Allahabad High Court
Preeti And Another vs State Of U.P. And 5 Others on 30 March, 2022
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 02.11.2021 Delivered on 30.3.2022 Court No.5 Case :- WRIT - A No. - 10680 of 2021 Petitioner :- Preeti And Another Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Shantanu Khare,Sr. Advocate Shri Ashok Khare Counsel for Respondent :- C.S.C.,Ajay Kumar Sharma Hon'ble Saral Srivastava,J.
1. Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Siddharth Khare, learned counsel for the petitioners, learned Standing Counsel for respondent no.1 to 3, Ms. Dolly Dwivedi, Advocate holding brief of Ms. Archana Singh, learned counsel for respondent nos.4 & 5 and Sri Manish Dev, Advocate holding brief of Sri Ajay Kumar Sharma, learned counsel for respondent no.6.
2. The petitioners by means of the present writ petition have prayed for the following reliefs:-
"(i). A writ, order or direction of a suitable nature commanding the respondent no.4 to forthwith sanction mutual inter district transfer of the two petitioners on the basis of their applications dated 03.03.2021 and 05.03.2021 within a period to be specified by this Hon'ble Court.
(ii). A writ, order or direction of a suitable nature commanding the respondent to permit the petitioner no.1 to function as an Assistant Teacher in Junior Basic School of District Gautam Budh Nagar and to permit the petitioner no.2 to function as an Assistant Teacher in a Junior Basic School of District Saharanpur and to pay them their regular monthly salary against such respective post."
3. The brief facts of the case are that petitioners were selected and appointed as Assistant Teacher in pursuance to the recruitment undertaken by the respondent-Board in the year 2017-18 for recruiting 69,000 Assistant Teachers. The petitioner no.1 was appointed on 01.11.2018 and posted at Prathmik Vidyalaya, Tapri Kalan, Development Block Balia Kheri, District Saharanpur while the petitioner no.2 was appointed on 08.02.2018 and posted at Prathmik Vidyalaya Nagla Bhatona, Development Block Jewar, District Gautam Budh Nagar.
4. The husband of the petitioner no.1 namely, Anil Kumar Mittal, is an employee of Delhi Judicial Academy falling under the control of Delhi High Court. On such account, the petitioner no.1 desired to be posted in District Gautam Budh Nagar which is adjacent to Delhi. The petitioner no.2 is a resident of District Saharanpur and desired to be posted at Saharanpur.
5. The State Government issued a Government Order dated 02.12.2019 inviting applications for inter-district transfer to be submitted on or before 20.01.2020. Paragraph 2(1)(a) of the Government Order dated 02.12.2019 provides that male teachers who had completed three years minimum service as regular teacher and female teachers, who had completed minimum period of one year of satisfactory service, were eligible to apply for inter-district transfer.
6. According to para 17 of the aforesaid Government Order, the eligibility was to be computed on the date the Government Order was issued.
7. The further case of the petitioners is that on account of limitation contained in paragraph 2(1)(a) of the Government Order dated 02.12.2019 with regard to the minimum length of service, the petitioners even though desirous of mutual transfer, could not submit application for mutual transfer pursuant to the Government Order dated 02.12.2019.
8 It appears that subsequently, Government Order dated 16.02.2021 was issued whereby, clause 2(1)(a) of the Government Order dated 02.12.2019 was clarified by which it waived the stipulation of minimum length of service in Government Order dated 02.12.2019 for mutual transfers. As the petitioners did not fulfill the minimum length of service as prescribed in Clause 2(1)(a) of the Government Order dated 02.12.2019, therefore, they did not submit online application for grant of mutual transfer.
9. It is stated that despite the clarification of clause 2(1)(a) of the Government Order dated 02.12.2019 by Government Order dated 16.02.2021, no time was granted to the teachers like petitioners to submit online application for consideration of mutual transfer as these teachers could not submit online application due to stipulation of minimum length of service for being eligible to apply for inter district transfer.
10. Thereafter, the petitioner no.1 filed application on 03.03.2021 seeking inter-district mutual transfer with the petitioner no.2 before the Director General/School Education & State Project Director and also to the Secretary, Board of Basic Education. The petitioner no.2 on 05.03.2021 filed inter-district transfer application seeking mutual transfer with petitioner no.1 before the Director General/School Education & Secretary, Board of Basic Education. It is further stated that the petitioner no.1 is to look after a one year old girl child born on 13.01.2020.
11. When no action was taken on the application of petitioners for mutual transfer, the petitioners have approached this Court by filing the present writ petition praying for the aforesaid reliefs.
12. In the counter affidavit filed by the respondent nos.4 & 5, it is stated that a Writ Petition No.878 of 2020 (Divya Goswami Vs. State of U.P.) was filed and in compliance of the order dated 03.11.2020 and 03.12.2020 passed by this Court, Government Order No.148/68-5-2021-15(149)/2010 dated 05.02.2021 and Government Order No.191/68-5-2020-15/2010 dated 16.10.2021 were issued. In pursuance to the said Government Orders, a software was developed by N.I.C. for the purpose of inter-district transfer of board's teachers for the year 2019-20 and the entire proceeding of inter-district transfer had been completed on 17.02.2021.
13. It is further stated that after the last date for inter-district transfer, no inter-district transfer has been done. It is further stated that at present no policy is in existence regarding inter-district transfer or mutual transfer. It is further stated that for want of online application by the petitioners, their claim for inter-district transfer could not be considered.
14. The further case of the respondents is that as the marks obtained by the petitioners for transfer was less than the cut off marks prescribed for inter-district transfer, therefore, they could not be transferred to the District opted by them. It is further stated that as the petitioners did not apply online inter-district transfer, therefore, their application could not be considered. The further case of the respondents is that in view of paragraph 64(1) of the judgement of this Court in the case of (Divya Goswami) (supra), no inter-district transfer is permissible during the mid of the academic session.
15. A rejoinder affidavit has been filed by the petitioners stating therein that they stood precluded from applying for the mutual transfer on account of the limitation contained in clause 2(1)(a) under which a male teacher could not have applied for transfer before three years. This condition was deleted by Government Order dated 16.02.2021, but the benefit of this Government Order was limited to those who had already submitted applications.
16. It is further pleaded that the transfer contemplated under Government Order dated 02.12.2019 is based upon the allocation of marks contained in para 8 of the Government Order. Such allocation of marks become irrelevant in case of mutual transfer. It is further stated that restriction against mid academic session transfer would be inapplicable to a case of mutual transfer as the purpose of such restriction is to maintain the continuity of studies. In the case of mutual transfer, one teacher gets replaced by the another and vice-versa which necessarily does not affect the teaching work. It is further stated that in case the petitioners are made to wail till the beginning of next academic session, then in such a case if petitioners file such application on the first day of the academic session-2022-23 and its processing takes 24 hours time, such application would be again in the middle of the academic session 2022-23.
17. It is further stated that in pursuance to the Government Order dated 02.12.2019 the transfer was finalized in the month of January, 2021 in the mid-session.
18. Learned counsel for the petitioners has contended that the three grounds as stated in the counter affidavit on which, the petitioners' application have not been considered, are not sustainable in law. He submits that the first ground that the petitioners did not apply online in pursuance to the Government Order dated 02.12.2019 is misconceived inasmuch as had the Government Order dated 02.12.2019 been specific and clear excluding mutual transfer from the condition no.2(1) (a) of the Government Order dated 02.12.2019, the petitioners would have applied. He further submits that on account of the bar created by the Government Order dated 02.12.2019 that a male teacher who has not completed three years of regular service cannot avail transfer precluded the petitioners from applying for the inter-district transfer. Accordingly, he submits that since the Government Order dated 16.02.2021 by which stipulation of minimum length of service provided in para 2(1)(a) of the Government Order dated 02.12.2019 for inter district transfer was waived in case of the mutual inter-district transfer, therefore, the respondents ought to have permitted some time to the eligible teachers desirous of inter-district mutual transfer to apply, and as such, aforesaid ground of denial of inter-district transfer is misconceived as the petitioners could not apply for the reasons beyond their control.
19. He further submits that the second ground in view of para 64(1) of the judgement of this Court in Divya Goswami (supra) that no transfer in mid of the academic session is permissible is also not sustainable for the reason that in mutual transfer, the studies of the students do not suffer as one teacher is replaced by another teacher which is not a case in inter-district transfer in respect of individual teacher. He submits that the transfer with respect to session 2020-21 was finalized in mid session between October, 2021 to January, 2022. He further submits that in case the petitioners submit application on the first day of session, the consideration of their application would fall in the mid of sessions inasmuch as even if such consideration takes minimum time of 24 hours, the same would fall in the mid of the academic session. Thus, the submission is that the second ground for not considering the transfer of petitioners is also not sustainable.
20. He further submits that in the case of mutual transfer, the marking system is totally irrelevant for the reason that here the two teachers agree for mutual transfer whereas in the case of individual transfer, the marking system plays an important role in regulating the transfer so as to avoid arbitrariness in granting individual transfer.
21. Per contra, learned counsel for the respondents has submitted that under the Government Orders, those teachers who had submitted application, were eligible for consideration of their transfer applications. Since the petitioners did not apply for their mutual transfer online, therefore, their claim for transfer could not be considered. She further submitted that this Court in paragraph 64 (1) of the judgement of Divya Goswami (supra) has prohibited the mid session transfer with an object that the studies of the students in the school should not suffer and as this Court has put a restriction upon the mid session transfer and that being the law of the land, the petitioners are not entitled to mid session transfer, therefore, the relief as claimed by the petitioners is misconceived. Lastly, she has contended that as the petitioners have secured less marks than the cut off marks provided for the district in which the petitioners want transfer, therefore, they could not be considered for transfer.
22. I have heard the rival submissions of the parties and perused the record.
23. The facts as emerges in the present petition are that the petitioner nos.1 & 2 have been appointed on 01.11.2018 and 08.02.2018 respectively. Under the Government Order dated 02.12.2019 on account of limitation imposed under para 2(1)(a) of the said Government Order, the petitioner no.2 having not completed three years of service could not submit his transfer application online inasmuch as the eligibility was to be computed under Clause 17 of the said Government Order on the date of the Government Order permitting submission of applications. Once the condition enumerated in paragraph 2(1)(a) of the Government Order dated 02.12.2019 was excluded in case of mutual transfer by virtue of Government Order dated 16.02.2021, the petitioners became eligible to submit application for grant of mutual transfer. On being eligible for mutual transfer, the petitioners submitted application for mutual transfer. The authorities did not consider their application for mutual transfer which gave rise to the petitioners for filing present petition seeking the relief, extracted above.
24. Now, so far as the ground taken by the respondents in the counter affidavit that the petitioners did not submit online application for consideration of their transfer therefore their application were not considered, is misconceived in the facts of the present case inasmuch as the petitioner no.2 in view of para 2(1)(a) of the Government Order dated 02.12.2019 was not eligible for submitting online application for transfer. Since the petitioner no.2 did not fulfill the condition enumerated in Government Order dated 02.12.2019 regulating the inter-district transfer, there was no occasion for the petitioner no.2 to submit online application. The petitioners could become eligible to submit transfer application only after the Government Order dated 16.02.2021 excluded mutual transfer from the ambit of paragraph 2(1)(a) of the Government Order dated 02.12.2019.
25. As soon as the petitioners became eligible to submit application in view of Government Order dated 16.02.2021, both the petitioners submitted application for grant of mutual transfer. It is obvious that non submission of application of transfer by petitioner no.2 was beyond his control in view of limitation imposed under para 2(1)(a) of the Government Order dated 02.12.2019. Once the Government Order dated 16.02.2021 excluded the applicability of the condition imposed under para 2(1)(a) of the Government Order dated 02.12.2019 by the Government Order dated 16.02.2021 in the case of mutual transfer, it is obvious that to extend the benefit of Government Order dated 16.02.2021 to eligible teachers, the State Government should have permitted some time to the teachers to submit online application who could not submit application for mutual transfer because of rider imposed under para 2(1)(a) of the Government Order dated 02.12.2019.
26. Thus, it is evident that there was no fault of the petitioners in not submitting application for mutual transfer online as the fault is attributed to the respondents in not giving any further time to permit the eligible teachers to submit online application who could not submit the same in view of para 2(1)(a) of the Government Order dated 02.12.2019 limiting the applicability of the Government Order to the male teachers who have completed three years of service on the date of issuance of Government Order. In such view of the fact, the first ground on which the claim of petitioners is denied, is not sustainable in law.
27. So far as the second ground for denial of claim of petitioners based on para 64(1) of the judgement in the case of Divya Goswami (supra), is concerned, this Court finds that the rider imposed by the judgement of Divya Goswami (supra) in para 64(1) is not applicable in the facts of the present case. The reason being that the object of not permitting mid session transfer by this Court in Divya Goswami case was that the studies of the students should not suffer. In the case of mutual transfer, the teachers who are seeking mutual transfer replaces one teacher by another and as such on mutual transfer, the teachers are available to impart education in both the schools and hence, the studies of the students will not suffer.
28. It is pertinent to note that the State Government has power under Rule 8 of U.P. Basic Education (Teachers) (Posting), Rules, 2008 (hereinafter referred to as 'Rules, 2008') to regulate posting of teachers. Rule 8 of the said rule is reproduced herein below:-
"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."
29. Under Rule 8 (2) (d) of the Rules, 2008, the power to consider inter-district transfer is conferred upon the authorities in exceptional circumstances. This Court has held that even in the case of male teachers, the rider imposed of five years can be relaxed in extra ordinary or exceptional circumstances and the application for transfer can be considered. In this respect Para-19 & 20 of the judgement of this Court in case of Anuruddha Kumar Tripathi Vs. State of U.P. and Others passed in Writ-A No.4950 of 2018 is reproduced here-in below:-
"19. In light of the aforesaid discussions, it is held that transfer of a male assistant teacher from one district to another, in a basic school, can ordinarily be made only after completion of 05 year initial posting in backward area in accordance with Rule 8(2)(d) of the Rules of 2008 as well as the policy framed for the purpose. However, in extraordinary or exceptional circumstances an application for transfer can be considered by the Basic Shiksha Parishad even before expiry of such term. The question whether in a given case extraordinary circumstances exists or not has to be examined by the Basic Shiksha Parishad.
20. In such circumstances, this writ petition stands disposed of permitting the petitioner to represent in the matter before the Secretary, Basic Shiksha Parishad, U.P. Allahabad, by way of a representation together with certified copy of this order, within two weeks from today. Petitioner shall be at liberty to annex all material in support of his plea that there exists exceptional circumstances justifying his transfer from Lakhimpur Kheri to Banda even before completion of his 05 year term. The Secretary of the Basic Shiksha Parishad, U.P. Allahabad shall examine as to whether the ground on which petitioner is seeking his transfer would fall within the exceptional circumstances or not? A specific order, in that regard, shall be passed within a further period of three months, thereafter. No order as to costs."
30. Similar view has been reiterated by this Court in Writ-A No.3967 of 2021 (Tej Pratap Singh Yadav Vs. State of U.P. and 3 Others). Relevant extract of the said judgement is reproduced here-in-below:-
"This Court in Writ Petition No. 7096 of 2010 (Sarita Gupta Vs. State of U.P. and others) has considered the provisions of Uttar Pradesh Basic Education ( Teachers) (Posting) Rules, 2008 to observe that the provisions of transfer for the purposes of husband and wife in the same district is a special provision which will prevail upon the general restrictions of transfer. Since the petitioner and his wife both are teachers in the educational institution run by the Basic Shiksha Parishad, it would be open for the authority concerned to post both husband and wife at one place.
The fact that the husband and wife are posted at different places would be a relevant circumstance and may require waiver of five year term for seeking transfer.
Petitioner is presently working at Sitapur and is seeking his transfer to Etawah where his wife is working. There is no consideration of petitioner's claim on merits. Even otherwise it is pointed out that the petitioner by now has completed 5 years. In such circumstances, it would be appropriate to direct the Secretary Basic Shiksha Parishad to reconsider petitioner's claim for inter district transfer, keeping in view the aforesaid facts and observations made above, afresh within a period of two months from the date of presentation of copy of this order. The order impugned in the writ petition dated 29.9.2020 shall remain subject to the fresh order to be passed by the Secretary concerned."
31. Thus, from the aforesaid two judgements, it is evident that the power under Rule 8 (2) (d) of the Rules, 2008 have been conferred upon the authorities to exercise the same in exceptional and extraordinary circumstances and an application for transfer can be considered by the authorities
32. It is also pertinent to note that reading of Paragraph No. 64(1) in the case of Divya Goswami (supra) does not hint that it has put any rider for consideration of mutual inter-district transfer. In such view of the fact, second ground is also misconceived.
33. It is also relevant to mention that if no mid-session transfer is permissible that will make the power to consider transfer under Rule 8(2)(d) of Rules, 2008 redundant inasmuch as, if a teacher applies for inter-district transfer on the first day of session, it is obvious that consideration of his/her inter-district transfer would fall in the middle of Session even if the authorities take the minimum of 24 hours time to consider such application. Therefore, to achieve the object of conferring power on authorities for consideration of transfer in exceptional and extraordinary circumstances, this Court believes that in such a case, a teacher may submit application to the competent authority for transfer in extraordinary contingency even in middle of the session and the same may be considered by the competent authority expeditiously. In the event, if the competent authority conclude that it is a fit case for exercise of power under Rule 8(2)(d) of Rules, 2008, he may pass an order of transfer, but the transfer would become effective in case of inter district transfer not being a mutual transfer from the first day of the new session so that teacher may join at transferred school on first day of session, so that studies of students may not suffer for want of teacher.
34. Now, so far as the third ground that the petitioners have obtained less marks than the cut-off marks for transfer to their choice district is concerned, the said contention is also misconceived for the reason that the mutual inter-district transfer are exceptions and perhaps for that reason, stipulation of minimum length of service in para 2(1)(a) of the Government Order dated 02.12.2019 has been waived in the case of mutual transfer, therefore, the denial of the mutual transfer on the ground that the petitioners secured less marks than the cut-off marks has no nexus with the object sought to be achieved while considering the application of mutual transfer.
35. In such view of the fact, this Court finds that the denial of mutual inter-district transfer to the petitioners are illegal and arbitrary.
36. It is pertinent to note that this Court is conscious of the fact that the Court should not issue mandamus where the power is vested with the authorities to exercise such discretion in accordance with Rules, but in the instant case the counter affidavit has been filed stating therein the grounds on which the transfer application of the petitioners for mutual transfer were not considered which are not found to be not sustainable in law by this Court for the reasons stated above. Thus in such view of fact, this Court does not find it to be a fit case to relegate the matter to the competent authority to decide the matter afresh.
37. In such view of the fact, this Court issues a writ of Mandamus to the authority concerned to pass a mutual transfer order transferring the petitioner no.1 from Junior Basic School, Tapri Kalan, Saharanpur (U.P.) to Junior Basic School of District Gautam Buddh Nagar and petitioner no.2 from Junior Basic School of District Gautam Buddh Nagar to Junior Basic School, Tapri Kalan, Saharanpur (U.P.) within a period of three weeks from the date production of a certified copy of this order.
38. Accordingly, the writ petition stands allowed with no order as to cost.
Order Date:- 30.03.2022 Mohit Kushwaha