तमाम बेसिक शिक्षकों के ट्रांसफर का समाधान हेतु कोर्ट का निर्णय देखें , कैंसर पीड़ित शिक्षिका को विशेष राहत (3 वर्ष की ट्रांसफर हेतु मिनिमम अवधि से राहत )
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 7
Case :- SERVICE SINGLE No. - 333 of 2017
Petitioner :- Mohd. Arif And Another
Respondent :- State Of U.P. Thru Secy.Basic Edu.Govt.Of Up Lucknow & Ors.
Counsel for Petitioner :- Krishan Kanhaya Pal,Pooja Pal,Rajendra Pratap Singh,Saurabh Shankar Srivastav,Surendra Pratap Singh,Suresh Chandra Verma
Counsel for Respondent :- C.S.C.,Ajay Kumar,Akhilesh Chandra Srivasta,Manish Mishra,Mayankar Singh,Shobhit Kant,U.N. Mishra,Upendra Nath Mishra
Case :- SERVICE SINGLE No. - 795 of 2017
Petitioner :- Faheem Beg
Respondent :- State Of U.P. Thru Prin.Secy.Basic Edu.Civil Sectt.Lko.&Ors.
Counsel for Petitioner :- Karunesh Singh Pawar
Counsel for Respondent :- C.S.C.,Ajay Kumar,Akhilesh Ch Srivastava,Akhilesh Chandra Srivasta,Anupam Mehrotra,Manish Mishra,Narendra Kumar Pandey,Narendra Singh Chauhan,Sameer Kalia,U.N. Mishra,Upendra Nath Mishra
Case :- SERVICE SINGLE No. - 489 of 2017
Petitioner :- Manju Singh
Respondent :- State Of U.P. Thru Prin.Secy.Edu.Basic Civil Sectt.Lko.&Ors.
Counsel for Petitioner :- Yogendra Kumar Pandey
Counsel for Respondent :- C.S.C.,Ajay Kumar,U.N. Mishra
Case :- SERVICE SINGLE No. - 4677 of 2014
Petitioner :- Smt. Rajan & 29 Ors.
Respondent :- State Of U.P. Through Secy. Basic Edu. Lko. & Ors.
Counsel for Petitioner :- Mahendra Bahadur Singh,Krishan Kanhaya Pal,Pooja Pal,Rakesh Kumar
Counsel for Respondent :- C.S.C.,Manish Mishra,Suresh Chandra
Case :- SERVICE SINGLE No. - 2857 of 2017
Petitioner :- Brijesh Kumar Gautam
Respondent :- State Of U.P. Thru Prin.Secy.Basic Edu.Civil Sectt.Lko.&Ors.
Counsel for Petitioner :- Suresh Sharma,Devendra Kumar Singh
Counsel for Respondent :- C.S.C.,Ajay Kumar
Case :- SERVICE SINGLE No. - 2945 of 2017
Petitioner :- Smt Neelam Yadau
Respondent :- State Of U.P Thru Prin Secy Basic Edu Lko & Ors
Counsel for Petitioner :- Arvind Kumar Jauhari
Counsel for Respondent :- C.S.C.,Ajay Kumar,Shobhit Mohan Shukla
Hon'ble Rajan Roy,J.
Heard learned Counsel for the parties.
As common questions of facts and law are involved in these petitions, therefore, all the above writ petitions have been heard together.
In all these writ petitions, various orders have been challenged by which hundred of teachers were transferred by the Board. These transfers were inter district transfers. It is pertinent to mention that the cadre of teachers under the U.P. Basic Education (Teachers) Service Rules, 1981 is a district level cadre and inter district transfers are permissible only in terms of Rule 21 with the approval of the Board as an exception.
The writ petitions have been filed by those who have not been transferred but who feel aggrieved by the same on a belief that by such transfers their promotions to the post of Head Master, for which they claim to be eligible would be adversely affected. On being confronted, Shri Karunesh Pawar and others appearing for the petitioners in these writ petitions submit that most of these transferees were officiating on the post of Head Master in their original districts, therefore, consequent to these transfers, they would continue as Head Masters in the transferred district also i.e. Lucknow, meaning thereby corresponding number of promotional posts of Head Master would be occupied by them, thereby prejudicing the claim of the petitioners for being considered for promotion against such posts which are substantively vacant in the district of Lucknow.
Shri Anupam Mehrotra and other counsels appearing for the interveners and affected persons submit that in view of rule 22 of the Rules known as U.P. Basic Education (Teachers) Service Rules, 1981, on such inter district transfers, the transferees would be placed at the bottom of the seniority list in the transferred district, therefore, officiation on the post of Head Master being based on seniority there is no way, their clients would be entitled to officiate as Head Master unless they are the senior most in the respective schools.
This Court passed an interim order dated 25.01.2017 in the connected writ petition bearing no. Writ Petition No. 333 (S/S) of 2017 in the following terms:-
" Subject matter of this bunch of writ petitions relates to inter-district transfer of the teachers working in Basic Schools. On 03.01.2017, an order has been passed by the State Government effecting certain inter-district transfers of the teachers on the eve of notification for ensuing elections for Legislative Assembly in the State of U.P. issued by the Election Commission.
The posts of teachers in primary schools as well as Junior High Schools form district-wise cadre and in service jurisprudence transfer of a member of a particular cadre is normally not permissible to another cadre unless anything contrary to the said legal position exists in the rules governing conditions of the service of members of such a cadre. The conditions of service of the teachers in these institutions are governed by the statutory rules, namely, U.P. Basic Education (Teachers) Service Rules, 1981, which have been framed under Section 19(1) of the U.P. Basic Education Act, 1972. Rule 21 as it exits today is quoted herein below:-
"21. Procedure for transfer.- There shall be no transfer of any teacher from the rural local area to an urban 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."
According to the aforequoted Rule 21, inter-district transfer can be effected only on the request of the teacher concerned or with his consent and not otherwise, that too, only with the approval of the U.P. Basic Education Board.
The rule making authority while framing Rule 21 was conscious of the fact that transfer of any member of one cadre to the other is legally not permissible and as such has consciously provided that the same can be effected only in case a request is made by the teacher or he gives his consent for such transfer. The provision further states that any such transfer can be effected only with the approval of the U.P. Basic Education Board.
The order dated 03.01.2017, passed by the State Government, however, does not disclose that prior to passing of the said order, any approval of the U.P. Basic Education Board was obtained.
For the purpose of effecting transfer of teachers working in Basic Schools run and managed by the Basic Education Board, the State Government has issued an order on 23.06.2016 laying down in detail the policy to be followed for the purpose of effecting inter-district transfers. The said Government Order is, in fact, referable to Section 13 of the U.P. Basic Education Act, 1972 which empowers the State Government to give directions to be carried out by the Basic Education Board from time to time for efficient administration of the said Act.
The Government Order dated 23.06.2016 permits the transfer only on application to be moved on-line giving certain details as required in Clause 3(2) of the said Government Order. The Government Order further prescribes that on moving application on-line with certain details which are relevant for the purpose of seeking an effective transfer, the matter shall be considered by the District Basic Education Officer and Basic Education Board in a transparent manner. A perusal of the order dated 03.01.2017 clearly reveals that the same is not only in violation of statutory Rule 21 of the Service Rules but is also in derogation of Government Order dated 23.06.2016, which too, would have statutory force being referable to Section 13 of the U.P. Basic Education Act, 1972.
Any government policy enunciated either by promulgating any Statue or Statutory Rules or even by issuing a simple executive order binds every one including the government which promulgates the same. Prima-facie, it appears that while passing the order dated 03.01.207, the State Government has acted in complete derogation of the policy which was framed by it and by which government also stands bound.
Let the aforesaid issues be explained by some responsible officer of the State Government in the department of Basic Education, not below the rank of Special Secretary to be nominated by the Principal Secretary/Secretary, who shall be present before the Court for its assistance on the next date of listing.
List/put up this case on 27.01.2017.
Learned Chief Standing Counsel will communicate this order to the authorities concerned without waiting for its certified copy. Learned Chief Standing Counsel is also requested to assist the court in this case.
When the case is next listed, the name of Sri Upendra Nath Misra shall also be shown in the cause list as counsel for the respondent. "
Thereafter, the matter was taken up on 27.01.2017 whereupon this Court passed the following order which reads as under:-
"Pursuant to order dated 25.01.2017, Sri D.P.Singh, Special Secretary, Department of Basic Education is present. He has stated that after issuance of the Government Order dated 23.06.2016, the State Government has issued another Government Order dated 19.12.2016 providing therein that in terms of the earlier transfer policy embodied in the Government Order dated 23.06.2016, the remaining on-line application forms submitted by the teachers seeking their inter-district transfers can be considered in terms of the earlier policy itself. The Government Order dated 19.12.2016 is taken on record.
However, on a query being put to him as to whether before passing the transfer order dated 03.01.2017 whereby several inter-district transfers of the teachers has been effected, prior approval of the Basic Education Board, as is required to be taken under Rule 21 of U.P. Basic Education (Teachers) Service Rules, 1981, was taken or not, it has been stated by Sri D.P.Singh, Special Secretary that no such approval was sought before passing the order dated 03.01.2017.
Such a course adopted by the State Government while passing the transfer order on 03.01.2017 is not only against the statutory provisions contained in Rule 21 of the aforesaid Rules but is also in violation of the Government Order dated 23.06.2016.
It is noticeable that the Government Order dated 19.12.2016 permitted consideration of remaining on-line applications only in terms of the Government Order dated 23.06.2016 and as such without seeking approval of the Basic Education Board, no such inter-district transfers could have been effected.
At this juncture, learned counsel for the petitioner has stated that it is not only that only one order on 03.01.2017 effecting several inter-district transfers of teachers was passed but there are several such orders.
Learned Chief Standing Counsel on the basis of instructions received from Special Secretary present today has stated that in fact on 03.01.2017 two orders effecting several inter-district transfers of teachers have been passed by the State Government. He has also stated that these two orders passed on 03.01.2017 contain lists of teachers most of whom had submitted off-line applications, which was impermissible under the Rules and the Government Order.
Such a procedure of effecting inter-district transfer is neither contemplated in Rule 21 of the Rules nor in the Government Order dated 23.06.2016.
This bunch of writ petitions contain averments that while effecting inter-district transfers of teachers, the Basic Education Board and the respective Basic Shiksha Adhikaris have not followed the priority as contemplated in the Government Order dated 23.06.2016. There appears to be large scale discrepancies in the inter-district transfers made by the respondents.
Any statute or statutory Rules or even a Government Policy is binding on the Government as much as it is binding on others. The facts of this case clearly establish that State Government has acted against its own norms which are embodied in the Service Rules, 1981 and the Government order dated 23.06.2016. Further, despite prescribing that only on-line applications seeking inter-district transfer shall be considered, the State Government while passing at least two orders on 03.01.2017 has considered off-line applications of teachers and passed orders thereon, which has not only resulted in making the process adopted by the Government non-transparent but has also deprived several teachers of the opportunity of making applications. Such a course adopted by the State Government is, thus, prima facie, arbitrary and also suffers from the vice of malice in law as prima facie there is no justification for deviation from the prescribed norms.
Accordingly, till further orders of this Court, operation and implementation of these two orders said to have been issued by the State Government on 03.01.2017 effecting inter-district transfers of the teachers in Primary and Junior High Schools in the State of U.P. are hereby stayed.
The teachers who have been transferred in terms of the said orders will not be allowed to work and discharge their duties at the places of their new posting. They shall, however, be permitted to discharge their duties in the schools where they have been working prior to passing of the orders on 03.01.2017 by the State Government.
Let counter affidavit be filed in these matters by the respondents within a period of two weeks. One week's time thereafter shall be available to learned counsel for the petitioners to file rejoinder affidavit.
List after expiry of the aforesaid period showing the name of Sri Upendra Nath Mishra as counsel for the respondent.
It will be open to the teachers who are affected by the order passed on 03.01.2017 by the State Government to seek their intervention in this case. "
On a perusal of the aforesaid orders, it is found that Shri D.P. Singh, Special Secretary, Department of Basic Education, who had appeared before this Court admitted to the fact that the transfers had been effected without seeking the approval of the Board as was mandatory under rule 21 of the U.P. Basic Education (Teachers) Service Rules, 1981, and the Government order dated 23.06.2016 which was applicable in view of the subsequent Government Order dated 19.12.2016. Certain other discrepancies were also noted by this Court.
The fact of the matter is that the petitioners herein have not been transferred nor they are seeking transfer, they are concerned with their entitlement for being considered for promotion to the post of Head Master.
As regards, the contention of Shri Pawar that these transfers prejudice the rights of the petitioners to be considered for the promotion against the post of Head Master for the reason already noted hereinabove, and, on a bare perusal of Rule 22 (3) there is no doubt that such transferees would be placed at the bottom of the seniority list of teachers of the corresponding class or category pertaining to the local area to which he has been transferred, as on the date orders for transfer are passed. If it is so, unless off course such transferees are the only personnel available in the institution, they would not hold the post of Head Master on officiating basis and such situations would be rare.
First and foremost, it is the validity of such transfers which is to be seen, as, if the transfers are held to be invalid then the apprehension of the petitioners regarding prejudice to their right of consideration for promotion would be rendered imaginary, therefore, once in the order of this Court dated 27.01.2016 certain discrepancies with regard to the inter district transfers have been noticed and a statement had also been made by the Special Secretary, Department of Basic Education in this regard, which has been recorded therein, thus, considering the fact that now there is a change at the helm of officers and any apprehension in the mind of petitioners about lack of bonafide would now be allayed, therefore, considering the cumulative effect of all the factors, the ends of justice would be met if the State Government itself revisits the transfers already been made by the impugned orders, keeping in mind the observations of this Court and the recitals contained in the interim order dated 27.01.2016, subject to a right of representation to the petitioners as also the interveners and those seeking impleadment and the like who may submit such representation within 15 days of receipt of copy of this order and the State Government takes a decision as regards their validity considering such representation with expedition.
While taking a decision as aforesaid, the Government shall strictly adhere to the observations made by the Division Bench in Special Appeal No. 55 of 2017 vide order dated 20.02.2017 that transfers made offline are not in accordance with the procedure prescribed. It shall also keep in mind that the cadre of Assistant Teacher is a district level cadre and inter district transfer is an exceptional measure not to be made routinely except in terms of Rule 21 of 1981 Rules and also as to whether such transfers made were justified and legal.
Apart from the above, based on the decision to be taken as aforesaid, claim of the petitioners for promotion to the post of Head Master/ Assistant Teacher (Upper Primary) shall also be considered accordingly dependent upon the decision as aforesaid, with expedition.
As far as the salary payable to the transferred employees since January, 2017 is concerned, the Court is of the view that if they had not been permitted to work at the place of their original posting or had already been relieved or were prevented by other justifiable reasons from working, they would be entitled to arrears of salary as per Rules since January, 2017 with continuity in service and a decision in this regard shall be taken as aforesaid.
The decision as regards the validity of the impugned transfers shall be taken by the State Government within a period of three months from the date of receipt of certified copy of this order and the claim of the petitioners for promotion herein shall be considered accordingly within next three months.
In the meantime, all the transferees shall be allowed to join at the transferred place with the condition that none of the transferees shall officiate on the post of Head Master, unless off course they are the senior most and even if they are the senior most in the institution, it may be permitted only as a temporary arrangements subject to the post in question being filled substantively by promotion etc. under the relevant Rules.
All the interveners/impleadment applications are allowed with the right of hearing which has already been extended to them.
As far as intervention application No. 45919 of 2017 in writ petition No. 333 (SS) 2017 is concerned, the counsel appearing on behalf of Sandhya Kumari Tiwari, applicant, whose intervention is hereby allowed, submits that she has been suffering from cancer and it is on this request that she had been transferred from Shravasti to Unnao as she is undergoing treatment at KGMC Lucknow. Although he says that, strictly speaking, the tenure of three years of service prescribed in the Government Order was not fulfilled but then in the exceptional circumstances this step was taken that too online through Integrated Grievance Redressal System. In view of the aforesaid, considering the extreme hardship, it is clarified to the extent that this order shall not come in the way of the joining of the applicant Sandhya Kumari Tiwari at the transferred place at Unnao as also her continuance at the said place. She shall be paid salary for the due period. Her case shall not be open to reconsideration.
All writ petitions are disposed of in the aforesaid terms.
Order Date :- 3.5.2017
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