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Question No.(b):- Whether under Rule 21 of the Rules 1981 and Rule 8(2)(d) of the Rules 2008, the assistant teachers have a right for consideration of their transfer application or they have a right of transfer?

19. It is settled law that transfer is not a right. As per Rule 4 of the Rules 1981, the service cadre of the petitioners is the local area of the respective district. Their appointing authority is the concerned District Basic Education Officer. In view of Rule 21 of the Rules 1981, the Assistant Teachers of basic schools run by the Board cannot be transferred from rural local area to an urban local area or vice versa or from one urban local 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. Rule 8(2)(d) of the Rules 2008 also does not confer any right for inter-district transfer. On the contrary it provides that in normal circumstances, the applications of inter-district transfers in respect of male and female teachers will not be entertained within five years of their posting. However, an exception has been provided in respect of female teachers that in special circumstances their applications for inter-district transfer would be entertained to the place of residence of their husband or in-laws' district. Rule 21 read with Rule 8(2)(d) of the Rules 1981 clearly indicates that teachers have no right for inter-district transfer.

(Emphasis supplied by me)

23. Rule 4 of the Rules, 1981 leaves no manner of doubt that the petitioners' cadre of service is the local area of the district. In view of Rule 21 of the Rules 1981, the Assistant Teachers of basic schools run by the Board cannot be transferred from rural local area to an urban local area or vice versa or from one urban local 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. Clause (a) of sub-Rule (2) of Rule 8 of the Rules 2008, specifically provides that the newly appointed male teachers shall initially be posted compulsorily in backward areas for the period of at least five years. Clause (b) provides that newly appointed female teachers shall also be compulsorily posted in backward areas for a period of at least two years. Clause (c) permits consideration for mutual transfer within the district from general block to backward block and vice versa subject to the condition that the teacher of mutual transfer to a backward block to serve in that block compulsorily for five years and mutual transfers would be permitted only in case of those teachers who have more than remaining five years of service. Clause (d) specifically provides that in normal circumstances, the applications for inter-district transfer in respect of male and female teachers will not be entertained within five years of their posting. A complete prohibition on inter-district transfers for five years, is not in conflict with the Scheme of the Rules 2008 or the Scheme of the Rules 1981. However, an exception has been provided in Clause (d) that under special circumstances, application for inter-district transfers in respect of female teachers can be entertained to the place of residence of their husbands or in-laws' district. This exception has to be read along with the clause (a), (b), (c) and (d) of sub-Rule (2) of Rule 8 of the Rules 2008 and Rule 21 of the Rules 1981. Thus, as an exception, the applications for inter-district transfers in respect of female teachers may be entertained to the place of residence of their husband or in-laws' district in special circumstances subject to approval of the Board. If the Board has framed certain guidelines for approving such inter-district transfers of female teachers then applications for inter-district transfers of female teachers, may be entertained only if such applications fulfil the guidelines of the Board otherwise they cannot be even entertained. The petitioners do not fulfil the guidelines of the Board. Some petitioners in the present batch of writ petitions are those who want their transfer from an aspirational district to a non-aspirational district or from a district where the vacancy is more than 15%, which is not permissible either under the provisions of the Rules or the guidelines dated 10.06.2018 and the Government Orders/ instructions earlier issued, therefore, refusal to accord inter-district transfer to such applicants, is well in accordance with law.

26. When Rules 2008 was originally enacted, Rule 8 thereof merely provided for posting. By the First Amendment Rules, 2010, the Rules 2008 were amended by inserting sub-Rule (2) and Clauses (a) to (f). Rule 21 of the Rules 1981 was existing in its original form. It was amended by the 13th Amendment Rules, 2011 providing for consideration to inter-district transfer in order of preference (quoted in para-5 of the judgment in Reena Singh's case). By 15th Amendment Rules, 2012, the Rule 21 as inserted by 13th Amendment Rules, 2011, was repealed and Rule 21 as it existed in its original form, was again introduced. Thus, the main provision dealing with the transfer is Rule 21 of the Rules, 1981 which forms part of service conditions. Since Clause (d) of sub-Rule (2) of the Rule 8 of the Rules, 2008 still exists, therefore, it has to be harmoniously read with Rule 21 of the Rules, 1981. A conjoint reading of Rule 21 of the Rules 1981 as interpreted by this Court in the case of Reena Singh (supra) and Rule 8(2)(d) of Rules 2008, would reveal that no teacher has any right of Inter-district Transfer. Rule 21 of the Rules, 1981 and Rule 8(2)(d) of the Rules, 2008 providing for Inter-district transfer is an enabling provision only to entertain inter-district transfer applications of only female teachers to the place of residence of their husbands or in-laws' district on request or with the consent of the teacher herself subject to the approval of the Board. In Reena Singh's case (supra), it has been authoritatively pronounced that the Board has the authority to frame the guidelines qua the way and manner it has to conduct in the matter of effectuating transfer. Guidelines have been framed by the Board to maintain transparency and rule out pick and choose by authorities and also that one may know the contingency when application for inter-district transfer of an incumbent can be entertained and she can be transferred. Under the Rules, authority to accord approval, rests with the Board. Therefore, it has all authority to frame guidelines to conduct itself.

27. The word "entertain" has not been defined either in the Act 1972 or in the Rules, 1981 or the Rules, 2008. In the case of M/s Lakshmi Ratan Engineering Works Ltd. vs. Assistant Commissioner (Judicial) 1st Sales Tax Kanpur Range, Kanpur and another [AIR 1968 SC 488 (paras 7 to 10)], Hon'ble Supreme Court interpreted the word "entertain" used in the proviso to Section 9 of the U.P. Sales Tax Act, 1948 and held that the word "entertain" means "admit to consideration" and when the proviso speaks of the entertainment of the appeal, it means that the appeal such as was filed, will not be admitted to consideration unless there is satisfactory proof available of the making of the deposit of admitted tax. The judgment in the case of M/s Lakshmi Ratan Engineering Works Ltd. (supra) has been consistently followed by Hon'ble Supreme Court including in Hindustan Commercial Bank Ltd. vs. Kunnu Sahu (dead) through legal representatives [(1971) 3 SCC 124 (Para-4)] and State of Haryana vs. Maruti Suzuki Ltd. and others [(2000) 7 SCC 348 (para-8)]. Similar view has also been taken by this Court in Awan Lal vs. Kunj Bihari Lal, 1962 All. 42; Dhoom Chand Jain vs. Chaman Lal Gupta, AIR 1962 All. 543; Kundan Lal vs. Jagannath, AIR 1962 All. 547; Haji Rahim Bux vs. Shami Ullah and sons, AIR 1963 All. 320; Smt. Jagdeep vs. Ram Awtar, AIR 1965 All. LJ 1135; Nazira Begum vs. Syed Ali, AIR 1974 All. 104; Sita Ram Jwala Prasad vs. Commissioner of Sales Tax, 1980 (45) STC 410 at 413 and R.R. Engineering Company vs. Commissioner of Sales Tax, 1983 (52) STC 174 at 176. The law laid down in the afore-noted binding judgments of Hon'ble Supreme Court and of this Court interpreting the meaning of the word "entertained", when applied to understand the meaning of the word "entertained" used in Rule 8(2)(d) of the Rules, 2008, leads to an irresistible conclusion that the applications for inter-district transfer of teachers can be entertained subject to guidelines/ policy decision of the Board. If applications of teachers for inter-district transfer is outside the contingency for inter-district transfer provided in the guidelines/ decision of the Board, then such applications need not to be even admitted for consideration.