Friday, November 17, 2017

News - सचिव को स्थानांतरण पर जवाब नहीं देने पर कोर्ट की अवमानना का आदेश, 4 हफ्ते में स्थानांतरण पर जवाब दे, याची शिक्षिका पत्नी ने शिक्षक पति के कार्यस्थान के नजदीक स्थानांतरण मांगा था -

   News - सचिव को स्थानांतरण पर जवाब नहीं देने पर कोर्ट की अवमानना का आदेश, 4 हफ्ते में स्थानांतरण पर जवाब दे, याची शिक्षिका पत्नी ने शिक्षक पति के  कार्यस्थान के नजदीक स्थानांतरण मांगा था -

महिलाओं के लिए बेहद तकलीफ है या तो बेसिक शिक्षक जॉब की कुर्बानी दें या फिर बच्चों की देखभाल, परिवार पति से दूर रह कर नोकरी करते रहें।
महिला सशक्तिकरण के लिए हमारे देश की सरकार प्रतिबध्द है ,

केंद्र और राज्य सरकारों के लगभग सभी विभागों ने सरकारी सेवा में कार्यरत पति पत्नी के लिए नियम कानून भी बनाया हुआ है कि पति व पत्नी को एक ही स्थान पर पोस्टिंग देने की पूर्ण कोशिश करें।

अब बेसिक शिक्षा में इनकी मुश्किलों का समाधान होगा कि नहीं, ये भविष्य बताएगा।






HIGH COURT OF JUDICATURE AT ALLAHABAD 

?Court No. - 16 

Case :- CONTEMPT APPLICATION (CIVIL) No. - 5041 of 2017 

Applicant :- Priyanka Tiwari 
Opposite Party :- Sri Sanjay Sinha,Secry', Basic Edu. Board U.P. Allahabad 
Counsel for Applicant :- Neeraj Pandey 

Hon'ble Ashwani Kumar Mishra,J. 
This contempt petition alleges disobedience of an order passed by the writ court on 9.8.2017 in Writ Petition No.35382 of 2017, which reads as under:- 
"Counsel for the petitioner prays that he does not want to press prayer no. (i). He is permitted to delete the said prayer. 
The petitioner is an assistant teacher in a junior basic school namely Kanya Poorv Madhyamik Vidyalaya, Pachpahra-H, Block Kabrai, district Mahoba. Her grievance is that her husband is a trained graduate teacher, Science, and is currently posted at Chitrakoot Inter College, Karvi, Chitrakoot. She has made a representation dated 17.7.2017 to the Secretary, U.P. Basic Education Board for her transfer at the place where her husband is posted on the ground of couple posting. 
Learned counsel for the petitioner submits that transfer policy of the State Govt. provides that in case the spouse is working at different places, then endeavour shall be made for their posting at the same place. However, the claim of such transfer has been affected by Govt. Order dated 13.6.2017 wherein certain conditions have been imposed for entertaining applications for couple posting. One of the conditions is that application of only those teachers shall be entertained who have completed minimum five years' service on 31st March of the year of application. Learned counsel urges that said Govt. Order is contrary to Rule 8(2)(d) of U.P. Basic Education(Teachers)(Posting) Rules, 2008. 
Learned counsel has drawn attention of the Court to an order dated 19.7.2017 of this Court passed in Writ-A No. 30808 of 2017, Bibha Singh Kushawaha Vs. U.P. Basic Education Board and others, wherein same issue fell for consideration before the Court. Relevant part of the said order is extracted below : 
"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(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 3.5.2017 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(d) of the Rules, 2008. 
Accordingly, a direction is issued upon the first respondent to consider the representation 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." 
I have heard learned counsel for the petitioner, learned standing counsel and Sri Shesh Chand Upadhyay for the BSA. 
Taking into consideration facts of the present case, I am of the view that petitioner is entitled for benefit of the order extracted hereinabove. 
Accordingly, a direction is issued upon the third respondent to consider grievance of the petitioner in the light of the judgment extracted above, expeditiously within two months from the date of communication of the order. 
With the above direction, the present writ petition stands finally disposed of. No order as to costs." 
It is stated that the aforesaid order has been served upon the opposite party by registered post on 25.8.2017, but it has not been complied with. 
In case the allegations made in this petition are correct then prima facie a case of disobedience of the order of writ court is made out. However, in the facts and circumstances, this Court finds it appropriate to grant one further opportunity to the opposite party to ensure compliance of the order of writ court. 
Office is directed to send a copy of this petition to the opposite party concerned alongwith a copy of this order. It shall keep a record of the same. Process fee for the purpose be supplied by the applicant within a week. 
This contempt petition is, accordingly, disposed of with a direction upon the opposite party to ensure compliance of the order of writ court, in accordance with law, within a period of four weeks from the date of presentation of certified copy of this order. Liberty, however, is reserved to the applicant to approach this Court again in case order of the writ court is not complied with.� 
Order Date :- 8.11.2017 
Anil 



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Thursday, November 16, 2017

एसआईटी जांच पर सवाल उठा रहे शिक्षक

एसआईटी जांच पर सवाल उठा रहे शिक्षक

ब्यूरो/अमर उजाला, फिरोजाबाद
Updated Wed, 15 Nov 2017 11:44 PM IST
डा. बीआर अंबेडकर यूनिवर्सिटी में बीएड सत्र 2004-05 फर्जीवाडे़ की जांच के घेरे में आए गुरुजी पर नोटिस पहुंच चुके हैं। बुधवार तक करीब एक दर्जन से ज्यादा शिक्षकों ने स्पष्टीकरण जमा करते हुए खुद को निर्दोष बताया है। एसआईटी जांच को बेबुनियादी कहा है।
डा. बीआर अंबेडकर यूनिवर्सिटी में बीएड में बडे़ स्तर पर फर्जीवाड़ा हुआ था। कईयों ने नंबर बढ़वाएं तो कईयों ने नकली डिग्री बनवा कर सरकारी शिक्षक की नौकरी हासिल कर ली थी। जांच में करीब 155 शिक्षक जिले में सामने आए हैं। एक शिक्षक की मृत्यु करीब एक माह पूर्व हो चुकी है। जांच घेरे में आए 154 शिक्षकों को नोटिस देते हुए 17 नवंबर तक स्पष्टीकरण देने को कहा गया है।
बुधवार तक 15 शिक्षकों ने नोटिस का स्पष्टीकरण दे दिया है। स्पष्टीकरण में शिक्षकों ने स्वयं को निर्दोष बताया है। कई शिक्षक ने कालेज की उपस्थिति पंजिका भी अंकित की है। फीस रसीद एवं अन्य अभिलेख जमा कर दिए हैं। बीएसए सचिदानंद यादव ने कहा कि स्पष्टीकरण आने शुरु हो गए हैं। 17 नवंबर के बाद उन पर विचार विमर्श किया जाएगा।
पूरी तरह फर्जी साबित हुए हैं, वो तो स्वयं बचने के लिए जांच को गलत बता रहे हैं। उपस्थिति पंजिका लगा रहे हैं। मगर जिन शिक्षकों ने फर्जी तरह से अंक बढ़वाएं थे, वो क्या करें, समझ से परे है। हालांकि वो शिक्षक भी एसआईटी को पर बेबुनियादी बताते हुए खुद को निर्दोष बता रहे हैं। 17 नवंबर के बाद विभाग क्या करेगा, अभी निर्णय नहीं लिया है।




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सेवाकाल में अक्षमता पर कम वेतनमान पर रखना गलत : हाईकोर्ट

सेवाकाल में अक्षमता पर कम वेतनमान पर रखना गलत : हाईकोर्ट

हिन्दुस्तान टीम, इलाहाबाद
Updated: 15 नबम्बर, 2017 7:51 PM
इलाहाबाद हाईकोर्ट ने एक महत्वपूर्ण आदेश में कहा है कि कोई कर्मचारी किसी वजह से मूल पद पर कार्य के लिए अक्षम हो जाता है तो विभाग उसे कम वेतनमान पर दूसरे काम में नहीं रख सकता। कर्मचारी को उसी वेतनमान पर दूसरे पद पर रखा जा सकता है। कोर्ट ने रैंक से छोटे पद पर कार्य के लिए कम वेतन देने पर रेलवे पर 50 हजार रुपये हर्जाना लगाया है। साथ ही कर्मचारी को उसके मूल वेतनमान के साथ समान पद पर तैनात करने का निर्देश दिया है।

यह आदेश न्यायमूर्ति भारती सप्रू एवं न्यायमूर्ति सिद्धार्थ की खंडपीठ ने केंद्र सरकार की याचिका को खारिज करते हुए दिया। कोर्ट ने पीड़ित कर्मचारी एसक्यू अहमद को बकाया वेतन सात फीसदी ब्याज के साथ एक माह में भुगतान करने का निर्देश भी दिया है। कोर्ट ने कहा कि कम वेतन देने से न केवल कर्मचारी के जीवन स्तर पर प्रभाव पड़ेगा बल्कि उसका परिवार भी प्रभावित होगा। ऐसे में अक्षम कर्मचारी को कम वेतन पर नियुक्ति नहीं दी जा सकती।

केंद्रीय प्रशासनिक न्यायाधिकरण ने रेलवे कर्मचारी को राहत देते हुए कहा था कि कम वेतनमान पर नियुक्ति गलत है। उसे पद के समान वेतन पर दूसरे विभाग में रखा जाए। रेलवे ने याचिका में इसी आदेश को चुनौती दी थी। मामले के तथ्यों के अनुसार, कर्मचारी की आंख की कमजोरी के कारण उसे विभाग में दूसरे पद पर कम वेतन पर तैनात किया, जिसे कैट में चुनौती दी गई। कर्मचारी का कहना था कि सेवाकाल में अक्षमता आने पर उसे समान वेतनमान पर दूसरे कार्य के लिए नियुक्त किया जा सकता है। रेलवे उसे कम वेतनमान पर दूसरे काम के लिए नियुक्त नहीं कर सकता।



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Tuesday, November 14, 2017

बच्चों की पढ़ाई को ध्यान में रखकर मानवता के आधार पर कोर्ट ने याची को ट्रांसफर लाभ का दिया आदेश -

बच्चों की पढ़ाई को ध्यान में रखकर मानवता के आधार पर कोर्ट ने याची को ट्रांसफर लाभ का दिया आदेश  





CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH

Original Application No. 513/2011 

Jodhpur, this the    Ist   day of January 2013
      
[Reserved on 18.12.2012]

CORAM :

HON BLE Mr. B.K.SINHA, ADMINISTRATIVE MEMBER

Girdhari Lal Chaudhary 
S/o Shri Teja Ram aged about 51 years, 
resident of Sunaro Ka Nohra Ki Gali, 
Shastrinagar, Barmer at present 
employed on the post of Postal Assistant
 in Barmer HO in Barmer Postal Division.
. Applicant
[Through Mr.J.K.Mishra, Advocate]

Versus

1. Union of India through Secretary to the Government of India, Ministry of Communication & Info. Technology, Department of Post, Dak Bhawan, Sansad Marg, New Delhi.
2. Post Master General, Rajasthan Western Region, Jaipur 302001.
3. Superintendent of Post Offices, Barmer Division, Barmer. 
...Respondents

[Through Mr. Vinit Mathur, ASGI with Advocate Mr. Anirudh Purohit]
      ORDER
The instant OA is directed against the order transferring the applicant from the post of Treasurer, Barmer HPO in Barmer, to Jodhpur Division under the provisions of Rule 37 of the P&T Manual, Volume IV subject to the conditions as laid down in Rule 37 in the interest of service, with immediate effect. The applicant in his application has prayed for the following relief(s):-

(i) That impugned order dt. 28.4.2011 (Annexure A-1) and order dated 4.5.2011 (Annexure A/2), may be declared illegal and the same may be quashed. Any adverse order, if passed on his pending representation, may also be quashed. The respondents may be directed to allow all consequential benefits to the applicant as if none of the impugned orders were in existence.

(ii) That the respondents may be directed to produce the relevant file containing noting leading to decision to pass the impugned order at the time of hearing of this case, for perusal by this Hon ble Tribunal so as to unfold the true facts.

(iii) That any other direction, or orders may be passed in favour of the applicant which may be deemed just and proper under the facts and circumstances of this case in the interest of justice.

(iv) That the cost of this application may be awarded. Case of the applicant:

2. The applicant was transferred at Head Office, Barmer in June 2009 and was put to work as Postal Assistant w.e.f. 15.10.2010. His three daughters are studying locally at Barmer. On 11.06.2010, instructions were issued by the Circle Headquarters for making special arrangements for remittance of cash for Mahatma Gandhi NREGS in the peak season for wage payment vide letter dated 9/10.12.2010 at Annex.A/3. No additional man power was sanctioned for this and the task has to be performed with the aid of existing strength. Since the task involved deviation from the normal rules, a good deal of confusion prevailed and the employees were left to their own wisdom to sort the same out. The applicant was placed under suspension on 24.09.2010 which was revoked 20 days latter on 14.10.2010. He was issued a Chargesheet vide Memo dated 24.11.2010 for temporary misappropriation for two to six days [A/4]. The applicant following the revocation of the suspension order was posted to work as Postal Assistant at Head Office, Barmer. However, the impugned transfer order has been issued on 28.4.2011, whereby, he has been transferred in administrative interest to Jodhpur Division vide Annex.A/1 under Para 37 of the P&T Manual, Vol.IV. The applicant has been posted as Postal Assistant at Jodhpur vide order dated 4.5.2011 passed by the respondent No.3. The learned counsel for the respondents contends that the normal tenure is of four years but, the applicant has been transferred after six months affording him the post of Postal Assistant at Barmer Head Office which, he fears, will adversely affect his seniority. The applicant has further drawn the attention of the Tribunal to the fact that the All India Transfer liability of Group C and Group D employees have been done vide letter No. 20-12/90 SPB.I dated 23.8.1990. The applicant has also submitted a detailed and exhaustive representation to the 2nd respondent without having evoked any reply. The applicant informs that he is also facing disciplinary proceedings and he has been put to jeopardy in case he is transferred out.

Case of the respondents

3. The respondents have filed a counter reply opposing the OA. The learned proxy counsels Shri Anirudh Purohit and Ms. Garima Chouhan, argued the case vehemently against the plea of the applicant being allowed. The transfer order has been carried out as per the procedure established under law and is not to set with any lacuna. The applicant stands charged with having temporarily misappropriated the Government money more than Rs. 38 lakhs by showing false entries of facts of cash remittances and he actually did not remit the cash to the concerned cash office while the amount was falsely shown in the transit and transit entries were adjusted in latter dates. The matter was reported to the Post Master General, Rajasthan Western Region. The applicant has been transferred on receipt of directions from the Assistant Director General, New Delhi under the provisions of Rule 37 of the P&T Manual, Vol. IV subject to the conditions as laid down in Rule 37 in the interest of justice to a less sensitive place. A Chargesheet has been issued against the applicant vide O.M. dated 24.11.2010. The applicant feigned sickness on 9.2.2011, as he did not want to face the oral inquiry order. The learned counsels for the respondents were at pains to emphasize that the transfer has not been carried-out as per Rule 60 of the P&T Manual and the Director General combines in himself his own inherent powers with those of the competent authority. The learned proxy counsels for the respondents further submitted that the seniority of the applicant stands to be fully protected and that it is not a punitive transfer but, only as a measure of administrative precaution.

4. I have carefully gone through the pleadings and have also listened to the arguments advanced by their respective counsels and I find that the following facts in issue are germane to this case:

1. Whether the transfer is punitive or has been made as administrative measures?

2. Whether there is a lack of application of mind to the facts of this case or leading to miscarriage of justice?

3. Whether the transfer is hit by the procedural irregularities    or misapplication of laws of natural justice?
4. What relief, if any, could be given to the applicant?

Whether the transfer is punitive or has been made as administrative measures?

5. In so far as the first issue is concerned it is necessary to go into the provisions of FR 15 which provides as under;-

15. (a) The President may transfer a Government servant from one post to another provided that except

(1) on account of inefficiency or misbehaviour, or 
         (2) on his written request,

A Government servant shall not be transferred to, or except in a case covered by Rule 49, appointed to officiate in a post carrying less pay than the pay of the post on which he holds a lien.  


6. Rule 37 of the P&T Manual provides as under:-

37. All officials of the Department are liable to be transferred to any part of India unless it is expressly ordered otherwise for any particular class or classes of officials. Transfers should not, however, be ordered except when advisable in the interests of the public service. Postmen, village postmen and Group D servants should not, except for very special reasons, be transferred from one district to another. All transfers must be subject to the conditions laid down in Fundamental Rules 15 and 22.

7. It emerges from a plain reading of Rule 37 of the P&T Manual that a transfer under this provision can be made either in the interest of the service or on the basis of inefficiency or for misbehaviour. As per the counter replies submitted by the respondents and the submissions made by the learned counsel of the respondents, there is more to the allegation than what the applicant is prepare to concede. The applicant has represented that this is a simple case of temporary measure misappropriation at its worst. A special provision has been made for expediting the payment under the Mahatma Gandhi NREGA programme and the applicant was given a custody of some of cash, out of which a part could not be disbursed by him. It is contended that there was no time to deposit the same in Bank and he was acting as per the order of his superior authorities to retain the cash. This does not amount even to temporary defalcation as the action of the applicant was covered under superior orders. Departmental proceedings have not even commenced against the applicant. In any case, the provisions of Rule 34 and Rule 37 of the P&T Manual, Vol. IV, are not attracted as no administrative interest is being served by transferring the applicant out to a place 300 Kms. from his present place of posting. The applicant has also relied upon the case of Kamlesh Trivedi versus Indian Council of Agricultural Research & Anr. reported in ATR 1988 (2) CAT 116 = 1989 (1) SLJ 641, wherein, it has been held as under :

No inquiry need be made if no finding of guilt, misconduct or stigma is attached. Transfer may be on administrative grounds and one of the grounds could very well be the allegations themselves. If the transfer is ordered in the exigency of service without giving any finding on the allegations, it would not be vitiated. If a charge sheet is issued and statement regarding imputation of misconduct is given or a memo is issued on a complaint and the representation of the employee or statement with reference thereto is recorded, or even where no chargesheet, or statement regarding imputation of misconduct or a memo has been issued but the concerned official s statement with regard to the allegations has been recorded, that would more than satisfy the principles of natural justice. But we must add that the question of observing the principles of natural justice in a case of transfer does not arise where it is not based upon a finding on the allegations of misconduct or the like made against the employee. But if a finding of misconduct is arrived at without observing the principles of natural justice and that is the operative reason for transfer, it is liable to be quashed.

8. In the instant case, I have no reasons to disbelieve the statement of the learned counsels for the respondents that the charges are grave and the departmental proceedings are under progress. There is also no reason to disbelieve that the applicant is occupying a sensitive post and that the applicant has to be removed to a different location as an administrative measure. When questioned, the learned counsels for the respondents submitted that it was a part of the administrative policy that once such incidence have been there, where a considerable sum money is involved defalcation administrative precautions have to be taken. This transfer has come as a part of administrative requirement. It is neither punitive nor motivated. It has been clearly held by a number of decisions by the Hon ble Apex Court that who should serve where is the discretion of the Department and it cannot be determined by the Courts/Tribunals. The scope of interference of the Courts/Tribunals would only arise when there is a mala fide involved or there is a violation of any statute or the applicant faces hostile discrimination. In this regard, the applicant has relied upon the case of Union of India and Ors. Vs. Janardhan Debanath and Anr., reported in 2004 SCC (L&S) 631. In this case, it is apt to quote from the aforesaid judgment 9. A bare reading of Rule 37 shows that officials of the Department are liable to be transferred to any part of India unless it is expressly ordered otherwise for any particular class or classes of officials. Transfers were not to be ordered except when advisable in the interests of public service. The transfers can be made subject to conditions laid down in FRs 15 and 22. The appellant has indicated as to why and under what circumstances the transfers were thought proper in the interests of public service. The High Court while exercising jurisdiction under Articles 226 and 227 of the Constitution of India had gone into the question as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon the peculiar facts and circumstances of the case concerned. No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their won decision for that of the employer / management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corpn. Ltd. V. Shri Bhagwan.

10. The Fundamental Rules primarily deal with the financial implications and consequences relating to services of government servants whose pay is debited to civil estimates and to any other class of government servants too to which the President may, by general or special order, declare them to be applicable. Rule 15 has to be read along with Rule 14-B. FR 15 has been quoted above and, therefore, quotation of FR 14-B would suffice. The same reads as follows :

14-B. Subject to the provisions of Rule 15, the President may transfer to another post in the same cadre, the lien of a government servant who is not performing the duties of the post to which the lien relates.

11. A bare reading of FR 15 makes it clear that except in cases where the transfer is (a) on account of inefficiency or misbehaviour, or (b) on a written request the government servant cannot be transferred or except in a case covered by Rule 49 appointed to officiate in a post carrying less pay than the pay of the post on which he holds a lien. The clear intention of the prescription is that except the two categories indicated above, in all other cases the pay to be paid on transfer shall not be less than of the post on which he holds a lien. Exception is made in case of a transfer where it is on account of inefficiency or misbehaviour. In a case where transfer is on account of inefficiency or misbehaviour, the same can be made to a post carrying less pay than the payoff the post on which he holds a lien. Similar is the position where a transfer is made on a written request. Where the transfer is otherwise than for inefficiency or misbehaviour or on a written request made by the transferred employee, the protection of pay is ensured. The High Court seems to have completely misconstrued the rule as if there cannot be any transfer in terms of FR 15 on account of inefficiency or misbehaviour. The view is clearly contrary to the pronounced intention of FR 15.

9. Since the application of Rule 37 of the P&T Manual, as quoted above, is a matter of facts which have already been narrated, I find that going deeper into the principle of administrative convenience down to the last digit is not the job of this Tribunal. It would otherwise take the place of the superior authority of the department which is not intended. In the case of Union of India Vs. S.L.Abbas reported in 1994 SCC (L&S) 230 Hon ble the Supreme Court has held as under :-

6. An order of transfer is an incident of Government service. Fundamental Rule 11 says that the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority . Fundamental Rule 15 says that the President may transfer a Government servant from one post to another . That the respondent is liable to transfer anywhere in India is not in dispute. It is not the case of the respondent that the order of his transfer is vitiated by mala fides on the part of the authority making the order, - though the Tribunal does say so merely because certain guidelines issued by the Central Government are not followed, with which finding we shall deal later. The respondent attributed mischief to his immediate superior who had nothing to do with his transfer. All he says is that he should not be transferred because his wife is working at Shillong, his children are studying there and also because his health had suffered a setback some time ago. He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force.

7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right.

10. The contention of the applicant that it was a simple case of retaining the money under superior orders, cannot be accepted on face value in the light of what has been submitted by the learned counsels for the respondents on the gravity of offence with which the applicant is being charged. Moreover the full gamut of departmental proceedings are yet to be gone through. Therefore, there can be no presumption regarding the innocence of the applicant at the present juncture of time nor is the departmental proceeding principally, in issue. Therefore, I find myself only to give any opinion on the same in absence of which the contention of the respondents on this issue must sustain.

Whether there is a lack of application of mind to the facts of this case or leading to miscarriage of justice?

11. In so far as the 2nd issue is concerned, the learned counsel for the applicant has alleged that there is a total non-application of mind leading to miscarriage of justice. The instances cited for this allegation include that the transfer order is punitive by nature and the respondents have not produced any documents in support of their contention. Besides, the respondents have further not considered the representation of the applicant and have made no orders in respect thereof. There is no reply in respect to the issue of representations. Otherwise, the rest of the points do not sustain as the counter reply of the respondents has been filed under oath and they stand responsible for what they have stated. Of course, the representation of the applicant should have been disposed of in due course. However, the fact that they were not disposed of did not detract from the rights of the applicant to litigate and that is how they are here.

Hence, the fact that the representation of the applicant was not disposed of in due course does not serve to vitiate the transfer nor does it serve as proof of discrimination.

Whether the transfer is hit by the procedural irregularities or misapplication of laws of natural justice.

12. As regards the 3rd issue it is well established that the matter need not be discussed in length as it has been partially covered by other issues particularly issue No. 1. Yet, I find that the applicant has not assigned any cogent reason by which procedural laches or deviation from the same could be established. The issue therefore, needs no further elaboration.

What relief, if any, could be given to the applicant?

13. As regards the 4th issue, it has to be answered based upon the discussions in the previous paragraphs. It stands to reason that the only point I find in favour of the applicant is that his representations have not been considered or disposed of and the respondents have not given any documentary proof nor they have stated to this effect. There is also a humanitarian aspect involved in the whole process that the three daughters of the applicant happen to be studying from college down to school at Barmer, their studies would get dislocated on account of this transfer. Hence, the following directives are given:

i. While not holding any infirmity in the orders of transfer, the competent authority is directed to consider the representation(s) of the applicant on humanitarian grounds and perhaps pass an order posting the applicant to some convenient post so that the studies of his children do not get disturbed.

ii. The competent authority may consider his representation within a period of three months. I am sure that the competent authority would appreciate that transfer to Jaisalmer is not the only way to serve the administrative purpose. It could have been equally well served perhaps by retaining the applicant in some other post in some other capacity at Barmer or nearby so that his family could be protected from such dislocation

14. The parties are left to bear their own costs.

(B K SINHA) ADMINISTRATIVE MEMBER jrm

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इलाहबाद हाई कोर्ट ने एक महत्वपूर्ण निर्णय में याची को सीधा ट्रांसफर लाभ दिया, कारण देखिए - - neither an administrative exigency of service nor in public interest, to hold his transfer with some order and therefore such order set aside-

इलाहबाद हाई कोर्ट  लखनऊ बेंच ने एक महत्वपूर्ण निर्णय में याची को सीधा ट्रांसफर लाभ दिया, कारण देखिए -
neither an administrative exigency of service nor in public interest, to hold his transfer with some order and therefore such order set aside



HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH 

Reserved 

Case :- SERVICE SINGLE No. - 647 of 2013 

Petitioner :- Anil Kumar Srivastava 
Respondent :- State Of U.P. Thru. Prin. Secy., Panchayati Raj & Others 
Counsel for Petitioner :- V.K. Srivastava 
Counsel for Respondent :- C.S.C. 

Hon'ble Anil Kumar,J. 
Heard Sri V.K. Srivastava, learned counsel for the petitioner, Sri Pankaj Patel, learned Additional Chief Standing Counsel and perused the record. 
By means of present writ petition, petitioner has challenged the impugned order of transfer dated 11.1.2013 ( Annexure no.1) passed by opposite party no. 3/ District Magistrate, Raebareilly by which he has been transferred. 
Learned counsel for the petitioner while challenging the impugned order of transfer submits that the same is illegal , arbitrary in nature as the petitioner is at the verge of retirement and he has to retire from service after attaining the age of superannuation in February, 2014. 
In addition to above said facts, he also summits that the petitioner is disabled person so keeping in view the said fact, the impugned order is arbitrary in nature being contrary to the provisions as provided under para 10(5) of the transfer policy dated 22.3.2012. 
After hearing learned counsel for the parties and going through the record and the averments as made in the counter affidavit filed on behalf of opposite parties , it is not in dispute that the petitioner has to retire from service after attaining the age of superannuation in February ,2014 and he is a disabled person. 
Further, no Government employee has any right to be posted at any particular place forever, because transfer is not only an incidence of service, but also a condition of service, and as such it is necessary in public interest and in the interest of efficiency in public administration. There is no hostile discrimination in transfer from one post to another when the posts are of equal status and responsibility. The transfer in posts, which are in the same grade or cadre or considered equivalent can be affected on administrative exigencies. 
The general principles in respect to the transfer an employees that can be deducted from various judicial pronouncements and the statutory provisions are as follows: 
(i)that an employee cannot be transferred out of his cadre or establishment against his wish; 
(ii) that no transfer can be justified merely because the pay is not affected, when the appointment is made to a specified post or a specified group of posts; 
(iii) that the Government employee cannot be asked to perform duties which were never expected of him at the time of recruitment; and 
(iv) that the expectation of future promotion cannot be wiped off by moving a Government employee around. 
The attributes of transfer are :- 
(i)A transfer order is an incident of Government Service. 
(ii)Who should be transferred and where is a matter for a appropriate authority to decide. 
(iii)Unless the transfer order is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. 
(iv)While ordering transfer, the authority must keep in mind the guidelines issued by the Government on the subject. 
(v)If a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. 
(vi)The guidelines providing that as far as possible, husband and wife be posted at the same place do not confer upon the Government servant a legally enforceable right. 
(vii)Executive instructions are in the nature of guidelines. They do not have statutory force." 
Further, the judicial review of order of transfer can be done, if the order of transfer suffers from the vice of mala fide exercise of power when the transfer is made not in public interest or administrative exigency, but simply to accommodate another employee without any justifiable reason. Unless the order of transfer is shown to be an outcome of mala fide exercise of power or violative of any statutory provision or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with by the courts as a matter of routine for every type of grievance sought to be made. 
Keeping in view of the above said facts as in the instant case petitioner has to retire from service after attaining the age of superannuation in the month of February,2014 and he is disabled person so at the verge of retirement to transfer him by order dated 11.1.2013 ( Annexure no.1) is neither an administrative exigency of service nor in public interest, liable to be set aside. 
For the foregoing reasons , the writ petition is allowed and the impugned order of transfer dated 11.1.2013 ( Annexure no.1) passed by opposite party no.3/ District Magistrate, Raebareilly is set aside. 

Order Date :11.9.2013 
dk/ 


http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do?judgmentID=2784829



UP Teacher Transfer, Husband Wife Posting Same Place, 

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Highcourt Order - Husband wife should be posted at one place consider minor child problem of female employee - Normally court do not interfere but here case is different

Highcourt Order - Husband wife should be posted at one place consider minor child problem of female employee 

Normally court do not interfere but here case is different



HIGH COURT OF JUDICATURE AT ALLAHABAD 

?Court No. - 17 

Case :- WRIT - A No. - 34998 of 2017 

Petitioner :- Smt. Sujata Verma 
Respondent :- State Of U.P. And 2 Others 
Counsel for Petitioner :- Dhirendra Mohan Chaudhary 
Counsel for Respondent :- C.S.C. 

Hon'ble Pradeep Kumar Singh Baghel,J. 
C.M. Amendment Application No.293270 of 2017 
Heard. 
Amendment Application is allowed. 
Learned counsel for the petitioner may carry out necessary amendment during the course of the day. 
Order on Writ Petition 
The petitioner is a lecturer in Economics. She is working at Government Girls Inter College, Phaphamau, Allahabad. It is stated that vide order dated 22.12.2016 she has been promoted as Headmistress in Government Girls High School, Afzalpur Bari, Sirathu, Kaushambi. Her grievance is that since her husband is working as Assistant Teacher in Swami Vivekanand Inter College, Sahson, Allahabad, she may be adjusted in any other Institution on the equivalent post in Allahabad in place of present transferred place at Kaushambi as under the Transfer Policy of the State Government it is provided that endeavour should be made to post husband and wife together. 
It is stated in the writ petition that the petitioner has moved an application on 20.6.2017 before the Director of Education (Secondary), U.P., Allahabad-third respondent giving her preference for transfer at Nursery Teachers Training Institute, Allahabad; Shishu Training Institute, Allahabad; District Institute of Education and Training, Allahabad; and State Institute of Educational Management & Training, Allahabad. 
I have heard learned counsel for the petitioner and the learned Standing Counsel. 
It is a well settled law that in the matter transfer or adjustment, the Courts ordinarily do not interfere as it is an administrative matter. The petitioner in the present writ petition has averred that she has several other personal problems as she has a minor son and her husband is posted at Swami Vivekanand Inter College, Sahson, Allahabad.� 
From the record it appears that the petitioner has made a representation for redressal of her grievance.� 
In view of the above, the writ petition is disposed of with the direction upon the third respondent to consider the cause of the petitioner and pass appropriate order in accordance with law expeditiously, preferably within two months from the date of communication of this order. 
No order as to costs. 
Order Date :- 8.9.2017 
Digamber 



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News - - सैकड़ों शिक्षकों की नौकरी जाना तय 436 शिक्षक दागी ’ सचिव बेसिक शिक्षा परिषद ने सभी बीएसए से मांगी थी रिपोर्ट ’ 65 जिलोंकी रिपोर्ट आना बाकी, हजारोंमेंहो सकती है संख्या

News - 



सैकड़ों शिक्षकों की नौकरी जाना तय 436 शिक्षक दागी

’ सचिव बेसिक शिक्षा परिषद ने सभी बीएसए से मांगी थी रिपोर्ट
’ 65 जिलोंकी रिपोर्ट आना बाकी, हजारोंमेंहो सकती है संख्या


इलाहाबाद वरिष्ठ संवाददाता
फर्जीवाड़े के आधार पर नौकरी हथियाने वाले सैकड़ों परिषदीय शिक्षकों पर कार्रवाई तय है। आगरा विश्वविद्यालय से 2004-05 सत्र में जारी फर्जी अंकपत्र के आधार पर बेसिक शिक्षा परिषद के स्कूलों में नियुक्ति पाने वाले शिक्षकों की जांच में चौंकाने वाली रिपोर्ट मिल रही है। दस जिलों की रिपोर्ट में सवा चार सौ से अधिक शिक्षक दागी मिले हैं। इन सभी की बर्खास्तगी तय है।अभी 65 जिलों की रिपोर्ट आना बाकी है। ऐसे में माना जा रहा है कि फर्जीवाड़ा कर नौकरी पाने वाले शिक्षकों की संख्या हजारों में हो सकती है। हाईकोर्ट के आदेश पर विशेष अनुसंधान दल (एसआईटी) ने डॉ. भीमराव अम्बेडकर विश्वविद्यालय आगरा के बीएड सत्र 2004-05 के परिणामों में फर्जी अंकतालिकाओं/परिणामों से संबंधित जांच की थी। एसआईटी रिपोर्ट में खुलासा हुआ कि 3517 छात्रों का परिणाम अंकित कर दिया गया और 1053 की अंकतालिकाओं से छेड़छाड़ की गई। यानी कुल 4570 छात्रों को फर्जी अंकतालिकाएं वितरित कर उन्हें विश्वविद्यालय के टेबुलेशन चार्ट में शामिल कर लिया गया। जांच रिपोर्ट मिलने के बाद सचिव बेसिक शिक्षा परिषद संजय सिन्हा ने फर्जी अंकतालिका हासिल करने वालों की सूची 12 अक्तूबर को सभी बीएसए को भेजकर सत्यापन के निर्देश दिए थे



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Female Transfer Preference related old order in 2012 -

Female Transfer Preference related old order in 2012 








(ii) The inter-district transfer of teachers shall be considered in the following order of preference:- 
(a) Female teacher who applies for transfer on marriage basis. 
(b) Female teacher who applies for transfer in a district other than her home district. 
(c) Female teacher who applies for transfer in her home district. 
(d) Male teacher who applies for transfer in a district other than him home district. 
(e) Male teacher who applies for transfer in his home district. 
(iii) For transfer of teacher working in schools governed by the Board three options of the districts in order of preference shall be obtained on one application Form laid down Board. 
(iv) Teacher willing for transfer, if working as head master in primary schools and assistant teacher in upper primary schools after promotion their transfer shall be considered in the applied/opted district, only when the teachers appointed in the same year have got promotion. The transfer of head teacher of upper primary schools shall not be permitted. 

(v) The female teacher willing for transfer according to the order of preference prescribed in clause (ii) above shall be transferred, on the basis of first option given by them, in applied/opted district in order of their seniority. After that they shall be transferred on the basis of their second option, and remaining female teachers shall be transferred on the basis of their third option. Thereafter transfer of male teachers shall be considered on the basis of their seniority, in the district on the vacant posts available against sanctioned posts in respective district. 


HIGH COURT OF JUDICATURE AT ALLAHABAD 

AFR 
Court No. 30 
Reserved on 22.11.2012 
Delivered on 29.11.2012 

Civil Misc. Writ Petition No. 58880 of 2012 

Uma Pandey and others 
Versus 
The State of U.P. and others 



Civil Misc. Writ Petition No. 60118 of 2012 
Sheerat Naseem Wasti and others 
Versus 
State of U.P. and others 

Hon'ble V.K.Shukla,J 
In both these writ petitions grievance of the petitioners is to the effect that transfer and posting has not at all been carried out in open and transparent manner and the institutions have been allotted arbitrarily and in view of this transfer/posting order dated 06.10.2012 be quashed and respondents-authority be directed to conduct open counselling for posting of petitioners and others in consonance with the provision as contained under U.P. Basic Education (Teachers) (Posting) Rules 2008 and as per amended Rules 2010. 
Brief background of the case as is reflected that petitioners have been performing and discharging their duties as Assistant Teachers/Headmaster in the institutions run and managed by the Basic Education Board U.P. at Allahabad constituted under the provisions of U.P. Basic Education Act, 1972 and have been serving in District other than Allahabad. Service conditions of petitioners are governed by statutory rules known as U.P. Basic Education (Teachers Service) Rules 1981. Therein in the said Rules amendment has been introduced known as U.P. Basic Education (Teachers Service) (13th Amendment) Rules 1981, wherein provision has been incorporated for providing another district transfer i.e from one district to another and as per the same each and every incumbent was obliged to move on line application and thereafter on the basis of application so moved transfer was to be considered strictly as per the parameter of the aforesaid Rules as has been provided for. 
This much is also clear that incumbents who would be transferred would be accorded placement at the bottom of the list of the teachers of corresponding class or category in the aforesaid district. Each one of the petitioner who have been working in their respective district and as they fulfilled parameter as provided for applied for consideration of their transfer under U.P. Basic Education (Teachers Service) (13th Amendment) Rules 1981 and thereafter list of incumbents who have been transferred has been published on 14.08.2012 effectuating transfer by Secretary Basic Shiksha Parishad, U.P. at Allahabad. As far as petitioners are concerned they have requested for being transferred to district Allahabad by giving their option and their option has been accepted and they have been transferred to District Allahabad. 
On being transferred issue has been raised as to in what way and manner placement is to be accorded to the said incumbents qua their respective place of posting i.e. the assignment of respective institution where they are supposed to function and in the said direction as placement and posting is governed by statutory Rules, recourse has been undertaken of the aforesaid Rules known as U.P. Basic Education (Teachers) (Posting) Rules 2008 and said Rules have further been amended in year 2010 Rules 8(3) mentions that teachers transferred from one District to another will be given posting as per the provision of these Rules. After said incumbents have reported for their joining at Allahabad, District Level Posting Committee has been constituted in this regard and same comprised of Vinay Kumar Pandey, Principal District Institute of Education and Training, Allahabad who was the Chairman of the aforesaid Committee, Dinesh Kumar Yadav, District Basic Education Officer, Allahabad as Member Secretary, Shyam Kishor Tiwari, Senior Lecturer, District Institute of Education and Training, Allahabad, and Smt. Sudha Yadav, Principal Government Girls Inter College, Allahabad as Members. Said District Level Posting Committee in question proceeded to ask for option from the aforesaid incumbents in this direction and the incumbents, who have joined upto 03.09.2012 were required to submit their option on 21.09.2012 and incumbents who have joined on 04.09.2012, and uptill 22.09.2012 they were asked to submit their option on 22.09.2012 and in this regard notification has been published in newspaper Dainik Jagran and Amar Ujjala. Apart from this on the basis of information so furnished by respective Block Education Officer vacancies in question have been identified in reference to institution in question which were lying closed known as list "A" and in reference of the institutions where single teacher has been posted known as List "B" and the list of said institution has been finalized in English Alphabetical order by arranging the same in ascending order and thereafter list of vacancies as has been existence in respect of institution lying closed and where single teacher had been functioning had been published and it has also been pasted on the Notice Board and by the prescribed date as was fixed in all 807 incumbents have given their option for being posted as Assistant Teachers of Primary Institutions and 95 incumbents have given their option for being posted as Assistant Teachers at Senior Basic School/ Headmaster of Primary institutions. 
After said option of institutions has been submitted then in consonance with the Rules it is stated the exercise has been undertaken by means of resolution dated 05.10.2012 and keeping in view option so submitted and keeping in view the seniority prepared on the basis of joining and date of birth in district Allahabad same had been arranged and at the first instance female physically handicapped candidates and male physically handicapped category candidates have been considered for posting and thereafter all female candidates have been resolved to be offered posting as per their seniority and in respect of Assistant Teachers of Senior Basic Schools and Headmaster of Primary School resolution has been passed to make placement keeping in view subject as well as seniority on the basis of date of joining and date of birth in district Allahabad. Thereafter meeting had been convened on 06.10.2012 and on the said date resolution has been passed mentioning therein that at the first instance female physically handicapped category candidate have been accommodated on the basis of their choice given by them in the list of institutions mentioned in the list "A" and list "B". In the said direction female physically handicapped candidates, who have opted for, institution of their choice they have been given institution of their choice. Similarly in respect of the physically handicapped male category candidates as per their seniority status from list "A" and "B" they have been accorded institution and posting of their choice. Lastly it has been mentioned that as per option so furnished and as per seniority list so prepared option has been considered and from amongst female category candidates 294 female category got institution chosen by them in their option and in respect of 484 female category candidates as qua the institution in question qua which option has been exercised by them was not available then as per seniority from the list which have been prepared in accordance with ascending order of English Alphabet at the first instance institutions which were lying closed and where only single teacher was available same has been allotted and it has been stated, that rightful exercise has been undertaken accordingly. 
After the said list has been prepared, lot of hue and cry has been made in respect of aforesaid list in question and then it is reflected that some complaints have been made before the District Magistrate therein it has been stated that placement/posting has not been made fairly and correctly and District Magistrate thereafter constituted four member committee comprising of Chief Development Officer, Allahabad as Chairman; Chief Treasury Officer, Allahabad and District Basic Education Officer, Allaha bad and District Social Welfare Officer, Allahabad as Members. Said committee in question submitted its report mentioning therein that posting have been accorded strictly as per the Rules and there are clerical errors and same can be rectified by the District Level Posting Committee and thereafter it is further reflected that District Basic Education Officer Allahabad constituted three members committee comprising Ramesh Chandra Mishra, Block Education Officer, Allahabad, K.D. Yadav, Block Education Officer, Allahabad and Jawahar Lal, Block Shiksha Adhikari Bahriya, Allahabad to submit its report and the said committee in question proceeded to mention that female category candidates have been excluded from roster and posting exercise has been undertaken as per option and in respect of left out teachers posting has been given keeping in view the seniority status and said report is dated 22.11.2012. It appears that petitioners were still not satisfied with the posting process as has been undertaken and they have rushed to this Court. 
This Court on 08.11.2012 has proceeded to pass following order: 
"Put up this case on 21.11.2012. 
By that time, Sri A.K. Yadav, Advocate is directed to obtain necessary instructions qua the provisions of roster which has been made applicable for female teachers. Instructions may also be obtained in reference to paragraph 16 of the writ petition. Coupled with this details be also furnished by way of instructions as to whether strictly on merits and as per choice transfers have been effectuated or not. . 
Thereafter when the matter has been been taken up, Sri A.K.Yadav, Advocate has produced all the relevant record to demonstrate the way and manner in which proceeding for posting has been carried out. 
Parties to the dispute have agreed that present matter be taken up for final hearing and disposal. 
Sri R.K. Ojha, Advocate as well as Sri R.K. Upadhyay, Advocate appearing with Sri S.K.Singh, Advocate submitted that in the present case entire procedure so adopted and adhered to on the face of it is dehors the statutory provision as at the first instance seniority which has been so determined is per se bad and coupled with this, once option has been exercised and institutions so opted mentioned were not at all available even then thereafter as per seniority status, institutions available ought to have been put up for exercising their choice and in view of this procedure which has been so adopted is totally unfair, arbitrary and unreasonable and the posting has not at all been accorded in consonance with the provision as contained under the Rules, as such writ petition in question deserves to be allowed. 
Sri A.K. Yadav, Advocate on the other hand contended that all fairness and transparency has been maintained at the time of finalising of posting lists and same has been prescribed strictly in consonance with the Rules and in view of this this Court should not interfere with the aforesaid posting order as procedure which has been adopted is fair and transparent and even seniority has been properly determined and no one has ever objected to the same. 
In order to appreciate the respective arguments, the pleadings as set out in the writ petitions as well as record which has been produced before this Court alongwith statutory provisions such as Rules which hold the field for selection and appointment and transfer as well as seniority as well as relevant Rules in reference of posting are being looked into. Selection and appointment as Assistant Teacher in Primary Schools as well as Senior Basic School which is inclusive of the post of the Headmaster as already mentioned above is governed by statutory Rules known as U.P. Basic Education (Teachers Services) Rules 1981. Under aforesaid Rules, Rule 19 deals with appointment, Rule 20 deals with appointment to be made by order; Rules 21 deals with procedure for transfer and Rule 22 deals with seniority. Rule 21(unamended) and 22, of the aforesaid Rules being relevant are being extracted below: 
Rule 21: 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 to the same district or from local area of one district of that of another district except on the request of or with the consent of the teachers himself and in either case approval of the Board shall be necessary. 
Rule 22 of 1981 Rules:- Seniority- (1) The seniority of a teacher in a cadre shall be determined by the date of his appointment in a substantive capacity: 
Provided that, if two or more persons are appointed on the same date their seniority shall be determined in which their names appear in the list referred to in Rule 17 or 17-A or 18, as the case may be. 
Note- A candidate selected by direct recruitment may lose his seniority, if he fails to join without valid reasons when a vacancy is offered to him whether the reasons in any particular case are valid or not shall be decided by the appointing Authority. 
(2) The seniority of a teacher who has been transferred from one local area to another in accordance with the provisions of Rule 21 shall be placed at the bottom of the list of teachers of the corresponding class or category pertaining to the local area to which he has been transferred as on the date of orders for transfer are passed, such a persons shall not be entitled to any compensation. 
State of U.P. proceeded to amend the Rule 21 by means of U.P. Basic Education Teachers Service (13th Amendment) Rules, 1981 wherein provision for inter-district transfer has been provided for by substituting Rule 21 of U.P. Basic Education (Teachers Services) Rules 1981. Rule 21 as amended by Thirteenth Amendment is being extracted below: 
Rule 21 - Procedure for Transfer :- Any teacher who is working as Assistant Teacher/Headmaster in Schools governed by the Board on October, 31, 2011 may submit his/her option/application once in his/her service period for transfer from one district to another district on the proforma laid down by the Board in the manner prescribed by it, which shall be effective till his/her transfer is executed. 
(i) On and from the commencement of the Uttar Pradesh Basic Education (Teachers Service) (Thirteenth Amendment) Rules 2011, headmasters/ teachers who are willing to seek inter-district transfer shall have to submit their options/applications till December, 31, 2011. The options/applications for transfer received by the Board shall be listed in accordance with opted district wise by the Board in order of their date of substantive appointment. 
(ii) The inter-district transfer of teachers shall be considered in the following order of preference:- 
(a) Female teacher who applies for transfer on marriage basis. 
(b) Female teacher who applies for transfer in a district other than her home district. 
(c) Female teacher who applies for transfer in her home district. 
(d) Male teacher who applies for transfer in a district other than him home district. 
(e) Male teacher who applies for transfer in his home district. 
(iii) For transfer of teacher working in schools governed by the Board three options of the districts in order of preference shall be obtained on one application Form laid down Board. 
(iv) Teacher willing for transfer, if working as head master in primary schools and assistant teacher in upper primary schools after promotion their transfer shall be considered in the applied/opted district, only when the teachers appointed in the same year have got promotion. The transfer of head teacher of upper primary schools shall not be permitted. 
(v) The female teacher willing for transfer according to the order of preference prescribed in clause (ii) above shall be transferred, on the basis of first option given by them, in applied/opted district in order of their seniority. After that they shall be transferred on the basis of their second option, and remaining female teachers shall be transferred on the basis of their third option. Thereafter transfer of male teachers shall be considered on the basis of their seniority, in the district on the vacant posts available against sanctioned posts in respective district. 
(vi) No option shall be accepted after 31.12.2001 the date prescribed for submission of application/option by the teacher for inter-district transfer. It shall be the last opportunity for the teachers to submit their application/options for inter-district transfer. The teachers who have not submitted their option till the stipulated date, the right to give option thereof shall stand expired. 
(vii) In accordance with the above procedure, the teachers by whom the option for their transfer have been submitted, this rule shall stand infructuous for them after the execution of their transfer on the aforesaid basis. 
(viii) The facility of this rule shall not be admissible to the teachers appointed after dated 31.10.2011." 
In the present case each one of the petitioners who have been performing and discharging duties either in the capacity of Assistant Teacher in Primary School or Headmaster of Primary School or the Assistant Teacher in Senior Basic School applied for inter district transfer by exercising their option on the premises that they fulfil the term and condition for being transferred. Claim of the petitioners have been considered at the level of Secretary U.P. Basic Education Prishad at Allahabad and thereafter transfer list has been finalized on 14.08.2012 accepting the transfer of the petitioners at district Allahabad. After the aforesaid list in question has been finalized, it appears that petitioners have been relieved from their respective district and have reported on different dates at the office of District Basic Education Officer. After they had reported in the office of District Basic Education Officer, the District Basic Education Officer, has proceeded to make publication in daily news paper Dainik Jagran and Amar Ujjala mentioning therein that the candidates who have joined at the office District Basic Education Officer they should submit their option and it was also precisely mentioned therein that all those incumbents who have joined on 03.09.2012, they should submit their option on 21.09.2012 and those candidates who have joined on 04.09.2012 and upto 20.09.2012 they should submit their option on 22.09.2012 at the office of Principal, District Education and Training Institute. 
This Court at this juncture proceeds to take note of the provision as contained under U.P. Basic Education (Teachers) (Posting) (First Amendment) Rules 2010. 
2. Amendment of Rule 5- In the U.P. Basic Education (Teachers) (Posting) Rules 2008 hereinafter referred to as the said rules, for Rule 5 the following rules shall be substituted namely; 
"5 for the purpose of posting, the list of teachers selected in accordance with the provision of the U.P. Basic Education (Teacher) Service Rules 1981 shall be prepared in the manner mentioned hereinunder- 
(f) Handicapped candidates 
(g) General candidates 
(h) Candidates belonging to Other Backward Classes 
(i) Candidates belonging to Scheduled Castes 
(j) Candidates belonging to Scheduled Tribes." 
3. Amendment of Rule 6- In the said rules for Rule 6 the following rule shall be substituted, namely:- 
"6. The list of schools shall be prepared in the following manner- 
(d) The blocks of the district mentioned in Appendix A shall be identified as general and backward blocks as per Rule 4 and separate lists of teachersless schools will be prepared for these blocks in accordance with the order of English Alphabet. The name of the block will also be mentioned in the bracket with school's name. 
(e) The blocks of the district mentioned in the Appendix A shall be identified as general and backward blocks as per Rule 4 and separate lists of single teacher schools will be prepared for these blocks in accordance with the order of English Alphabet. The name of the block would also be mentioned in the bracket with school's name. 
(f) The lists of schools other than the schools described in clause (a) and (b) shall be prepared separately for general and backward blocks in the ascending order of Pupil Teacher Ratio." 
4. Amendment of Rule 8:- In the said rule for Rule 8 set out in Column I below the rule as set out in Column II shall be substituted, namely- 
"8(1) (a) Three options for schools shall be asked from the handicapped candidates in order of their merit and after receiving such options the handicapped candidates shall be posted on the basis of options 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 of 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 virtual of posting of newly appointed or promoted teachers the primary and upper primary schools of backward blocks get saturated i.e. no post of teachers 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) Matual 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 provisions of these rules." 
Bare perusal of the U.P. Basic Education (Teachers) (Posting) (First Amendment) Rules 2010 would go to show that at the first instance list of institutions is to be got prepared wherein institutions are lying closed. The said list in question is to be prepared in ascending order of English Alphabet alongwith the name of respective blocks and the institution. Second list of institutions to be prepared is wherein single teachers are functioning in schools in accordance with ascending order of English Alphabet alongwith the name of the block in the bracket with school's name. As per amended Rule 8(1) (a) from the handicapped candidates three options for the schools where they intend to join is to be asked. It has also been provided that after receiving such options the handicapped candidates would be posted on the basis of options given by them and the vacancies. Rules 8 (1) (b) mentions that based on the order of their merit, female teachers would be required to submit their option of three schools each from the general and backward block and accordingly, posting would be given in one of these schools. It has also been mentioned therein under Rule 8(1) (c) that male teachers shall be accorded placement in accordance with the order of candidates in the roster prepared under Rule 7. 
Bare perusal of the aforesaid Rules would go to show that in the matter of posting in reference of physically handicapped candidates and in respect of female candidates special provision has been made so that said incumbents can get their posting with element of their choice being there. 
In the present case factual situation which is emerging and which has been highlighted before this Court that seniority has been determined on the basis of their respective date of joining and date of birth and on the basis of aforesaid seniority list so prepared posting has been sought to be accorded in respect of institutions and accordingly posting made is per se bad. 
First issue, which this Court takes note of, is as to whether incumbents who have been transferred their seniority status has been determined strictly as per the Rules or not in the facts of present case. 
Rule 22 has already been quoted above, which clearly proceeds to mention that the seniority of a teacher in a cadre shall be determined by the date of his appointment in a substantive capacity. It has also been provided that if two or more persons are appointed on the same date their seniority shall be determined in which their names appear in the list referred to in Rule 17 or 17-A or 18, as the case may be. It has also been noted in the aforesaid Rules that a candidate selected by direct recruitment may lose his seniority, if he fails to join without valid reasons when a vacancy is offered to him whether the reasons in any particular case are valid or not shall be decided by the appointing Authority. Sub-Rule (2) of Rule 22 provides that the seniority of a teacher who has been transferred from one local area to another in accordance with the provisions of Rule 21 shall be placed at the bottom of the list of teachers of the corresponding class or category pertaining to the local area to which he has been transferred as on the date of orders for transfer are passed. This much has also been stated before this Court that on transfer being effectuated, the incumbent would loose his seniority of the earlier District. 
Inter-district transfer has been provided for by means of substituted Rule 21 of U.P. Basic Education (Teachers Services) Rules 1981, known as U.P. Basic Education Teachers Service (13th Amendment) Rules, 1981 and as per the aforesaid Rules an incumbent has to apply for inter-district transfer and on inter-district transfer being accepted it has been accepted by parties that an incumbent will have to loose his/her seniority in the district wherein he/she has been transferred and he/she shall be placed at the bottom of the list of teachers of the corresponding class or category pertaining to the said District to which he has been transferred. Sri A.K. Yadav submits that each and every candidate who had applied for transfer has agreed to such a term and condition and have been well aware of the said consequences. Thus, Scheme of things clearly provide that there would be loss of seniority and they would be accorded placement at the bottom of the list of teachers of corresponding class or category of the aforesaid district in the present case District Allahabad. Under the scheme of things provided for no where it has been mentioned that date of joining and date of birth would be relevant criteria for determining the seniority whereas contrarily Rule 22 recognizes the date of substantive appointment to be the relevant factor for determining seniority. Once incumbent who has been transferred from one district to another then certainly he/she would loose his/her seniority at the earlier district and are bound to be placed at the bottom of teachers of the corresponding class or category of the District wherein they have been transferred. 
Question is that all those teachers who have been transferred from different districts to one particular district i.e. at District Allahabad then in what way and manner their inter se seniority is to be determined. Can it be on the basis of date of joining and age or their seniority should be determined keeping in view their date of substantive appointment as well as age. 
Transferred teachers of each and every category who have been transferred to Allahabad District constitute one class and in case seniority is to be determined category wise then the date of substantive appointment should be the relevant criteria and on the date of substantive appointment being one and same then age should be relevant factor for determination of seniority but certainly date of joining cannot be made basis for effectuating and determining seniority. Rule 22 recognizes, substantive appointment as the relevant criteria for determination of seniority and one may loose his/her seniority, if within time frame provided for, one has not joined but under the scheme of things provided for date of joining cannot be the relevant criteria for determining seniority. This Court does not approve of the way and manner in which seniority of transferred teachers has been determined by giving preference to the date of joining whereas under the relevant Rules determination of seniority is based on substantive appointment. In view this, matter requires reconsideration on this score and on this aspect of the matter. 
This Court has proceeded to pursue to record in question and record in question reflects that application has been invited for filing option forms and based on the date of joining, those incumbents who have reported upto 03.09.2012 they were asked to submit their option till 21.09.2012 and those incumbents who have joined in between 04.09.2012 to 20.09.2012 they were asked to submit their option till 22.09.2012. This much is also clearly reflected that in all 807 Assistant Teachers of Primary institution and 95 Assistant Teachers of Senior Basic School/headmaster gave their option and based on their option list has been prepared and the institution has been allotted to them as per their choice exercised in the option forms and from the institution mentioned in list 'A' and list 'B'. Female handicapped candidates, 9 in number have been allotted institution as per their choice and similarly 27 male physically handicapped incumbents have been allotted institution as per their choice and in respect of female category candidates 294 female category candidate have got institutions as per their choice and in respect of 484 female teachers exercise for giving choice has not at all been undertaken and the incumbent who has been accorded placement at the bottom of the seniority list has been given posting at the first institution shown as lying closed. 
Under the U.P. Basic Education (Teachers) (Posting) (First Amendment) Rules 2010 female teachers ought to have been accorded posting as per option given by them as language of the Rules, is clear and specific, that options shall be asked for, and posting would be given in one of those schools opted for. Admittedly female teachers have failed to get posting in school opted for by them, as it stood occupied by other teachers. Issue is that once option which has been given by female teachers in reference to the institutions of their choice same stood exhausted can even then the incumbents whose option could not be acted upon can still opt for institution remaining unfilled and what is the requisite exercise required to be undertaken. 
In the present case factual situation which is clearly reflected that after 9 physically handicapped female teachers have been absorbed/ adjusted as per their option and 27 male physically handicapped teachers have been absorbed/adjusted as per their option and 294 female teachers have been absorbed/ adjusted as per their option then thereafter option/choice in question has not at all been asked for any further qua the left out institutions of list "A" and list "B" and to the contrary procedure which has been uniformally adopted for posting of such female teachers by the District Level Posting Committee constituted in this regard is that they have started filling up the vacancy as it existed in institution shown in List "A" first and then from List "B" institution by starting placement of junior most incumbents first and then proceeding in descending order from the seniority list so prepared and according placement to female teachers in institution of List "A" and "B" in ascending order. For example in the list of teachers prepared of primary institution, last incumbent in the seniority list is one Ranjana Singh her name finds place at serial no. 814 and said Ranjana Singh has been accorded placement at Block Phoolpur Primary Institution Ahirana and the said name of the institution finds place at serial no. 1 in list "A". Similarly name of Ruma Singh finds place at serial no. 813 and she has been accorded placement at Block Meja, Primary institution Ahirana ka pura. Seniority list has been taken in descending order. List of institution mentioned in List "A" and List B has been utilized in ascending order and following such way and manner institution has been allotted to female teachers. Qua the said matter query has been made as to why the said procedure has been adhered to, wherein there is no element of choice of female teacher involved, then before this Court justification has been sought to be given that as list "A" pertains to institution wherein no teachers are there and therein senior teachers would not like to prefer to go, in view of this procedure has been adhered by according placement to junior most incumbent first in the closed institution and adopting the same way and manner starting from bottom of seniority posting has been made from the list "A" of institutions mentioned as closed institution and thereafter from the List B in reference to single teacher institution, and same has accordingly been filled up. 
This particular formula adopted by the authorities, in the opinion of the Court, is erroneous and mechanical and without their being any application of mind at the point of time when institution has been allotted whereas under the relevant Rules, female teachers have been given a right to exercise their choice/option in the matter of posting as the language used is that posting would be given in one of these schools. The Rules in question have further proceeded to mention, in Rule 8(1) (c) that if by virtue of posting of newly appointed or promoted teachers the primary and upper primary schools of backward class gets saturated i.e no post of teacher is vacant in those schools, then handicapped and female teachers on their choice can be adjusted against the vacant post of general blocks from these saturated class. Said provisions, supports the plea of exercise/choice even where no post of teacher is available. At the stage, when option already exercised could not be given effect to on account of said institutions already opted by others, then fairness and transparency demanded to give such female teachers, as per their seniority, choice to be posted in remaining institutions of List A and List B as per their seniority status. 
Fact of the matter is that seniority from bottom has been taken into consideration while according placement in stead of proceeding to adopt procedure wherein posting ought to have been accorded on the basis of seniority and as per choice expressed by them qua the left out institution. Procedure adopted is mechanical with no element of application of mind on choice front. Entire list prepared after options have exhausted, are an outcome of formula devised i.e taking name of incumbents starting from the juniormost female in descending order of the seniority list prepared and matching the same with the list of institution prepared as. List A and List B in ascending order. Choice has been given a complete good bye in the facts of the present case, qua left out female teachers. 
In view of this, opinion of the Court is that much more transparent procedure ought to have been adopted and some real exercise ought to have been undertaken specially when there is provision of option and in respect of female teachers they have to be accorded placement as per their choice in stead of proceeding to act on formula. In such a situation as it has been contended that in district Varanasi , Azamgarh and Jaunpur where choicest institutions were not available, procedure of counselling has been adopted, on the directives of State Government, as such, such procedure ought to have been adopted in the present case also, and accordingly it is hereby directed that District Level Posting Committee shall once again re-visit the entire exercise preferably within two months from the date of presentation of certified copy the order passed by this Court. 
In the meantime teachers, who have been accorded placement which has been so accorded to them should join at the transferred place and it is clarified that their joining and posting shall abide by fresh decision which would be taken by the authority concerned as already mentioned above. This order has been passed keeping in view the larger interest i.e the interest of institution and the students at large. 
For the reasons stated hereinabove both the writ petitions are allowed to the said extent and the impugned list dated 06.10.2012 shall abide by fresh decision to be taken by the District Level Posting Committee. 
No orders as to cost. 
Dated 29.11.2012 
Dhruv 



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