to transfer after completion of 10 years of service only once in the whole service period however, the same should be with the condition that the protection of salary shall be admissible and there should be a no objection certificate by both the institutions and further the salary is to be paid from the salary payment account in that regard. While referring to sub-rule (6) of Rule 4 of 2005 Rules it is further argued that the transfer application for single/mutual transfers from one college to the other shall be submitted to the Director, Higher Education through Management legally constituted and approved by University along with the written consent of both the two managements and the Director, Higher Education shall submit his recommendation to the Government within one month from the date of receipt of the application and the Government shall take decision on the recommendation of the Director or on his own.
While relying upon Rule 4 and 5 of the 2014 Regulation Sri Singh learned Senior Counsel submits that under Rule (4) which deals with heading "Determination and Intimation of Vacancies" wherein the management shall intimate the existing vacancies and the vacancies which are likely to be caused during the course of ensuing academic year to the Director at such time and in such manner as prescribed and while drawing attention towards explanation it has been further sought to be contended that the academic year means period of 12 months commencing of July 1st. He has further argued that the Director shall notify vacancy to the Commission at such time and in such manner as may be prescribed a subject wise consolidated list of vacancies be intimated to him with all colleges. Major thrust of the argument of learned Senior Counsel who appears for the writ petitioner is that in view of the provisions contained under sub-regulation (ii) of Regulation 4 after advertising the vacancies notified from the Director of Higher Education there would be no transfer on the said post and in special circumstances if any transfer made under single transfer rule then that would be informed at once to the Commission necessarily and the post would be vacant due to single transfer rule will be vacant post on the place of the post filled by single transfer rule and will become the part of the vacancies notified by the Director of Higher Education earlier but it is clear that the single transfer would not be made once the process of selection commence. By relying upon the said provision Sri Singh has further sought to argue that the total bar stands appended only in three contingencies firstly, when advertisement has been published with relation to the vacancies notified by the Director of Education, secondly in those special circumstances when the transfer is made under single transfer rule which would be informed at once by the Commission necessarily and the place from where the transfer has been done the vacancies stood notified or advertised and thirdly in a case where single transfer would not be made once the process of selection commenced.
While drawing the inference from Regulation 5 of the 2014 Regulations it is being further sought to be contended that the Regulation 5 provides for notification of vacancies submission of application and indication of preference which even in fact partakes the situation whereby the bar would be at that point when the advertisement is published.
The submission of Sri H.N. Singh learned Senior Counsel is that it is totally immaterial as to whether the process of notifying of the vacancies pursuant to requisition has been made or not as what is relevant is the date when the vacancies are advertised and in order to gather the said inference learned Senior Counsel has harped upon sub-regulation (2) of Regulation 4 itself which starts with the word "after advertising the vacancies notified from the Director". Principally, the argument of the learned counsel for the writ petitioner is that in the impugned order itself there is virtual admission of the first respondent that the writ petitioner had obtained the no objection certificate from the fourth respondent institution on 25.04.2022 and fifth respondent institution on 09.06.2022 and further as per the second page para 3.1 of the order impugned at page 52 the proposal and the application stood submitted before the Director on 19.06.2022. It is further the case of the writ petitioner that there is virtually another admission in para 3.2 of the said impugned order that the advertisement was published on 09.07.2022 i.e. advertisement No. 51 which is post issuance of the no objection certificate and submission of the documents. Thus, according to him the issuance of the notification of the vacancies, the date on which the vacancies stood notified would not be a relevant date so as to denude the writ petitioner from the said benefit.
Sri P.K. Shahi, learned Additional Chief Standing Counsel on instructions pursuant to the order of the Court has produced a set of documents which are three in number at page 1 & 2 of the instruction and 3 the order of the Court dated 12.07.2023. According to Sri Shahi para 4 of the instructions itself demonstrates that in the month of April, 2022 the vacancies stood notified, the requisition for notifying the vacancies was received in the month of April, 2022 and thus, the said date being prior to the submission of the documents i.e. on 19.06.2022 before the second respondent the same would exclude the claim of the writ petitioner. Sri Shahi, on the other hand, submits that the entire statutory provisions contained under 2005 Rules and 2014 Regulations would not be of any aid to the writ petitioner as they would even in fact be against him once the requisition notifying vacancies was submitted in the month of April, 2022. Sri Gagan Mehta, on the other hand, adopts the submission of Sri P.K. Shahi learned Additional Chief Standing Counsel.
However, Sri P.K. Shahi as well as Sri Gagan Mehta who appears for the respondents submits that since the issue which the writ petitioner is raising in the backdrop of the legal provisions needs determination with regard to the facts of the case by the first respondent and thus, the first respondent be directed to re-visit the matter in the light of the legal provisions which are sought to be canvassed by the writ petitioner.
Sri P.K. Shahi learned Additional Chief Standing Counsel and Sri Gagan Mehta have further submitted that though they were given time on 02.06.2023 to file their response but in the wake of the fact that already instructions have been obtained, thus, they do not propose to file any response but the matter be remitted back to the first respondent to pass a fresh order taking all the aspects into consideration.
Undisputedly, the writ petitioner claims transfer from fourth respondent institution to fifth respondent institution in terms of the 2005 Rules and 2014 Regulations. More or less there is no dispute with regard to the date on which no objection certificates have been issued by the fourth and the fifth respondents and the date on which the said proposal was submitted before the Directorate. Now a question arises as to which of the provisions would apply and in whose side for the purposes of according permission for being transferred. This Court would have adjudicated on the said issue while giving its final verdict, however, as rightly stated by learned Additional Chief Standing Counsel these issues have to be considered at the first instance by the first respondent as the legal provisions have not been considered in the order which have been impugned in the present proceedings, according to the learned Additional Chief Standing Counsel the matter is to be given a fresh look by the first respondent.
Considering the submission of the rival parties as well as the stand taken by them the writ petition is being decided without seeking any response from the respondents on the following terms; (a) the order dated 20.04.2023 passed by the first respondent Additional Chief Secretary, Shiksha Anubhag-3 U.P. Lucknow is set aside; (b) the matter stands remitted back to the first respondent to pass a fresh order taking all the aspects into consideration while re-visiting the entire issues; (c) in case the writ petitioner seeks to be heard in person then she shall along with the certified copy of the order request for being heard in person; (d) on the receipt of the certified copy of the order and request for being heard in person the first respondent Additional Chief Secretary, Shiksha Anubhag-3 U.P. Lucknow shall fix a date for hearing; (e) the first respondent shall decide the claim of the writ petitioner while, also putting to notice the writ petitioner, fourth and the fifth respondents while fixing a suitable date in writing in advance and the first respondent shall pass a reasoned and speaking order in accordance with law and the observations made hereinabove within a period of further two months.
With the said observations, the writ petition stands partly allowed.
The instructions filed today are kept on record and marked as Appendix 'A'.
Order Date :- 19.7.2023 Rajesh