Allahabad High Court
Khushboo Chaudhary vs State Of Up And 3 Others on 16 April, 2024
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:66398-DB Court No. - 40 Case :- SPECIAL APPEAL DEFECTIVE No. - 317 of 2024 Appellant :- Khushboo Chaudhary Respondent :- State of UP and 3 Others Counsel for Appellant :- Raj Kumar Singh, Rajat Aren,Rishi Shrivastava Counsel for Respondent :- Archana Singh,C.S.C. Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Anish Kumar Gupta,J.
Ref: Delay Condonation Application
1. For the reasons stated in affidavit filed alongwith delay condonation application, which constitutes sufficient cause, the delay condonation application is allowed. The delay in filing the Special Appeal is hereby condoned.
Ref: Civil Misc. Application
2. Present application has been filed under Order XXXXI Rule 27 of the Code of Civil Procedure for accepting the evidence.
3. Mrs. Archana Singh, learned counsel for contesting respondent nos.2, 3 and 4 has no objection to the said application.
4. Accordingly, the application is allowed and the evidence, which are filed alongwith the said application, are taken into consideration while deciding the present Special Appeal.
Ref: Special Appeal
5. Heard Mr. Rajat Aren and Mr. Raj Kumar Singh, learned counsels appearing for the petitioner-appellant and Mrs. Archana Singh, learned counsel appearing for the respondent Nos.2 to 4.
6. The instant intra-court Special Appeal under chapter-VIII, Rule-5 of the Allahabad High Court Rules, 1952 is preferred against the judgment and order dated 29.02.2024 passed in Writ A No. 3174 of 2014 (Khushboo Chaudhary Vs. State of U.P. and 3 others).
7. Briefly stated the facts of the case are that the petitioner-appellant is working as Assistant Teacher in Primary School Khiriya Heer, Block Dadraul, District Shahjahanpur. The State Government had issued a Government order/transfer policy on 02.06.2023 for inter-district transfer of the teachers appointed in Primary Schools and Junior High Schools, which are run and managed by U.P. Basic Education Board. Consequently, the Secretary, Basic Education Board issued a Circular on 08.06.2023 to all District Basic Education Officers. In the light of the aforesaid transfer policy, the appellant had applied online for her inter-district transfer to District Amroha on certain medical weightage, which is provided under Clause-8 and 9 of the Government order dated 02.06.2023 as her son, who is aged about three years, was suffering from "ACYNOTIC HEART DISEASE". For substantiating her claim she had also brought on record the certificate provided by the Chief Medical Superintendent, District Hospital, Shahjahanpur dated 13.06.2023, which was countersigned by the Chief Medical Officer, Shahjahanpur dated 14.06.2023. The medical detail of the son of the petitioner-appellant is also appended, which reflects that the treatment of her son is going on at NUTEMA Hospital, Meerut, which is recognized by the National Accreditation Board of Hospitals (NABH) as was required in the Government order/transfer policy.
8. It further appears from the record that her request for transfer was accepted by the second respondent and she was transferred from Shahjahanpur to Amroha vide transfer order dated 26.06.2023. Ultimately, the verification of her documents was completed by the Committee headed by the Chief Development Officer, Shahjahanpur on 04.08.2023, wherein he had given consent to relieve her in pursuance of the transfer order. The said decision was also duly verified by the Committee headed by the Chief Medical Officer, Shahjahanpur. Thereafter, the District Basic Education Officer, Shahjahanpur vide order dated 05.08.2023 had directed to all the concerned Block Education Officers for relieving those teachers, whose papers were found eligible/genuine for relieving them. Admittedly, the appellant was relieved vide order dated 07.08.2023 but she was not permitted to join in District Amroha. Earlier the appellant had approached this Court by preferring Writ A No.21591 of 2023 (Khushboo Chaudhary and another vs. State of UP and another) seeking direction to the respondent nos.2 and 3 to ensure the joining of the petitioners forthwith w.e.f. 08.08.2023 as Assistant Teacher in District Amroha in pursuance of the Inter-District transfer orders dated 26.06.2023 & relieving orders dated 07.08.2023 and pay the salary and arrears of salary from the date 08.08.2023 to them. During the course of hearing the respondents had informed that vide an order dated 16.01.2024 the transfer of appellant had been cancelled. Finally, vide an order dated 18.1.2024 learned Single Judge had simply disposed of the writ petition with following observations:-
"1. Claim of petitioners for inter-district transfer has been rejected by a recent order dated 16.01.2024, a copy of same is provided to counsel for petitioners during hearing.
2. Sri Neeraj Shukla, learned counsel for petitioners submits that petitioners were transferred to their transfer district and they were relieved from their existing place of working but they were not allowed to join, therefore, for last six months, they are not able to work and on this ground, their salary have not been paid without any fault of them.
3. In these circumstances, now petitioners have been directed to join at their original place, if already not joined within a week.
4. The petitioners will submit a representation for their salary to concerned Basic Education Officer within a period of one week thereafter.
5. The B.S.A. concerned shall take appropriate decision thereafter within two weeks. It would be appreciated that if there is no fault of petitioners, their salary may not be stopped.
6. The petitioners will be at liberty to take legal recourse, if they are aggrieved by the order dated 16.01.2024.
7. Writ petition is disposed of with above observations."
9. Thereafter, the appellant had preferred Writ A No.3174 of 2024 (Khushboo Chaudhary vs. State of UP and 3 others) seeking following reliefs:-
"(i) Issue a writ, order or direction in the nature of certiorari quashing the order dated 16.01.2024 (Annexure No.1) passed by respondent no.2, Secretary, Basic Education Board, U.P. Prayagraj.
(ii) Issue a writ, order or direction in the nature of mandamus directing the respondent no.2 to transfer the petitioner from District Shahjhanpur to District Amroha in pursuance to the Government order dated 02.06.2023 & Circular dated 08.06.2023."
10. It further transpires from the record that the aforesaid writ petition was disposed of by learned Single Judge vide impugned judgement and order dated 29.02.2024 with the following observations:-
"7. On the basis of record available at this stage it cannot be disputed that son of petitioner is suffering from serious heart disease. It appears that transfer order was cancelled on ground that no certificate was placed from the hospital where son of petitioner was under treatment or the hospital concerned was not in the panel of respondents. However, as referred in the certificate issued by Chief Medical Officer, District Hospital, Shahjahanpur son of petitioner was also under treatment of Medical College, which is also evident from other documents.
8. Therefore, it is observed that in case petitioner place a certificate issued from the hospital where son of petitioner is under treatment, verified by concerned Chief Medical Officer and counter signed by Chief Medical Officer, Shahjahanpur, case of petitioner for transfer will be considered in sympathetic manner at the commencement of new educational session."
11. Learned counsel for the appellant has vehemently submitted that the order dated 16.1.2024 passed by the second respondent, which was subject matter of challenge in Writ A No.3174 of 2024 is unsustainable in the eyes of law and while passing the order dated 29.2.2024, learned Single Judge has recorded incorrect finding that the medical paper of the son of the appellant as provided by the appellant was not in accordance with the conditions of Clause-9 of the Government order dated 02.06.2023. The said finding of fact is absolutely incorrect and against the record, whereas the medical certificate of the son of the appellant was duly issued by the Chief Medical Superintendent, District Hospital, Shahjahanpur on 13.06.2023 and the same was also countersigned by the Chief Medical Officer, Shahjahanpur on 14.06.2023. The certificate dated 13.06.2023 given by the Chief Medical Superintendent, District Hospital, Shahjhanpur is also appended alongwith the writ petition as Annexure No.7. The medical certificate was duly endorsed by the panel of doctors i.e. Assistant Professor, Dept. of Ophthalmology, MD, MRCP (UK), DM (Cardiology), Assistant Professor, Cardiology, LLRM Medical College, Meerut, which indicates that the appellant's son is a patient of serious cardiac ailment. Therefore, it is absolutely incorrect that the certificate was not duly issued by the recognized Hospital, whereas in the present matter, the certificate of NUTEMA Hospital, Meerut, which is recognized by the National Accreditation Board of Hospitals, had been brought before learned Single Judge and therefore, it is absolutely incorrect that the treatment papers and certificates were not as per norms of Clause-9 of the Government order dated 02.06.2023. Even while passing the order dated 16.1.2024, various other incorrect findings of fact were recorded by the second respondent, which are contrary to record.
12. Learned counsel for the appellant has lastly submitted that the Government order dated 02.06.2023 read with the Circular dated 29.06.2023 provide for cancellation of the transfer order only when the medical certificates have been found to be fake and fabricated but while passing the order dated 16.01.2024 incorrect findings of fact were recorded by the second respondent without according any opportunity to the petitioner. The claim of the petitioner had been rejected in arbitrary manner on the ground that the medical certificates were not duly countersigned by the Chief Medical Officer. He submits that the said action is perse unsustainable. In support of his submission, he has placed reliance on the judgement and order dated 17.11.2023 passed by learned Single Judge in Writ A No.6660 of 2023 (Laxmi Shukla vs. State of U.P. represented by its Addl. Chief Secretary, Basic Shiksha Anubhag-5, Lucknow and 5 others), wherein learned Single Judge has proceeded to allow the writ petition with following observations:-
"11. From a perusal of the order dated 05.10.2023, it emerges that the claim of the petitioner for her transfer has been rejected on 27.07.2023 and during the pendency of the petition, vide order dated 03.10.2023, a copy of which is Annexure No. SA-2 to the supplementary affidavit, the respondent no. 3 has also rejected the claim of the petitioner for transfer to District - Unnao.
12. As already recorded by this Court in the order dated 05.10.2023, the government order dated 02.06.2023 read with circular dated 29.06.2023 and the government order of the same date i.e. 29.06.2023 provide for cancellation of the transfer order only when the medical certificates have been found to be fake or fabricated. However by means of order impugned dated 27.07.2023, the claim of the petitioner has been rejected on the ground that the medical certificates have not been countersigned by the Chief Medical Officer.
13. The aforesaid ground for rejection would thus run contrary to the condition of rejection as categorically provided in the government order dated 02.06.2023 i.e. rejection order does not find the medical certificate(s), as annexed by the petitioner, to be either fake or fabricated and consequently the order impugned dated 27.07.2023 cannot be said to be legally sustainable in the eye of law.
14. On the same analogy, the order dated 03.10.2023 as passed by the respondent no. 3 cannot be said to be legally sustainable.
15. Once the claim of the petitioner has been rejected on the ground which is totally alien to the grounds on which the claim could be rejected, as detailed in the government orders dated 02.06.2023 and 29.06.2023 as such the orders impugned are liable to be quashed.
16. Keeping in view the aforesaid discussion, the writ petition is allowed. The impugned orders dated 27.07.2023 and 03.10.2023, a copy of which is Annexure No. 23 to the petition and Annexure No. SA-2 to the supplementary affidavit respectively, are quashed.
17. Respondents are directed to permit the petitioner to join at the transferred place i.e. District- Unnao. The joining of the petitioner would be treated with effect from the date the petitioner initially submitted her joining i.e. 07.07.2023 with all consequential benefits."
13. Learned counsel for the appellant further submits that aforesaid judgement was assailed in Special Appeal Defective No.96 of 2024 (Board of Basic Education U.P. represented by Secy. at Prayagraj and others vs. Laxmi Shukla and others) and a Division Bench of this Court had proceeded to dismiss the appeal with following observations:-
"1. This intra-Court appeal is directed against the judgement/order rendered by the Writ Court on 17.11.2023 in Writ-A No.6660 of 2023. The Writ Court after having gone into all the relevant aspects of the matter, has set aside the cancellation order and thereby the transfer order passed in favour of respondent no.1-petitioner was restored.
2. Briefly stated, the facts of the case are that respondent no.1-petitioner was working as Assistant Teacher and in the light of transfer policy, she applied for being accommodated on the said post in District Unnao. The case of respondent no.1-petitioner was processed as per the norms brought out vide circular dated 26.06.2023 and on her due consideration, she was transferred from District Sitapur to District Unnao, where she joined on 07.07.2023. The transfer of respondent no.1-petitioner was processed strictly in accordance with the Government Order dated 02.06.2023.
3. It appears that on issuance of a subsequent Government Order dated 29.06.2023 and in order to check the cases where the candidates may have placed reliance upon some fabricated documents, a further exercise commenced and it is in the light of the subsequent Government Order, the case of respondent no.1-petitioner came to be scrutinized again. The cancellation order of transfer was issued merely on the premise that a certificate as required in Paragraph-9 of the Government Order dated 02.06.2023 was not adhered to.
4. It was a definite case of respondent no.1-petitioner that her case was processed on the basis of medical documents issued by the SGPGIMSs, Lucknow and Chandigarh. It is not in dispute that husband of respondent no.1-petitioner was suffering from a rare neurological disorder, i.e. Trigiminal Neuralgia as is evident from the medical papers placed on record. Merely for the fact that a certificate was not issued, which may be a case in a situation where the medical papers put forth by a candidate are of an agency smacking of some doubt, but in the present case, the Writ Court having relied upon the stand of the Writ Petitioner, has found that in absence of any anomaly regarding the medical papers placed reliance upon, the cancellation order could not have been passed, that too by relying upon the Government Order, which merely permitted scrutiny of fake cases.
5. Having gone through the judgement/order impugned herein, we are of the considered view that the Writ Court has not committed any error in allowing the writ petition and the judgement so passed deserves to be upheld.
6. Thus, the special appeal being bereft of merit, is dismissed."
14. It is further submitted that the Board of Basic Education, U.P. had preferred Special Leave to Appeal (C) No.7449/2024 (Board of Basic Education, U.P. & ors vs. Laxmi Shukla & ors) and Hon'ble Supreme Court had dismissed the said SLP on 05.04.2024. He submits that the entire gamut of controversy as sought to be agitated before this Court is no more res integra and the same is squarely covered by the judgement dated 17.11.2023 passed learned Single Judge in Laxmi Shukla's case (supra).
15. Mrs. Archana Singh, Advocate, who appears for the contesting respondents, does not dispute the legal and factual aspect of the matter. However, she submits that in case the matter is relegated to the competent authority then definitely the medical papers, which have been heavily relied upon by the petitioner-appellant, would again be examined and appropriate orders shall be passed by the competent authority.
16. It is not in dispute that the petitioner-appellant was transferred from District Shahjahanpur to District Amroha on 26.06.2023. Thereafter, the second respondent had issued a Circular letter No.B.S.P./15748-16070/2023-24 dated 01.07.2023, wherein vide Clause-3 it has been directed that the exercise of relieving of Assistant Teachers has to be carried out strictly in accordance with the Government order dated 29.06.2023. Thereafter, the duly constituted verification Committee headed by the Chief Development Officer, Shahjahanpur, which was also comprised by the Chief Medical Officer and the Chief Medical Superintendent, District Hospital Shahjahanpur as members, had thoroughly verified and examined the documents of the appellant and only thereafter the respondents had acceded the request for her inter-district transfer, which was also duly approved and she was also relieved from District Shahjahanpur on 07.08.2023. The Government order dated 29.06.2023 was issued in order to check the cases where the candidates had placed reliance upon some fabricated documents but in the present matter, there was no such case for any false claim on the basis of fabricated medical papers. The said issue is no more res integra as learned Single Judge has already decided the matter in Laxmi Shukla's case (supra), which was affirmed by the Division Bench and Hon'ble Apex Court.
17. Accordingly, the order impugned dated 16.01.2024 and the consequential orders as well as the order passed by learned Single Judge dated 29.02.2024 are set aside. The matter is relegated back to the second respondent i.e. Secretary, Basic Education Board, Prayagraj to pass an appropriate order within two weeks from the date of receipt of a certified copy of this order.
18. The present Special Appeal stands allowed.
Order Date :- 16.4.2024/Sachin