IMPORTANT POINT
The court ruled that the 'last in first out' principle for teacher transfers is arbitrary and violates statutory provisions, emphasizing that executive orders must align with established laws.

JUDGMENT :

MANISH MATHUR, J.

1. Heard Mr. H.G.S. Parihar learned Senior Counsel assisted by Ms. Minakshi Parihar Singh, Mr. Sudeep Seth learned Senior Counsel assisted by Mr. Onkar Singh, Mr. Upendra Nath Misra learned Senior Counsel assisted by Mr. Ramesh Kumar Dwivedi and Mr. Amrendra Nath Tripathi learned counsel assisted by Mr. Mridul Bhatt, Mr. Uirech Pandey and Mr. Sharda Mohan Tiwari learned counsel for petitioners and other learned counsels for petitioners in connected writ petitions, learned State Counsel and Mr. Ranvijay Singh learned counsel for U.P. Basic Education Board, Prayagraj as well as Mr. Anuj Mishra, Mr. Pradeep Tiwari, Mr. Ravi Prakash Yadav, Mr. Rishabh Tripathi and Mr. Prashant Kumar Singh learned counsel for opposite parties.

2. Since a common cause of action has been agitated in all the writ petitions, the same are being disposed of by a common judgment.

3. In writ A No. 5232 of 2024 this Court vide order dated 23.08.2024 had granted liberty to opposite parties to file a composite counter affidavit instead of separate counter affidavits so that the matter may be decided finally. In pursuance thereof, counter affidavit was filed on behalf of State and vide order dated 29.08.2024, statement of learned State Counsel that a composite counter affidavit has been filed only on legal issues and not factual ones, which was adopted for all the connected writ petitions was recorded. Rejoinder affidavit to the same has also been filed.

4. Petitions have been filed challenging Clauses 3,7, 8 and 9 of the government order dated 26.06.2024 as well as similar clauses indicated in the circular dated 28.06.2024 issued by the Basic Education Board.

5. The aforesaid government order and circular have been issued purportedly in terms of Right to Education Act 2009 and the rules framed by the State Government in 2011 thereunder whereby proceedings have been initiated for fulfilment of the pupil-teacher ratio in accordance with the schedule prescribed under sections 19 and 25 of the Act of 2009.

6. Clause 3 of the government order, loosely translated prescribes that for the academic Session 2023-24 and as per the student strength as on 31.03.2024, teachers are required to be shifted from such schools where they are surplus as per the bench mark of the pupil-teacher ratio to schools where such bench mark remains unfulfilled. It also indicates that such shifting would be on the basis of length of service of a teacher in a particular district.

7. Clause 7 of the government order provides that such shifting of teachers would be effected by transferring teachers on the basis of their length of service in a particular district as per their date of appointment under the principle of last come first go whereby the junior most teacher would be shifted out first.

8. Clause 8 of the government order indicates by and large the same factor of last come first out principle but also requires the bench mark to be determined by taking into the account the number of Shikshsa Mitra/Contractual Teachers available in a school.

9. Clause 9 of the government order prescribes that such inter district transfer will be in terms of the U.P. Basic Education Teachers Service Regulations 1981 as well as notifications dated 2010 and 2014 issued by the National Teachers Education Board and also provides such transfers to take place on the basis of last come first out.

10. It is relevant to indicate that all the petitioners are employed in basic schools and are governed by provisions of the U.P. Basic Education Act 1972. Section 13 of the Act of 1972 indicates that the Uttar Pradesh Board of Basic Education constituted under section 3 thereof (hereinafter referred to as Board) would carry out such directions as are issued to it from time to time by State Government for efficient administration of the Act. It primarily prescribes control of the State Government over the board. Section 13(A) gives an overriding effect of the Act of 1972 over and above the U.P. Panchaya