News - Aspirational District se अंतर जनपदीय तबादले की रिट खारिज -

 News - Aspirational District se अंतर जनपदीय तबादले की रिट खारिज - 



Hon'ble Govind Mathur,J. 
Hon'ble Chandra Dhari Singh,J. 
(Delivered by Hon'ble Govind Mathur, J.) 
Judgment under challenge in these appeals is dated 13.08.2018 passed by learned Single Bench in a batch of writ petitions led by Writ-A No. 14395 of 2018. 
Learned Single Bench under the judgment impugned arrived at the conclusion that the petitioners (appellants herein) working as Assistant Teachers in aspirational districts have no right for inter-districts transfer and, as such, they are not having any enforceable legal right to ask for a writ in the nature of mandamus to transfer them from the aspirational district to some other district. 
The factual matrix of the case is that the appellants are working as Assistant Teachers in Primary Schools in the districts of Siddharth Nagar, Shrawasti, Behraich, Sonbhadra, Chandauli, Fatehpur, Chitrakoot and Balrampur. The districts aforesaid are known as aspirational districts in light of the Government of India policy for "Transformation of Aspirational Districts, 2018". The policy aforesaid prescribes a programme of the Government of India incurred by NITI Aayog steering the initiative in several districts of the country which are "Left Wing Extremism" affected. 
In the programme aforesaid, the Government is committed to raise the living standards of its citizens and ensuring inclusive growth of all. To avail optimum utilization of the potential available, the programme focuses closely on improving people's ability to participate fully in the vibrant economy. The other areas of focus under the Programme aforesaid are health and nutrition, education, agriculture and water resources, financial inclusions, skill development and basic infrastructure. 
The Government of Uttar Pradesh under its conscious decision communicated vide Circular dated 10.06.2018 that no transfer of Assistant Teachers shall be made to other districts from 08 aspirational districts, namely, Siddhartha Nagar, Shrawasti, Behraich, Sonbhadra, Chandauli, Fatehpur, Chitrakoot and Balrampur. Being aggrieved by the decision of the Government of Uttar Pradesh circulated under the Circular dated 10.06.2018 issued by the Secretary, Uttar Pradesh Basic Education Council, Allahabad, the appellants preferred petitions for writ those came to be dismissed under the judgment impugned. 
While questioning correctness of the judgment dated 13.08.2018, several arguments have been advanced mainly focusing to the scope and nature of the provisions of Rule 21 of the Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 (hereinafter referred to as "Rules, 1981") that reads as follows:- 
"21. Transfer - There shall be no transfer of any teacher from the rural local area to an urban local area or vice versa or from one urban local 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." 
Suffice it to state that the Rules, 1981 were enacted by the Governor of Uttar Pradesh in exercise of the powers under sub-Section (1) of Section 19 of the Uttar Pradesh Basic Education Act, 1972 (hereinafter referred to as "Act, 1972"). The Rules, 1981 regulate recruitment and other service conditions of all the teachers employed in Basic Education in the State. 
As per Clause (c) of sub-Rule (1) of Rule 2, "Basic School" means a school wherefrom education from Class-I to Class-VIII are imparted. As per Clause (i) of sub-Rule (1) of Rule 2, "Local area" means the area over which a Local Body exercises jurisdiction and under Clause (l) of the Rule aforesaid, "Selection Committee" means the Selection Committee constituted under Rule 16. As per Rule 16, the Selection Committee for Selection of Candidates for Appointment to any post under the Rules, 1981 shall consist of (a) An officer of the rank of Additional District Magistrate nominated by District Magistrate - Chairman, (b) District Basic Education Officer - Member, (c) Principal, Government Girl's Intermediate College at the District Head Quarter - Member, (d) District Non-Formal Education Officer - Member, and (e) One specialist in Hindi, Urdu or other languages as the case may be; nominated by District Magistrate - Member. As per Clause (b) of sub-Rule (1) of Rule (2) the "Appointing Authority" to any post in service under the Rules, 1981 is District Basic Education Officer. 
Part II of the Rules, 1981 pertains to cadre and strength. Rule 4 of Rules, 1981 provides that there shall be a separate cadre of service under the Rules for each local area. The strength for a local area and the number of posts in the cadre shall be such as may be determined by the Uttar Pradesh Basic Education Board from time to time with previous approval of the State Government. 
The provisions aforesaid clearly indicates that cadre of different posts under the Rules, 1981 shall be at district level. The resultant conclusion is that service under the Rules, 1981 is constituted at District level and, as such, Members of service cannot be transferred from one district to other as that would amount to change of cadre and even the Appointing Authority. 
Rule 21 of the Rules, 1981 is an exception to above as that permits transfer of a teacher appointed under the Rules, 1981 from the rural local area to urban local area or vice versa or from one urban local area to another of the same district or from local area of one district to that of another district. Such transfer, however, can be made on request of or with the consent of teachers himself and in either case with the approval of the Board. 
Under the decision impugned, the Government of Uttar Pradesh has restrained application of the relaxation granted under the Rule 21 of Rules, 1981 for the aspirational districts. 
While challenging the decision aforesaid which has been upheld by learned Single Bench, the argument advanced on behalf of the appellants is that restriction imposed is highly discriminatory as teachers working in the districts or the local areas other than the aspirational districts shall be having opportunity to be transferred as per Rule 21, but the teachers working in the aspirational districts would be deprived of that. It is also stated that all the appellants are women and they are working in the aspirational districts from last several years and now when they want their transfer to the district of their choice as per the provisions of the Rules, 1981, the respondents have decided not to operate Rule 21 qua them, as such, the same is highly unjust and arbitrary too. It is also urged that Uttar Pradesh Basic Education (Teachers) (Posting) Rules, 2008 (hereinafter referred to as "Rules, 2008") shall prevail over the Rules, 1981 and Rule 8(2)(d) of the Rules, 2008 provides for inter-districts transfer and, as such, by a Government Order, application of Rule aforesaid could have not been dispensed with. It is also emphasized that Clause 6 of the existing Transfer Policy, the districts where vacancies against sanctioned posts are more than 15%, no inter-districts transfer of an Assistant Teacher shall be made. The Uttar Pradesh Basic Education Board under its letter dated 06.02.2018 notified 40766 vacancies of Assistant Teachers in Primary Schools and 6719 Headmasters of Primary Schools/Assistant Teacher of Higher Basic School. As per Clause 3 of the Transfer Policy, inter-district transfer is to be made to the extent of 25% of the available vacancy only, as such, the transfer that is to be made from aspirational district to other shall be too less and negligible and that would not effect implementation of the Programme of 2018 adversely. 
Heard learned counsels appearing on behalf of the appellants. 
On going through the provisions applicable, we do not find any merit in these appeals. At the threshold, it would be appropriate to state that Rule 21 of the Rules, 1981, on its face, does not create any substantive right in favour of the appellant-petitioners. Rule 21, as a matter of fact, provides a relaxation with necessary checks for transfer of a teacher from one district/local area to other district/local area, which is otherwise not permissible by statute. It is well settled that relaxation to rules in normal course cannot be claimed as a matter of right. 
In view of it, we are having no hesitation in affirming the finding given by learned Single Bench that Rule 21 of the Rules, 1981 does not create any legally enforceable right in favour of the appellants. However, the issue under consideration is that whether denial of such relaxation to the Assistant Teachers working in aspirational districts shall be justifiable when the teachers working in the other districts are having choice to claim relaxation for their transfer from one district/local area to other district/local area. 
In other words, precisely, the issue before us is whether the decision of the Government of Uttar Pradesh circulated under the Circular dated 10.06.2018 is irrational, arbitrary and discriminatory, being not founded on a reasonable criteria having nexus with the object sought to be achieved. As already stated, the aspirational districts are the districts identified by the Government of India to meet extreme left upsurge in several districts of the country including 08 districts in the State of Uttar Pradesh. As per the Programme, the State Government is required to have intensive operations in the field of education, health, nutrition, agriculture and water resources, financial inclusions, skill development and basic infrastructure. To have such operations, need of teachers is highly desirable. Pertinent to notice that as per the Programme of the Government, a huge budget is assigned to the field of education and a complete transformation of socio economic status of the area is required to be made. The transformation is desired to be satisfied upto the year 2022. The Ministry of Human Resource Development under the Programme aforesaid has rendered several schemes for the aspirational districts. The Government of Uttar Pradesh has also taken initiatives for aspirational districts by making District Action Plan. The District Action Plan relates to different identified sectors including the education. To execute the programme aforesaid, need of teachers is essential and, looking to that, the Government has decided not to extend relaxation as per Rule 2 to the teachers working in aspirational districts. The decision of the Government, as such, is based upon reasonable criteria and that does not suffer from any such wrong that may be termed and treated as unjust or arbitrary. 
At the cost of repetition, it would be appropriate to state that Rule 21 is only a relaxation clause and that in no manner creates any substantive enforceable legal right sufficient to issue a writ in the nature of mandamus. 
So far as Rule 8(2)(d) of the Rules, 2008 is concerned, suffice it to state that that too does not create any right in favour of the appellants. A plain reading of the Rule aforesaid makes it clear that this too is an exception to the general rule of not transferring a person from one district to other district in normal course. 
In light of whatever stated above, the appeals lack merit, hence the same are dismissed. 
Order Date :- 4.10.2018 
Shubham 

(Chandra Dhari Singh, J.)         (Govind Mathur, J.)


http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do?judgmentID=6683283

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एस्पिपिरेशनल डिस्ट्रिक्ट से इंटरडिस्ट्रिक्ट ट्रांसफर मामले में कोर्ट कार्यवाही

एस्पिपिरेशनल डिस्ट्रिक्ट से इंटरडिस्ट्रिक्ट ट्रांसफर मामले में कोर्ट कार्यवाही

Court No. - 40

Case :- SPECIAL APPEAL DEFECTIVE No. - 778 of 2018

Appellant :- Smt. Sneh
Respondent :- U.P. Basic Education Board And 4 Ors
Counsel for Appellant :- Siddharth Singhal
Counsel for Respondent :- C.S.C.,Virendra Chaubey

Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Om Prakash-VII,J.
Order on Delay Condonation Application No.1 of 2018
Heard Sri Siddharth Singhal, learned counsel for the appellant and perused the affidavit filed in support of delay condonation application.
The delay explained in the affidavit discloses sufficient cause. Delay is condoned.
The delay condonation application is allowed.
Appeal shall be given regular number.
Order Date :- 12.10.2018
ss


Court No. - 40

Case :- SPECIAL APPEAL DEFECTIVE No. - 778 of 2018

Appellant :- Smt. Sneh
Respondent :- U.P. Basic Education Board And 4 Ors
Counsel for Appellant :- Siddharth Singhal
Counsel for Respondent :- C.S.C.,Virendra Chaubey

Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Om Prakash-VII,J.
Order on appeal
This appeal assails the order dated 13.08.2018 in the writ petition filed by the appellant pertaining to the relief prayed for namely that the application of the petitioner should be processed for transfer from Lakhimpur Kheri to Muzaffar Nagar. This is a matter of inter-district transfer of Assistant Teachers pursuant to Government Orders dated 13.6.2017, 20.09.2017 and 05.09.2018 read with the provisions of Uttar Pradesh Basic Education (Teachers) (Posting) Rules, 2008.
A large number of writ petitions were filed pertaining to transfer in aspirational districts and this legal issue came to be decided by answering the three questions framed by the learned Single Judge vide judgment and order dated 13.08.2018 holding that Assistant Teachers, who are working in aspirational districts, have no right of inter-districts transfer. It is further held that in the matter of transfer, the Board has the authority to frame guidelines and such guidelines, if framed, do not violate the Rules.
Learned counsel for the appellant contended that in the said bunch, the appellant's case was also listed and it has been dismissed applying the ratio of the judgment in the case of Smt. Ruchi versus State of U.P. and 2 others delivered on the same day.
Submission of the learned counsel for the appellant is that apart from the aforesaid legal issue, there was a specific case set up by the appellant in paragraph no. 32 and 33 to the following effect :
"32. That the entire exercise that has been undertaken by the respondents pertaining to the inter-district-transfer of the primary school teachers suffers from arbitrariness which is apparent from the face of the record inasmuch as the candidates who have secured 5 points have been granted inter-district-transfer.
33. That the petitioner is bringing on record the transfer orders pertaining to certain candidates who had either secured 5 points or 7 points and have still been granted the transfer while the petitioner has been denied the same even though petitioner stands on better footing as compared to such candidates. Copy of some of the orders in respect of the applicants who had secured 5 points and 7 points and who have been granted inter-district-transfer are being filed herewith collectively and marked as Annexure-17 to the present writ petition."
Leaned counsel for the appellant submits that it appears that at the time of disposal of the writ petition, the aforesaid contention raised by the appellant on the ground of violation of Article 14 of the Constitution of India that some other candidates had been extended the benefit of transfer, who had secured 5 and 7 points respectively was not noted which prejudiced the cause of the appellant. To support the submission, learned counsel for the appellant invited the attention of the Court to the documents filed as Annexure-17 to the said application bringing on record the transfer orders of such candidates, who are similarly situated, particularly with regard to the transfers made in the district of Muzaffar Nagar.
Prima facie this distinguishing feature does not appear to have been dealt with by the learned Single Judge. So far as the other legal issues are concerned, we see no reason to take a different view from the judgment of the Division Bench in Special Appeal No.870 of 2018 (Smt. Shikha Singh and 24 Others Versus State of U.P and 3 Others) decided on 04.10.2018 upholding the judgment of the learned Single Judge, but so far as this specific case is concerned, as pleaded by the appellant the same does not appear to have been dealt with.
Accordingly, we direct that Sri Virendra Chaubey, learned counsel appearing for respondent no.4 may file a counter affidavit particularly with regard to the averments made by the appellant in paragraphs no.32 and 33 of the original petition within two weeks.     
List immediately thereafter.
Order Date :- 12.10.2018
ss

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डिवीजन / डबल बेंच ने ख़ारिज की एस्पिरेशनल डिस्ट्रिक्ट से अंतर जनपदीय ट्रांसफर याचिका No Transfer from Aspirational District : Court

डिवीजन / डबल बेंच ने ख़ारिज की एस्पिरेशनल डिस्ट्रिक्ट से अंतर जनपदीय ट्रांसफर याचिका No Transfer from Aspirational District : Court


HIGH COURT OF JUDICATURE AT ALLAHABAD 

(Reserved) 
Court No. - 21 

Case :- SPECIAL APPEAL No. - 870 of 2018 
Appellant :- Smt. Shikha Singh And 24 Others 
Respondent :- State Of U.P. And 3 Others 
Counsel for Appellant :- Sri Ashok Khare, Senior Advocate, assisted by Sri Navin Kumar Sharma, Sri R.K. Ojha, Senior Advocate, assisted by Sri Shailendra 
Counsel for Respondent :- C.S.C.,Deo Dayal 

with 

Case :- SPECIAL APPEAL No. - 861 of 2018 
Appellant :- Shritika Jaiswal And 10 Ors 
Respondent :- State Of U.P. And 2 Ors 
Counsel for Appellant :- Navin Kumar Sharma,Mr. Ashok Khare 
Counsel for Respondent :- C.S.C.,Deo Dayal 

with 

Case :- SPECIAL APPEAL No. - 875 of 2018 
Appellant :- Meena Chandra 
Respondent :- State Of U.P. And 3 Others 
Counsel for Appellant :- Navin Kumar Sharma 
Counsel for Respondent :- C.S.C.,Vikram Bahadur Singh 

with 

Case :- SPECIAL APPEAL No. - 869 of 2018 
Appellant :- Alka Singh And Another 
Respondent :- State Of U.P. And Another 
Counsel for Appellant :- Amal Darsingh 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav 

with 

Case :- SPECIAL APPEAL No. - 868 of 2018 
Appellant :- Smt. Kshama Chaudhary And 2 Others 
Respondent :- State Of U.P. And Another 
Counsel for Appellant :- Sudhir Kumar (Chandraul) 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav 

with 

Case :- SPECIAL APPEAL No. - 871 of 2018 
Appellant :- Urmila Nagar And 4 Ors 
Respondent :- State Of U.P. And 3 Ors 
Counsel for Appellant :- Arvind Kumar Singh 
Counsel for Respondent :- C.S.C.,Mangla Prasad Rai 

with 

Case :- SPECIAL APPEAL No. - 860 of 2018 
Appellant :- Roshni Singh And 2 Ors 
Respondent :- State Of U.P. And 4 Ors 
Counsel for Appellant :- Shivendu Ojha,Radha Kant Ojha 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav 

with 

Case :- SPECIAL APPEAL No. - 859 of 2018 
Appellant :- Antima Tiwari And 7 Ors 
Respondent :- State Of U.P. And 12 Ors 
Counsel for Appellant :- Shivendu Ojha,Radha Kant Ojha 
Counsel for Respondent :- C.S.C.,Ashok Kumar Singh,Deo Dayal 

with 

Case :- SPECIAL APPEAL No. - 883 of 2018 
Appellant :- Priyanka Shukla And 37 Ors 
Respondent :- State Of U.P. And 2 Ors 
Counsel for Appellant :- Navin Kumar Sharma 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav 

with 

Case :- SPECIAL APPEAL No. - 884 of 2018 
Appellant :- Priyanka Srivastava 
Respondent :- U.P. Basic Education Board And 3 Ors 
Counsel for Appellant :- Rajesh Kumar Khare 
Counsel for Respondent :- C.S.C.,Ashok Kumar Singh,Ashok Kumar Yadav 

with 

Case :- SPECIAL APPEAL No. - 905 of 2018 
Appellant :- Smt. Sonu Verma And 3 Others 
Respondent :- State Of U.P. And 2 Ors 
Counsel for Appellant :- Sandeep Saxena 
Counsel for Respondent :- C.S.C.,Raghvendra Pratap Singh 

with 

Case :- SPECIAL APPEAL No. - 915 of 2018 
Appellant :- Beena Sharma And 2 Ors 
Respondent :- State Of U.P. And 3 Ors 
Counsel for Appellant :- Amal Darsingh 
Counsel for Respondent :- C.S.C.,Bhola Nath Yadav 

with 

Case :- SPECIAL APPEAL No. - 882 of 2018 
Appellant :- Ranjana Singh And 20 Ors 
Respondent :- State Of U.P. And 2 Ors 
Counsel for Appellant :- Navin Kumar Sharma 
Counsel for Respondent :- C.S.C.,Mangla Prasad Rai 

with 

Case :- SPECIAL APPEAL DEFECTIVE No. - 693 of 2018 
Appellant :- Priyanka Singh And 24 Ors 
Respondent :- State Of U.P. And 3 Ors 
Counsel for Appellant :- Anil Kumar Singh Bishen,Agnihotri Kumar Tripathi 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav 

with 

Case :- SPECIAL APPEAL DEFECTIVE No. - 724 of 2018 
Appellant :- Shalini Yadav And 16 Ors 
Respondent :- State Of U.P. And Another 
Counsel for Appellant :- Ravi Kant Yadav,Ashutosh Dwivedi 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav 

Hon'ble Govind Mathur,J. 
Hon'ble Chandra Dhari Singh,J. 
(Delivered by Hon'ble Govind Mathur, J.) 
Judgment under challenge in these appeals is dated 13.08.2018 passed by learned Single Bench in a batch of writ petitions led by Writ-A No. 14395 of 2018. 
Learned Single Bench under the judgment impugned arrived at the conclusion that the petitioners (appellants herein) working as Assistant Teachers in aspirational districts have no right for inter-districts transfer and, as such, they are not having any enforceable legal right to ask for a writ in the nature of mandamus to transfer them from the aspirational district to some other district. 
The factual matrix of the case is that the appellants are working as Assistant Teachers in Primary Schools in the districts of Siddharth Nagar, Shrawasti, Behraich, Sonbhadra, Chandauli, Fatehpur, Chitrakoot and Balrampur. The districts aforesaid are known as aspirational districts in light of the Government of India policy for "Transformation of Aspirational Districts, 2018". The policy aforesaid prescribes a programme of the Government of India incurred by NITI Aayog steering the initiative in several districts of the country which are "Left Wing Extremism" affected. 
In the programme aforesaid, the Government is committed to raise the living standards of its citizens and ensuring inclusive growth of all. To avail optimum utilization of the potential available, the programme focuses closely on improving people's ability to participate fully in the vibrant economy. The other areas of focus under the Programme aforesaid are health and nutrition, education, agriculture and water resources, financial inclusions, skill development and basic infrastructure. 
The Government of Uttar Pradesh under its conscious decision communicated vide Circular dated 10.06.2018 that no transfer of Assistant Teachers shall be made to other districts from 08 aspirational districts, namely, Siddhartha Nagar, Shrawasti, Behraich, Sonbhadra, Chandauli, Fatehpur, Chitrakoot and Balrampur. Being aggrieved by the decision of the Government of Uttar Pradesh circulated under the Circular dated 10.06.2018 issued by the Secretary, Uttar Pradesh Basic Education Council, Allahabad, the appellants preferred petitions for writ those came to be dismissed under the judgment impugned. 
While questioning correctness of the judgment dated 13.08.2018, several arguments have been advanced mainly focusing to the scope and nature of the provisions of Rule 21 of the Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 (hereinafter referred to as "Rules, 1981") that reads as follows:- 
"21. Transfer - There shall be no transfer of any teacher from the rural local area to an urban local area or vice versa or from one urban local 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." 
Suffice it to state that the Rules, 1981 were enacted by the Governor of Uttar Pradesh in exercise of the powers under sub-Section (1) of Section 19 of the Uttar Pradesh Basic Education Act, 1972 (hereinafter referred to as "Act, 1972"). The Rules, 1981 regulate recruitment and other service conditions of all the teachers employed in Basic Education in the State. 
As per Clause (c) of sub-Rule (1) of Rule 2, "Basic School" means a school wherefrom education from Class-I to Class-VIII are imparted. As per Clause (i) of sub-Rule (1) of Rule 2, "Local area" means the area over which a Local Body exercises jurisdiction and under Clause (l) of the Rule aforesaid, "Selection Committee" means the Selection Committee constituted under Rule 16. As per Rule 16, the Selection Committee for Selection of Candidates for Appointment to any post under the Rules, 1981 shall consist of (a) An officer of the rank of Additional District Magistrate nominated by District Magistrate - Chairman, (b) District Basic Education Officer - Member, (c) Principal, Government Girl's Intermediate College at the District Head Quarter - Member, (d) District Non-Formal Education Officer - Member, and (e) One specialist in Hindi, Urdu or other languages as the case may be; nominated by District Magistrate - Member. As per Clause (b) of sub-Rule (1) of Rule (2) the "Appointing Authority" to any post in service under the Rules, 1981 is District Basic Education Officer. 
Part II of the Rules, 1981 pertains to cadre and strength. Rule 4 of Rules, 1981 provides that there shall be a separate cadre of service under the Rules for each local area. The strength for a local area and the number of posts in the cadre shall be such as may be determined by the Uttar Pradesh Basic Education Board from time to time with previous approval of the State Government. 
The provisions aforesaid clearly indicates that cadre of different posts under the Rules, 1981 shall be at district level. The resultant conclusion is that service under the Rules, 1981 is constituted at District level and, as such, Members of service cannot be transferred from one district to other as that would amount to change of cadre and even the Appointing Authority. 
Rule 21 of the Rules, 1981 is an exception to above as that permits transfer of a teacher appointed under the Rules, 1981 from the rural local area to urban local area or vice versa or from one urban local area to another of the same district or from local area of one district to that of another district. Such transfer, however, can be made on request of or with the consent of teachers himself and in either case with the approval of the Board. 
Under the decision impugned, the Government of Uttar Pradesh has restrained application of the relaxation granted under the Rule 21 of Rules, 1981 for the aspirational districts. 
While challenging the decision aforesaid which has been upheld by learned Single Bench, the argument advanced on behalf of the appellants is that restriction imposed is highly discriminatory as teachers working in the districts or the local areas other than the aspirational districts shall be having opportunity to be transferred as per Rule 21, but the teachers working in the aspirational districts would be deprived of that. It is also stated that all the appellants are women and they are working in the aspirational districts from last several years and now when they want their transfer to the district of their choice as per the provisions of the Rules, 1981, the respondents have decided not to operate Rule 21 qua them, as such, the same is highly unjust and arbitrary too. It is also urged that Uttar Pradesh Basic Education (Teachers) (Posting) Rules, 2008 (hereinafter referred to as "Rules, 2008") shall prevail over the Rules, 1981 and Rule 8(2)(d) of the Rules, 2008 provides for inter-districts transfer and, as such, by a Government Order, application of Rule aforesaid could have not been dispensed with. It is also emphasized that Clause 6 of the existing Transfer Policy, the districts where vacancies against sanctioned posts are more than 15%, no inter-districts transfer of an Assistant Teacher shall be made. The Uttar Pradesh Basic Education Board under its letter dated 06.02.2018 notified 40766 vacancies of Assistant Teachers in Primary Schools and 6719 Headmasters of Primary Schools/Assistant Teacher of Higher Basic School. As per Clause 3 of the Transfer Policy, inter-district transfer is to be made to the extent of 25% of the available vacancy only, as such, the transfer that is to be made from aspirational district to other shall be too less and negligible and that would not effect implementation of the Programme of 2018 adversely. 
Heard learned counsels appearing on behalf of the appellants. 
On going through the provisions applicable, we do not find any merit in these appeals. At the threshold, it would be appropriate to state that Rule 21 of the Rules, 1981, on its face, does not create any substantive right in favour of the appellant-petitioners. Rule 21, as a matter of fact, provides a relaxation with necessary checks for transfer of a teacher from one district/local area to other district/local area, which is otherwise not permissible by statute. It is well settled that relaxation to rules in normal course cannot be claimed as a matter of right. 
In view of it, we are having no hesitation in affirming the finding given by learned Single Bench that Rule 21 of the Rules, 1981 does not create any legally enforceable right in favour of the appellants. However, the issue under consideration is that whether denial of such relaxation to the Assistant Teachers working in aspirational districts shall be justifiable when the teachers working in the other districts are having choice to claim relaxation for their transfer from one district/local area to other district/local area. 
In other words, precisely, the issue before us is whether the decision of the Government of Uttar Pradesh circulated under the Circular dated 10.06.2018 is irrational, arbitrary and discriminatory, being not founded on a reasonable criteria having nexus with the object sought to be achieved. As already stated, the aspirational districts are the districts identified by the Government of India to meet extreme left upsurge in several districts of the country including 08 districts in the State of Uttar Pradesh. As per the Programme, the State Government is required to have intensive operations in the field of education, health, nutrition, agriculture and water resources, financial inclusions, skill development and basic infrastructure. To have such operations, need of teachers is highly desirable. Pertinent to notice that as per the Programme of the Government, a huge budget is assigned to the field of education and a complete transformation of socio economic status of the area is required to be made. The transformation is desired to be satisfied upto the year 2022. The Ministry of Human Resource Development under the Programme aforesaid has rendered several schemes for the aspirational districts. The Government of Uttar Pradesh has also taken initiatives for aspirational districts by making District Action Plan. The District Action Plan relates to different identified sectors including the education. To execute the programme aforesaid, need of teachers is essential and, looking to that, the Government has decided not to extend relaxation as per Rule 2 to the teachers working in aspirational districts. The decision of the Government, as such, is based upon reasonable criteria and that does not suffer from any such wrong that may be termed and treated as unjust or arbitrary. 
At the cost of repetition, it would be appropriate to state that Rule 21 is only a relaxation clause and that in no manner creates any substantive enforceable legal right sufficient to issue a writ in the nature of mandamus. 
So far as Rule 8(2)(d) of the Rules, 2008 is concerned, suffice it to state that that too does not create any right in favour of the appellants. A plain reading of the Rule aforesaid makes it clear that this too is an exception to the general rule of not transferring a person from one district to other district in normal course. 
In light of whatever stated above, the appeals lack merit, hence the same are dismissed. 
Order Date :- 4.10.2018 
Shubham 

(Chandra Dhari Singh, J.)         (Govind Mathur, J.) 


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InterDistrict Transfer News - महिलाओं के विशेष परिस्थिति में ट्रांसफर आदेश के बाद भी ट्रांसफर लिस्ट में महिला याची का नाम न होने पर कोर्ट ने सचिव को कंटेम्प्ट के तहत कोर्ट में हाजिर हो कर कारण बताने को कहा , अगली डेट 6 सितम्बर 2018 -

InterDistrict Transfer News - महिलाओं के विशेष परिस्थिति में ट्रांसफर आदेश के बाद भी ट्रांसफर लिस्ट में महिला याची का नाम न होने पर 
कोर्ट ने सचिव को कंटेम्प्ट के तहत कोर्ट में हाजिर हो कर कारण बताने को कहा , अगली डेट 6 सितम्बर 2018  - 



HIGH COURT OF JUDICATURE AT ALLAHABAD 

?Court No. - 19 

Case :- CONTEMPT APPLICATION (CIVIL) No. - 3836 of 2018 

Applicant :- Smt. Pooja Devi 
Opposite Party :- Sanjay Sinha Secretary And Another 
Counsel for Applicant :- Ravi Sahu 
Counsel for Opposite Party :- A.K.Yadav 

Hon'ble Manoj Kumar Gupta,J. 
Sri Vikram Bahadur Singh has appeared today on behalf of the opposite parties. He has placed on record the instructions received by him from opposite party No. 1, according to which the application of the applicant for transfer was considered, but her name does not figure in the order dated 30.6.2018 issued by the department in regard to the candidates, whose request for inter-district transfer was allowed. 
A perusal of the order of the writ Court reveals that thereunder the Board was required to issue a detailed advertisement in newspapers having wide publicity and thereafter consider request for inter-district transfer. It was also the intent and purport of the order passed by this Court that there could be no bar in seeking transfer on the grounds covered by Rule 8(2)(d), even if five years of service had not been completed at the present place of service. The instructions furnished does not reveal that while finalising the list for transfer, no claim has been excluded on the said ground. It is also not clear that if there are more applicants seeking transfer to a particular district, as compared to vacancies, what criteria was followed in finalising the list. 
Learned counsel for the opposite party is also unable to explain the same. 
In such circumstances, the opposite party No. 1 is directed to appear in person before this Court on 6.9.2018 along with detailed affidavit to show compliance of the order of the writ Court in letter and spirit. 
Put up as fresh on 6.9.2018. 

(Manoj Kumar Gupta, J.) 
Order Date :- 27.8.2018 
AM/- 

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News - लखीमपुर से हरदोई ट्रांसफर लेने के बाद महिला याची को 48 km दूर स्कूल पोस्टिंग पर याचिका, याची का हाल ही में बच्चा हुआ है , district hq के नजदीक स्थानान्तरण की याचिका, कोर्ट ने 3 हफ्ते के अंदर महिला की फरियाद पर फैसला लेने को कहा

News - लखीमपुर से हरदोई ट्रांसफर लेने के बाद महिला याची को 48 km दूर स्कूल पोस्टिंग पर याचिका, याची का हाल ही में बच्चा हुआ है  , district hq  के नजदीक स्थानान्तरण की याचिका, कोर्ट ने 3 हफ्ते के अंदर महिला की फरियाद पर फैसला लेने को कहा 



HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH 

?Court No. - 23 

Case :- SERVICE SINGLE No. - 23836 of 2018 

Petitioner :- Shivani Mishra 
Respondent :- State Of U.P. Thru. Prin. Secy. Basic Edu. And Ors. 
Counsel for Petitioner :- Anurag Shukla 
Counsel for Respondent :- C.S.C.,Ajay Kumar 

Hon'ble Irshad Ali,J. 
Heard learned counsel for the petitioner Sri Anurag Shukla. 
Learned Chief Standing Counsel has accepted notice on behalf of respondent nos. 1, 3 and 4. 
Sri Ajay Kumar, learned Advocate has accepted notice on behalf of respondent no. 2. 
The petitioner has rushed to this Court challenging the order of transfer dated 9.7.2018 passed by District Basic Education Officer whereby the petitioner was transfered from District Lakhimpur Kheri to District Hardoi. 
Submission of learned counsel for the petitioner is that the petitioner was selected by a duly constituted selection committee on the post of Assistant Teacher and was posted vide order dated 23.11.2015 at primary school Hussainapur, Block Pasigawan, District Kheri (Lakhimpur). He next submitted that in pursuance to the Government Order issued by the State Government in regard to the inter district transfer, the petitioner applied for and opted district Hardoi for the transfer and thereafter, vide order dated 13.6.2018, petitioner was transferred to District Hardoi wherein she reported in the office of District Basic Education Officer on 26.7.2018. His next submission is that the petitioner is having newly born baby and in this regard she filed a representation before the District Basic Education Officer for consideration of her claim for posting in nearby primary school from the district headquarter. In spite of considering the claim of the petitioner, the impugned transfer order has been passed whereby the petitioner is posted in an institution which is about 48 Km. away from the district headquarter and there is no facility of conveyance regularly and in reaching the institution she has to change conveyance in three times. 
Learned counsel for the petitioner further submitted that the petitioner for ventilating her grievances has approached the District Basic Education Officer vide applications dated 24.7.2018 and 13.8.2018 to consider her claim on sympathetic ground for posting in nearby institution from the headquarter. The petitioner in paragraph 22 of the writ petition has pointed out the name of the institution wherein post of Assistant Teacher is lying vacant. 
On the other hand learned Standing counsel and learned Advocate appearing on behalf of respondent no. 2 have no objection in case the writ petition is disposed of with direction to consider the claim of the petitioner. 
In view of the above, the writ petition is finally disposed of with liberty to the petitioner to file a comprehensive representation along with certified copy of the order as well as copy of the writ petition within a week from today. In case such representation is filed by the petitioner before the respondent no. 3, who is Chairman of District Level Committee, he will consider and pass appropriate reasoned and speaking order within a period of three weeks thereafter. 
Order Date :- 21.8.2018 
Manoj



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InterDistrict Transfer News - ट्रांसफर क़्वालिटी पॉइंट में गड़बड़ी को लेकर याची ने कंटेम्प्ट लगाया, विभाग को क़्वालिटी पॉइंट की लिस्ट पेश करने को कहा -

InterDistrict Transfer News - ट्रांसफर क़्वालिटी पॉइंट में गड़बड़ी को लेकर याची ने कंटेम्प्ट लगाया, विभाग को क़्वालिटी पॉइंट की लिस्ट पेश करने को कहा - 



HIGH COURT OF JUDICATURE AT ALLAHABAD 

?Court No. - 19 

Case :- CONTEMPT APPLICATION (CIVIL) No. - 3582 of 2018 

Applicant :- Smt. Renu Gupta 
Opposite Party :- Sri Sanjay Sinha, Secretary Basic Education Board 
Counsel for Applicant :- Ashok Kumar Verma 

Hon'ble Manoj Kumar Gupta,J. 
Put up alongwith leading contempt application No. 3371 of 2018 on the date already fixed in the said case i.e. 29.08.2018.� 
The opposite party shall file separate affidavit in the instant case annexing therewith list of candidates, who had been transferred in various district to which the applicant had been seeking transfer, showing quality point marks awarded to them as well as to the applicant. 
(Manoj Kumar Gupta, J.) 

Order Date :- 20.8.2018 
Darpan Sharma



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Transfer News - कोर्ट ने महिला शिक्षिका के ऑनलाइन आवेदन के बाद स्थानान्तरण न होने पर उसके द्वारा दोबारा 9 जुलाई के प्रार्थना पत्र पर सचिव का फैसला लेने को कहा, देखें आदेश -

Transfer News - कोर्ट ने महिला शिक्षिका के ऑनलाइन आवेदन के बाद स्थानान्तरण न होने पर उसके द्वारा दोबारा  9 जुलाई के प्रार्थना पत्र पर सचिव का फैसला लेने को कहा, देखें आदेश - 



COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH 

?Court No. - 23 

Case :- SERVICE SINGLE No. - 23369 of 2018 

Petitioner :- Smt. Meenu Mishra 
Respondent :- State Of U.P. Thru. Prin. Secy. Basic Edu. And Ors. 
Counsel for Petitioner :- O.P. Tiwari 
Counsel for Respondent :- C.S.C.,Ajay Kumar 

Hon'ble Irshad Ali,J. 
The petitioner who is Assistant Teacher, is at present, posted in a Primary School at Sumerpur, Block - Mallawa, District Hardoi. 
Learned counsel for petitioner submits that due to serious illness of in-laws of the petitioner, she moved an application for consideration of her transfer from that Upper Primary School to District Kanpur. 
Learned counsel for the petitioner further submits that Uttar Pradesh Basic Education (Teachers) (Posting) Rules, 2008 deals with the posting and transfer of the teachers working in Junior Basic Schools and Senior Basic Schools run by the Board. 
The Rule 8(2)(d) of the Rules, 2008 provides that in normal circumstances the applications for inter-district transfers can be entertained of only those teachers who have completed five years of their posting, however, the exception is provided that an application of a female teacher for her transfer at the place of her husband or in-laws would be entertained. 
It is contended by learned counsel for the petitioner that in case the petitioner is directed to submit on-line application in terms of Government Order dated 13.6.2017, in that event the petitioner would not be eligible for transfer as she has not completed five years of requisite service. 
Learned counsel for the petitioner has placed reliance on a judgment of Full Bench of this Court in the case of R.B. Dixit v. Union of India and others, (2005) 1 UPLBEC 83. 
Sri Shobhit Mohan Shukla, learned Advocate, who has put in appearance on behalf of the District Basic Education Officer submits that the State Government has issued guidelines on 13.6.2017 in respect of inter-district transfer of the assistant teachers of Junior Basic Schools and Senior Basic Schools for the session 2017-18. He further submits that on-line applications would be accepted from 16th to 31th August, 2018 and the procedure has been laid down under the said guidelines. 
I have heard learned counsel for the parties. With their consent the writ petition is being disposed of finally at this stage in terms of the Rules of the Court. 
The Uttar Pradesh Basic Education (Teachers) (Posting) Rules, 2008 have been framed under Section 19(1) of the U.P. Basic Education Act, 1972. The Rule 8(2)(d) provides as under: 
"(d) In normal circumstances the applications for inter-district transfers in respect of male and female teachers will not be entertained within five years of their posting. But under special circumstances, applications for inter-district transfers in respect of female teachers would be entertained to the place of residence of their husband or in law's district." 
From a reading of the aforesaid Rule it is evident that under the special circumstances an application of a female teacher can be entertained for her transfer at the place of residence of her husband or in-law's district. In such cases the requirement of five years of posting has been relaxed. 
It is a well settled law that the Government Order cannot supplant the law, it can only supplement it. Indisputably, an executive order cannot override the Rules which have been framed by the rule making authority in exercise of powers conferred upon it by the Act. In case of any inconsistency with the delegated legislation, executive instructions or the Government Order, the Rule cannot be ignored. The same issue fell for consideration before a Division Bench of this Court in R.B. Dixit (supra) in the following terms: 
"6. We have held in Smart Chip v. State of U.P., 2002 (49) ALR 419, that in every legal system there is a hierarchy of norms as noted by the eminent jurist Kelson in his Pure Theory of Law. In the Indian Legal System this hierarchy is as follows: 
1. The Constitution. 
2. Statutory law, which may either be made by the Parliament or by the State legislature. 
3. Delegated legislation, which may be either in the form of Rules, Regulations or Statutes made under the Act. 
4. Executive instructions or Government Orders. 
7. In the above hierarchy if there is conflict between a higher law and a lower law then the higher law will prevail. The executive instructions are part of the fourth layer in the hierarchy, which is at the lowest level, whereas an Act is part of the second layer and the Statutes made under the Act are delegated legislation and hence part of the third layer. The letters dated 31.8.1998 and 30.3.1999 are only executive instructions and hence they belong to the fourth layer. Hence they are neither Act nor Statutes. Hence in our opinion the age of retirement of an employee of the Indian Institute of technology is 60 years and not 62 years vide Section 13(2). We, therefore, respectfully disagree with the decision in Raja Ram Verma's case." 
This issue has been considered by this Court in the case of Sarita Gupta v. State of U.P. & Others, Writ-A No. 7096 of 2010, decided on 30.7.2010. The Court had occasion to deal with the similar arguments and at that time a Government order was issued imposing certain restrictions on transfer. The Court has expressed its view in the following terms: 
"The ban is general in nature. However, the provision of transfer for the purposes of placing husband and wife in the same district is a special provision which will normally prevail upon general temporary restriction on transfer. 
Accordingly, writ petition is allowed. Impugned order is set aside. Secretary, U.P. Basic Education Parishad, Allahabad, is directed to decide the matter ignoring the ban order dated 6.6.2009. The decision shall be taken positively within three weeks from today." 
It is trite that in most of the services of the Central Government and the State Governments, there is provision in their transfer policy that an endeavour should be made that husband and wife may be posted at the same place. In view of the said principle, under the Rules 2008 the provision of the couple posting has been incorporated. 
The intention of rule making authority is very clear and it needs no elaboration.Relevant it would be to mention that in transfer policy of State Government for Government employees there is provision only for husband and wife but in Rule 8(2) (d) of the Rules, 2008 the in-laws of the female teachers have also been included. Hence, in my view, in spite of the Government Order dated 13.6.2017 a female teacher's application for her transfer on the ground of couple posting or in-laws can be entertained notwithstanding some of the contrary provisions of the said Government order. 
For the above-mentioned reasons, there is no legal bar in considering the representation of the petitioner in terms of Rule 8(2)(d) of the Rules, 2008. 
Accordingly, a direction is issued upon the O.P. No.1, Special Secretary, Department of Basic Education, Government of U.P., Lucknow, to consider the representation dated 09.07.2018 of the petitioner in the light of the observations made herein-above and pass appropriate order expeditiously, preferably within six weeks from the date of communication of this order. 
The writ petition is, accordingly, disposed of. 
No order as to costs. 
Order Date :- 16.8.2018 
Adarsh



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अंतर्जनपदीय स्थानांतरण याचिका ख़ारिज , लेकिन अब क्या

अंतर्जनपदीय स्थानांतरण याचिका  ख़ारिज , लेकिन अब क्या 


अंतर्जनपदीय स्थानांतरण याचिका  ख़ारिज करने में हाई कोर्ट जज केसरवानी जी ने सुप्रीम कोर्ट के महत्वपूर्ण निर्णय Bank Of India vs Jagjit Singh Mehta का उल्लेख किया , जिसमे हाई कोर्ट के निर्णय को रद्द करते हुए सुप्रीम कोर्ट ने पति पत्नी के एक स्थान पर पोस्टिंग की याचिका कुछ कारण गिनाते हुए ख़ारिज की थी , देखते हैं क्या है वह निर्णय :

Bank Of India vs Jagjit Singh Mehta on 22 November, 1991 में जगजीत सिंह ने क्लर्क से ऑफिसर में प्रमोशन पर Any Where in India Transfer पर सहमति दी थी , लेकिन प्रमोशन होने के बाद पत्नी के कार्यस्थल के नजदीक ट्रांसफर पाने में हाई कोर्ट से सफल हुए थे , उसके बाद बैंक ने सुप्रीम कोर्ट में अपील दाखिल की और सुप्रीम कोर्ट ने प्रशानिक कारणों पर ट्रांसफर के आधार को सही मानते हुए हाई कोर्ट आदेश को रद्द कर दिया और पति पत्नी साथ पोस्टिंग 
का निर्णय इस आधार पर रद्द हो गया था | 

हालाँकि ऐसे अंतरजनपदीय स्थानांतरण याचिका ख़ारिज निर्णय को सुप्रीम कोर्ट के इसी निर्णय या और कई सुप्रीम कोर्ट के महत्वपूर्ण निर्णय के द्वारा बेहतर रूप से ऊपरी बेंच में अपील की जा सकती है , जिसमे प्रसाशनिक अड़चन / पॉलिसी डिसीजन को कोई मुश्किल न मानते हुए हल बताये जा सकते हैं | 
हालाँकि वकील अच्छा हो , जो की पक्ष को बेहतर रूप से रख सके | 

हाल ही कुछ विशेष लोगों के ट्रांसफर सचिव कार्यालय के पत्र द्वारा होने की खबर न्यूज़ में थी , इसके प्रमाण व जिन कारणों के तहत ट्रांसफर हुए , उनको भी बताया जा सकता है | 
ट्रांसफर लिस्ट में खामियों को बता कर फर्जियों को बाहर कराने की कोशिश की जा सकती है - 
https://naukri-recruitment-result.blogspot.com/2018/03/transfer-list-me-farjeewada-joining.html

प्रसाशनिक के सामने क्या अड़चन होगी , ज्यादा से ज्यादा कहीं कुछ शिक्षक कम होंगे  , लेकिन नयी भर्तियां भी चालू हैं | 
कहीं कुछ शिक्षक कम होंगे , लेकिन कुछ शिक्षक रिटायर भी हो रहे होंगे | 
तो कोर्ट से मांग की जा सकती है , कि वेकेंसी भरने पर इन शिक्षकों को ट्रांसफर का मौका मिले ,
रिटायर होने पर नए शिक्षकों को ट्रांसफर के द्वारा भी लिया जा सकता है | 

पति पत्नी दूर दूर रह रहे , चाइल्ड केयर / बच्चों की देखभाल की मुश्किल झेल रहे कपल्स या अन्य विशेष मुश्किल झेल रहे शिक्षकों की मदद 
शायद सुप्रीम कोर्ट या हाई कोर्ट के टॉप लॉयर बेहतर रूप से कर सकें | 

पॉलिसी जनता की भलाई के लिए होती हैं , चाइल्ड केयर लीव का प्रावधान किन्ही कारणों से ही किया गया | 
यह कोर्ट के इस निर्णय में देखें : https://naukri-recruitment-result.blogspot.com/2018/07/transfer-news.html
(हालाँकि यह नीचली अदालत ट्रिब्यूनल  का निर्णय है और बाद में हाई कोर्ट द्वारा ख़ारिज हो चुका है और अभी आये निर्णय से इसका कोई प्रभाव नहीं होगा , और इसलिए ऐसे मसलों के लिए सुप्रीम कोर्ट/हाई कोर्ट के टॉप वकील शायद कुछ राह बना पाएं )


हालाँकि याचिका ख़ारिज करने में बताये गए सुप्रीम कोर्ट के निर्णय की काट में सुप्रीम कोर्ट का ही निर्णय -  The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees."
https://naukri-recruitment-result.blogspot.com/2018/07/union-of-india-and-ors-vs-sl-abbas-on.html
हालाँकि बेहतर रूप से साबित करना होगा की प्रसाशनिक रूप से कोई अड़चन नहीं होगी (नए शिक्षक , रिटायर शिक्षक अदि व अन्य सरप्लस आदि कारण जो भी हों जिनसे प्रशासनिक समाधान संभव है  , ये समस्याग्रस्त कपल्स , बीमार , विकलांग आदि लोगों की कुछ मदद कर सके )

Supreme Court of India

Bank Of India vs Jagjit Singh Mehta on 22 November, 1991

Equivalent citations: 1992 AIR 519, 1991 SCR Supl. (2) 492

Author: J S Verma

Bench: Verma, Jagdish Saran (J)

           PETITIONER:
BANK OF INDIA

 Vs.

RESPONDENT:
JAGJIT SINGH MEHTA

DATE OF JUDGMENT22/11/1991

BENCH:
VERMA, JAGDISH SARAN (J)
BENCH:
VERMA, JAGDISH SARAN (J)
SHARMA, L.M. (J)
AGRAWAL, S.C. (J)

CITATION:
 1992 AIR  519    1991 SCR  Supl. (2) 492
 1992 SCC  (1) 306   JT 1991 (4) 460
 1991 SCALE  (2)1108


ACT:
Service Law:
Bank of India (Officers') Service Regulations, 1979:
    Regulation 47,  Notice dated  28.3.1988--Transfer--Bank
Officer--Whether can claim transfer to a particular place on
the ground of spouse's employment.
    Government of  India Memorandum  dated  3.2.1986, Para
4(vi): Banking Companies (Acquisition of Transfer of  Under-
takings) Act, 1970:
    Bank of India (Officers') Service Regulations, 1979--All
India Service-Posting   of  husband  and   wife   at  one
station--Guidelines--Nature
of



HEADNOTE:
    Regulation 47 of the Bank of India (Officers')  Service
Regulations, 1979 provided that every officer was liable for
transfer to any office or branch of the Bank of India or  to
any place in India.
    The  respondent was posted as a clerk in  the  appellant
Bank  at  Chandigarh. At the time of his  promotion  to  the
Junior Management Grade Scale-1, he gave an undertaking  for
posting  anywhere in India, and was consequently  posted  as
Branch Officer in the State of Bihar. Thereafter, he filed a
writ  petition in the High Court claiming his transfer  to
Chandigarh Zone on the ground of his wife being employed  at
Chandigarh.  The writ petition was allowed. The  Bank  filed
appeal by special leave to this Court.
    It was contended on behalf of the respondent that para 4
(vi) of Memorandum dated 3.4.1986 of the Government of India
contained guidelines for posting of husband and wife at  one
station  which were meant to be followed also by  all  the
Public Sector Undertakings, and, according to the provisions
of the Banking Compa-
493
nies (Acquisition and Transfer of Undertakings) Act 1970 and
the Bank of India (Officers') Service Regulations, 1979 made
thereunder, the bank was bound to follow the guidelines  and
directions issued by the Central Government.
Allowing the appeal of the Bank, this Court,
    HELD:   1. Although  the  guidelines  require  the  two
spouses to be posted at one place as far as practicable  the
desirability  of such a course being obvious-yet  that does
not enable any spouse to claim such a posting as of right if
the  departmental authorities do not consider  it  feasible;
nor does it mean that their place of posting should invaria-
bly be one of their choice even though their preference  may
be  taken into account while making the decision in  accord-
ance with the administrative needs. The only thing  required
is  that  the departmental authorities should  consider  the
feasibility of a suitable posting along with the  exigencies
of administration and enable the two spouses to live togeth-
er at one station if it is possible without any detriment to
the  administrative needs and the claim of other  employees.
[pp 495 E; 496 BC]
    2. After accepting a promotion or any appointment in an
All  india  Service, subordinating the need  of  the  couple
living together  at one station, they cannot  as  of  right
claim to be relieved of the ordinary incidents of the  serv-
ice  and avoid transfer to a different place on  the  ground
that  the  spouses  thereby would  be  posted  at  different
places.  While choosing the career and a particular  service
the couple have to bear in mind this factor and be  prepared
to  face  such a hardship particularly when they  belong  to
different  services. They have to make their choice  at  the
threshhold between career prospects and family life. [pp 495
F-H; 496 A]
    3.1 In the instant case, the respondent voluntarily gave
an  undertaking  that he was prepared to be  posted  at  any
place in India and on that basis got promotion and  thereaf-
ter  sought to be relieved of that necessary incident of  an
All India Service on the ground that his wife had to  remain
at Chandigarh. [p. 496 AB]
    3.2  In the face of Regulation 47 of the Bank  of  India
(Officers')  Service  Regulations, 1979 according  to  which
every officer is liable for transfer to any office or branch
of the Bank of India or to any place in India and the  clear
provision  for such transfer in the policy  read  with  the
notice dated March 28, 1988, the High Court's order  cannot
be sustained. [p. 495 BC]
494
    The  High  Court  was in error in  overlooking  all  the
relevant aspect as well as the absence of any legal right in
the  respondent  to claim the relief which it granted  as  a
matter of course. [p. 496 CD]



JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4541 of 1991.

From the Judgment and Order dated 6.8.1991 of the Punjab and Haryana High Court in C.W.P. No. 2415 of 1991. Dr. Anand Prakash, Mrs. Veena Birbal and Raj Birbal for the Appellants.

D.R. Sehgal, S.K. Bagga and Mrs. S.K. Bagga for the Respond- ents.

The Judgment of the Court was delivered by VERMA, J. The respondent, Jagjit Singh Mehta, is em- ployed at present in the Bank of India as an officer in Junior Management Grade Scale-1 and posted in a Branch Office of the Bank in District Giridih in the State of Bihar. The respondent was earlier employed in the clerical cadre of the Bank and was posted at Chandigarh. According to the policy contained in Annexure-B read with notice dated March 28, 1988 (Annexure-C), on promotion from the clerical cadre to the Officers' Grade, the respondent had to indicate his preparedness for posting anywhere in India according to the availability of vacancies. The respondent readily indi- cated his preparedness to be posted anywhere in India by Annexure-D dated April 19, 1988 when the respondent was posted as a Clerk at Chandigarh prior to his promotion as an Officer.

After getting the promotion as an officer and being posted in Bihar on the above basis, the petitioner filed Civil Writ Petition No. 2415 of 1991 in the High Court of Punjab and Haryana for a direction to the Bank to transfer him from the Bihar Zone to the Chandigarh Zone on the ground that his wife is employed as a Senior Accountant at Chandi- garh. The writ petition has been allowed by a Division Bench (M.R Agnihotri & D.S.Mehra, JJ,) of the High Court by a cryptic order dated 6.8.1991 which reads as under :-

"After hearing the learned counsel for the parties, we allow this petition and direct the respondents by issuing a writ of mandamus commanding the Bank of India to transfer the peti-tioner and post him somewhere near Chandigarh as his wife is posted as a Clerk in the office of the Advocate General, Punjab, Chandigarh. This shall be done within a period of two months. No costs."

The petitioner-Bank of India is aggrieved by the above order of the High Court. Special leave is granted. In the face of Regulation 47 of the Bank of India (Officers') Service Regulations, 1979 according to which every officer is liable for transfer to any office or branch of the Bank of India or to any place in India and the clear provision for such a transfer in the policy (Annexure-B) read with notice dated March 28, 1988 (Annexure-C), it is difficult to sustain the High Court's order. However, learned counsel for the respondent placed reliance on para 4

(vi) of a Memorandum dated April 3, 1986 (AnnexureH) of the Government of India containing guidelines for posting of husband and wife at one station which are meant to be fol- lowed also by all the Public Sector Undertakings. Learned counsel urged that according to the statutory provisions contained in the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 and the Bank of India (Officers') Service Regulations, 1979 made thereunder, the Bank is bound to follow the guidelines and directions issued by the Cen- tral Government in this behalf.

There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the deci- sion in accordance with the administrative needs. In the case of All-India Services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other's posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the adminis- tration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an All-India Service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, they cannot as of right claim to be relieved of the ordinary incidents of All-India Service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places. In addition, in the present case, the respondent voluntarily gave an undertaking that he was. prepared to be posted at any place in India and on that basis got promotion from the clerical cadre to the Officers' grade and thereafter he seeks to be relieved of that necessary incident of All-India Service on the ground that his wife has to remain at Chandigarh. No doubt the guidelines require the two spouses to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consid- er this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administra- tive needs and the claim of other employees. The High Court was in error in overlooking all the relevant aspects as well as the absence of any legal fight in the respondent to claim the relief which the High Court has granted as a matter of course. The High Court's order must, therefore, be set aside.

Consequently, the appeal is allowed, the impugned order of the High Court is set aside and the respondent's writ petition is dismissed. No costs.

k.P.            Appeal
allowed.

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