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2020 Supreme(All) 960
IN THE HIGH COURT OF ALLAHABAD
Ajit Kumar, J.
Divya Goswami – Petitioner
Versus
State Of U.P. And Others – Respondents
Writ -A No. 878, 300, 8479, 8474, 8478, 796, 816, 821, 863, 1207, 1210, 1216, 1221, 1269, 1374, 1459, 1766, 1781, 1843, 1894, 1907, 1979, 1994, 2291, 2322, 2323, 2466, 2469, 2471, 2473, 2516, 2525, 2688, 3742, 4185, 4333, 2408, 2411, 2429, 2432, 2442, 2463, 2927, 3464, 3366 of 2020
Decided On : 03-11-2020
Important Points
Subject
Transfer Policy - Inter-District Transfer
Act Referred
CIVIL PROCEDURE CODE : S.11
CONSTITUTION OF INDIA : Art.14, Art.162, Art.21, Art.309
UTTAR PRADESH BASIC EDUCATION ACT : S.19
UTTAR PRADESH BASIC EDUCATION TEACHERS POSTING RULES : R.8(2)(c), R.8(2)(d)
Headnote
U.P. Teachers Posting Rules, 2008 – U.P. Basic Education (Teachers) Service Rules, 1981 – Rule 21 – Constitution of India, 1950 – Article 14 – Transfer – Since only legal issue is required to be addressed to, in the present case qua eligibility and consideration of the request of the Assistant Teachers for transfer in the light of the U.P. Basic Education (Teachers) Service Rules, 1981 as amended in the year 2012 and the U.P. Teachers Posting Rules, 2008 this Court does not consider it necessary to go into the facts pleaded in writ petitions of respective petitioners except the fact that pursuant to the Government Order dated 2.12.2019, the respondents invited applications from teachers for transfer and the petitioners are before this Court, who have been refused registration for consideration for inter district transfer in view of Clauses 15 and 16 of the said Government Order.
Finding of the Court:
As Court find that Rule 21 of the Recruitment Rules, 1981 does not explain the word ‘request and consent’ occurring thereunder for the purposes of transfer and posting rules have circumscribed them partially by making it specific in respect of female teachers for the residence of their husband/in-laws for the purposes of inter-district transfer with further restrictions qua eligibility of five years service to seek inter-district transfer and further restriction imposed under the Government orders particularly which is in issue, by putting a condition that once option for transfer is exercised successfully, such a teacher would not be eligible to seek transfer for the second time except in cases of teachers whose spouse is working in Indian Armed Forces/Paramilitary Forces/CRPF/CISF/SSB/Assam Rifles/ITBP/NSG/BSF/differently abled persons and those suffering from serious incurable diseases and single parents, have all created situation of utter confusion amongst the teachers who are aspiring for inter-district transfer. – Applications for inter-district transfer that are pending before the State Government pursuant to the Government order dated 2nd December, 2019, their consideration shall abide by the observations/directions as contained hereinabove in this judgment. –
Result:Writ Petitions Stand Disposed of
Advocate Appeared:
For the Petitioner: Navin Kumar Sharma
For the Respondent: C.S.C., Jai Krishna Tiwari
JUDGMENT :
1. Heard Sri. R.K. Ojha, learned Senior Advocate assisted by Sri Arvind Kumar, Sri. Navin Kumar Sharma, Sri. H.C. Pandey, Sri S.K. Mishra, Sri S.P. Singh, Sri Aghonotri Kumar Tripathi, Sri Ranvijay Singh and other respective Advocates appearing for respective petitioners in this bunch of petition and Sri Ajit Kumar Singh, learned Additional Advocate General assisted by Sri Amit Verma, learned Standing Counsel for State, Sri J.K. Tiwari, Sri Sanjay Kumar Singh, Sri Pradeep Singh Senger, Sri Vikram Bahadur Singh, Sri S.K. Verma, Sri Sanjay Kumar, Sri Satish Chand Yadav, Sri Ashok Kumar Yadav, Sri R.P. Shukla, Sri Bhupendra Kumar Yadav, Sri Arun Mishra, Sri Sanjay Chaturvedi, Sri R.P. Singh, Sri Akhilesh Chand Srivastava, learned counsel for Basic Siksha Parishad and respective District Basic Education Officers.
2. This bunch of petitions raises question to the stand of the State Government and the U.P. Basic Education Board in denying registration of Assistant Teachers male and female working in various junior basic and Senior basic Schools run by Basic Siksha Parishad, qua their requests for inter district transfer.
3. The germane to the issue in lis lies in the Government order dated 2.12.2019, issued by the State Government laying down criteria for eligibility of Assistant Teachers for inter district transfer.
4. Since only legal issue is required to be addressed to, in the present case qua eligibility and consideration of the request of the Assistant Teachers for transfer in the light of the U.P. Basic Education (Teachers) Service Rules, 1981(hereinafter referred to as Recruitment Rules, 1981), as amended in the year 2012 and the U.P. Teachers Posting Rules, 2008 (hereinafter called as Posting Rules, 2008), this Court does not consider it necessary to go into the facts pleaded in writ petitions of respective petitioners except the fact that pursuant to the Government Order dated 2.12.2019, the respondents invited applications from teachers for transfer and the petitioners are before this Court, who have been refused registration for consideration for inter district transfer in view of Clauses 15 and 16 of the said Government Order.
5. The undisputed legal position admitted to the respective parties is that the teachers appointed under the Recruitment Rules, 1981 to various Junior Basic and Senior Basic Schools of Basic Education Board form a separate District Based cadre and their inter se seniority is, accordingly, determined and there is no provision under the Recruitment Rules,1981 which may provide for the post to be transferable except by virtue of acceding to the requests of teachers under Rule 21 of Recruitment Rules 1981. Prior to the 15th amendment made in the said Rules vide notification dated 31.8.2012 Rule 21 read as under:
“21-Procedure for Transfer-Any teacher who is working as assistant teacher/head master in schools governed by the Board on October, 2011 may submit his/her option/application once in his/her service period for transfer from one district to another district on the proforma laid down by the Board in the manner prescribed by it, which shall be effective till his/her transfer is executed :-
(i) On and from the commencement of the Uttar Pradesh Basic Education (Teachers' Service) (Thirteen Amendment) Rules, 2011 headmasters/teachers who are willing to seek inter district transfer shall have to submit their options/applications till December 31, 2011. The options/applications for transfer received by the Board shall be listed in accordance with opted district wise by the Board in order of their date of substantive appointment.
(ii) the inter-district transfer of teachers shall be considered in the following order of preference:-
(a) Female teacher who applies for transfer on marriage basis.
(b) Female teacher who applies for transfer in a district other than her home district.
(c) Female teacher who applies for transfer in her home district.
(d) Male teacher who applies for transfer in a d
