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HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 17
Case :- WRIT - A No. - 43071 of 2017
Petitioner :- Vineeta Ajwani(Vineeta Gangwani)
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Majahar Ali
Counsel for Respondent :- C.S.C.,Shashi Kant Verma,Sunil Kumar Singh
Hon'ble Pradeep Kumar Singh Baghel,J.
The petitioner is an Assistant Teacher in a Basic School at Farrukhabad managed and conducted by the U.P. Board of Basic Education. She is stated to have been appointed on 14.8.2014. Due to her medical condition, the petitioner sought medical leave from 21.11.2015 to 14.3.2016.
Her grievance is that her husband is working in District Kanpur hence she may be transferred at the same place. Earlier, when her representation was not considered, the petitioner preferred Civil Misc. Writ Petition No. 2958 of 2017, which was disposed of on 20.1.2017 by issuing a direction to the competent authority to consider the petitioner's request for transfer. In compliance thereof, the respondent authority by the order impugned dated 12.7.2017 has rejected the claim of the petitioner on the ground that since the petitioner has not completed three years services as she was appointed on 14.8.2014 hence she is not entitled for the benefit of Government Order dated 23.6.2016, wherein it is provided that the request for the transfer can be considered only when the teacher has completed three years services on or before 31.3.2016.�
Learned counsel for the petitioner submits that Rule 8(2)(d) of the U.P. Basic Education (Teachers)(Posting) Rules, 2008 (for short, "the Rules, 2008) provides certain contingencies in which applications for inter-district transfers of female teachers can be entertained. It is further stated that the Government Order dated 23.6.2016 cannot override statutory provisions. He has placed reliance on the orders of this Court passed in similar facts in the case of Gunjan Chaturvedi v. State of U.P. & others, Writ-A No. 35370 of 2017 and Poonam and others v. State of U.P. & others, Writ-A No. 32028 of 2017.
I have heard learned counsel for the petitioner, learned Standing Counsel, Sri S.K. Verma, learned Counsel appearing for respondent nos. 2 and 3, and Sri Sunil Kumar Singh, learned Advocate who has put in appearance on behalf of respondent no. 4. Since no factual aspect is involved in the matter which requires reply from the respondents, hence with the consent of learned counsel for the parties the writ petition is being disposed of finally at this stage in terms of the Rules of the Court.
From the facts of this case it is evident that the petitioner's husband is working in District Kanpur and the petitioner is posted at Farrukhabad.
Rule 8(2)(d) of the Rules, 2008 which deals with the posting of teachers reads thus:
"8(2)(d) In normal circumstances the applications for inter- district transfers in respect of male and felmale 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." � � � � � � � � � � � � � � � � � � � � � � � � � � � � �� ����������������������������������������������������� (emphasis supplied)
The aforesaid Rule does not require that husband of the petitioner must be a teacher or in Government employment. It simply mentions the place of residence of husband or in-laws' district. To my mind the intention of the Rule-making Authority is that the couple may remain at same place. In the policies of Central Government as well as State Government, it is provided that an endeavour shall be made that husband and wife may be posted at the same place.
Regard being had to the fact that in Rule 8(2)(d) of the Rules, 2008 in addition to place of residence of husband, in laws' district has also been included which makes the intention of the Rule-making Authority very clear and obvious.�
In the case at hand this aspect has not been considered by the authority concerned and he has simply rejected the representation of the petitioner on the ground that she has not completed requisite number of years as mentioned in the Government Order dated 23.6.2016.
This Court in the case of Writ-A No. 30808 of 2017, Bibha Singh Kushawaha Vs. U.P. Basic Education Board and others has considered this issue and has held that the Government Order dated 23.6.2016 shall not override statutory provisions of U.P. Basic Education (Teachers)(Posting) Rules, 2008.�
After careful consideration of the matter, for the reasons mentioned above, I find that the reasons mentioned in the impugned order dated 12.7.2017 are contrary to law laid down by this Court in the aforementioned cases. Accordingly, the impugned order dated 12.7.2017 is set aside. The matter is remitted to the second respondent-Secretary, Basic Shiksha Parishad to consider the matter afresh and pass appropriate order in the light of the observations made herein-above, expeditiously, preferably within two months from the date of communication of this order.
The writ petition is, accordingly, allowed.
No order as to costs.
Order Date :- 14.9.2017
Digamber
****************************************
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 17
Case :- WRIT - A No. - 34080 of 2017
Petitioner :- Smt. Sarvada Yadav
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Vinod Kumar Singh
Counsel for Respondent :- C.S.C.,Bhola Nath Yadav
Hon'ble Pradeep Kumar Singh Baghel,J.
The petitioner is an Assistant Teacher in a Junior Basic School run by the Uttar Pradesh Board of Basic Education, Allahabad. Her grievance is that her husband is also working as Assistant Teacher in a Senior Basic School, Bada Gaon, Mawana Road, Meerut, therefore, they may beposted at the same place.
It is stated that the petitioner has some family problems, therefore, she has made an application to the effect that she and her husband may be posted at the same place in terms of Rule 8(d) of the Uttar Pradesh Basic Education (Teachers)(Posting) Rules, 2008. However, the State Government has notified that an online application in terms of Government Order dated 03.05.2017 may be moved for seeking transfer, but in the said Government Order, one of the conditions mentioned is that the applications of only those teachers will be considered who have five years experience. It is stated that the said condition is in conflict with the statutory rules i.e. Uttar Pradesh Basic Education (Teachers)(Posting) Rules, 2008, wherein no such condition is provided.
This Court has earlier considered the identical issue in the case of Bibha Singh Kushawaha vs. U.P. Basic Education Board Allahabad And 3 others, Writ -A No. 30808 of 2017, wherein a detailed order has been passed on 19.07.2017. The relevant part of the order is extracted herein 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."
With the consent of learned counsel for the parties, this writ petition is also disposed of in the same terms.
However, it is directed that the application of the petitioner be considered within six weeks.
Order Date :- 2.8.2017
sailesh
**************
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 17
Case :- WRIT - A No. - 39962 of 2017
Petitioner :- Smt. Alka Chaudhari
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Pranesh Kumar Mishra
Counsel for Respondent :- C.S.C.,Brij Bhushan Prasad Shriv,Yogendra Singh Bohra
Hon'ble Pradeep Kumar Singh Baghel,J.
The petitioner is an assistant teacher in junior basic school namely Primary School Dhobiha, Block Jamunha, Shravasti. She is seeking her transfer to Aligarh, besides other grounds, that (i) her husband is in Govt. job posted at Aligarh and (ii) her father-in-law is suffering from heart ailment. There are other hardships also.
Learned counsel for the petitioner submits that the State Govt. has taken a policy decision for intra district transfer on certain grounds. However, in the Govt. Order issued a condition has been imposed� that only those teachers can apply who have minimum three years experience. Contention of the learned counsel is that said condition is onerous and contrary to the statutory rule. He has drawn attention of the Court to Rule 8(2)(d) of U.P. Basic Education (Teachers)(Posting) Rules, 2008. He further submits that a Govt. Order cannot override statutory provision.
I have heard learned counsel for the petitioner, learned standing counsel, Sri Y.S. Bohra appearing for respondent no. 4 and Sri B.B.P. Srivastava, appearing for respondent no. 2 and 3.
Rule 8(2)(d) of the U.P. Basic Education (Teachers)(Posting) Rules, 2008 which deals with posting of teachers, provides thus :
"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."�
Under the said rule, application for transfer in respect of a female teacher� shall be entertained to the place of her husband or in-law's district.
It is well settled law� that executive instructions can supplement the statutory provision� but cannot supplant it. Rule 8(2)(d) is clear and categorical in respect of lady teachers if she wants transfer on the grounds mentioned therein.
This aspect has been considered by this Court in Writ-A No. 30808 of 2017, Bibha Singh Kushawaha Vs. U.P. Basic Education Board and others, wherein the same issue fell for consideration before the Court wherein� after considering abovementioned Rule 8(2)(d), the Court has held that a Govt. Order would not override the statutory provision, hence in spite of the Government Order dated 3.5.2017, application of a female teacher for her transfer on the ground of couple posting can be entertained notwithstanding some of the contrary conditions in the said Government order and there is no legal bar in considering the representation of the petitioner in terms of Rule 8(d) of the Rules, 2008.
Having due regard to the facts of the case, the matter is squarely covered by the judgment of the Court in Bibha Singh's case (supra) and the petitioner's cause needs to be considered by the appropriate authority in the light of Rule 8(2)(d).
Accordingly, The writ petition is disposed of finally by granting liberty to the petitioner to make a representation alongwith certified copy of the order to respondent no. 2, who shall pass appropriate thereon in accordance with law expeditiously within two months from the date of communication of the order.
With the above direction, the writ petition stands finally disposed of. No order as to costs.
Order Date :- 31.8.2017
SNT/
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HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 17
Case :- WRIT - A No. - 43071 of 2017
Petitioner :- Vineeta Ajwani(Vineeta Gangwani)
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Majahar Ali
Counsel for Respondent :- C.S.C.,Shashi Kant Verma,Sunil Kumar Singh
Hon'ble Pradeep Kumar Singh Baghel,J.
The petitioner is an Assistant Teacher in a Basic School at Farrukhabad managed and conducted by the U.P. Board of Basic Education. She is stated to have been appointed on 14.8.2014. Due to her medical condition, the petitioner sought medical leave from 21.11.2015 to 14.3.2016.
Her grievance is that her husband is working in District Kanpur hence she may be transferred at the same place. Earlier, when her representation was not considered, the petitioner preferred Civil Misc. Writ Petition No. 2958 of 2017, which was disposed of on 20.1.2017 by issuing a direction to the competent authority to consider the petitioner's request for transfer. In compliance thereof, the respondent authority by the order impugned dated 12.7.2017 has rejected the claim of the petitioner on the ground that since the petitioner has not completed three years services as she was appointed on 14.8.2014 hence she is not entitled for the benefit of Government Order dated 23.6.2016, wherein it is provided that the request for the transfer can be considered only when the teacher has completed three years services on or before 31.3.2016.�
Learned counsel for the petitioner submits that Rule 8(2)(d) of the U.P. Basic Education (Teachers)(Posting) Rules, 2008 (for short, "the Rules, 2008) provides certain contingencies in which applications for inter-district transfers of female teachers can be entertained. It is further stated that the Government Order dated 23.6.2016 cannot override statutory provisions. He has placed reliance on the orders of this Court passed in similar facts in the case of Gunjan Chaturvedi v. State of U.P. & others, Writ-A No. 35370 of 2017 and Poonam and others v. State of U.P. & others, Writ-A No. 32028 of 2017.
I have heard learned counsel for the petitioner, learned Standing Counsel, Sri S.K. Verma, learned Counsel appearing for respondent nos. 2 and 3, and Sri Sunil Kumar Singh, learned Advocate who has put in appearance on behalf of respondent no. 4. Since no factual aspect is involved in the matter which requires reply from the respondents, hence with the consent of learned counsel for the parties the writ petition is being disposed of finally at this stage in terms of the Rules of the Court.
From the facts of this case it is evident that the petitioner's husband is working in District Kanpur and the petitioner is posted at Farrukhabad.
Rule 8(2)(d) of the Rules, 2008 which deals with the posting of teachers reads thus:
"8(2)(d) In normal circumstances the applications for inter- district transfers in respect of male and felmale 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." � � � � � � � � � � � � � � � � � � � � � � � � � � � � �� ����������������������������������������������������� (emphasis supplied)
The aforesaid Rule does not require that husband of the petitioner must be a teacher or in Government employment. It simply mentions the place of residence of husband or in-laws' district. To my mind the intention of the Rule-making Authority is that the couple may remain at same place. In the policies of Central Government as well as State Government, it is provided that an endeavour shall be made that husband and wife may be posted at the same place.
Regard being had to the fact that in Rule 8(2)(d) of the Rules, 2008 in addition to place of residence of husband, in laws' district has also been included which makes the intention of the Rule-making Authority very clear and obvious.�
In the case at hand this aspect has not been considered by the authority concerned and he has simply rejected the representation of the petitioner on the ground that she has not completed requisite number of years as mentioned in the Government Order dated 23.6.2016.
This Court in the case of Writ-A No. 30808 of 2017, Bibha Singh Kushawaha Vs. U.P. Basic Education Board and others has considered this issue and has held that the Government Order dated 23.6.2016 shall not override statutory provisions of U.P. Basic Education (Teachers)(Posting) Rules, 2008.�
After careful consideration of the matter, for the reasons mentioned above, I find that the reasons mentioned in the impugned order dated 12.7.2017 are contrary to law laid down by this Court in the aforementioned cases. Accordingly, the impugned order dated 12.7.2017 is set aside. The matter is remitted to the second respondent-Secretary, Basic Shiksha Parishad to consider the matter afresh and pass appropriate order in the light of the observations made herein-above, expeditiously, preferably within two months from the date of communication of this order.
The writ petition is, accordingly, allowed.
No order as to costs.
Order Date :- 14.9.2017
Digamber
****************************************
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 17
Case :- WRIT - A No. - 34080 of 2017
Petitioner :- Smt. Sarvada Yadav
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Vinod Kumar Singh
Counsel for Respondent :- C.S.C.,Bhola Nath Yadav
Hon'ble Pradeep Kumar Singh Baghel,J.
The petitioner is an Assistant Teacher in a Junior Basic School run by the Uttar Pradesh Board of Basic Education, Allahabad. Her grievance is that her husband is also working as Assistant Teacher in a Senior Basic School, Bada Gaon, Mawana Road, Meerut, therefore, they may beposted at the same place.
It is stated that the petitioner has some family problems, therefore, she has made an application to the effect that she and her husband may be posted at the same place in terms of Rule 8(d) of the Uttar Pradesh Basic Education (Teachers)(Posting) Rules, 2008. However, the State Government has notified that an online application in terms of Government Order dated 03.05.2017 may be moved for seeking transfer, but in the said Government Order, one of the conditions mentioned is that the applications of only those teachers will be considered who have five years experience. It is stated that the said condition is in conflict with the statutory rules i.e. Uttar Pradesh Basic Education (Teachers)(Posting) Rules, 2008, wherein no such condition is provided.
This Court has earlier considered the identical issue in the case of Bibha Singh Kushawaha vs. U.P. Basic Education Board Allahabad And 3 others, Writ -A No. 30808 of 2017, wherein a detailed order has been passed on 19.07.2017. The relevant part of the order is extracted herein 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."
With the consent of learned counsel for the parties, this writ petition is also disposed of in the same terms.
However, it is directed that the application of the petitioner be considered within six weeks.
Order Date :- 2.8.2017
sailesh
**************
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 17
Case :- WRIT - A No. - 39962 of 2017
Petitioner :- Smt. Alka Chaudhari
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Pranesh Kumar Mishra
Counsel for Respondent :- C.S.C.,Brij Bhushan Prasad Shriv,Yogendra Singh Bohra
Hon'ble Pradeep Kumar Singh Baghel,J.
The petitioner is an assistant teacher in junior basic school namely Primary School Dhobiha, Block Jamunha, Shravasti. She is seeking her transfer to Aligarh, besides other grounds, that (i) her husband is in Govt. job posted at Aligarh and (ii) her father-in-law is suffering from heart ailment. There are other hardships also.
Learned counsel for the petitioner submits that the State Govt. has taken a policy decision for intra district transfer on certain grounds. However, in the Govt. Order issued a condition has been imposed� that only those teachers can apply who have minimum three years experience. Contention of the learned counsel is that said condition is onerous and contrary to the statutory rule. He has drawn attention of the Court to Rule 8(2)(d) of U.P. Basic Education (Teachers)(Posting) Rules, 2008. He further submits that a Govt. Order cannot override statutory provision.
I have heard learned counsel for the petitioner, learned standing counsel, Sri Y.S. Bohra appearing for respondent no. 4 and Sri B.B.P. Srivastava, appearing for respondent no. 2 and 3.
Rule 8(2)(d) of the U.P. Basic Education (Teachers)(Posting) Rules, 2008 which deals with posting of teachers, provides thus :
"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."�
Under the said rule, application for transfer in respect of a female teacher� shall be entertained to the place of her husband or in-law's district.
It is well settled law� that executive instructions can supplement the statutory provision� but cannot supplant it. Rule 8(2)(d) is clear and categorical in respect of lady teachers if she wants transfer on the grounds mentioned therein.
This aspect has been considered by this Court in Writ-A No. 30808 of 2017, Bibha Singh Kushawaha Vs. U.P. Basic Education Board and others, wherein the same issue fell for consideration before the Court wherein� after considering abovementioned Rule 8(2)(d), the Court has held that a Govt. Order would not override the statutory provision, hence in spite of the Government Order dated 3.5.2017, application of a female teacher for her transfer on the ground of couple posting can be entertained notwithstanding some of the contrary conditions in the said Government order and there is no legal bar in considering the representation of the petitioner in terms of Rule 8(d) of the Rules, 2008.
Having due regard to the facts of the case, the matter is squarely covered by the judgment of the Court in Bibha Singh's case (supra) and the petitioner's cause needs to be considered by the appropriate authority in the light of Rule 8(2)(d).
Accordingly, The writ petition is disposed of finally by granting liberty to the petitioner to make a representation alongwith certified copy of the order to respondent no. 2, who shall pass appropriate thereon in accordance with law expeditiously within two months from the date of communication of the order.
With the above direction, the writ petition stands finally disposed of. No order as to costs.
Order Date :- 31.8.2017
SNT/
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