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Wednesday, May 30, 2018

News - कोर्ट : राज्य सरकार चाहे तो नई ट्रांसफर पॉलिसी घोषित कर सकती है, पुरानी प्रक्रिया महिलाओं के स्थानांतरण 8(2)(d) प्रभावित नहीं होगी -

News - कोर्ट : राज्य सरकार चाहे तो नई ट्रांसफर पॉलिसी घोषित कर सकती है, पुरानी प्रक्रिया महिलाओं के स्थानांतरण 8(2)(d) प्रभावित नहीं होगी 

याची का कहना था कि राज्य सरकार हर वर्ष नई स्थानन्तरण नीति घोषित करती है, और नए सत्र के लिए भी स्थानन्तरण नीति घोषित करनी चाहिए, 
याची पुरुषों के लिए 5 वर्ष में बदलाव करवाना चाहते थे, उनका कहना था कि अभी पिछली ट्रांसफर नीति के तहत ट्रांसफर नहीं हुए हैं, और नई स्थानन्तरण नीति उसकी जगह आनी चाहिए


?Court No. - 58 

Case :- WRIT - A No. - 30538 of 2017 

Petitioner :- Ajay Kumar Singh And 4 Ors. 
Respondent :- State Of U.P. And 2 Ors. 
Counsel for Petitioner :- Shivendu Ojha,Radeha Kant Ojha 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav 

Hon'ble Ashwani Kumar Mishra,J. 
Following prayers have been made in the writ petition:- 
"(a).� A writ order or direction in the nature of certiorari quashing the impugned order dated 13.6.2017 (Annexure -3 to the writ petition) passed by the Addl. Chief Secretary, U.P. Shashan, Lucknow, the respondent no.2, as well as, impugned order dated 17.6.2017 (Annexure-4 to the writ petition) passed by the Secretary, U.P. Basic Shiksha Parishad, Allahabad, the respondent no.3. 
(b).� A writ order or direction in the nature of Mandamus commanding the respondents to make transfer and posting of the petitioners as per RTE Act, 2009 and Rules framed thereunder and also as per Rules, 2011." 
This Court while entertaining the writ petition had granted following interim protection on 31.7.2017:- 
"This writ petition has been preferred by the five petitioners for the common cause of action and for the same relief. All the petitioners are working as Assistant Teachers in Junior Basic Schools and Senior Basic Schools conducted and managed by the U.P. Board of Basic Education under the U.P. Basic Eduction Act, 1972. 
They are aggrieved by the Government Order dated 13.6.2017 whereby a decision has been taken to transfer/ adjust the excess teachers working in Junior and Senior Basic Schools for the academic session 2017-18. 
It is contended on behalf of the petitioners that the Government order has not taken into consideration the provisions of the Right of Children to Free and Compulsory Education Act, 2009. It is submitted that Section 19 of the Act, 2009 lays down norms and standards for School, which have been specified in the Schedule framed thereunder. In the Schedule the teacher and student ratio is provided. It also lays down that there shall be at least one teacher per class (for sixth class to eight class) so that there shall be at least one teacher for (i) Science and Mathematics; (ii) Social Studies; and, (iii) Languages. 
It is also contended that the State Government has extended the last date of admission in the Basic Schools till 31.7.2017, thus without taking into consideration the correct number of students a large number of teachers are being declared surplus. 
I have heard Sri R.K. Ojha, learned Senior Advocate assisted by Sri Shivendu Ojha, learned counsel for the petitioners, learned Standing Counsel, and Sri A.K. Yadav, learned counsel for the third respondent. 
Sri A.K. Yadav has received instructions, which are on the record. On the strength of the instructions he submits that no last date has been fixed for admission. It is also mentioned that if in an institution there is only one Science Teacher he/she shall not be replaced. 
The instructions are wholly unsatisfactory. From a perusal of the instructions it is manifest that the State Government has not taken into consideration the provisions of the Right of Children to Free and Compulsory Education Act, 2009 and the Schedule framed therein. 
Sri Yadav has also submitted that in view of the subsequent development that the Supreme Court has found that the appointments of Shiksha Mitras are not valid, a fresh decision has to be taken considering the effect of the said judgment. He states that it will take some time to implement the impugned Government order. 
Learned Standing Counsel is granted two weeks' time to seek instructions in the matter. 
Put up this case on 21st August, 2017 in the additional cause list. Till then the teachers who have been declared surplus will not be relieved." 
It is not in issue that on account of interim protection granted by this Court in the instant writ, the State has not proceeded any further, except in relation to claim of female teachers where transfers are otherwise regulated by rule 8(2)(d) of� the Uttar Pradesh Basic Education (Teachers) (Posting) Rules, 2008. 
The academic session, which was intended to be regulated by the transfer policy dated 13.6.2017 is coming to a close. It is in this context that when the writ petition was taken up on 16.5.2018, following orders were passed:- 
"Petitioners have challenged the annual transfer policy issued in respect of teachers of institutions run by Basic Education Department. The petition was entertained in July, 2017 and was deferred from time to time. On 31.7.2017, a detailed order was passed in the matter and it was provided as an interim measure that teachers, who are declared surplus, will not be relieved. This interim protection has been extended from time to time and the writ petition has been listed today alongwith bunch of other petitions. 
Sri R. K. Ojha, learned Senior Counsel appearing for the petitioners submits that the year is coming to an end but no counter affidavit has been filed by the State in the matter so far. Even instructions have not been furnished in the matter by the State. It is stated that usually the transfer policy is issued for a year and is succeeded by fresh policy announced in the month of May/June of each year. Submission is that a new policy is likely to be announced in next few days. Argument is that the State Government by not filing a counter affidavit in the matter has allowed the proceedings to loose its sanctity. 
Large number of petitions raising similar grievance are pending before this Court and no counter affidavit has been filed till date. Sri P. K. Pandey, learned Additional Chief Standing Counsel appearing for the State is thus instructed to take specific instructions as to whether the State proposes to issue a fresh transfer policy in the near future, in respect of intra-district transfers of teachers working in the institutions run by the Basic Shiksha Parishad, and if so, by when? 
Let instructions in that regard be obtained by the next date. Put up in the additional cause list on 21.5.2018." 
Sri P. K. Pandey, learned Additional Chief Standing Counsel has produced a communication dated 18.5.2018 received from the State, which is taken on record. As per the communication, a new transfer policy is under contemplation and is likely be announced shortly. 
It is admitted to the parties that on account of aforesaid interim order, the State has not proceeded pursuant to the Government Order dated 13.6.2017 in respect of intra-district transfer.� 
In view of the stand taken by the State, no useful purpose would be served in keeping the writ petition pending inasmuch as the transfer policy dated 13.6.2017, insofar as it relates to adjustment of teachers, within the district, has not been implemented so far and the term of such policy is otherwise coming to a close. A new policy since is likely to be announced by the State, shortly. This Court, therefore, need not examine challenge to the Government Order dated 13.6.2017, on merits. However, the State may proceed in accordance with law to issue a fresh policy for the year 2018-19. Petitioner's claim would be considered in accordance with the new policy. 
It is clarified that the challenge in the present writ petition since is at the instance of male teachers, who have not completed 5 year service, it would have no concern with transfers of female teachers as per rule 8(2)(d) of the Posting Rules, 2008. The authorities of the State shall thus be at liberty to proceed in accordance with law to process claim of female teachers' transfer under rule 8(2)(d) of the Posting Rules, 2008.� 
With the aforesaid observations, this writ petition stands disposed of. 
Order Date :- 21.5.2018 
Ashok Kr. 

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