Court No. - 38
Case :- WRIT - A No. - 5234 of 2020
Petitioner :- Dharmendra Singh
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Neeraj Shukla
Counsel for Respondent :- C.S.C.,Vikram Bahadur Singh
Hon'ble Vivek Agarwal,J.
Heard Sri Neeraj Shukla, counsel for the petitioner and Sri Arun Kumar, learned counsel for the respondents.
Petitioner has filed this petition claiming therein that petitioner was earlier working in Junior High School, Mohnapur, Block- Laxmipur, District- Maharajganj on 05.05.2015. On 23.06.2016, State Government issued a transfer policy for transferring the teachers of the Institutions run by Basic Shiksha Parishad in pursuance of the transfer policy dated 23.06.2016. Petitioner was transferred to District- Fatehpur vide order dated 21.08.2016. It is petitioner's contention that he was informed by the District Basic Education Officer, Fatehpur that the batchmates of the petitioner functioning in the District-Fatehpur at that time were not promoted and, therefore, petitioner has to go to his district from where he was transferred or he will have to work on a demoted post as an Assistant Teacher available at that time in district-Fatehpur. Petitioner in para-10 of the writ petition has mentioned that he was left with no other option but to approach his district i.e. Maharajganj for the required order as per the direction issued by the District Basic Education Officer, Fatehpur. Petitioner's contention is that since transfer has been made in terms of the policy, therefore his Grade-pay could not have been reduced from Rs.4600 to Rs.4200. Petitioner is entitled to pay protection.
In support of this contention, petitioner has placed reliance on the order dated 06.12.2018 passed in Writ-A No.25804 of 2018 and order dated 08.08.2019 passed in Writ-A No.14899 of 2019 and has sought a relief that he be paid salary with Grade-pay of Rs.4600 as he was getting before his transfer to District-Fatehpur.
Sri Arun Kumar, learned counsel appearing for respondent nos.3 and 4 submits that case of the petitioner is different from what has been canvassed by the petitioner and petitioner is not entitled to any relief.
It is submitted that as per the transfer policy dated 23.06.2016 as contained in Annexure-3, there is a specific provision that persons seeking transfer will be transferred in the desired district only when in the concerned district where a person is seeking transfer, persons of his batch are working on an equal post. It is submitted that admittedly in District-Fatehpur where petitioner sought transfer, his batcmates were not promoted to the Grade-pay of Rs.4600 and petitioner was given an option to either revert back to the district from where, he was transferred i.e. district-Maharajganj or in the alternative except the position as was obtaining in relation to his batch-mates.
At this stage, learned counsel submits that with a view to enjoy his transfer to District-Fatehpur, petitioner had gone back to district-Maharajganj, got himself reverted in the Grade-pay of Rs.4200 and thereafter joined at Fatehpur in the Grade pay of Rs.4200.
In view of such facts, now at this distance of time it is not open to the petitioner to claim relief and these facts have not been appreciated or were not brought to the notice of the co-ordinate bench when orders were passed in Writ-A No.25804 of 2018 and Writ-A No.14899 of 2019.
At this stage, Sri Shukla submits that under similar facts and circumstances, Secretary, U.P. Basic Education Council, Allahabad has passed orders and has allowed pay protection. He has drawn attention of this court to order no. Basic Shiksha Parishad/5468/2018-19 dated 23.07.2018, relevant portion of the order is reproduced hereinunder:-
";kphx.kksa }kjk izLrqr izR;kosnu ,ao vki }kjk izLrqr vk[;k ds voyksduksijkUr ;g rF; izdk'k esa vk;k fd ;kphx.kksa dk vUrtZuinh; LFkkukUrj.k izns'k ds fofHkUu tuinksa ls tuin tkSuiqj ds fy, ifj"kn ds fofHkUu vkns'kksa }kjk fd;k x;kA pwafd ;kphx.kksa dh inksUufr vius dk;Zjr tuin esa gks pqdh Fkh vkSj ml cSp ds fu;qfDr f'k{kdksa dh tuin tkSuiqj esa inksUufr ugha gq;h Fkh] ,slh fLFkfr esa ;kphx.kksa }kjk vius dk;Zjr tuinksa ls viuk inkour ysdj tuin tkSuiqj esa dk;ZHkkj xzg.k fd;kA ;kphx.kksa dk dFku gS fd budk osru ,y0ih0lh0 ds vk/kkj ij u fu/kkfjr djrs gq, inkuour in dk fu/kkZj.k fd;k x;kA tcfd c<+k gqvk osru fdlh Hkh n'kk esa de ugha fd;k tk ldrk gSA mDr ds lEcU/k esa lwP; gS fd ;kphx.kksa dks Pay Protection dk ykHk fn;k tkuk pkfg;sA vr% ,y0ih0lh0 (vfUre osru izek.k i=) ds vk/kkj ij u;s tuin esa osru dk vkx.ku dj Pay Protection ds fu;eksa dk ikyu fd;k tkuk pkfg,A mDr ds lEcU/k esa vkidks funsZf'kr fd;k tkrk gS fd ;kphx.kksa dks vfUre osru izek.k i= (,y0ih0lh0) ds vk/kkj ij osru vkWx.ku dj Pay Protection ds fu;eksa dk ikyu djrs gq, osru Hkqxrku djus dh dk;Zokgh dj ek0 mPp U;k;ky; ds vkns'k dk vuqikyu lqfuf'pr djsaA"
Thus, it is evident that petitioner himself had furnished an affidavit before the B.S.A. and vide order dated 22.07.2013, petitioner was demoted and then his pay was fixed in the Grade-pay of Rs.4200. Thus, there is no question of any pay protection because once petitioner sought transfer in a district of his own choice and decided to forego his promotion in the district where he was functioning on account of the fact that his batchmates were not promoted in the district of his choice where he sought his transfer, therefore, in terms of the order dated 23.06.2016 Clause-2 which reads as follows:
"2&mYys[kuh; gS fd m0 iz0 csfld f'k{kk ¼v/;kid½ lsok fu;ekoyh 1981 ¼;Fkk la'kksf/kr½ ds fu;e&4 ds vuqlkj ifj"knh; v/;kidksa dk lsok dk laoxZ LFkkuh; fudk; dk gS izR;sd tuin esa nks LFkkuh; fudk; xzkeh.k ,oa uxj {ks= ifjHkkf"kr gSA fu;ekoyh ds fu;e&21 ds vuqlkj v/;kidksa dk LFkkUkkUrj.k ,d LFkkuh; fudk; ls nwljh LFkkuh; fudk; esa v/;kid ds Lo;a ds vuqjks/k ij fd;s tkus dk izkfo/kku gSA ,slh fLFkfr esa vUrtZuinh; LFkkUkkUrj.k v/;kid dk vf/kdkj ugh gS] fQj Hkh v/;kidksa ds Lo;a ds vuqjks/k ,oa ifjfLFkfrtU; dkj.kksa ds n`f"vxr okafNr tuinksa esa miyC/k fjfDr ds lkis{k LFkkUkkUrj.k ij fd;k tk;sxkA vr% LFkkUkkUrj.k ds i'pkr ,d LFkkuh; ffudk; ls nwljs LFkkuh; fudk; esa LFkkuh; LFkkukUrfjr gksdj tkus ij v/;kid ml LFkkuh; fudk; laoxZ dh T;s"Brk dze esa dfu"Bre ekuk tk;sxkA"
Clause 3.2 reads as under:-
3.2 vUrtZuinh; LFkkukUrj.k gsrq bPNqd v/;kid }kjk fu/kkZfjr izk:i ij vkuykbUk vkosnu fd;k tk;sxk ftlesa v/;kid vf/keku dze esa 05 tuinksa dk fodYi izLrqr dj ldrs gSA v/;kidksa dk LFkkukUrj.k muds }kjk vf/keku dze esa fn;s x;s fodYi ds vk/kkj ij okafNr ftysa esa miyC/k fjfDr ds lkis{k gh mudh izkFkfedrk dze rFkk ojh;rk ds n`f"Vxr fd;k tk ldsxkA In view of the aforesaid Clauses, it is apparent that firstly, it is not a right vested in a Assistant Teacher/Teacher to seek transfer from one local body to another local body but a facility has been given under the provisions contained in Uttar Pradesh Basic Shiksha (Adhyapak) Seva Niyamawali, 1981 for transfer of teachers from one local area to another local area, if posts in the equivalent cadre are vacant. The connotation of equivalent cadre means that posts in the same Grade pay is available. Once, petitioner exercises this right and has failed to produce any material to show that post in the Grade-pay of Rs.4600 was vacant and available at the place where petitioner sought transfer i.e. in District-Fatehpur then petitioner is not entitled to pay protection as he had voluntarily foregone the promotion in the Grade-pay of Rs.4600 and opted for demotion in the Grade Pay of Rs.4200 and to suppress this fact petitioner has deliberately not enclosed the copy of Last Pay Certificate (L.P.C.) to substantiate that they were not demoted to be accommodated in a transferred district on lower Grade pay of demoted post.
Law in regard to protection of pay is well settled as has been laid down in case of Comptroller and Auditor General of India Vs. Farid Sattar as reported in (2000) 4 SCC 13 wherein, it has been held that where a person on his own volition seeks transfer on certain terms and conditions accepted by him and the terms and conditions of unilateral transfer are very clear and there is no ambiguity in it. The terms and conditions provided that the respondent on transfer could be appointed to a post which is lower to the post which he was occupying prior to his transfer in such a situation, the pay of the respondent had to be fixed with reference to the lower pay scale and not with reference to the pay drawn by him in the higher posts. In para-6, it has been specifically mentioned that under the terms and conditions of the transfer the pay which the respondent was drawing on the higher post was not required to be protected when he joined the lower post of accountant.
The facts of this case decided by Hon'ble Supreme Court are applicable in all force to the facts of the present case and once the petitioner himself had foregone promotion in the Grade-pay to Rs.4600 and opted for his promotion in the Grade-pay of Rs.4200, he is estopped from claiming dual advantage of transfer to a district of his own choice and drawing of higher Grade-pay from which he was demoted in terms of the policy so to be accommodated in the district of his own choice.
Thus, the orders on which petitioner has placed reliance are of no relevance for the present and the principles of pay protection will not be applicable in the case of the petitioner because once he was demoted then he was not drawing the salary in the Grade-pay of Rs.4600.
Accordingly, petitioner has failed to make out a case for pay protection and, therefore, petition fails and is dismissed.
Order Date :- 9.7.2020 Ashutosh
