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2020 Supreme(All) 177
IN THE HIGH COURT OF ALLAHABAD
SURYA PRAKASH KESARWANI, J.
Manoj Kumar And 29 Others – Appellants
Versus
State Of U.P. And 2 Others – Respondents
Writ A No.881 of 2020
Decided on : 17-01-2020
Subject
Administrative Law - Government Policy
Act Referred
UTTAR PRADESH BASIC EDUCATION TEACHERS POSTING RULES : R.8(2)
UTTAR PRADESH BASIC EDUCATION TEACHERS SERVICE RULES : R.21
Headnote
U.P. Basic Education (Teachers) Service Rules, 1981 – Rule 21 – U.P. Basic Education (Teachers) (Posting) Rules, 2008 – Rule 8(2) – Constitution of India – Article 14 – Seeking to issue order or directing the respondents to delete column-8 (4) clause of Government Order (Transfer Policy) or
not to extend benefit of 05 additional quality points to female teachers – Held, In view of discussion and considering law laid down by Supreme Court in various judgments including in case case of M.P. Oil Extraction (supra), it can be safely concluded that executive authority of State must held to be within its competence to frame a policy for administration in basic schools – Unless 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 – Court should not embark on the un-chartered 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 – Impugned paragraph of government order/ policy neither offends Article 14 of Constitution nor offends other constitutional provisions nor it is in conflict with any of provisions of Rules – Petition dismissed. (Paras 13, 14 and 15)
Facts of the case:
Seeking to issue order or directing the respondents to delete column-8 (4) clause of Government Order (Transfer Policy) or not to extend benefit of 05 additional quality points to female teachers.
Findings of the court:
In view of discussion and considering law laid down by Supreme Court in various judgments including in case of M.P. Oil Extraction (supra), it can be safely concluded that executive authority of State must held to be within its competence to frame a policy for administration in basic schools – Unless 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 – Court should not embark on the un-chartered 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 – Impugned paragraph of government order/policy neither offends Article 14 of Constitution nor offends other constitutional provisions nor it is in conflict with any of provisions of Rules.
Result: Petition dismissed
Advocate Appeared:
For the Appellant : Navin Kumar Sharma
For the Respondent: C.S.C., Santosh Kumar
JUDGMENT :
Surya Prakash Kesarwani, J.
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 m
