News - 730 दिन की लगातार चाइल्ड केयर लीव ली जा सकती हैं, सुप्रीम कोर्ट -

News - 730 दिन की लगातार चाइल्ड केयर लीव ली जा सकती हैं, सुप्रीम कोर्ट  - 

Supreme Court of India

Kakali Ghosh vs Chief Secy. A & N Administration & ... on 15 April, 2014

Author: ………………………………………………….J.

Bench: Sudhansu Jyoti Mukhopadhaya, V. Gopala Gowda

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4506 OF 2014 (arising out of SLP (C) No. 33244 of 2012) KAKALI GHOSH … APPELLANT VERSUS CHIEF SECRETARY, ANDAMAN & NICOBAR ADMINISTRATION AND ORS. … RESPONDENTS J U D G M E N T

Sudhansu Jyoti Mukhopadhaya, J.

Leave granted.

2. This appeal has been directed against the judgment dated 18th September, 2012 passed by the High Court of Calcutta, Circuit Bench at Port Blair. By the impugned judgment, the Division Bench of the Calcutta High Court allowed the writ petition and set aside the judgment and order dated 30th April, 2012 passed by the Central Administrative Tribunal Calcutta, Circuit Bench at Port Blair (hereinafter referred to as, ‘the Tribunal’).

3. The only question which requires to be determined in this appeal is whether a woman employee of the Central Government can ask for uninterrupted 730 days of Child Care Leave (hereinafter referred to as, - ‘the CCL’) under Rule 43-C of the Central Civil Services (Leave) Rules, 1972 (hereinafter referred to as, ‘the Rules’).

4. The appellant initially applied for CCL for six months commencing from 5th July, 2011 by her letter dated 16th May, 2011 to take care of her son who was in 10th standard. In her application, she intimated that she is the only person to look after her minor son and her mother is a heart patient and has not recovered from the shock due to the sudden demise of her father; her father-in-law is almost bed ridden and in such circumstances, she was not in a position to perform her duties effectively. While her application was pending, she was transferred to Campbell Bay in Nicobar District (Andaman and Nicobar) where she joined on 06th July, 2011. By her subsequent letter dated 14th February, 2012 she requested the competent authority to allow her to avail CCL for two years commencing from 21st May, 2012. However, the authorities allowed only 45 days of CCL by their Office Order No. 254 dated 16th March, 2012.

5. Aggrieved appellant then moved before the Tribunal in O.A. No.47/A&N/2012 which allowed the application by order dated 30th April, 2012 with following observation:-

“12. Thus O.A. is allowed. Respondents are accordingly directed to act strictly in accordance with DOPT O.M. dated 11.9.2008 as amended/clarified on 29.9.2008 and 18.11.2008, granting her CCL for the due period. No costs.”

6. The order passed by the Tribunal was challenged by respondents before the Calcutta High Court which by impugned judgment and order dated 18th September, 2012 while observing that leave cannot be claimed as a right, held as follows:

“It is evident from the provisions of sub r.(3) of r.43-C of the rules that CCL can be granted only according to the conditions mentioned in the sub-rule, and that one of the conditions is that CCL shall not be granted for more than three spells in a calendar year. It means that CCL is not to be granted for a continuous period, but only in spells.

From the provisions of sub r.(3) of r.43-C of the rules it is also evident that a spell of CCL can be for as less as 16 days. This means that in a given case a person, though eligible to take CCL for a maximum period of 730 days, can be granted CCL in three spells in a calendar year for as less as 48 days.” The High Court further observed:

“Whether an eligible person should be granted CCL at all, and, if so, for what period, are questions to be decided by the competent authority; for the person is to work in the interest of public service, and ignoring public service exigencies that must prevail over private exigencies no leave can be granted.”

7. Learned counsel for the appellant submitted that there is no bar to grant uninterrupted 730 days of CCL under Rule 43-C. The High Court was not justified in holding that CCL can be granted in three spells in a calendar year as less as 48 days at a time. It was also contended that the respondents failed to record ground to deny uninterrupted CCL to appellant for the rest of the period.

8. Per contra, according to respondents, Rule 43-C does not permit uninterrupted CCL for 730 days as held by the High Court.

9. Before we proceed to discuss the merits or otherwise of the above contentions, it will be necessary for us to refer the relevant Rule and the guidelines issued by the Government of India from time to time.

10. The Government of India from its Department of Personnel and Training vide O.M. No. 13018/2/2008-Estt. (L) dated 11th September, 2008 intimated that CCL can be granted for maximum period of 730 days during the entire service period to a woman government employee for taking care of up to two children, relevant portion of which reads as follows:

“(1) Child Care Leave for 730 days.

*** Women employees having minor children may be granted Child Care Leave by an authority competent to grant leave, for a maximum period of two years (i.e. 730 days) during their entire service for taking care of up to two children, whether for rearing or to look after any of their needs like examination, sickness, etc. Child Care Leave shall not be admissible if the child is eighteen years of age or older. During the period of such leave, the women employees shall be paid leave salary equal to the pay drawn immediately before proceeding on leave. It may be availed of in more than one spell. Child Care Leave shall not be debited against the leave account. Child Care Leave may also be allowed for the third year as leave not due (without production of medical certificate). It may be combined with leave of the kind due and admissible.”

11. It was followed by Circular issued by Government of India from its Personnel and Training Department vide O.M. No. 13018/2/2008- Estt. (L), dated 29th September, 2008 by which it was clarified that CCL would be also admissible to a woman government employee to look after third child below 18 years of age, which is as follows:

“(2) Clarifications:-

The question as to whether child care leave would be admissible for the third child below the age of 18 years and the procedure for grant of child care leave have been under consideration in this Department, and it has now been decided as follows:-

i) Child Care Leave shall be admissible for two eldest surviving children only.

ii) The leave account for child care leave shall be maintained in the pro forma enclosed, and it shall be kept along with the Service Book of the Government Servant concerned.”

12. Rule 43-C was subsequently inserted by Government of India, Department of Personnel and Training, Notification No. F.No. 11012/1/2009- Estt. (L) dated 1st December, 2009, published in G.S.R. No. 170 in the Gazette of India dated 5th December, 2009 giving effect from 1st September, 2008 as quoted below:-

“43-C. Child Care Leave

1) A women Government servant having minor children below the age of eighteen years and who has no earned leave at her credit, may be granted child care leave by an authority competent to grant leave, for a maximum period of two years, i.e. 730 days during the entire service for taking care of up to two children, whether for rearing or to look after any of their needs like examination, sickness, etc.

2) During the period of child care leave, she shall be paid leave salary equal to the pay drawn immediately before proceeding on leave.

3) Child care leave may be combined with leave of any other kind.

4) Notwithstanding the requirement of production of medical certificate contained in sub-rule (1) of Rule 30 or sub-rule (1) of Rule 31, leave of the kind due and admissible (including commuted leave not exceeding 60 days and leave not due) up to a maximum of one year, if applied for, be granted in continuation with child care leave granted under sub-rule (1).

5) Child care leave may be availed of in more than one spell.

6) Child care leave shall not be debited against the leave account.”

13. On perusal of circulars and Rule 43-C, it is apparent that a woman government employee having minor children below 18 years can avail CCL for maximum period of 730 days i.e. during the entire service period for taking care of upto two children. The care of children is not for rearing the smaller child but also to look after any of their needs like examination, sickness etc. Sub Rule (3) of Rule 43-C allows woman government employee to combine CCL with leave of any other kind. Under Sub Rule (4) of Rule 43- C leave of the kind due and admissible to woman government employee including commuted leave not exceeding 60 days; leave not due up to a maximum of one year, can be applied for and granted in continuation with CCL granted under Sub Rule (1). From plain reading of Sub Rules (3) and (4) of Rule 43-C it is clear that CCL even beyond 730 days can be granted by combining other leave if due. The finding of the High Court is based neither on Rule 43-C nor on guidelines issued by the Central Government. The Tribunal was correct in directing the respondents to act strictly in accordance with the guidelines issued by the Government of India and Rule 43-C.

14. In the present case, the appellant claimed for 730 days of CCL at a stretch to ensure success of her son in the forthcoming secondary/senior examinations (10th/11th standard). It is not in dispute that son was minor below 18 years of age when she applied for CCL. This is apparent from the fact that the competent authority allowed 45 days of CCL in favour of the appellant. However, no reason has been shown by the competent authority for disallowing rest of the period of leave.

15. Leave cannot be claimed as of right as per Rule 7, which reads as follows:

“7. Right to leave (1) Leave cannot be claimed as of right.

(2) When the exigencies of public service so require, leave of any kind may be refused or revoked by the authority competent to grant it, but it shall not be open to that authority to alter the kind of leave due and applied for except at the written request of the Government servant.” However, under Sub-Rule (2) of Rule 7 leave can be refused or revoked by the competent authority in the case of exigencies of public service.

16. In fact, Government of India from its Ministry of Home Affairs and Department of Personnel and Training all the time encourage the government employees to take leave regularly, preferably annually by its Circular issued by the Government of India M.H.A.O.M. No. 6/51/60-Ests. (A), dated 25th January, 1961, reiterated vide Government of India letter dated 22/27th March, 2001. As per those circulars where all applications for leave cannot, in the interest of public service, be granted at the same time, the leave sanctioning authority may draw up phased programme for the grant of leave to the applicants by turn with due regard to the principles enunciated under the aforesaid circulars.

17. In the present case the respondents have not shown any reason to refuse 730 days continuous leave. The grounds taken by them and as held by High Court cannot be accepted for the reasons mentioned above.

18. For the reasons aforesaid, we set aside the impugned judgment dated 18th September, 2012 passed by the Division Bench of Calcutta High Court, Circuit Bench at Port Blair and affirm the judgment and order dated 30th April, 2012 passed by the Tribunal with a direction to the respondents to comply with the directions issued by the Tribunal within three months from the date of receipt/production of this judgment.

19. The appeal is allowed with aforesaid directions. No costs.

………………………………………………….J.

(SUDHANSU JYOTI MUKHOPADHAYA) ……………………………………………….J.

(V. GOPALA GOWDA) NEW DELHI, APRIL 15, 2014.

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News - अमेरिका से चाइल्ड केयर लीव का ई मेल भेजा, ई मेल पर कोई निर्णय नही लेने पर कोर्ट ने इसे चाइल्ड केयर लीव माना , देखें आदेश -

News - अमेरिका से चाइल्ड केयर लीव का ई मेल भेजा, ई मेल पर कोई निर्णय नही लेने पर कोर्ट ने इसे चाइल्ड केयर लीव माना , देखें आदेश - 



HIGH COURT OF JUDICATURE AT ALLAHABAD 

?Court No. - 29 
Case :- WRIT - A No. - 12762 of 2011 
Petitioner :- Dr. Nutan Mishra 
Respondent :- Basant College For Women And Others 
Petitioner Counsel :- Bhoopendra Nath Singh,Devendra Pratap Singh 
Respondent Counsel :- C. S. C.,K.S. Chauhan 

Hon'ble Sunil Ambwani,J. 
Hon'ble Mrs. Jayashree Tiwari,J. 
Learned Standing Counsel appears for respondent no. 2. Shri K.S. Chauhan has accepted notice on behalf of respondent no.2. Issue notice to respondent no. 1. Steps within a week. The respondents are allowed four weeks' time to file counter affidavit. The petitioner will have one week thereafter to file rejoinder affidavit. 
List on 19.4.2011. 
The petitioner has prayed for directions to quash the letter of the Manager, Vasanta College for Women, Varanasi dated 4.9.2010, by which in response to petitioner's e-mail dated 24.7.2010 sent by her from United States, the College has treated the petitioner to have abandoned the job. She has also prayed for payment of full salary and other service benefits. 
It is stated in the writ petition that the petitioner is M.A. in Sociology with first division from Lucknow University and has passed NET. She served as Lecturer in I.T. College, Lucknow; after which she was appointed as Lecturer in Sociology in the respondent no.1, College on 8.2.2006, and was confirmed after one year. In the year 2007 she got married and gave birth to a baby girl on 3.11.2008 in United States, where her husband is working. On return to India she was looking after her baby and also her mother, who was ill at Varanasi. 
It is stated that at Varanasi the baby got sick. In the summer vacations in the College in June, 2010,� the petitioner left for United States to get enough time to build the immunes system of the baby, so that the petitioner can work stress free, when she joins back. She requested the College to understand her situation and to grant her leave to take care of her child� by e-mail dated 20.7.2010. 
Learned counsel for the petitioner has relied upon the recommendations of the 6th Pay Commission in para 5.12.4 for maternity and paternity leave, which provides for women teachers having minor children to be allowed leave upto two years for taking care of their children. The Commission has also made recommendations as follows:- 
"Para 5:12:4: Maternity/Paternity Leave 
Maternity leave may now be granted to a female teacher for 180 days present leave days and only twice in one's career. Likewise a paternity leave of 15 day may be granted to a teacher father. 
It has also been suggested that women teachers having minor children may be allowed leave up two year for taking care of their children. In yet another suggestion, the women teachers have demanded leave for 2 to 3 years for bringing up children or joining their husbands. 
The Committee recommends that child care leave for and maximum period of 2 year (730 days) may be allowed to the women teachers during entire service period in line with central government women employees." 
Prima facie we find that the College, instead of considering petitioner's application for leave, has come to an understanding as stated in the impugned letter that she has abandoned her teaching post as she did not return back for duties within the stipulated time. 
The petitioner should have given full and complete facts regarding the date of birth of her baby, the period for which she was absent from teaching duties and whether the University has accepted the recommendation of the 6th Pay Commission, and has also not applied for leave in a proper way. 
We find that the College has not taken any decision on her request for leave sent by her vide e-mail, which ought to have been treated as child care leave. A letter, by which the Committee of Management has understood that she had abandoned teaching post, does not take into account the request to grant her leave. The abandonement can be inferred where the person is not reporting for work and has not applied for leave. In the present case, since the petitioner had applied for leave, even if it was not a proper way, the Committee should have considered the request. 
As an interim measure, we direct that if the petitioner applies for leave within a period of 15 days, the Committee of Management will consider her leave application in the light of the rules for leave, applicable in the College and also the recommendation of 6th Pay Commission, if they have been accepted by the Banaras Hindu University (a Central University). The petitioner will also give an indication as to when she would like to join. She will, however, not be paid salary until the management takes a decision on her leave application. 
Order Date :- 3.3.2011 RKP 



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News - शिक्षा मित्रों के केस में स्टडी लीव का प्रावधान नहीं, डिस्टेंस एजुकेशन के जरिये हायर एजुकेशन कर सकते हैं , रेगुलर ग्रेजुएशन करने पर शिक्षा मित्र की सर्विस ब्रेक हो गई, और बेचारी ट्रेनिंग पाने से रह गयी -

 News - शिक्षा मित्रों के केस में स्टडी लीव का प्रावधान नहीं, डिस्टेंस एजुकेशन के जरिये  हायर एजुकेशन कर सकते हैं , रेगुलर ग्रेजुएशन करने पर शिक्षा मित्र की सर्विस ब्रेक हो गई, और बेचारी ट्रेनिंग पाने से रह गयी - 


HIGH COURT OF JUDICATURE AT ALLAHABAD 

Court No.33

Civil Misc. Writ Petition No. 56637 of 2011
Km. Babita
Vs.
State of U.P. & Ors.
******
Hon. Dilip Gupta, J.

The State Government formulated a Scheme dated 11th July, 2011 for imparting two years teaching programme through Open and Distance Learning Mode to Untrained Graduate Shiksha Mitras. The petitioner, who claims to be an Untrained Graduate Shiksha Mitra, has filed this petition for a direction upon the respondents to send the petitioner for this two years training.
It is stated that the petitioner was engaged as a Shiksha Mitra in the year 2006 and during this engagement the petitioner also pursued her regular B.A. III year course. The reason for not sending the petitioner for such training is that the petitioner was a regular student of B.A. III year when she was engaged as a Shiksha Mitra and was, therefore, not continuously working as a Shiksha Mitra.
Learned counsel for the petitioner has submitted that permission from the Gram Shiksha Samiti was taken by the petitioner for appearing at the examination and, therefore, the respondents are not justified in not sending the petitioner for training.
Learned Standing Counsel appearing for the respondents has submitted that the Government Order dated 11th July, 2011 provides that only such Graduate Untrained Shiksha Mitras shall be sent for training who have been continuously working as Shiksha Mitras and as the petitioner was pursuing her regular B.A. Part III course, it cannot be said that she was continuously working as a Shiksha Mitra. He has also pointed out that the Government Orders dealing with engagement of Shiksha Mitras do not provide for grant of leave for the purposes of higher education and in fact, by the Government Order dated 15th June, 2007, it was specifically provided that Shiksha Mitras, who have passed Intermediate Examination shall not be granted leave for the purposes of obtaining Graduation Degree. This was, however, modified by the subsequent Government Order dated 12th November, 2008 to the extent that such Shiksha Mitras who had passed Intermediate Examination could be permitted to pursue their Graduation through Distance Education Mode only with leave to them for the examination days only and that too without payment of honorarium.
I have considered the submissions advanced by learned counsel for the parties.
It needs to be noticed that the Scheme of engaging Shiksha Mitras for teaching students of Primary Schools run by the U.P. Basic Education Board, was for the first time framed by the State Government by the order dated 26th May, 1999. The Scheme was framed as the State Government found as a fact that there was shortage of teachers eligible for appointment in the Primary Schools as a result of which the teacher taught ratio could not be maintained. The minimum eligibility requirement to be possessed by a candidate was notified as Intermediate or an equivalent examination and such Shiksha Mitras could be engaged on a fixed honorarium. The petitioner had only cleared the Intermediate examination when she was engaged as a Shiksha Mitra.
As noticed hereinabove, the entire Scheme to engage Shiksha Mitras was to fill up the existing shortage of teachers to teach in the Primary Schools run by the Basic Education Board. The petitioner, who was engaged as a Shiksha Mitra, however, during the course of her engagement for a fixed period of eleven months, with a provision for extension, decided to pursue her regular B.A. III year course. There was no provision for granting leave for such engagement as it only for the first time by the Government Order dated 12th November, 2008 that it was provided that leave could be given for the days when the examination was held to such Shiksha Mitras who had passed Intermediate Examination for pursuing higher education by Distance Mode.
The Government Order dated 11th July, 2011 which provides for sending Untrained Graduate Shiksha Mitras for two years training so as to make them eligible for appointment as Assistant Teachers under the relevant service Rules framed by the Board provides that the facility will be given only to those Shiksha Mitras who are continuously teaching in the School after the date of the initial engagement. Thus, Shiksha Mitras who pursued a regular Graduation course cannot be permitted to contend that they were continuously teaching in the Institution.
The issue regarding pursuing higher studies by such Shiksha Mitras who had only cleared the Intermediate Examination was examined by a Division Bench of this Court in Writ Petition No. 2373 of 2009 (Devi Prasad S/O Narsingh (P.I.L) Vs. District Magistrate/Chairman, District Education Level Committee) which was filed as a Public Interest Litigation. This petition was disposed of by the Court by the order dated 23rd February, 2010 with the following observations:-
"This writ petition, in the form of public interest litigation, is preferred by a Member of the Gram Panchayat of a village. The real purpose to be determined by this Court in this public interest litigation is as to whether a Shiksha Mitra can obtain leave for the purpose of higher studies or not. The point was restricted with regard to a particular school in the village in question, but upon considering the pros and cons and government orders, we find that as against the honorarium, some of the candidates are being chosen by the Selection Committee to impart basic education for a period of one year. If within such period leave is granted to any one, the purpose of imparting basic education will be frustrated. As a result thereof, we cannot appreciate any stand for obtaining leave with pay or without pay for higher education by any Shiksha Mitra, who has contractually been appointed for a period of one year as against the honorarium. It is correct to say that if a Shiksha Mitra wants to appear in any examination, he can obtain leave for a limited number of days without pay and thereafter join. The public purpose is to be placed over and above the private purpose and following the said logic, the purpose of imparting basic education cannot be allowed to be frustrated in the manner as proposed, therefore, as soon as one leaves without any intimation or with intimation for higher studies, the concerned authority will immediately deploy a new incumbent by way of fresh selection. However, the contract of the candidate, who obtains leave for higher studies, will, under no circumstance, be allowed to be renewed. We hope and trust that the State will follow the import of this order and issue appropriate government order as early as possible.
The petition is disposed of accordingly, however, without passing any order as to costs."
(emphasis supplied)

It is a consequence of the aforesaid decision of the Court that the Government Order dated 6th July, 2010 was issued which provides that for the purposes of higher education, Shiksha Mitra shall not be given leave but such Shiksha Mitras who desire to obtain higher degree through correspondence course can be granted leave to only appear at the examination without payment of honorarium.
It also needs to be pointed out that the Division Bench in Special Appeal No. 116 of 2010 (Smt. Dipti Singh Vs. State of U.P. & Ors.,) also, in its order dated 9th March, 2010, pointed out that the purpose of the Scheme would be frustrated if Shiksha Mitras were granted leave for higher education. The order is :-
"Apart from this technicality, the fact remains that the appellant very well knew that she was engaged/appointed under a scheme and that she had to follow the terms and conditions laid down for the purpose. The scheme did not provide anywhere for grant of study leave, rather, the entire scheme of Shiksha Mitra has been framed with an object to engage local residents for imparting education at the village level and if these local residents are allowed to go on leave for such a long duration, that too for enhancement of their educational qualification, it would defeat the very purpose of the scheme.
The plea of the appellant that the Village Level Committee or its Secretary has granted the leave and, therefore, also her services could not have been terminated, is of no consequence, reason being that the Village Level Committee itself was not competent, what to say of the Secretary, to grant any such study leave and if the Committee has acted in violation of the scheme or against the interest of the scheme, neither any benefit can be given nor any protection can be extended to the appellant for that reason.
Considering this aspect of the matter, the learned Single Judge has observed that the scheme of Shiksha Mitra is for educating the rural children, who are otherwise incompetent and incapable of going outside the village to get some education and that it is a benevolent scheme where only one teacher is appointed to teach the whole number of students available and, therefore, such a leave for enhancement of career, leaves hundreds of students in jeopardy.
At this juncture, learned counsel for the appellant submitted that in the present case, there were six teachers available.
Be that as it may, this Court would not exercise its discretionary jurisdiction for passing an order which would run contrary to the scheme itself and, therefore, we do not find any ground to interfere with the impugned order."
(emphasis supplied)

It is thus seen that both the aforesaid Division Benches of this Court have emphasized that obtaining leave with pay or without pay for higher education by any Shiksha Mitra, who has been contractually appointed for a period of eleven months against payment of honorarium, cannot be appreciated. It has also been observed that the Scheme which had been framed with the object of engaging local residents for imparting education at the primary level will be defeated if Shiksha Mitras are permitted to go on leave for enhancement of their educational qualification.
It is, therefore, not possible for the Court to accept the contention of learned counsel for the petitioner that she should be sent for training under the Government Order dated 11th July, 2011.
The writ petition is, accordingly, dismissed.
Date: 29.9.2011
NSC 

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News - स्टडी लीव मिलने के बाद भी बेसिक शिक्षक ने काम किया, विभाग ने स्टडी लीव के दौरान की सैलरी लौटने को कहा, जिसे कोर्ट ने खारिज कर दिया

 News - स्टडी लीव मिलने के बाद भी बेसिक शिक्षक ने काम किया, विभाग ने स्टडी लीव के दौरान की सैलरी लौटने को कहा, जिसे कोर्ट ने खारिज कर दिया -

स्टडी लीव दो साल की  21.01.2015 से 21.01.2017 की अवधि की थी,
याची ने 22.01.2015 से 23.03.2015 तक काम किया, और इस अवधि की सैलरी प्राप्त की, जिसे विभाग ने लौटाने को कहा,  कोर्ट ने कहा कि कार्य करने की अवधि की सैलरी लौटाई नहीं जा सकती

officer concerned granted the leave on 23.3.2015, however, with effect from 21.1.2015 till 21.1.2017

petitioner worked from 22.1.2015 till 23. 3. 2015 and received salary

 petitioner shall not be asked to refund the salary paid to him for the period he worked



HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH 

?Court No. - 7 

Case :- SERVICE SINGLE No. - 29803 of 2016 

Petitioner :- Sadan Ullah Khan 
Respondent :- State Of U.P.Thru.Prin.Secy. Deptt. Basic Education. & Ors. 
Counsel for Petitioner :- Alok Kr. Misra 
Counsel for Respondent :- C.S.C.,Rajiv Singh Chauhan 

Hon'ble Rajan Roy,J. 
Heard. 
The petitioner herein had sought study-leave earlier, which was not granted, therefore, he approached this court by means of writ petition No.236 (SS) of 2015 decided on 25.3.2015 in the following terms: 
"In view of the order dated 23.03.2015, passed by the District Basic Education Officer, Unnao, which has been produced by Ms. Jyoti Sikka, learned counsel for the District Basic Education Officer, Unnao (taken on record), the grievance of the petitioner appears to have been redressed. Accordingly nothing needs to be adjudicated in this writ petition, which is disposed of. 
However, if the petitioner is still aggrieved, he may make a representation to the authority concerned who shall consider and decide the same in accordance with law." 
The officer concerned granted the leave on 23.3.2015, however, with effect from 21.1.2015 till 21.1.2017. Contention of Sri Mishra, learned counsel for the petitioner, is the petitioner worked from 22.1.2015 till 23. 3. 2015 and received salary. Now in view of the sanction of leave with retrospective effect from 21.1.2015 he would be liable to refund the salary received. 
The contention appears to be reasonable enough, therefore, it is provided that the leave granted by the Basic Education Officer, Unnao on 23.3.2015 shall be effective from the date of the order and not prior to it and the petitioner shall not be asked to refund the salary paid to him for the period he worked and the said leave shall be treated as effective up to 23.1.2017 i.e. the period upto which the study was undertaken by the petitioner. The impugned order shall be treated as modified accordingly. 
The writ petition is disposed of in the above terms. 
Order Date :- 19.12.2016 
A.Nigam 



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News - स्टडी लीव पर से लौटने के बाद बेसिक शिक्षिका की नोकरी लापरवाही से टर्मिनेट कर दी, कोर्ट ने लापरवाह अधिकारियों की सैलरी से समस्त बेनिफिट देने का आदेश दिया -

 News - स्टडी लीव पर से लौटने के बाद बेसिक शिक्षिका की नोकरी लापरवाही से टर्मिनेट कर दी, कोर्ट ने लापरवाह अधिकारियों की सैलरी से समस्त बेनिफिट देने का आदेश दिया  -

बी टी सी करने की स्टडी लीव थी, लेकिन याची शिक्षिका ने बी एड कर ली, और इस कारण उसे नोकरी से टर्मिनेट कर दिया गया, 

समस्त मुआवजों / नोकरी बेनिफिट के साथ साथ 25 हज़ार रुपये का जुर्माना भी याची को देने का आदेश है 



HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH 

AFR 
Court No. - 3 
Case :- SERVICE BENCH No. - 826 of 2014 
Petitioner :- Smt. Rajmati Singh 
Respondent :- State of U.P. through its Principal Secretary U.P. Shasan Lucknow and others 
Counsel for Petitioner :- R.B. Srivastava 
Counsel for Respondent :- C.S.C.,Navendu Srivastava 

Hon'ble Sudhir Agarwal,J. 
Hon'ble Ravindra Nath Mishra-II,J. 
1. Heard Sri R.B. Srivastava, learned counsel for the petitioner and learned Standing Counsel for respondents.
2. Petitioner admittedly was appointed as Assistant Teacher (Untrained) in Block Jagatpur vide order dated 25.01.1971 passed by Adhyaksha, Zila Panchayat, Rai Bareilly. After enactment of U.P. Basic Education Act, 1972 (hereinafter referred to as the "Act, 1972"), the Schools maintained by Zila Panchayats were transferred to Board of Basic Education and thereafter it appears that petitioner was permitted to undergo B.Ed. course in Session 1973-74 by the then District Basic Education Officer, Rai Bareilly (hereinafter referred to as the "DBEO") vide order dated 02.08.1973, which is on record at page 97 of paper book. After completion of aforesaid course petitioner submitted her joining on 03.07.1974 but she was not allowed to join on the ground that she was granted study leave to undergo B.T.C. training and not B.Ed. and her services stand terminated. Petitioner represented against aforesaid termination which was ultimately rejected vide order dated 04.06.2009, whereagainst she filed review and then Claim Petition No. 1072 of 2010 before State Public Service Tribunal (hereinafter referred to as the "Tribunal") which has been decided vide judgment dated 13.12.2013, impugned in this writ petition, whereby Tribunal has partly allowed claim petition and set aside order dated 04.06.2009 declaring that petitioner should be treated to have continued in service but would not be entitled for any salary for the period she has not worked. Tribunal has also held that her representation was wrongly decided since petitioner could not have been terminated orally. At the best, department could have taken action after holding departmental inquiry and, therefore, Tribunal has further directed respondents to pass a fresh order on petitioner's representation. 
3. Learned counsel for petitioner submitted that at no point of time petitioner was terminated and since she was actually appointed by a written order, she could not have been terminated orally. Further, non-functioning of petitioner was for the fault of respondents inasmuch as she was allowed to undergo B.Ed. course in 1973-74 but on a totally misconceived and false premise that she was allowed to undergo B.T.C. training, she was not allowed to join after completion of B.Ed. course when she submitted joining in July, 1974 and thereby kept out of employment, patently illegally. Since she was appointed by a written order, which was not terminated by a written order, in law, she continued to work and would be entitled for all consequential benefits. 
4. We find from record that admittedly petitioner was granted permission to undergo B.Ed. course in Session 1973-74 vide order dated 02.08.1973 issued by DBEO, which reads as under: 
**Jherh jkterh nsoh] lgk;d v/;kfidk] dU;k twfu;j gkbZLdwy] xkSjk] jk;cjsyh ds vkosnu i= fnukad 31-07-1973] tks mifo|ky; fujh{kd dh laLrqfr lfgr bl dk;kZy; dks vxzlkfjr fd;k x;k gS] ds lUnHkZ esa mUgsa j.k/khj j.kUt; egkfo|ky;] vesBh] lqYrkuiqj ds l= 1973&74 esa ch0,M0 ds v/;;u] izf'k{k.k ,oa ijh{kk gsrq ,rn~}kjk vuqefr iznku dh tkrh gSA mDr izf'k{k.kksijkUr Jherh jkterh nsoh] dU;k twfu;j gkbZLdwy] xkSjk] jk;cjsyh esa gh lgk;d v/;kfidk dh gSfl;r ls v/;kiu dk;Z djrh jgsaxhA** 
"With regard to the application dated 31.07.1973 of Shrimati Rajmati Devi, Assistant Teacher, Kanya Junior High School, Gaura, Raebareli which has been forwarded to this office with the recommendation of Deputy Inspector of School, she is hereby permitted for study, training and examination of B.Ed. at Randhir Rananjay Mahavidyalaya, Amethi, Sultanpur in session 1973-74. After the said training, Shrimati Rajmati Devi shall continue to work in the capacity of Assistant Teacher at Kanya Junior High School, Gaura, Raebareli itself." 
(English translation by the Court) 
5. Aforesaid permission granted to petitioner does not amount to termination but in the context of service jurisprudence, it is considered as "study leave", during which period incumbent is entitled for full salary. After completion of B.Ed. course, petitioner submitted joining which was not accepted on a totally false, illegal and non-est premise that she was to undergo B.T.C. training, which she did not. 
6. It is also evident from record that in 1971 when petitioner was appointed in erstwhile Junior High School maintained by Zila Panchayat, her appointment was not illegal or contrary to any Rule. Aforesaid institutions were taken over by Board of Basic Education under the provisions of Act, 1972, there is also no provision which contemplates that Teachers already appointed in Schools maintained by local bodies, if do not possess training qualification of B.T.C. or equivalent, their appointment shall stand terminated or would be terminated in case they did not attain qualification of B.T.C. or equivalent thereto. On the contrary, Government orders issued from time to time show that those Teachers who did not possess training qualification of B.T.C. or equivalent, despite opportunity, were given untrained pay scale and those who could gain aforesaid qualification, were given pay scale applicable to trained Teachers. Appointment of petitioner, per se, was never treated to be illegal or contrary to law. 
7. The further fact that petitioner's grievance was attended by respondents after more than 30 years, itself shows a complete laxity and dereliction on the part of respondents-authorities who did not care to attend petitioner's grievance despite her representations and also deprived her from serving educational institution for no fault on her part. 
8. Tribunal unfortunately has not appreciated this fact that in 1971 when petitioner was appointed, B.T.C. training qualification was not a condition precedent for appointment and appointment was not held illegal after enactment of Act, 1972 whereunder Basic Education Institutions maintained by local bodies were transferred to Board of Basic Education and teaching and non-teaching staff of such institutions were transferred on the same terms and conditions, as applicable on the date of transfer. There was no provision that, a Teacher, if does not possess B.T.C. training qualification, his/her appointment would be illegal and liable to be terminated. 
9. Denial to petitioner to join service after she completed B.Ed. course, under permission of DBEO, was patently illegal and arbitrary for which petitioner cannot be made to suffer. It is a case where entire fault lie on the officials of Basic Education Department and in particular, the DBEO, Rai Bareilly, and for their fault petitioner cannot be made to suffer so as to deny salary for the period she was not permitted to work, illegally and in the teeth of law and that too without even terminating her services. 
10. The principle of "no work no pay" will not apply to this case. This Court in Brijendra Prakash Kulshrestha Vs. Director of Education & others 2007 (3) ADJ 1 (DB) has considered applicability of "no work no pay" and it has been held that an employer cannot deny salary to an employee, who is always willing and ready to work but was not allowed to do so by an act or omission directly attributable to employer. 
11. In Bhanu Pratap Vs. Director, Ayurvedic and Unani Sewae, U.P. Lucknow & Ors., 2011 (11) ADJ 606 this Court said: 
"9. This Court is of considered view that dismissal of petitioner from service having been found wholly illegal, and it is also having been seen that he was denied work on the post in question by employer in a wholly illegal manner, petitioner should be given relief of reinstatement with all consequential benefits including arrears of salary. This would be in consonance with the principle that an employee has 'no right to work' but only right to claim salary. In absence of anything to show that employee himself was unwilling to work, principle of "No Work No Pay' ought not to be applied in such a case. Such a principle in a case like this, if applied, would amount to confer a premium upon employer to enjoy benefit of a fault of his own. This would amount to allowing him (employer) to take advantage of his own wrong, which is not permissible in law particularly in a court of equity and justice. It is against all canons of justice." 
12. Here is a case which do not justifiably attract principle of "no work no pay" for the reason that petitioner has been made to suffer by a total illegal, arbitrary and unjust action on the part of officials of Basic Education Department. 
13. In the result, writ petition is allowed. Impugned judgmengt dated 13.12.2013 is hereby modified to the extent that petitioner is declared to have continued in service and entitled for all consequential benefits including salary. However, we grant liberty to Respondent-1 to make appropriate inquiry so as to find out who was/were the officer(s) in Basic Education Department, responsible for such a situation, and may recover entire amount, which is found ultimately payable to petitioner, from such officer(s). 
14. Petitioner is also entitled to costs, which we quantify to Rs. 25,000/-. 
Order Date :- 24.1.2017 
AK 



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बेसिक शिक्षक स्थानांतरण नीति में पिस गए - वास्तविक विशेष परिस्थिती की पात्रता रखने वाले , सामान्य कैंडिडेट्स को ट्रांसफर में पॉइंट आदि के आधार पर विशेष परिस्थिति से ऊपर रख दिया , जबकि जिस ट्रांसफर नीति को कोर्ट में बताया गया , उसमे सामान्य अभ्यर्थियों के मेरिट पॉइंट का कोई पैमाना नहीं

बेसिक शिक्षक स्थानांतरण नीति में पिस गए - वास्तविक विशेष परिस्थिती की पात्रता रखने वाले , सामान्य कैंडिडेट्स को ट्रांसफर में पॉइंट आदि के आधार पर विशेष परिस्थिति से ऊपर रख दिया , जबकि जिस ट्रांसफर नीति को कोर्ट में बताया गया , उसमे सामान्य अभ्यर्थियों के मेरिट पॉइंट का कोई पैमाना नहीं  

जब विशेष परिस्थिति से कोई मतलब ही नहीं , तो ट्रांसफर नीति सिर्फ यही होती की विवाहित महिलाओं  को पति /ससुराल के नजदीक तैनाती के लिए 5 वर्ष सेवा अवधि से छूट दी जाती है | 
सामान्य कैंडिडेट्स को ट्रांसफर में पॉइंट आदि के आधार पर विशेष परिस्थिति से ऊपर रख दिया , जबकि जिस ट्रांसफर नीति को कोर्ट में बताया गया , उसमे सामान्य अभ्यर्थियों के मेरिट पॉइंट का कोई पैमाना नहीं दिया | 

कुछ केसेस :
1. किसी अभ्यर्थी ने 20 साल सर्विस कर ली और वह किसी जिले में अपने परिवार के साथ रह रहा है , उसने ट्रांसफर का मौका मिलने पर आवेदन कर दिया | 

2. एक तरफ ऐसा परिवार है , जिसमे पति किसी और जिले में सरकारी नौकरी कर रहा है , और पत्नी किसी और जिले में , दोनों के बच्चे भी हैं , जिनकी देखभाल भी करनी है | 

लेकिन ट्रांसफर मूल्याङ्कन में केस नंबर 1 आगे है , और केस नंबर 2 पीछे | 
दूसरी तरफ ये भी बताया गया है की सरकारी सेवा में कार्यरत पति पत्नी को यथा संभव एक ही जगह तैनाती की जाएगी 

विशेष परिस्थिति के लिए कोई पैमाना नहीं होने पर वर्किंग कपल जो विशेष परिस्थिति में बिलकुल फिट बैठते हैं , वे ट्रांसफर मूल्याङ्कन में सभी महिला केस के बराबर आ गए , और नार्मल परिस्थिति वाले ट्रांसफर से भी पीछे रह गए | 

जबकि केंद्र व राज्य सरकार के नियम सरकारी सेवा में कार्यरत पति पत्नी को एक ही जिले में यथा संभव स्थानांतरण की अनुसंशा करते हैं ,
और कोर्ट भी इस तरह के कई फैसले दे चुका है की पति पत्नी को साथ रखा जाये , बच्चों की समुचित शिक्षा व्यवस्था प्रभावित न हो | 
चाइल्ड केयर लीव का नियम है , लेकिन पति पत्नी साथ नहीं रह पाएंगे तो कैसी चाइल्ड केयर होगी | 

अगर नियुक्ति कार्य क्षेत्र  जिला संवर्ग का है तो फिर अंतर्जनपदीय ट्रांसफर ही क्यों , अगर अंतर्जनपदीय ट्रांसफर हो रहे हैं चाइल्ड केयर , पति पत्नी वर्किंग जैसेविशेष प्रावधानों को कितना ध्यान में रखा जा रहा है 



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News - पति के वर्किंग प्लेस आगरा में ट्रांसफर की शिक्षिका की याचिका पर कोर्ट ने सचिव को निस्तारण करने का दिया आदेश -

 News - पति के वर्किंग प्लेस आगरा में ट्रांसफर की शिक्षिका की याचिका पर कोर्ट ने सचिव को निस्तारण  करने का दिया आदेश - 



HIGH COURT OF JUDICATURE AT ALLAHABAD 

?Court No. - 58 

Case :- WRIT - A No. - 10955 of 2018 

Petitioner :- Mamta Mishra 
Respondent :- State Of U.P. And 2 Others 
Counsel for Petitioner :- Shashi Ranjan Srivastava 
Counsel for Respondent :- C.S.C.,Vikram Bahadur Singh 

Hon'ble Ashwani Kumar Mishra,J. 
Petitioner appears to have made application for her inter district transfer� from District Etawah to District Agra on the ground that her husband is residing at Agra. The application of the petitioner submitted online� has not been considered so far.� Her application is required to be considered in terms of Rule 8(2)(d) of the Uttar Pradesh Basic Education (Teachers Posting) Rules, 2008. Grievance is that no orders have yet been passed upon the application of the applicant. 
It is stated that facts of the present case are similar to one occurred in Writ Petition No.2868 of 2018 (Bibha Singh Kushwaha and Others Vs. State of U.P.), decided on 6.2.2018. 
Sri V.B. Singh, learned Standing Counsel submits that the grievance of the petitioners shall be examined by the authority concerned, in accordance with law. 
Considering the above, this writ petition stands disposed of, permitting the petitioner to approach respondent no.3 alongwith certified copy of this order within a period of two weeks from today. The authority concerned shall examine the petitioner's grievance and appropriate decision would be taken by the authority concerned, in accordance with law and also keeping in view the observations made in Bibha Singh Kushwaha (supra) as well as Rule 8(2)(d) of the Rules of 2008, within a period of two months thereafter. 
Order Date :- 1.5.2018 
n.u. 



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News - ऑनलाइन आवेदन के बाद भी ट्रांसफर न होने पर, हाई कोर्ट में याचिका के जवाब में कोर्ट ने 2 महीने के अंदर ट्रांसफर पर निर्णय लेने को कहा -

 News - ऑनलाइन आवेदन के बाद भी ट्रांसफर न होने पर, हाई कोर्ट में याचिका के जवाब में कोर्ट ने 2 महीने के अंदर ट्रांसफर पर निर्णय लेने को कहा - 

HIGH COURT OF JUDICATURE AT ALLAHABAD 

?Court No. - 58 

Case :- WRIT - A No. - 11076 of 2018 

Petitioner :- Renu And 2 Others 
Respondent :- State Of U P And 3 Others 
Counsel for Petitioner :- Ashwani Kumar Yadav 
Counsel for Respondent :- C.S.C.,Pranesh Dutt Tripathi 

Hon'ble Ashwani Kumar Mishra,J. 
It is stated that facts of the present case are similar to one occurred in Writ Petition No.2868 of 2018 (Bibha Singh Kushwaha and Others Vs. State of U.P.), decided on 6.2.2018. 
Petitioners are Assistant Teachers working in Senior Basic School and Primary School, who are seeking transfer from one district to another. Reliance is placed upon the provisions of Rule 8(2)(d) of the Uttar Pradesh Basic Education (Teachers Posting) Rules, 2008. It is stated that in terms of the policy, petitioners have already moved online applications, which have not been considered so far. 
Considering the above, this writ petition stands disposed of directing the authority concerned to examine the petitioners' grievance, as noticed above, keeping in view the observations made in Bibha Singh Kushwaha (supra) and also Rule 8(2)(d) of the Rules of 2008, within a period of two months from the date of presentation of certified copy of this order before respondent no.3. 
Order Date :- 3.5.2018 
Anil 




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