SPECIAL APPEAL DEFECTIVE No. - 419 of 2021 Chief Justice Bench Allahabad Highcourt जिसने शिक्षकों को एक से अधिक बार ट्रांसफर के आवेदन के लिए मोका दिया
COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2021:AHC:63803-DB
?Court No. - 29Case :- SPECIAL APPEAL DEFECTIVE No. - 419 of 2021
Appellant :- Ajay Kumar
Respondent :- State Of U.P. And 6 Others
Counsel for Appellant :- Shivendu Ojha,Radha Kant Ojha (Senior Adv)
Counsel for Respondent :- C.S.C.,Chandan Agarwal,Jai Krishna Tiwari,Navin Kumar Sharma
Hon'ble Munishwar Nath Bhandari,Acting Chief Justice
Hon'ble Piyush Agrawal,J.
Heard Shri Radha Kant Ojha, learned Senior Advocate, assisted by Shri Shivendu Ojha, learned counsel for the appellant, learned Standing Counsel for the State, Shri Chandan Agarwal, learned counsel for respondent no. 6, Shri Jai Krishna Tiwari, learned counsel for respondent no. 4 and Shri Navin Kumar Sharma, learned counsel for respondent no. 5.
This appeal has been preferred against the judgement dated 03.11.2020.� An application to seek leave to appeal has been filed by the appellant because his rights are affected by the judgement.�
The application to seek leave to appeal is allowed, as being not opposed by the petitioner/non-appellant so as the State Government and otherwise, we find that the appellant is affected by the outcome of the judgement under challenge.
The writ petition filed by the petitioners has been decided after detailed discussion of the issues.� The learned Single Judge, thereupon, gave following directions for its general application:-
"64. Since in this judgment I have already held Clauses 2(1)(A),(B) of the Government order dated 2nd December, 2019 to be contrary and in conflict with the statutory rules contained under the posting Rules, 2008 and clause 16 to be contradictory to the clause 15 of the Government order and also defeating the very objective sought to be achieved under the posting rules, 2008 in the light of the objectives set forth under the Right to Free Education for all Act, 2009 and Clause 15 of the Government Order dated 2.12.2019 be read down in the light of the observations made earlier in this judgment for female candidates as they may be specially circumstanced, I come to conclude with following observations/ directions to be necessarily kept in mind before finalizing the list of teachers seeking inter-district transfer:-
(I) No inter district transfer shall be done in the mid of the academic session.
(II) Transfer application should be entertained strictly in the light of the provisions as contained in Rule 8(2)(a) (b) and (d) of the Posting Rules, 2008.
(III) Once a teacher has successfully exercised the option for inter district transfer, no second opportunity shall be afforded to any teacher of any category except in case of female teacher who has already availed benefit of inter district transfer on the ground of parents dependency, prior to her marriage. However, in case if the marriage has taken place then she will have only one opportunity to exercise option for inter district transfer either on the ground of parents dependency or spouse residence/ in-laws residence.
(IV) In case of grave medical emergency for any incurable or serious disease that may as of necessity, require immediate medical help and sustained medical treatment, either personally or for the spouse, a second time opportunity to apply for inter district transfer should be afforded to such a teacher even if he/she had exercised such option for inter district transfer for any other reason in the past.
(V) Application of differently abled person should have very sympathetic consideration looking to physical disability but they should also have only one time opportunity to exercise option for inter district transfer. In case of female teachers, such exception would apply, as referable to rule 8(2) (d) of Posting Rules, 2008.
(VI) In case of female teacher's right to seek transfer, relaxation given under Rule 8(2)(d) shall be read with rule 8(2) (b) and relaxation shall, therefore, be subject to rule 8(2) (b).
(VII) Save as observed and directed herein above (Direction Nos.III, IV and V), no second opportunity to exercise option for inter district transfer be made available to any candidate of any category whatsoever.
(VIII) The exercise of inter-district transfer since is exception to the general rule of appointment and posting, every application for transfer has to be addressed to by the competent authority keeping in mind the objectives set forth under the Act, 2009 and Posting Rules, 2008 as amended in the year 2010 and must be acceded to citing a special circumstance specific to the case considered."
The only question raised before us is with regard to denial of second application for inter-district transfer.� The learned Single Judge has restricted the number of application to seek inter-district transfer.� It has been directed that after one application, the employee would not be entitled to move second application for his inter-district transfer; other than, in the exceptional circumstances carved out by the learned Single Judge.� The direction, aforesaid, is said to be in violation of Rule 21 of the U.P. Basic Education (Teachers) Service Rules, 1981(hereinafter referred to as, 'the Rules of 1981') and Rule 8 of the U.P. Teachers Posting Rules, 2008 (hereinafter called as, 'the Rules of 2008'). Both the Rules are quoted herein-below for a ready reference:-
"Rule 21 of the Rules of 1981: Procedure for 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 shall be necessary.
Rule 8 of the Rules of 2008: Posting - (1) (a) Three options for schools shall be asked from the handicapped candidates in order of their merit and after receiving such option the handicapped candidates shall be posted on the basis of option given by them and the vacancies.
(b) Based on the order of their merit, female teachers would be required to submit under their signature option of three schools each from the general and backward block and accordingly, posting would be given in one of these schools.
(c) The posting of male teachers shall be made in accordance with the order of candidates in the roster prepared under Rule 7.
(2)(a) The newly appointed male teachers shall initially be posted compulsorily in backward areas for a period of at least five years.
(b) Newly appointed female teachers shall also be compulsorily posted in backward area for a period of at least two years.
(c) Mutual transfers within the district from general block and backward block and vice-versa would be permitted with the condition that the teacher on mutual transfer to a backward block shall have to serve in that block compulsorily for five years. Mutual transfers would be permitted only in case of those teachers who have more than remaining five year's service.
(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.
(e) If by virtue of posting of newly appointed or promoted teachers the primary and upper primary schools of backward blocks get saturated i.e. no post of teacher is vacant in these schools, then handicapped and female teachers on their choice can be adjusted against the vacant posts of general blocks from these saturated blocks.
(f) Mutual transfers of male/female teachers from one backward blocks to another can be considered.
(3) Teachers transferred from one district to another will be given posting as per the provision of these rules."
Rule 21 of the Rules of 1981, quoted above, imposes a bar on 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.
The transfer from one district to another has not been permitted as a course, but can be made on the request or with the consent of the teacher.� Rule 8 of the Rules of 2008 also provides that 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.� Both the rules do not preclude number of applications for seeking inter-district transfers.
In view of the above, the learned counsel for the appellant submits that there was no occasion for the learned Single Judge to bar second application for inter-district transfer.� The transfer of teachers, otherwise, remains in the domain of the State Government and thereby, mere submission of the application does not create any right in favour of the employee to seek transfer.� It remains at the discretion of the Government.� If a teacher gives one application for inter-district transfer and is accepted, the Rule does not bar further transfer by making an application.� It is more so, when, on seeking inter-district transfer, one loses his seniority.� He/she is placed at the bottom of the seniority of the district he/she is transferred.�
The restraint imposed by the learned Single Judge on second application for inter-district transfer is de hors the Rules.�
The counsel for the petitioner has supported the appeal. He submits that there was no prayer in the writ petition to prohibit second application for inter-district transfer after first application has been accepted or rejected; rather, the Government Order, imposing prohibition to make second application for inter-district transfer, was challenged. It was for the reason that the condition imposed by the administrative order was de hors the Rules.� When the Rules do not prohibit second application, it could not have been imposed by an administrative order.�
The prayer is, accordingly, to modify the judgement of the learned Single Judge by accepting the appeal.
The counsel appearing for the State has, initially, opposed the appeal, but could not show any provision to prohibit second application for inter-district transfer.� In a case where the first application for inter-district transfer is accepted and one is transferred to another district, the Rules do not cast a bar on another application later on to seek inter-district transfer.� It is specially when making an application does not create a right of transfer. The transfer, otherwise, affects the employee in order of seniority. The learned Standing Counsel is fair enough to accept that there is no bar under the Rules to prohibit second application for inter-district transfer.�
In view of the above, we find that the Government Order, imposing bar on second application for inter-district transfer, is not in consonance with the Rules; rather, de hors the statutory Rules.� To that extent, we are entertaining this appeal and causing interference in the directions issued by the learned Single Judge prohibiting second application for inter-district transfer. It is, however, with the clarity that mere making of application would not mean a right to get transferred; rather, it would remain at the discretion of the State Government.� It is furthermore that if the Government permits inter-district transfer, the employee would be placed at the bottom of the seniority in the district where he/she is transferred. �
With the aforesaid, we cause interference in the order of the Government as well as the judgement of the learned Single Judge to clarify that as per Rule 21 of the Rules of 1981 so as Rule 8(2)(d) of the Rules of 2008, an employee would be at liberty to make application for inter-district transfer and it would not be restricted to only one application in his service tenure. It is again with the clarification that mere making of an application would not create a right to get transferred; rather, it would remain at the discretion of the Government.�
If any employee has been affected by the outcome of the judgement in question, he would be at liberty to take the remedy individually challenging the order of transfer.
The appeal is allowed with the aforesaid.
Order Date :- 5.7.2021
Amit Mishra
