UP : Teacher's Transfer According To Seniority / Strictly in accordance with Law

UP : Teacher's Transfer According To Seniority / Strictly in accordance with Law

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved



Case :- WRIT - A No. - 48572 of 2012

Petitioner :- Smt. Rajni Goyal
Respondent :- State Of U.P. And Others
Petitioner Counsel :- Siddharth Khare,Ashok Khare
Respondent Counsel :- C.S.C.,K. Shahi

Connected with

1.Case :- WRIT - A No. - 56081 of 2012

Petitioner :- Shanu Khanna
Respondent :- State Of U.P.And Others
Petitioner Counsel :- Kshetresh Chandra Shukla
Respondent Counsel :- C.S.C.,Vijai Kr. Srivastava
2.Case :- WRIT - A No. - 56083 of 2012

Petitioner :- Neeraj Khatana
Respondent :- State Of U.P.And Others
Petitioner Counsel :- Kshetresh Chandra Shukla
Respondent Counsel :- C.S.C.,Vijai Kr. Srivastava


Hon'ble V.K. Shukla,J.
Common questions of fact and law are involved in all the above writ petitions, hence all of them have been taken up together for final hearing and disposal with the consent of the parties. Civil Misc. Writ Petition No.48572 of 2012 is being treated as leading writ petition.
In this bunch of writ petitions, the grievance of the petitioners is that they have been performing and discharging duties as Assistant Teachers in Senior Basic School and Junior Basic Schools run by the Board of Basic Education. In December, 2011, the State Government amended the provisions of U.P. Basic Education Teachers' Service Rules, 1981 by substituting Rule 21 thereof known as U.P. Basic Education (Teachers Services) (Thirteenth Amendment) Rules, 2011 and permitting options to be submitted by the assistant teachers for seeking one time inter district transfer in accordance with the said Rules and such options were to be submitted on or before 31st December, 20111, on line, and in the applications so submitted, the incumbents were required to specify three districts in order of preference for transfer.
Smt. Rajni Goyal, the petitioner of leading writ petition, submits that she had specified three districts, viz., Lucknow, Rai Bareli and Barabanki for her transfer. On the transfer list being published on 14.08.2012, she has been shown to have been transferred to district Rai Bareli and as far as petitioners of other writ petitions are concerned, their claim has not at all been considered Thereafter, it is reflected that another list had been published on 31.08.2012, wherein a number of teachers have been shown to have been transferred from one district to another, and perusal of the order dated 31.08.2012 issued by the Secretary, Basic Shiksha Parishad reflects that this transfer order has been passed on the intervention of the Chief Minister and the Minister for Basic Education. At this juncture, petitioners have rushed to this Court.
The order dated 31.08.2012 appears to have been issued by the Secretary, Basic Shiksha Parishad, U.P. Allahabad, wherein it has been mentioned that in U.P. Basic Education Teachers' Service Rules 1981 amendment has been introduced and the Rules for inter district transfer have been changed, and the list received from the offices of the Chief Minister and the Minister for Basic Education is being accepted and the same should not be treated as precedence.




This Court on 01.10.2012 proceeded to pass the following order:

"Put up this case on next Tuesday (09.10.2012) at 2.00 P.M.
In the present case issue being sought to be raised is that various incumbents had applied for effectuating inter district transfer in consonance with the provisions of 13th Amendment made in Rules, 1981. The grievance of the petitioner is that she had given three options and one of them was Lucknow. Before this Court a letter from the Secretary, Basic Shiksha Parishad dated 31.08.2012 has been produced, wherein he has proceeded to mention that the amended Rules have been enforced and he has received a list of teachers from the office of the Chief Minister and the Minister for Basic Education, and the said list has been examined and the aforesaid incumbents have been transferred accordingly, in the column mentioned and the same be not treated as precedent.
Once statutory Rules have been framed and enforced with effect from 31.08.2012, then there was no occasion, in the opinion of the Court on prima facie basis, to entertain any list sent from the Chief Minister's office or from the Minister for Basic Education after enforcement of� Rules. In view of this let affidavits be filed before this Court� by the respective Secretary from the office of the Chief Minister and the Minister for the Basic Education� separately explaining as to under what circumstances the list in question had been transmitted to the Secretary, Basic Shiksha Parishad, U.P. Allahabad after enforcement of the statutory Rules.
Coupled with this, the Secretary, Basic Shiksha Parishad shall publish a notice in the newspaper informing and intimating the incumbents, who are the beneficiaries out of the� said list� and have been transferred on the mere recommendation of Chief Minister/Minister for Basic Education, whereas in the State of U.P. exerting political influence is construed as misconduct under Conduct Rules, so that they may have also their say in the matter at 2.00 P.M. on the next Tuesday.
Let a copy of this order be made available to Sri C.B.Yadav, Additional Advocate General, U.P. for further follow-up action."

Affidavit has been filed by Sri Alok Kumar, the Secretary to the Chief Minister, and therein stand has been sought to be taken that the some of the applications had been received in the office of the Chief Minister whereas some of the applications were received during his tour in the State and the said applications had been forwarded to the department concerned and such noting only connotes that the department should process those applications in accordance with the procedure prescribed therein and as per law It has also been stated that the Office of the Chief Minister does not analyze each and every case, rather each and every case has be be examined at the level of the department concerned. Affidavit to the similar effect has been filed by Sri Anand Prakash Joshi, Private Secretary to the Minister for Basic Education and therein similar stand has been taken that without any political pressure being exerted, the applications were transmitted to be dealt with in accordance with law.
Sri I. P. Sharma, Secretary, Basic Shiksha Parishad, U.P. Allahabad has filed his first affidavit on 01.10.2012 followed by another affidavit dated 17.10.2012. Rejoinder affidavit has also been filed.
Sri Ashok Khare, Senior Advocate, assisted by Sri Sidharth Khare, Advocate, appearing for the petitioner of Writ Petition NO.48572 of 2012, contended that as far as his client is concerned, her request for inter district transfer has been non-suited on totally unsustainable ground, and coupled with this, the incumbents, whose applications had reached to the department concerned through the office of the Chief Minister and the Minister for Basic Education, preferential treatment has been accorded to them and their inter district transfer has been allowed as per their choice, and in view of this the Secretary, Basic Shiksha Parishad has not acted fairly and transparently, as such in the facts of the case, request of the petitioner be considered and illegal transfers which have been effectuated on 31.08.2012 on political pressure be quashed and requisite exercise be undertaken accordingly.
Argument to the similar effect has been advanced by Sri Kshetresh Chandra Shukla, Advocate, appearing in support of the writ petitioners of the other two writ petitions.
Countering the submissions made by the learned counsel for the petitioners, Sri C.B. Yadav, Additional Advocate General, assisted by Sri B.P. Singh, Advocate, contended that in the present case each and every transfer applications, which had been so received, has been allowed on merit as per choice of preference exercised and in view of this no interference be made, and in case there is any individual grievance, the same would be redressed, and as far as claim of Smt. Rajni Goyal is concerned, same does not fall within the parameters of the Rules, and accordingly, writ petitioners deserve to be dismissed. Arguments to the similar effect has been adopted by Sri K, Shahi as well as Sri Vijai Kumar Srivastava, Advocates.
None of the candidates, who are beneficiaries of order dated 31.08.2012 appeared before the Court to express their point of view, in spite of notice being published in Daily Amar Ujala, Daily Dainik Jagaran and Daily Hindustan dated 06.10.2002, wherein it was precisely mentioned that they can have their say in the matter at 2.00 P.M. on the next Tuesday.
After respective arguments have been advanced, factual situation which has so emerged in the present case is that in December, 2011, the State Government amended the provisions of U.P. Basic Education Teachers' Service Rules, 1981 by substituting Rule 21 thereof known as U.P. Basic Education (Teachers') Thirteenth Amendment (Service) Rules, 2011 and permitting options to be submitted by the assistant teachers fr seeking one time inter district transfer in accordance with the said Rules and such options were to be submitted on or before 31st December, 20111, on line, and in the applications so submitted, the incumbents were required to specify three districts in order of preference for transfer.
The petitioners of the aforementioned writ petitions were also candidates, who had applied for inter district transfer and the list of transfer had been published on 14.08.2012, the list of transferred teachers includes the names of female and physically disabled incumbents. This much is also clear that after the said list of transfer had been published on 14.08.2012, no fresh list of transfer has been published. Sri C.B. Yadav made a statement before the Court that the State Government with effect from 18.08.2012 prohibited from effectuating any transfer. This much is also clear that on 31.08.2012 amendment has been introduced in U.P. Basic Education Teachers' Service Rules, 1981, known as U.P. Basic Education Teachers' Service (15th Amendment) Rules, 1981, and as per the said amendment, Rule 21 has been amended and a different rule has been substituted by providing that there shall be no transfer of any teacher from rural local area to urban local area or vice versa or from one urban local area to another urban local area of the same district or from one district to another district except on the request or consent of the teacher himself and in either cases approval of the Board shall be necessary. For others transfer has been stayed and stopped,but the incumbents who had approached the Chief Minister or the Minster for Basic Education, entire papers had been transmitted to the Secretary, Basic Shiksha Parishad, U.P. Allahabad who on 31.08.2012, proceeded to issue list of teachers transferred on 31.08.2012. Said list form part of the record of writ petition No.56081 of 2012, wherein, in all 554 transfers have been effectuated, giving rise to discontent to other teachers whose claim had not been accorded as per their choice had not at all been accorded.
Before this Court, Sri I. P. Sharma, Secretary, Basic Shiksha Parishad has proceeded to mention as follows in paragraphs 13, 15, 16 and 17 of his affidavit dated 17.10.2012:
"13. That out of 58,000 applications, 50592 applications were verified, out of these verified applications 23765 applicants were female candidates and 26827 were male candidates. List of transfer has been prepared by NIC through its software with regard to female transfers all three reasons as opted by each one and that the entire list of transfer was prepared on the basis of seniority as well as District opted by teacher concerned. The first list of such female teachers was located on website on 14.08.2012 by Basic Shiksha Parishad. By this first list 17974 transfers of female teachers were transferred including physically handicapped (male) has been given effect to. 2428 head masters of Primary Schools and Assistant Teachers of Senior Basic Schools. The petitioner Smt. Rajni Goyalhas been transferred in this list and she has opted Lucknow, Raibareily and Barabanki and her home district is Sonbhadra. Petitioner was transferred from Sonbhadra to Gorakhpur and from Gorakhpur to Raibareily. Petitioner was transferred from Sonbhadra to Gorakhpur and from Gorakhpur she had applied for her transfer by opting three districts Lucknow, Raibareily and Barabanki. Lucknow was neither her home district nor she was married therein, and therefore, her transfer was considered in the Region of V category and at this point of time it is necessary to indicate that transfer of Smt. Rajni Goyal has been given effect to absolutely in accordance with the procedure as contemplated under 13th Amendment as indicated in Teachers' Service Rules, 1981.
15.That there are 8 districts where there are limited posts and applicants are above than even sanctioned strength and on account of non availability of vacancies even on the basis of their options various candidates has not been transferred in particular 8 districts, Ghaziabad, Gautam Budh Nagar, Baghpat, Meerut, Hapur, Kanpur Nagar, Kanpur Dehat and Lucknow. In these 8 districts the Parishad has taken the endeavour to make allotment of their place at least either second or third options opted by such teachers . The transfer in second or third options has been given effect to on the basis of availability of vacancies. Absolute transparency has been maintained in the transfer orders of female teachers, including the male physically handicapped, as per provisions contained in Rule 21 as amended by 13th Amendment.
16.That the deponent is filing the list submitted from the office of the Chief Minister as it consist 266 applications. These applications have been sent to the office of Parishad on E mail. Thereafter, the said applications have been processed by Basic Shiksha Parishad and it is found that 48 applicants were those whose transfer has already been given effect to. 113 applications were not traceable and hence 113 applicants has not been given effect to. 75 applications transmitted from the office of the Chief Minister were found to be up to the mark and when qualified the test of Rules which have been inserted by 15th Amendments, the transfer of 75 applicants have been given effect to in accordance with the provisions of Rules. The list of 266 applicants as well as list of 48 applicants, 113 applicants and 75 applicants are being filed herewith collectively and marked as Annexure-2 to this affidavit.
17. That so far office of Minister of department of Basic Shiksha Parishad is concerned, 1261 applications has been received through mail, out of 1261 applications, 200 applications are such applications which has already been given effect to and the applicants were transferred in general list of transfer. 858 applications are not traceable, hence 858 applicants have have not been considered for their transfer, list of 476 applicants which was transmitted from the Hon'ble Minister, after due process and scrutiny, were found to be correct and, therefore, such transfer order has been given effect to. All applications received from the office of the Chief Minister or by the office of the Hon'ble Minister of Basic Shiksha Parishad are the applicants which have applied on line by 31st December, 2011, therefore, there was no illegality committed by the authorities n transferring the teachers out of list which has been transmitted from the office of either Chief Minister of the State or Hon'ble Minister of the Department. Complete transparency has been maintained and observed by the Basic Shiksha Parishad in scrutinizing and transferring the teachers only in accordance with the provisions of 13th Amendment inserted in Rule 21 as well as 15th Amendment which have been inserted under Rule 21 and no illegality has been committed at any point of time by the Parishad in transferring the teachers from the list received from the office of the Chief Minister or from the office of the Hon'ble Minister of the department. Copy of the list of 1261 applicants, 200 applicants, 858 applicants and 476 applicants are being filed herewith collectively and marked as Annexure -3 to this affidavit."
The fact of the matter as has emerged before this Court that all other candidates who had applied for consideration of their request for inter-district transfer under Rule 21 of the U.P. Basic Education Teachers Service (13th Amendment) Rules, 1981 for them door of transfer has been closed after 18.08.2012 as has been stated at the Bar by Sri C.B. Yadav, Additional Advocate General, that directives were issued by the State Government orally for not effectuating transfer, but a special rout has been prepared for the incumbents whose applications had been forwarded from the office of the Chief Minister as well as from the office of the Minister for Basic Education, and thereafter 554 transfers have been effectuated as is reflect6ed from the list filed at pages 53 to 60 of writ petition No.56081 of 2012. Even as per affidavit filed by the Secretary, Basic Shiksha Parishad before this Court, in all 75 applications transmitted to the Secretary, Basic Shiksha Parishad from the office of the Chief Minister were found up to the mark and 476 applications transmitted from the office of the Minister for Basic Education were found up to the mark and the transfer in respect of such applicants has been effectuated. The said number comes to 551. The fact of the matter is that 554 incumbents have been extended the privilege of their request being accepted for inter district transfer, treating them as special cases.
The question is, if applications are forwarded from the office of the Chief Minister/Basic Education Minister, the request made therein is to be ipso facto accepted by the authority without applying its own independent mind and discretion or the said applications are to be dealt with in accordance with law.
Apex Court , in the case of State of Maharashtra vs. Public Concern For Governance Trust, 2007 (3) SCC 587, has clearly ruled that vario8us applications and representations on diverse subject received by the Chief Minister, on being endorsed to the department concerned has to be dealt with in accordance with law. Paragraphs 18 and 19 being relevant are extracted below:
"18. Various applications and representations on diverse subjects are received by the Chief Ministers of the States as the Head of the State and in respect of the Ministries under their control. Often such applications are directly addressed by members of the public to the Chief Minister. The Chief Minister then endorses the same to the concerned department so that the same my subsequently be followed up by the concerned department. When the Chief Minister is on tour in various parts of the State, representations and applications are given to him by various people who meet him. In the routine course, the Chief Minister endorses the same with a noting "please put up" and forward the same to the concerned department. Such notation merely means that the concerned department should process the applications and representations lawfully and in accordance with certain prescribed procedure. While making such notations on the representations/applications so received, the Chief Minister does not analyse each and every case since this is to be done at the level of the concerned department which then scrutinizes the same in accordance with law. In our view, the notation is not even treated as a determination of eligibility or the merit of the concerned application. It is a routine notation made in the normal course and is really an action of forwarding to the concerned department the representations/ applications received by the Chief Minister. The concerned department is then expected to examine the said representations/applications and decide the same on its own merits and in accordance with law. As rightly pointed out by learned Solicitor General as to how he treats the file the nomenclature given to such matters are of matters of internal administration of the concerned department/corporation.
19. It is pointed out to us that in the present case, the Chief Minister was heading the Urban Development Department. CIDCO comes under the administrative control of the said department. Since applications for allotment of land were received by the Chief Minister, he merely made a notation that the applications be put up before the concerned authority. No notation whatsoever was made that the applications be processed by any particular date. The words please put up, in our opinion, only meant that the applications should be processed and decided in accordance with law and on its own merits. CIDCO which is a Corporation had detailed rules which govern the allotment of land and are to be complied with by CIDCO before any allotment of land is made. The records placed before us indicates that the applications put up to CIDCO were processed at various levels including the marketing manager, assistant marketing officer, managing director and upto the stage of board of directors."

The inevitable conclusion is that, on the application being transmitted, with routine notation made, then said files are to be dealt with on their own merits. Here also records produced before this Court, including the affidavits filed by the respective Secretaries of the Chief Minister and the Minister for Basic Education, reflect that in routine business, said files had been transferred to the Secretary, Basic Shiksha Parishad, to consider the same, and no mandatory directives had been issued either from the office of the Chief Minister or by the Chief Minister or by the office of the Minister for Basic Education or the Minister for Basic Education, but after receiving the said request, Secretary, Basic Shiksha Parishad, except for the files which were not traceable and qua the incumbents who have already stood transferred, has accepted the request of transfer of 554 incumbents as they had made they way through special route.
The Secretary of the Basic Shiksha Parishad was conscious of this fact that he was going out of way in passing the said transfer order while considering the list sent from the office of the Chief Minister and the Minister for Basic Education as while passing the order dated 31.08.2012 he has proceeded to mention that with effect from 31.08.2012 procedure of inter district transfer has been changed, and accordingly in consonance with 1981 Rules following female, physically disabled teachers, and teachers as per request made by them before the Chief Minister and the Minister for Basic Education, they are being transferred to the respective districts as has been indicated. It has also been mentioned that the same should not be treated as precedent. The fact of the matter is that the lists which had been sent from the offices of the Chief Minister and the Minister for Basic Education except for those incumbents whose applications were not traceable or who have not been transferred in the past in normal course of business, have been given preferential treatment by the Secretary, Basic Shiksha Parishad ignoring the claim of other incumbents, who had chosen to apply as per law. Special route has been created for them, their claim has been put on fast track and accepted and just see the plight of those incumbents who don't know the political route, and in the State of U.P. conduct of a government servant is governed by statutory rules known as U.P. Government Servant Conduct Rules, 1956 and said Rules apply to teachers also and exerting of political pressure is a misconduct, here, in the present case, the incumbents who have not approached the political force, their claim has been left out and the incumbents who approached the political forces (the Chief Minister and the Minister for Basic Education), their applications have been transmitted, their claim has been considered and accepted as a matter of course, but the claim of other similarly situated incumbents has not been considered. Once the lists had been sent from the office of the Chief Minister and the Minister for Basic Education, the request of the said applicants had to be considered as per Rules and as per law, i.e. by preparing the list on the basis of seniority as well as Districts opted for, and keeping in view the order of preferene provided for in accordance with law. The Secretary, Basic Shiksha Parishad has completely failed on this score. State and its instrumentalities are under an obligation to act fairly. Legal malice means something done without lawful excuse. It is a deliberate act in utter disregard to the right of others. Selective action means excess of authority in disregard to the right of others and selective proceedings has to be necessarily dubbed as malice in law. The facts as uncovered before this Court, clearly reflects that for all other teachers transfer had been a closed door and for the chosen few, whose applications had been routed through the office of the Chief Minister and the Minister, Basic Education, transfer was open and same has been accepted giving complete goodbye to the criteria prescribed, i.e., by preparing the list as per seniority, as per District opted for and keeping in view the order of preference. In view of this the selective action of the Secretary, Basic Shiksha Parishad in effecting such transfer on 31.08.2012 cannot be approved of.
The incumbents who are beneficiary of transfer order dated 31.08.2012, have been given notice by means of publication in well known newspapers, but none of them has put their appearance to substantiate their claim as to why they have been unduly favoured. In view of this as the authority of transfer has not been bona fide exercised, rather selective exercise has been undertaken under the umbrella of the list sent by Chief Minister and the Minister for Basic Education, as such transfer order dated 31.08.2012 is hereby quashed and set aside.
As far as claim of petitioner, Rajni Goyal, is concerned, it has been contended that she could not have been transferred to Lucknow in view of the provisions of clause 21 (iv), wherein it has been provided that such teachers can only be transferred to particular Districts where teachers of their batch have also been promoted and the petitioner, Smt. Rajni Goyal, cannot be transfered to Lucknow, as she belongs to 2003 batch and the teachers of 2002 batch in Lucknow have been accorded promotion. In the rejoinder affidavit, it has been mentioned that it has been incorrectly mentioned that Smt. Rajni Goyal belongs to 2003 batch, as 2003 batch had never been in existence, and the petitioner also belongs to 2002 batch. In view of this, the petitioner submits that the reason assigned for not transferring her to Lucknow is non-existent. In view of this, the Secretary, Basic Shiksha Parishad is directed to reconsider the claim of Smt. Rajni Goyal and thereafter pass appropriate order within next two months from the date of receipt of a certified copy of this judgment.
Similar directive is also issued in regard to the petitioners of the other two writ petitions, namely, Smt. Shanu Khanna and Ms. Neeraj Khatana within the same time frame., as Smt. Shanu Khanna has proceeded to mention that against her application No.050099 some one else has been transferred, and she as well as Ms. Neeraj Khatana has proceeded to mention that for reasons unknown, their claim has not been acted upon.
Request has been made, by all the parties that time frame may be fixed for finalizing transfer order so that in each and every institution placement is accorded to teachers, and as far as possible, the teachers are also accorded placement as per the choice, exercised by them, subject to their seniority status and availability of vacancies as well as preference . In view of this, Secretary, Basic Shiksha Parishad, in consultation with Secretary, Basic Education, Government of U.P. is directed to finalize transfer proceedings strictly in accordance with law, keeping in view seniority status, as well as the Districts opted by the incumbents, as also the order of preference exercised by them, preferably within next two months from the date of receipt of a certified copy of this order.
All the writ petitions stand disposed of accordingly.
Order Date :- 07.11.2012
SRY


Source : http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do?judgmentID=2187954