Transfer News - सैकड़ों की संख्या में अंतर्जनपदीय तबादले की सभी याचिकाएं ख़ारिज -
AFR
(Judgment reserved on 03.08.2018)
(Judgment delivered on 13.08.2018)
Court No. - 7
1. Case :- WRIT - A No. - 14395 of 2018
Petitioner :- Smt. Ruchi
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Mahima Maurya Kushwaha,Mukesh Kumar Kushwaha
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
WITH
Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri R.K. Ojha, learned senior advocate, Sri Shailendra, Sri Indra Raj Singh, Sri Alok Kumar Yadav and other learned counsels for the petitioners, and, Sri Ajit Kumar Singh, learned Additional Advocate General assisted by Sri Mohanji Srivastava, learned counsel for the State-respondents and S/Sri A.K.Yadav, Suresh Kumar, B.P. Singh, Sanjay Kumar, Pravesh Dutt Tripathi, Virendra Chaubey, Sanjay Chaturvedi, Ashok Kr. Singh, Pankaj Kr. Tyagi, Vikram Bahadur Singh, R.P. Shukla, Satish Chandra Yadav, Akhilesh Chandra Srivastava, Manu Sharma, Amit Shukla, learned counsels representing the concerned Basic Education Officers and the U.P. Basic Education Board, Allahabad.
FACTS OF THE CASE:-
2. Briefly stated facts of the cases are that the petitioners in this batch of writ petitions, are mainly female Assistant Teachers. Pursuant to the Provisions of Rule 21 of The Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 (hereinafter referred to as ''the Rules 1981'), Rule 8(2)(d) of The Uttar Pradesh Basic Education (Teachers) (Posting) Rules, 2008 (hereinafter referred to as ''the Rules 2008'), the State Government issued Government Order No.1078/79-5-2016-15 (149)/2010 dated 13.06.2017, Government Order No.1810/79-5-2017-15 (149)/2010 dated 20.09.2017, Government Order No.130/79-5-2018 dated 05.02.2018, declaring the Transfer Policy for inter-district Transfer of Assistant Teachers of Basic Schools run by the U.P. Basic Education Board (hereinafter referred to as ''the Board') which was followed by decision/ circular of the Board being No. cs0f'k0i0 /4252-54/2018-19, dated 10.06.2018 in terms of the Rules 21 of the Rules 1981, were issued. An uniform policy was adopted that no teachers shall be transferred from those districts where the vacancy of teachers is more than 15% and no teacher shall be transferred from eight aspirational districts identified by the Niti Ayog on the basis of backwardness of these districts in the areas of education, health, nutrition, agriculture etc. and the programme 'Transformation of Aspirational Districts' was launched by the Hon'ble Prime Minister. Out of 115 such extremely backward districts in the country, 08 Aspirational Districts, namely Siddharth Nagar, Shrawasti, Behraich, Sonbhadra, Chandauli, Fetehpur, Chitrakoot and Balrampur; were identified in the State of Uttar Pradesh.
3. For the purposes of inter-district Transfer of Assistant Teachers, a software based process has been adopted which does not involve human intervention. The applications for transfer were invited online. Merit list for transfer was prepared awarding marks to applicants, as under:
Particulars
Marks
(a)
Differently Abled before joining service or while in service
05
(b)
Serious Illness (self/ spouse/ children)
05
(c)
Female
05
(d)
For every completed year of service
05
(upto 35 marks Maximum)
4. In the present batch of writ petitions, large number of petitioners are those Assistant Teachers of Basic Schools of the Board situate in Aspirational Districts, who were not transferred in terms of the decision of the Board. The other petitioners are those who are Assistant Teachers in Basic Schools situate in districts other than Aspirational Districts but were not transferred. Therefore, they filed remaining writ petitions of the present batch of writ petitions.
SUBMISSIONS ON BEHALF OF PETITIONERS:
5. Sri Indra Raj Singh in Writ - A No.14105 of 2018 and Writ - A No.14099 of 2018, submits as under:
(i) The cadre of the Assistant Teachers in Basic Schools being run by the Board is a District level cadre.
Therefore, their transfer was earlier governed by the provisions of Rule 21 of the Uttar Pradesh Basic Education (Teachers) Service Rules 1981. Subsequently, the Uttar Pradesh Basic Education (Teachers) (Posting) Rules 2008 was enacted. Rule 8(2)(d) of the Rules 2008 provides for inter-districts transfer. Petitioners are working as Assistant Teachers in District - Kushinagar. They want their transfer to District Ballia, where there are 973 vacant posts but they have not been transferred despite inter-parties order passed by this Court, dated 19.7.2017 in Writ - A No.30805 of 2017 (Bibha Singh Kushwaha Vs. U.P. Basic Education Board Allahabad and three others) and the judgment dated 6.2.2018 in Writ - A No.2868 of 2018 (Bibha Singh Kushwaha and 21 others Vs. State of U.P.) which have become final.
(ii) The impugned order dated 13.6.2018, 12/14.6.2018 and 15.6.2018 (Annexures 8, 9 and 11) in Writ - A No.14128 of 2018 providing for no transfer from 8 aspirational districts and no transfer from Districts where the number of vacancies is more than 15% of the sanctioned post, is wholly arbitrary and illegal and also violative of the Government Order dated 29.3.2018, and the judgments of this Court particularly the judgment in the case of Bibha Singh (supra).
(iii) In district Ballia, 973 vacant posts were notified but the petitioner Vibha Singh was deliberately not transferred.
(iv) The rider on transfer placed by the Government Order No.3/18/1/3/96- dk0 -4-2018 dated 29.03.2018 is violative of Rule 8(2)(d) of the Rules, 2008, therefore, the said G.O. and the circular of the Board dated 10.06.2018, both cannot be enforced.
6. Sri Shailendra, learned counsel for the petitioners in WRIT - A No. - 14128 of 2018, submits as under:
(i) The impugned press note dated 13.6.2018, does not disclose who issued it and under what authority it has been issued. Therefore, this press note can not be given effect.
(ii) The benefit available to the petitioners under Rule 8(2)(d) can not be denied under the garb of the impugned press note dated 13.6.2018 which even does not have backing of any statutory provisions or the Government Order.
(iii) Petitioners have a right for inter-district Transfer under Rule 8(2)(d) of the Rules, 2008 which cannot be denied.
(iv) The bar of five years service as a condition for transfer mentioned in Rule 8(2)(d) of the Rules, 2008, has been relaxed by the G.O. dated 05.02.2018, therefore, it cannot be violated by a press note.
(v) A policy decision of the Central Government with respect to Aspirational districts in the year 2018, cannot be applied to inter-district transfers of the petitioners for the Session 2017-2018 (July to June).
7. Sri R.K. Ojha, learned Senior Advocate has argued in WRIT - A No. - 14102 of 2018 which has been filed challenging the aforesaid press note dated 12/6.6.2018, submits as under:
(i) Clause 6 of the Transfer Policy/Government Order dated 13.6.2017 (Annexure 1) provides that the districts where vacancy against sanctioned post is more than 15%, no inter-districts transfer of Assistant Teacher shall be done. By letter of the Secretary, U.P. Basic Education Board, dated 6.2.2018, (Annexure 3) a list of vacancies of Assistant Teachers in different districts have been notified being 40766 Assistant Teachers in Primary Schools and 6719 Headmasters of primary school/Assistant Teachers of Higher Basic School. In terms of Clause 3 of the Transfer policy/Government order dated 13.6.2017, inter-districts transfer is to be made to the extent of 25% of the available vacancies. Therefore, out of the aforesaid vacancies available, the transfers to the extent of 25% were to be made which has not been done. Under the circumstances, the action of the respondents in not transferring the petitioners from the districts of their place of posting to the desired Districts, is wholly arbitrary and illegal.
(ii) The policy of the "Niti Aayog" as relied in the press note dated 12/13.6.2018, came into affect from 5.6.2018. Therefore, the said policy decision shall not effect the statutory rights of the petitioners for transfer which they accrued prior to 5.6.2018.
(iii) The petitioners are lady Assistant Teachers. Their rights for transfer is a statutory right under Rule 8(2)(d) of the Rules 2008. Their right for transfer is also protected by Article 15 of the Constitution of India, which provides that the State may make special provisions for women. Therefore, the action of the respondents in not transferring the petitioners, is also violative of Article 15 of the Constitution of India.
(iv) There is no order or direction of the State Government or the Central Government for not transferring Assistant Teachers (Females) from Aspirational Districts.
(v) The petitioners have a right of inter-district transfer under Rule 21 of the Rules, 1981 and Rule 8(2)(d) of the Rules, 2008, therefore, the restrictions mentioned on inter-district transfers in the G.O. dated 13.06.2017 being contrary to the Rule, cannot be enforced.
(vi) Petitioners were considered for inter-district transfer but transfer has been denied to them on the ground that they are posted in Aspirational Districts whereas there is no such prohibition against the transfer in the Rules or the G.O. dated 13.06.2017. Therefore, the denial to transfer the petitioners from Aspirational Districts is wholly illegal.
(vii) The inter-district transfer shall not materially affect pupils and teachers ratio under Section 25 of The Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as ''the Act, 2009').
8. Sri Alok Kumar Yadav, learned counsel for the petitioner in Writ-A No. 49636 of 2018 submits as under:
(i) Rule 8(2)(d) of the Rules, 2008 gives teachers a right to be considered for inter-district transfer, therefore, the consideration has to be non-discriminatory. Therefore, the denial of transfer by clause (3) of the G.O. dated 13.06.2017, is illegal.
(ii) The transfer of the petitioners of Writ-A No.49636 of 2018, has been denied on the ground that she has earlier taken benefit of transfer. Such denial is illegal inasmuch as there is no such restriction in Rule 8(2)(d) of the Rules.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS:
9. Sri Ajit Kumar Singh, learned Additional Advocate General, submits, as under:
(i) Placing the instructions of the State Government dated 6.7.2018, which reiterates the Government Transfer Policy/Government Order dated 13.6.2017, and the policy decision of the Niti Aayog so as to deny uniformly transfer of Assistant teachers from 8 aspirational districts and such districts where the number of vacancies as against the sanctioned post is more than 15%. The eight aspirational districts are Siddharth Nagar, Shravasti, Bahraich, Sonbhadra, Chandauli, Fatehpur, Chitrakoot and Balrampur which have been earmarked as most backward districts. There are five districts, namely, Bhadohi, Pratapgarh, Kanpur Nagar, Etawah and Sultanpur where vacancies of Assistant Teachers in primary schools is more than 15%. There are 20 districts where vacancies of Assistant Teachers in Senior Basic School, namely, Districts - Chandauli, Muzaffarnagar, Sambhal, Raebareli ,Maharajganj, Siddharth Nagar, Auraiya, Sitapur, Pilibhit, Hardoi, Kushinagar, Budaun, Shravasti, Kasganj, Gonda, Bahraich, Balrampur, Sonbhadra, Shahjahanpur and Lakhimpur - Kheri, where the vacancies against the sanctioned posts are more than 15%. Therefore, as a uniform policy transfer of Assistant Teachers from aspirational districts and the districts where the number of vacancies as against the sanctioned post are more than 15%, have not been done in terms of the transfer policy dated 13.6.2017 and the policy of the Niti Aayog.
(ii) The Rules 1981 and the Rules 2008, both have been framed by the State Government in exercise of powers conferred under Section 19 of the U.P. Basic Education Act, 1972 (hereinafter referred to as ''the Act 1972'). The provisions of the Rules, 2008 mainly deal with posting while Rule 21 of the Rules, 1981 specifically deals with transfer, therefore, both the Rules need to be read together.
(iii) Transfer List has already been finalized and the teachers have been posted accordingly. The new Academic Session has commenced. Therefore, any interference at this juncture, would ultimately affect the interest of students who have a fundamental right of education under Article 21A of the Constitution of India.
(iv) Placing reliance on averments made in various paragraphs of the Personal Affidavit of the Additional Chief Secretary dated 17.07.2018, it is submitted that the action of the Board and the authorities are wholly in terms of the relevant Rules, Government Orders and Circulars and figures given in the affidavit regarding vacancies, are correct.
(v) There are total 5462 sanctioned posts in District Ballia, which have been filled up mainly by new appointments, hence there is no vacancy in district Ballia.
DISCUSSIONS AND FINDINGS:
10. I have carefully considered the submissions of learned counsels for the parties.
11. With the consent of the learned counsels for the parties, the following questions were framed on 27.07.2018 for determination in this batch of writ petitions.
Questions for Determination:-
(a) Whether restriction on inter-district transfer has been validly imposed by the Government Order dated 13.06.2017 on teachers who have earlier taken benefit of inter-district transfer?
(b) Whether under Rule 21 of the Rules, 1981 and Rule 8(2)(d) of the Rules, 2008, the assistant teachers have a right for consideration of their transfer application or they have a right of transfer?
(c) Whether in the absence of any stipulation either in Rule 21 of the Rules, 1981 or in Rule 8(2)(d) of the Rules, 2008, inter-district transfer to the petitioners working in aspirational districts, can be denied?
12. Before I proceed to examine the rival submissions made by the learned counsels for the parties so as to determine the questions framed above, it would be appropriate to reproduce relevant provisions of the Act 1972, the Act 2009, the Rule 1981, the Rules 2008, the G.O. dated 13.06.2017, 20.09.2017, 05.02.2018, 29.03.2018 and the circular of the Board dated 10.06.2018, as under:
"(i) The Uttar Pradesh Basic Education Act, 1972
13. Control by the State Government. - (1) The Board shall carry out such directions as may be issued to it from time to time by the State Government for the efficient administration of this Act.
(2) If in, or in connection with, the exercise of any of its powers and discharge of any of the functions by the Board under this Act, any dispute arises between the Board and the State Government, or between the Board and any local body, the decision of the State Government on such dispute shall be final and binding on the Board or the local body, as the case may be.
(3) The Board or any local body shall furnish to the State Government such reports, returns and other information, as the State Government may from time to time require for the purposes of this Act.
19. Power to make Rules. - (1) The State Government may, by notification, make rules for carrying out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely -
(a) the recruitment, and the conditions of service of persons appointed to the posts of officers, teachers and other employees under Section 6;
(b) the tenure of service, remuneration and other terms and conditions of service of officers, teachers and other employees transferred to the Board under Section 9;
(c) the recruitment, and the conditions of service of the persons appointed, to the posts of teachers and other employees of basic schools recognised by the Board;
(d) any other matter for which insufficient provision exists in the Act and provision in the rules is considered by the State Government to be necessary;
(e) any other matter which is to be or may be prescribed.
(ii) The Right of Children to Free and Compulsory Education Act, 2009
25. Pupil-Teacher Ratio.- (1) Within three years from the date of commencement of this Act, the appropriate Government and the local authority shall ensure that Pupil-Teacher Ratio, as specified in the Schedule, is maintained in each school.
(2) For the purpose of maintaining the Pupil-Teacher Ratio under sub-section (1), no teacher posted in a school shall be made to serve in any other school or office or deployed for any non-educational purpose, other than those specified in section 27.
26. Filling up vacancies of teachers.- The appointing authority, in relation to a school established, owned, controlled or substantially financed by funds provided directly or indirectly by the appropriate Government or by a local authority, shall ensure that vacancy of teacher in a school under its control shall not exceed ten per cent/of the total sanctioned strength.
35. Power to issue directions.- (1) The Central Government may issue such guidelines to the appropriate Government or, as the case may be, the local authority, as it deems fit for the purposes of implementation of the provisions of this Act.
(2) The appropriate Government may issue guidelines and give such directions, as it deems fit, to the local authority or the School Management Committee regarding implementation of the provisions of this Act.
(3) The local authority may issue guidelines and give such directions, as it deems fit, to the School Management Committee regarding implementation of the provisions of this Act.
(iii) The Uttar Pradesh Basic Education (Teachers) Service Rules, 1981
4. Strength of the Service. - (1) There shall be separate cadres of service under these rules for each local area.
(2) The strength of the cadre of the teaching staff pertaining to a local area and the number of the posts in the cadre shall be such as may be determined by the Board from time to time with the previous approval of the State Government :
Provided that the appointing authority may leave unfilled or the Board may hold in abeyance any post or class of posts without thereby entitling any person to compensation :
Provided further that the Board may, with the previous approval of the State Government, create from lime to time such number of temporary posts as it may deem fit.
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 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.
(iv) The Uttar Pradesh Basic Education (Teachers) (Posting) Rules, 2008
8. Posting. - (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 virtue of posting of newly appointed or promoted teachers the primary and upper primary schools of backward blocks get saturated i.e., no post of teacher is vacant in these schools, then handicapped and female teachers on their choice can be adjusted against the vacant posts of general blocks from these saturated blocks.
(f) Mutual transfers of male/female teachers from one backward block to another can be considered.
(3) Teachers transferred from one district to another will be given posting as per the provisions of these rules."
(v) Government Order No.1078/79-5-2016-15 (149)/2010, dated 13.06.2017
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¼2½ vUrtZuinh; LFkkukUrj.k ds QyLo:i uohu tuin esa LFkkukUrfjr gksus okys v/;kidksa dh ofj"Brk dk fu/kkZj.k m0iz0 csfld v/;kid lsok fu;ekoyh&1981 ds fu;e 22¼2½ ds vuq:i fd;k tk;sxkA
6& fdlh Hkh fo|ky; es cUn@,dy gksus dh n'kk esa LFkkukUrfjr v/;kid dks rc rd dk;ZeqDr ugha fd;k tk;sxk tc rd ml fo|ky; esa v/;kid dh O;oLFkk u gks tk;sA
7& LFkkukUrj.k gsrq vkosnu dsoy vkuykbu Lohdkj fd;s tk;saxsA eSuqvy ;k vU; fdlh fof/k ¼;Fkk&jftLVMZ] LihMiksLV] dksfj;j] nLrh vkfn½ ls fd;k x;k vkosnu&i= Lohdkj ugha fd;s tk;sxsA vkosnu&i= fu/kkZfjr izfdz;kuqlkj =qfVjfgr Hkjus dh ftEesnkjh lacaf/kr v/;kid dh gksxhA =qfViw.kZ@viw.kZ vkosnu i= ij fopkj ugha fd;k tk;sxkA vkosnu dh vfUre frfFk ds mijkUr dksbZ Hkh la'kks/ku xzkg~; ugha gksxkA vku&ykbu vkosnuksaijkUr Hkjs gq, vkosnu i= dk fizaV vkmV lEcfU/kr v/;kid }kjk ftyk csfld f'k{kk vf/kdkjh dk;kZy; dks nks izfr;ksa esa miyC/k djk;k tk;sxk] ftldh izkfIr jlhn ftyk csfld f'k{kk vf/kdkjh dk;kZy; }kjk v/;kid dks nh tk;sxhA
8& lEcfU/kr ftyk csfld f'k{kk vf/kdkjh bl izdkj izkIr vku&ykbu vkosnu i=ksa esa vafdr fooj.k@rF;ksa dk dk;kZy;h; vfHkys[kksa ls lR;kiu dh dk;Zokgh lqfuf'pr djsaxsA lEcfU/kr ftyk csfld f'k{kk vf/kdkjh }kjk lR;kfir vkosnu i=ksa dh fizaVsM dkih vko';d layXudksa@lk{;ksa lfgr vkosnu i= Hkjus dh vfUre frfFk ls ,d lIrkg dh vof/k ds vUnj lfpo] csfld f'k{kk ifj"kn dk;kZy;] bykgkckn dks vfuok;Z :i ls miyC/k djkuk gksxk] lkFk gh mUgsa bl vk'k; dk izek.k&i= Hkh ifj"kn eq[;ky; dks nsuk vfuok;Z gksxk fd ^^tuin------------------ esa vUrtZuinh; LFkkukUrj.k gsrq dqy------------------- fizaVsM vku&ykbu vkosnu&i= izLrqr fd;s x;s] ftlesa lR;kfir vkosnu i=ksa dh la[;k-------------------- rFkk fujLr vkosnu i=ksa dh la[;k------------------ gSA**
9& lEcfU/kr ftyk csfld f'k{kk vf/kdkjh }kjk vku&ykbu izkIr vkosnu i=ksa ds lR;kiu esa fujLr fd;s x;s vkosnu i=ksa ds lEcU/k eas lqLi"V dkj.k dk mYys[k djrs gq, fujLr fd;s x;s vkosnu i=ksa dh lwph lfpo] csfld f'k{kk ifj"kn] m0iz0 bykgkckn dks miyC/k djk;k tk;sxk rFkk mDr lwph dh ,d izfr dk;kZy; ds lwpuk iV ij Hkh pLik dh tk;sxhA
10& ftyk csfld f'k{kk vf/kdkjh }kjk lacaf/kr v/;kid ls bl vk'k; dk Hkh vUMj Vsfdax@'kiFk&i= fy;k tk;sxk fd lacaf/kr v/;kid }kjk LFkkukUrfjr tuin esa viuh T;s"Brk dk nkok izLrqr ugha fd;k tk;sxkA bl gsrq vUMj Vsfdax@'kiFk&i= dk izk:i lfpo] csfld f'k{kk ifj"kn] bykgkckn }kjk fodflr dj ftyk csfld f'k{kk vf/kdkfj;ksa dks miyC/k djk;k tk;sxkA
11& lfpo] csfld f'k{kk ifj"kn }kjk v/;kidksa ds vartZuinh; ¼tuin ds ckgj½ LFkkukUrj.k dh leLr dk;Zokgh ikjnf'kZrk ds lkFk fnukad 31 vxLr] 2017 rd iw.kZ dj yh tk;sxhA v/;kid dk LFkkukUrj.k xzkeh.k {ks= ls uxj {ks= ,oa uxj {ks= ls xzkeh.k {ks= eas ugha fd;k tk;sxkA
12& ftyk csfld f'k{kk vf/kdkjh }kjk LFkkukUrj.k ds QyLo:i tuin esa vk;s gq, v/;kidksa dh rSukrh 'kklukns'k la[;k&1088@79&5&17&15¼149½10Vh-lh-] fnukad 13-06-2017 ds izLrj&3 esa ftykf/kdkjh dh v/;{krk esa xfBr lfefr ds vuqeksnuksijkUr dh tk;sxhA
13& LFkkukUrj.k gsrq fu/kkZfjr vfUre frfFk 31 vxLr] 2017 ds i'pkr dksbZ Hkh vUrtZuinh; LFkkukUrj.k lfpo] csfld f'k{kk ifj"kn] m0iz0 bykgkckn }kjk ugha fd;k tk;sxkA
vr,o vartZuinh; LFkkukUrj.k dh dk;Zokgh mDr fu/kkZfjr izfdz;kuqlkj ikjnf'kZrkiw.kZHkonh;
g0 viBuh;
¼jkt izrki flag½
vij eq[; lfpoA
(vi) Government Order No.1810/79-5-2017-15 (149)/2010 dated 20.09.2017,
izs"kd]
eerk JhokLro
la;qDr lfpo]
m0iz0 'kkluA
lsok esa]
1& v/;{k csfld f'k{kk ifj"kn 2& lfpo] csfld f'k{kk ifj"kn]
,oa f'k{kk funs'kd ¼csfld½] m0iz0] bykgkcknA
m0iz0] y[kuÅA
f'k{kk vuqHkkx&5 y[kuÅ% fnukad 20 flrEcj] 2017
fo"k;% m0iz0 csfld f'k{kk ifj"kn }kjk lapkfyr fo|ky;ksa ds v/;kidksa dk o"kZ 2017&18 gsrq vUrtZuinh; LFkkukUrj.k uhfr esa la'kks/kuA
egksn;]
mi;qZDr fo"k;d lfpo] csfld f'k{kk ifj"kn ds i=kad&cs0f'k0i0@10755&56@2017&18] fnukad 18-08-2017 d`i;k lUnHkZ xzg.k djsa] ftlds }kjk m0iz0 csfld f'k{kk ifj"kn }kjk lapkfyr fo|ky;ksa ds v/;kidksa dk 'kSf{kd l= 2017&18 ds fy, 'kklukns'k la[;k&1078@79&5&2016&15¼149½@2010] fnukad 13-06-2017 }kjk fuxZr vUrtZuinh; ¼tuin ds ckgj½ LFkkukUrj.k uhfr esa la'kks/ku dk izLrko miyC/k djk;k x;k gSA
2& bl laca/k esa eq>s ;g dgus dk funs'k gqvk gS fd 'kklu Lrj ij lE;d fopkjksijkUr iwoZ eas fuxZr LFkkukUrj.k uhfr fnukad 13-06-2017 esa fuEuor~ la'kks/ku dh vuqefr iznku dh tkrh gS %&
¼1½ 'kklukns'k fnukad 13-06-2017 esa mfYyf[kr U;wure larks"ktud lsok dh le; lhek 05 o"kZ fnO;kax vH;fFkZ;ksa ij ykxw ugha gksxhA fodykaxrk ds laca/k esa eq[; fpfdRlkf/kdkjh dk fpfdRlh; izek.k&i= layXu djuk vfuok;Z gksxk] rHkh mldk ykHk mUgsa ns; gksxkA
¼2½ 'kklukns'k fnukad 13-06-2017 esa dsUnzh; m)Z lSfud cy ¼lh0ih0,e0,Q0½ ;Fkk ch0,l0,Q0] lh0vkj0ih0,Q0] vkbZ0Vh0ch0ih0] lh0vkbZ0,l0,Q0] ,l0,l0ch0 ,oa ,u0Mh0vkj0,Q0 rFkk Fky] ok;q ,oa ty lsuk ds dkfeZdksa dh vkfJr ifRu;ksa ij U;wure 05 o"kZ dh larks"ktud lsok dh le; lhek ykxw ugha gksxh] c'krsZ muds fu;a=d izkf/kdkjh }kjk ;g izek.k&i= nsuk gksxk fd og dsUnzh; v)Z lSfud cy@Hkkjrh; lsuk esa dk;Zjr gSA
mDr nksukas izdj.kksa es lacaf/kr tuin esa fjfDr;ksa dh miyC/krk gksus ij gh ykHk vuqeU; gksxkA
3& 'kklukns'k la[;k&1078@79&5&2016&15¼149½@2010] fnukad 13-06-2017 }kjk fuxZr vUrtZuinh; LFkkukUrj.k uhfr 2017&18 dh 'ks"k 'krsZ ;Fkkor~ ykxw jgsxhA
d`i;k rn~uqlkj vko';d dk;Zokgh djus dk d"V djsaA
Hkonh;k]
g0 viBuh;
20-09-17
¼eerk JhokLro½
la;qDr lfpoA
(vii) Government Order No.130/79-5-2018, dated 05.02.2018
egRoiw.kZ@le;c)
la[;k& 130@79&5&2018
izs"kd]
,l0 jktfyaxe
fo'ks"k lfpo
m0iz0 'kkluA
lsok esa]
funs'kd] csfld f'k{kk] lfpo] csfld f'k{kk ifj"kn]
m0iz0 y[kuÅA m0iz0 bykgkcknA
f'k{kk vuqHkkx&5 y[kuÅ% fnukad% 05 Qjojh 2018
fo"k;& ek0 mPp U;k;ky; esa ;ksftr voekuuk ;kfpdk la0 5660@2017 Jherh lk{kh feJk cuke lfpo] csfld f'k{kk ifj"kn ,oa vU; rFkk fjV ;kfpdk la0 44442@2017 rFkk ek0 mPp U;k;ky; esa ;ksftr fofHkUu fjV ;kfpdkvksa rFkk efgyk v/;kfidkvksa ds vUrZtuinh; LFkkukUrj.k ds lEcU/k esaA
egksn;]
mi;qZDr fo"k;d lfpo] csfld f'k{kk ifj"kn ds i= fnukad 23-01-18 dk lanHkZ xzg.k djsa] tks fd efgyk v/;kfidkvksa ds vUrZtuinh; LFkkukUrj.k gsrq iwoZ fuxZr 'kklukns'k la0 1078@79&5&17&15 ¼149½@10 Vh0lh0 fnukad 13-06-17] 20-09-17 rFkk 18-01-18 esa fu/kkZfjr lsok vof/k 05 o"kZ ds laca/k esa m0iz0 csfld f'k{kk ¼v/;kid½ ¼rSukrh½ izFke la'kks/ku fu;ekoyh 2010 ds fcUnq la0 8¼2½¼?k½ esa miyC/k izkfo/kku ds vUrZxr fo'ks"k ifjfLFkfr esa efgyk v/;kfidkvksa ds vUrZtuinh; LFkkukUrj.k esa 05 o"kZ dh le; lhek ls NwV fn;s tkus ds laca/k esa gSA
2- mYys[kuh; gS fd mRrj izns'k csfld f'k{kk ¼v/;kid½¼rSukrh½ fu;ekoyh 2008] v|ru la'kksf/kr 2010 ds fu;e&8¼2½¼?k½ esa fuEu O;oLFkk fo|eku gS &
lkekU; ifjfLFkfr;ksa esa efgyk vFkok iq:"k v/;kidksa ds vUrZtuinh; LFkkukUrj.k ds vkosnu i=ksa ij 5 o"kZ rd fopkj ugha fd;k tk;sxk] ijUrq fo'ks"k ifjfLFkfr esa efgyk v/;kfidkvksa ds vkosnukas ij muds ifr ds fuokl LFkku@llqjky ds tuin esa vUrZtuinh; LFkkukUrj.k gsrq fopkj fd;k tk ldsxkA
3- mDr ds laca/k esa eq>s ;g dgus dk funs'k gqvk gS fd mDr fu;ekoyh ds fu;e 8¼2½¼?k½ esa fo|eku O;oLFkk ds vUrZxr fo'ks"k ifjfLFkfr esa efgyk v/;kfidkvksa ds vUrZtuinh; LFkkukUrj.k gsrq vku ykbu i= dks Lohdkj fd;s tkus rFkk of.kZr fo'ks"k ifjfLFkfr dk ijh{k.k dj tuin esa fjfDr dh miyC/krk dh n'kk esa vko';d dk;Zokgh djus dk d"V djsaA
bl laca/k esa iwoZ fuxZr 'kklukns'k la0 1078@79&5&17&15 ¼149½@10Vh0lh0 fnukad 13-06-17] 'kklukns'k la0 1810@79&5&17&15¼149½@10Vh0lh0 fnukad 20-09-17] 'kklukns'k la0 67@79&5&18 fnuakd 18-01-18 bl lhek rd la'kksf/kr fd;k tkrk gSA 'ks"k 'krsZ ;Fkkor ykxw gksaxhA
Hkonh;
g0 viBuh;
¼,l0 jktfyaxe½
fo'ks"k lfpoA
(viii) Relevant portion of Government Order No.3/18/1/3/96-dk-4-2018, dated 29.03.2018 relating to General Transfer Policy of the State Government for officers and employees:
11- vU; ekxZn'kZd fl)kar%&
¼i½ lafnX/k lR;fu"Bk okys dkfeZdksa dh rSukrh laosnu'khy inksa ij dnkfi u dh tk;A
¼ii½ eafnr cPpksa ds ekrk&firk dh rSukrh] vf/kd`r ljdkjh fpfdRld ds izek.k i= ds vk/kkj ij] fodYi izkIr djds ,sls LFkku ij dh tk;] tgak fpfdRlk dh leqfpr O;oLFkk miyC/k gksA
¼iii½ lewg ^d* ds vf/kdkfj;ksa dks muds x`g e.My esa rSukr ugha fd;k tk;sxkA
¼iv½ lewg ^[k* ds vf/kdkfj;ksa dks muds x`g tuin esa rSukr ugha fd;k tk;sxk] ijUrq izfrca/k ;g gS fd mDr izkfo/kku dsoy tuin Lrjh; foHkkxksa@dk;kZy;ksa esa ykxw gksaxsA
¼v½ fnO;kax dkfeZdksa vFkok ,sls dkfeZd] ftuds vkfJr ifjokjhtu fnO;kaxrk ls izHkkfor gksa] dks lkekU; LFkkukUrj.k ls eqDr j[kk tk;A ,sls fnO;kax dkfeZdksa ds LFkkukUrj.k xEHkhj f'kdk;rksa vFkok vifjgk;Z dkj.kksa ls gh fd;s tk;saaA fnO;kax dkfeZd ds n~okjk vuqjks/k fd;s tkus ij] in dh miyC/krk ds vk/kkj ij mls mlds x`g tuin esa rSukr djus ij fopkj fd;k tk ldrk gSA
¼vi½ lewg ^x* ds dkfeZdksa dk izR;sd 03 o"kZ ds mijkUr iVy ifjorZu dj fn;k tk;A
¼vii½ Hkkjr ljdkj n~okjk ?kksf"kr izns'k dh egRodka{kh ftyk ;kstuk ¼Aspirational Districts Scheme½ ls lacaf/kr 08 ftys&fp=dwV] pankSyh] lksuHknz] Qrsgiqj] cyjkeiqj] fl)kFkZ uxj] JkoLrh o cgjkbp esa izR;sd foHkkx n~okjk izR;sd n'kk esa leLr inksa ij rSukrh djds lar`Ir dj fn;k tk;sxk ,oa 02 o"kZ ckn ogka rSukr dkfeZdksa ls fodYi izkIr dj mUgsa LFkkukUrfjr fd;k tk;A
¼viii½ fu/kkZfjr vof/k ds mijkUr lkekU;r% LFkkukUrj.k ds izLrko izLrqr u fd;s tk;saA
¼ix½ LFkkukUrj.k fd;s tkus gsrq vof/k ds fu/kkZj.k ds fy, dV&vkQ&MsV 31 ekpZ dks ekuk tk;sxkA
¼x½ 02 o"kZ esa lsokfuo`Rr gksus okys lewg ^x* ds dkfeZdksa dks muds x`g tuin ,oa lewg ^d* ,oa ^[k* ds dkfeZdksa dks muds x`g tuin dks NksM+rs gq,] bfPNr tuin esa rSukr djus ij ;FkklEHko fopkj fd;k tk;A
¼xi½ lewg ^x* ,oa ^?k* ds LFkkukUrj.k] LFkkukUrj.k uhfr ds izLrj&1 ds izkfo/kkuksa ls vkPNkfnr gksus ij] izns'k Lrjh; laoxZ gksus ij fdlh vU; e.My@tuin esa rFkk e.My Lrjh; laoxZ gksus ij e.My ds vUnj fdlh vU; tuin esa fd;s tk;saA
(ix) decision/ circular of the Board being No. cs0f'k0i0 /4252-54/2018-19, dated 10.06.2018 in terms of the Rules 21 of the Rules 1981 the Rules 2008:-
izs"kd]
lfpo]
m0iz0 csfld f'k{kk ifj"kn]
bykgkcknA
lsok esa]
mi egkfuns'kd]
jk"Vªh; lwpuk dsUnz]
;kstuk Hkou] y[kuÅA
i=kad% cs0f'k0i0@4252&54@2018&19 fnukad & 10&6&2018
fo"k;%& vUrtZuinh; LFkkukUrj.k izfdz;k esa izkIr vkWuykbu vkosnu i=ksa ds lUnHkZ esa LFkkukUrj.k lwph tsujsV fd;s tkus ds lEcU/k esaA
egksn;]
d`i;k mi;qZDr fo"k;d lanHkZ yssus dk d"V djsa ftlls lEcfU/kr 'kklu esa ,d cSBd dy fnukad 09-06-2018 dks vij eq[; lfpo egksn; dh v/;{krk esa gqbZ FkhA cSBd esa fy;s x;s fu.kZ;ksa] izkIr funsZ'kksa rFkk] vki }kjk LFkkukUrj.k lEcU/kh dk;Z gsrq okafNr vko';d lwpukvksa vkSj bl lanHkZ eas iwoZ iszf"kr i=kad cs0f'k0i0@3686&87@2018&19 fnukad 01-06-2018 ds dze esa fuEuor lwP; gS&
1& iwoZ esa miyC/k djk;s x;s izklsl ¶yks pkVZ ds lanHkZ esa lEizfr dsoy ,d jkmUM dh gh izfdz;k lEikfnr gksxhA
2& tuinokj] inokj fjfDr;ksa ¼xfreku ,oa izLrkfor HkrhZ izfdz;kvksa dks vkWx.ku esa ysrs gq,½ dh lkWQ~VdkWih layXu gSA
3& 'kklukns'k fnukad 13-06-2017 ds vuqlkj& ,sls tuin tgkW f'k{kdksa dh fjfDr Lohd`r inksa sds lkis{k 15 izfr'kr ls vf/kd gS] ogkW ls vUrtZuinh; LFkkukUrj.k ds ek/;e ls fdlh v/;kid dk LFkkukUrj.k vU; tuin esa ugha fd;k tk;sxk rFkk Hkkjr ljdkj }kjk fpfg~ur izns'k ds vkB ,Lisjs'kuy tuinksa& fl)kFkZuxj] JkoLrh] cgjkbp] lksuHknz] pUnkSyh] Qrsgiqj] fp=dwV] cyjkeiqj ls Hkh fdlh v/;kid dks vU; tuin esa LFkkukUrfjr ugha fd;k tk;sxk ijUrq bu tuinksa esa tkus okys bPNqd v/;kidksa dk LFkkukUrj.k fd;k tk;sxkA mDr 15 izfr'kr dk vkWx.ku mi;qZDr fcUnq&02 esa vafdr fjfDr;ksa ds lkisf{kd fd;k tkuk gksxk rFkk vkWx.ku esa n'keyo dh fLFkfr esa jkmfUMax vkWQ dj yh tk;sxh vFkkZr ;fn og n'keyo 05 ls de gS rks fjfDr dh la[;k ogh jgsxh rFkk ;fn og n'keyo 05 vFkok mlls vf/kd gS rks og vxyh la[;k gks tk;sxhA 'kklukns'k fnukad 13-06-2017 esa LFkkukUrj.k gsrq fu/kkZfjr fdlh tuin dh fjfDr dk 25 izfr'kr vf/kdre lhek dk laKku vc ugha fy;k tk;sxk D;ksafd xfreku rFkk vkxkeh HkfrZ;ksa esa fdlh tuin dks vkoafVr inksa dks fjfDr;ksa ds vkWx.ku esa lfEefyr fd;k tk pqdk gSA
4& LFkkukUrj.k vkns'k lfpo ds ykWfxu ,oa fMftVy gLrk{kj }kjk lEikfnr dh tk;sxh rFkk LFkkukUrj.k vkns'k Hkh mUgha ds gLrk{kj ls fuxZr gksaxsA mDr LFkkukUrj.k vkns'k QR dksM lfgr gksxk ftldk izk:i layXu gSA
5& LFkkukUrj.k vkns'k dk voyksdu vkosnudrkZ v/;kid ds Query }kjk iSu la[;k rFkk cSad [kkrk la[;k dk iz;ksx djrs gq, Lo;a gh ns[kk tk ldsxk rFkk LFkkukUrfjr v/;kid }kjk viuk LFkkukUrj.k vkns'k dh izfr MkmuyksM dh tk ldsxhA ftu v/;kidksa dk LFkkukUrj.k ugha gqvk gksxk muds }kjk iSu rFkk cSad [kkrk la[;k QhM fd;s tkus ij ^^Transfer could not be done because vacancy is not available** lans'k iznf'kZr gksxkA
5& ftyk csfld f'k{kk vf/kdkjh }kjk lR;kfir fd;s gq, MkVk dks fMftVy gLrk{kj ls ykWd djus dh dk;Zokgh xfreku gS ijUrq osclkbV ds lapkyu esa vk jgh rduhdh dfBukbZ;ksa ds n`f"Vxr mlesa cgqr vf/kd le; yxus dh laHkkouk gS ftlls tufgr dk ;g LFkkukUrj.k dk;Z foyfEcr gks jgk gSA vr% blds n`f"Vxr ftyk csfld f'k{kk vf/kdkfj;ksa }kjk miyC/k djk;s x;s lR;kfir MkVk ij gh mDr izkslsflax dh tkuh gksxhA
d`i;k vuqjks/k gS fd mijksDrkuqlkj dk;Zokgh djus dk d"V djsaA
Hkonh;
g0 viBuh;
lfpo]
m0iz0 csfld f'k{kk ifj"kn]
bykgkcknA"
13. Rule 21 of the Rules 1981 when it was originally enacted; stood, as under:-
"There shall be no transfer of any teacher from the rural local area to an urban local area or vice versa or from one urban local area to another of the same district or from local area of one district to that of another district except on the request of or with the consent of the teacher himself and in either case approval of the Board."
14. By 7th Amendment Rules, 1997, Rule 21 was slightly amended whereby the words "with the approval of the Board" were replaced by the words "approval of the Board shall be necessary". By 13th Amendment Rules, Rule 21 was exhaustively amended in the year 2011 but by 15th Amendment dated 31.08.2012, Rule 21 was again amended, restoring Rule 21 almost in the same form as it was originally enacted.
15. In the personal affidavit dated 17.07.2018, filed by the Additional Chief Secretary, Basic Education, Government of U.P. Lucknow on behalf of the State Government, it has been stated, as under:
"4. That at the outset it is to be submitted that the process of Inter District Transfers was Software based and did not involve human intervention. The Applications for transfer were invited online. For the sake of transparency the weightage points earned by the applicants and their resultant standing in merit for transfer were put on the website so that any aggrieved applicant may represent his grievance. The Grievances were addressed and disposed of at the District level by a committee of Zonal A D (Basic) and DIET Principal and the required corrections were done by the BSAs. After this the transfer orders were generated by the NIC through the software developed for the purpose.
5. That regarding the submission of Advocate Sri Indra Raj Singh in Writ-A No.14105/2018 and Writ-A No.14099/2018. The deponent submits here under:
A- The transfer could be done only against the existing vacancies in any particular district because the post of a Parishadiya Teacher is of district Cadre. So far as the contention of the petitioner regarding their transfer to district Ballia is concerned, It is no disputed that earlier 973 vacant posts were notified, but having taken into consideration ongoing recruitment of teachers in all the district of U.P., there remained no vacancy in district Ballia for the post of Assistant Teacher primary post.
8. That thus in compliance of the Hon'ble Court's order all married female teachers were extended the benefit of applying for inter district transfer and subsequently the applications were considered and processed impartially as per existing vacancies and merit points.
9. That regarding contention about out ward transfer from Aspirational district, it is submitted that such districts have been chosen on the basis of their backwardness regarding education, health and nutrition, agricultural etc. and the programme' Transformation of Aspirational Districts' was launched by the Hon'ble Prime Minister of India as per the information on the Niti Aayog website. A list of 115 Aspirational districts including 8 such districts of U.P. have been identified and sectorwise parameters which required improvement were also identified. One of the parameters is 'Percentage of elementary schools complying with RTE specified pupil teacher ratio (PTR)'. The same was communicated to all District Magistrates and concerned departments including Basic Education Department by letter dated 18-1-2018 from State Planning Commission. A copy of the information and documents on Niti Aayog website up dated on 28.03.2018 along with list, the letter dated 06th March 2018 from the State Planning Commission regarding the meeting by Chief Secretary, the letter dated 03 April 2018 regarding the review meeting by the Hon'ble Chief Minister and the Hon'ble Home Minister of India, the email dated 14th May 2018 regarding video conference with the state nodal officers by Niti Aayog, are being enclosed and here with marked as Annexure No.C.A.-3 to this affidavit.
10. That subsequent thereto communication dated 10.06.2018 was received from the office of the Secretary U.P. Basic Education Board, Allahabad giving reference to the order dated 13.06.2017 to the effect that such districts where the vacancies is more than 15% of the sanctioned posts, from those districts the transfer of any teacher to any other districts would not be done. Further, that from the 8 Aspirational districts of U.P., no teacher would be transferred out of these districts, however any teacher willing go to these 8 Aspirational districts, would be transferred accordingly. A copy of the communication dated 10.06.2018 and Government order dated 13.06.2017 as amended on 20.09.2017 is being enclosed and marked as Annexure No.C.A.-4 to this affidavit.
11. That from the aforesaid details, it is evident that the districts where strength of teacher is already deficient, the quality of education in the schools would be affected. Hence the outward transfer from Aspirational districts was barred. It is also submitted that the decision of not transferring of any teacher from such districts is not on a pick and choose basis but a decision that affects all in these districts. It is further submitted that transfer is not a right of the teacher but has to be done in the light of the vacancies and public interest and providing better eduction in primary schools of the State.
14. That from the aforesaid it is clear that in normal circumstances a teacher ought to have a minimum of 5 years of service to be eligible for Inter District Transfer but in special circumstances applications of female teachers could be considered. The inter district transfer in question has been provided for considering applications of such teachers on basis of weightage marks arrived at not only for them being women but also additional marks for illness of their own or spouse or children and also for being handicapped. Thus the teachers falling in such special circumstances were considered for transfers and the transfers were done where-ever vacancies existed against the sanctioned post. Thus it is further submitted that the contention of the petitioner to the effect that press note has been made a basis of denying the benefit, of Rule 8(2)(d), is misconceived. Merit list was prepared after awarding marks to different categories of teachers as given below:
a. Differently Abled (before joining service or while in service) - 05 marks
b. Serious Illness (self/ spouse/ children) - 05 marks
c. Female - 05 marks
d. Per completed year of service - 01 marks (upto 35 marks Maximum)
15. That with regard to the argument of Senior Adv. Sri R.K. Ojha in writ petition no.14102/2018, it is submitted that the transfer policy of the Basic Teachers is Governed by the 1981 Rules namely "U.P. Basic education (Teachers) Service Rules 1981" subsequently the posting Rule of Basic Teachers were framed in 2008 namely: in furtherance thereto the Government order dated 13.06.2017 was issued whereby inter districts transfer policy for the session 2017-18 in the schools run by U.P. Basic Education Baord, U.P. were framed. However the Government order was also issued on 05.02.2018 under pursuance of the Hon'ble High Court order. The said policy is not under challenge.
18. That the deponent with all respect to the Constitution of India submits that the applications for inter districts trasnfer have to be considered in view of the clause no.8 of the Government order dated 13.06.2017 and therefore the eligibility of the applicants for inter district transfer has to be considered on the basis of the quality points and also on the basis of the preference as mentioned therein. This provision makes it clear that the applicants cannot claim transfer posting at their choice place as a matter of right. The interests of the children studying in Parishadiya Primary Schools in these backward districts identified as aspirational districts were considered foremost while taking the decision."
16. When the Rules 2008 were enacted, no provision for transfer was made in Rule 8 of the Rules. By First Amendment Rules, 2010, the Rules 2008 were amended which is existing today. Subsequent to it, the Rule 21 was amended by 13th Amendment Rules as aforesaid and it was again amended by the 15th Amendment Rules, 2012 whereby Rule 21 was restored in its original form.
Question No.(a):- Whether restriction on inter-district transfer has been validly imposed by the Government Order dated 13.06.2017 on teachers who have earlier taken benefit of inter-district transfer?
18. Since the Government Order itself has been amended by the State Government and applications of all eligible candidates in terms of the Rules have been considered, therefore, this question does not survive.
Question No.(b):- Whether under Rule 21 of the Rules 1981 and Rule 8(2)(d) of the Rules 2008, the assistant teachers have a right for consideration of their transfer application or they have a right of transfer?
19. It is settled law that transfer is not a right. As per Rule 4 of the Rules 1981, the service cadre of the petitioners is the local area of the respective district. Their appointing authority is the concerned District Basic Education Officer. In view of Rule 21 of the Rules 1981, the Assistant Teachers of basic schools run by the Board cannot be transferred from rural local area to an urban local area or vice versa or from one urban local area to another of the same district or from local area of one district to that of another district except on the request of or with the consent of the teacher himself and in either case, approval of the Board shall be necessary. Rule 8(2)(d) of the Rules 2008 also does not confer any right for inter-district transfer. On the contrary it provides that in normal circumstances, the applications of inter-district transfers in respect of male and female teachers will not be entertained within five years of their posting. However, an exception has been provided in respect of female teachers that in special circumstances their applications for inter-district transfer would be entertained to the place of residence of their husband or in-laws' district. Rule 21 read with Rule 8(2)(d) of the Rules 1981 clearly indicates that teachers have no right for inter-district transfer.
20. Similar controversy with respect to Rule 21 of the Rules 1981 as amended by 13th and 15th Amendment Rules, was considered by a bench of this Court in the case of Reena Singh and others vs. State of U.P. and others [2013(101) ALR 527] (Paras-5, 6, 7, 8, 10, 11) and it was held as under:-
"5. After respective arguments have been advanced the factual situation as is emerging in the present case is that 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 in magnified form 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 31.12.2011 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."
6. Thereafter, further amendment has been introduced on 31st August, 2012 by means of 15th Amendment and therein once again amendment has been introduced in Rule 21 in following terms;
"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 of the same district or from local area of one district to that of another district except on the request or or with the consent of the teacher himself and in either case approval of the Board shall be necessary."
A bare perusal of the rules quoted above would go to show that there is an authority of transfer conferred in the authorities concerned on the request of teacher concerned or on his/her consent after there is due concurrence taken by the Board. By means of 15th Amendment, so introduced, original rule which was replaced by 13th Amendment has been restored.
7. Thereafter for making inter-district transfer, the Board, proceeded to frame guidelines in its meeting dated 22.04.2013 fixing therein criteria that was to be adhered in the matter of inter-district transfer and Secretary, Basic Shiksha Parishad on 27.05.2013, circulated the same to each and every District Basic Education Officer. Relevant extract of the same is being extracted below;
"izs"kd]
lfpo]
mRrj izns'k csfld f'k{kk ifj"kn]
bykgkcknA
lsok esa]
ftyk csfld f'k{kk vf/kdkjh
mRrj izns'kA
i=kad cs0f'k0i0 @ 9825&45 @2013&14 fnukad 27-5-13
fo"k; %& m0iz0 csfld f'k{kk ifj"kn ds v/khu lapkfyr fo|ky;ksa esa dk;Zjr f'k{kdksa ds vUrtZuinh; LFkkukUrj.k ds lEcU/k esaA
egksn;]
ifj"knh; fo|ky;ksa esa dk;Zjr lgk;d v/;kid@lgk;d v/;kfidkvksa ds vUrtZuinh; LFkkukUrj.k ds lEcU/k esa voxr djkuk gS fd vUrtZuinh; LFkkukUrj.k m0iz0 csfld f'k{kk v/;kid lsok fu;ekoyh&1981 esa iUnzgosa la'kks/ku ds QyLo:i fu;e &21 esa mfYyf[kr fuEu O;oLFkk ds vuq:i fd;k tkuk gS&
^^fdlh v/;kid dk LFkkukUrj.k xzkeh.k LFkkuh; {ks= ls uxj LFkkuh; {ks= esa ;k blds foijhr ;k fdlh ,d LFkkuh; uxj {ks= ls mlh ftys ds fdlh vU; LFkkuh; {ks= esa ;k ,d ftys ds LFkkuh; {ks= ls fdlh vU; ftys ds LFkuh; {ks= dks flok; v/;kid ds vuqjks/k ij ;k mldh Lo;a dh lgefr ds ugh gksxk] vkSj fdlh Hkh ekeys esa ifj"kn dk vuqeksnu vko';d gksxkA^^
mDr ds dze esa 'kSf{kd l= 2013&14 esa m0iz0 csfld f'k{k ifj"kn }kjk bPNqd vgZ v/;kidksa dk vUrtZuinh; LFkkukUrj.k djus dk fu.kZ; fy;k x;k gSA ifj"knh; v/;kidksa ds vUrtZuinh; LFkkukUrj.k dks ikjn'khZ ,oa 'kqfprkiw.kZ cukus gsrq vkuykbu vkosnu dh O;oLFkk dh xbZ gSA mRrj izns'k csfld f'k{kk ifj"kn dh fnukad 22 vizSy 2013 dh cSBd esa ifj"knh; fo|ky;ksa esa dk;Zjr v/;kidksa dk vUrtZuinh; LFkkukUrj.k fuEufyf[kr izkfo/kkuksa ds vuq:i fd;s tkus dk fu.kZ; fy;k x;k gS&
1& vUrtZuinh; LFkkukUrj.k gsrq dsoy ogh v/;kid vgZ gksxs ftUgksus dk;Zjr tuin esa izFke fu;qfDr frfFk ls foKfIr izdk'ku dh frfFk rd U;wure 03 o"kZ ¼efgyk@fodykax v/;kidksa gsrq U;wure 01 o"kZ½ dh lsok iw.kZ dj yh gksA
2& ;fn fdlh v/;kid@v/;kfidk }kjk foxr 05 o"kZ esa vUrtZuinh; LFkkukUrj.k fy;k x;k gS rks og l= 2013&14 esa vUrtZuinh; LFkkukUrj.k gsrq vgZ ugh gksxkA LFkkkukUrfjr tuin esa dk;Zjr vof/k dk vkdyu tuin esa dk;ZHkkj xzg.k djus dh frfFk ls foKfIr izdk'ku dh frfFk rd fd;k tk;sxkA
3& vUrtZuinh; LFkkukUrj.k gsrq bPNqd lHkh efgyk@iq:"k v/;kidksa dks fu/kkZfjr izk:i ij vkuykbu vkosnu djuk gksxk] ftlesa v/;kidksa }kjk vf/keku dze esa rhu tuinksa dk fodYi izLrqr djuk gksxkA LFkkukUrj.k pkgus okys efgyk@iq:"k v/;kidksa dk LFkkukUrj.k vkosfnr@fodYi fn;s x;s ftys esa muds vf/keku dze esa izFke fodYi ds vk/kkj ij fd;k tk;sxk] rRi'pkr mudk LFkkukUrj.k muds f}rh; fodYi ,oa ckdh cps v/;kidksa dk muds r`rh; fodYi ds vk/kkj ij fd;k tk;sxkA
4& m0iz0 csfld f'k{kk v/;kid lsok fu;ekoyh ds vuqlkj ifj"knh; v/;kidksa dk in ftyk laoxZ dk gksrk gSA ,slh fLFkfr esa vUrtZuinh; LFkkukUrj.k vf/kdkj ugh gSA v/;kidksa dk vUrtZuinh; LFkkukUrj.k mudks lqfo/kk iznku djus gsrq f'k{kd@f'kf{kdk dh vko';drk@ifjfLFkfr dks n`f"Vxr j[krs gq, ,oa okafNr tuinksa esa miyC/k fjfDr;ksa ds vk/kkj ij fd;s tkus dh O;oLFkk gSA vr ,o fdlh Hkh v/;kid }kjk vUtZuinh; LFkkukUrj.k ikus dk nkok vf/kdkj Lo:i ugh fd;k tk ldrk gSA
6& vUrtZuinh; LFkkukUrj.k esa ,sls tuin tgkW ls vkosnu pkgk x;k gS rFkk mu tuinksa esa tgkW ds fy, vkosnu fd;k x;k gS] dh fjfDr;ksa dks /;ku esa j[krs gq, vfUre fu.kZ; m0iz0 csfld f'k{kk ifj"kn }kjk fuEufyf[kr fcUnqvksa ds vkyksd esa fd;k tk;sxk&
d& ,sls fodykax v/;kid ftudh fodykaxrk U;wure 40 izfr'kr gksA
[k& xEHkhj jksx ls ihfM+r v/;kidA
x& l'kL= lSU; cy esa dk;Zjr lSfudksa dh ifRu;ksa dk okafNr tuin esa ojh;rkuqlkj LFkkukUrj.k lEcU/kh vuqjks/kA
?k& efgyk v/;kidksa ds lEcU/k esa x`g tuin@ifr ds dk;Zjr tuin gsrq vkosnuA
M-& iq:"k v/;kidksa }kjk x`g tuin gsrq vkosnuA
6& LFkkukUrj.k pkgus okys v/;kidksa dk muds }kjk okafNr tuin esa dsoy mlh fLFkfr esa LFkkukUrj.k fd;k tk;sxk tcfd ml tuin esa lEcfU/kr v/;kid ds cSp ds v/;kid Hkh leku in ij dk;Zjr gksA
7& vUrtZuinh; LFkkukUrj.k gsrq dsoy vkuykbu vkosnu Lohdkj fd;s tk,xs] ,oa LFkkukUrj.k ij dsoy mlh n'kk esa fopkj fd;k tkuk lEHko gksxkA tcfd lEcfU/kr v/;kid }kjk fu/kkZfjr izfdz;kuqlkj lgh
8& vUrtZuinh; LFkkukUrj.k esa bl ckr dk Hkh /;ku j[kk tk;sxk fd nwjLFk @fiNM+s tuinksa ls flQZ mrus gh LFkkukUrj.k fd;s tk, ftlls fd lkekU; f'k{kk O;oLFkk esa dksbZ dfBukbZ mRiUu u gksA
9& lHkh LFkkukUrj.k pkgus okys vH;fFk;ksa }kjk foKfIr esa mfYyf[kr izfdz;kuqlkj vkuykbu vkosnu fd;k tk;sxkA vkosnuksijkUr Hkjs gq, vkosnu i= dk fizUV vkmV nks izfr;ksa esa ftyk csfld f'k{kk vf/kdkjh dk;Zy; dks miyC/k djkuk vfuok;Z gksxkA
10& lHkh ftyk csfld f'k{kk vf/kdkjh bl izdkj izkIr vkuykbu vkosnu i=ks dk vkuykbu vkosnu esa vafdr fooj.k@rF;ksa ls dkmfUlfyax esa v/;kid }kjk miyC/k djk;s x;s lk{;ksa ,oa dk;kZy;h vfHkys[kksa ls lR;kiu dh dk;Zokgh lqfuf'pr djsxsA
11& vUrtZuinh; LFkkukUrj.k gsrq vkosnu djus okys v/;kidks dks fnukad 18-06-2013 dks bl gsrq vk;ksftr dkmfUlfyax esa izR;sd n'kk esa iSu dkMZ@osru vkgj.k cSad iklcqd@fu;qfDr ,oa inksUufr vkns'k@vU; lk{;ksa lfgr mifLFkr gksuk gksxkA ;fn mDr frfFk dks dksbZ v/;kid mifLFkr ugh gksrk gS rks mlds LFkkukUrj.k ij fopkj fd;k tkuk lEHko ugh gksxkA
12& lHkh ftyk csfld f'k{kk vf/kdkjh vkuykbu lR;kiu esa fujLr fd;s x;s vkosnu i=ksa ds lEcU/k esa lqLi"V dkj.k dk mYys[k djsxsA lkFk gh fujLr fd;s x;s vkosnu i=ksa dks lwph lfgr i`Fkd ls miyC/k djk;sxsA
13& leLr ftyk csfld vf/kdkfj;ksa dks lR;kfir vkosnu i=ksa dh gkMZdkih vko';d layXudksa@lk{;ksa lfgr ifj"kn dk;kZy; dks vkosnu lekIr gksus dh frfFk ls ,d lIrkg ds Hkhrj vfuok;Z :i ls miyC/k djkuk gksxk] lkFk gh mUgs bl vk'k; dk ,d izek.k i= Hkh ifj"kn eq[;ky; dk nsuk vfuok;Z gksxk fd ^^tuin ------------------------ esa vUrtZuinh; la[;k ------------------------ rFkk vlR;kfir vkosnu i=ksa dh la[;k ----------------------- gSA^^
14& vkuykbu vkosnu ds QyLo:i LFkkukUrfjr v/;kidksa dks vius uohu rSukrh tuin esa fu/kkZfjr frfFk rd mifLFkr gksuk gksxk] vU;Fkk dh n'kk esa l= 2013&14 esa mlds vUrtZuinh; LFkkukUrj.k ij fopkj ugh fd;k tk;sxkA
15& lHkh tuinksa ds ftyk csfld f'k{kk vf/kdkjh LFkkukUrfjr v/;kidksa dks dk;ZeqDr djus ds iwoZ mlds fo|ky; esa v/;kidksa dh O;oLFkk dj ys ftlls cPpksa ds f'k{k.k dk;Z esa dksbZ ck/kk mRiUu u gksA fdUrq ;g dk;Z fu/kkZfjr frfFk ds Hkhrj gh dj fy;k tk, ftlls lEcfU/kr v/;kid vius uohu rSukrh tuin esa lle; mifLFkr gks ldsaA
16& vUrtZuinh; LFkkukUrj.k gsrq izLrkfor dk;Zdze@le;lkfj.kh
vUrtZuinh; LFkkukUrj.k gsrq foKfIr dk izdk'k
25-05-2013
vUrtZuinh; LFkkukUrj.k gsrq vkuykbu vkosnu izkjEHk gksus dh frfFk
28-05-2013
vUrtZuinh; LFkkukUrj.k gsrq vkuykbu vkosnu dh vfUre frfFk
09-06-2013
vUrtZuinh; LFkkukUrj.k gsrq dkmfUlfyax dk vk;kstu
18-06-2013
ftyk csfld f'k{kk vf/kdkjh }kjk vkosnu dks lR;kfir djus dh vfUre frfFk
20-06-2013
ftyk csfld f'k{kk vf/kdkjh vkosnu i= dh gkMZ dkih layXudksa lfgr miyC/k djkus dh vfUre frfFk
25-06-2013
vUrtZuinh; LFkkukUrj.k lwph dk izdk'ku
tqykbZ ds izFke lIrkg esa
Hkonh;
g0 viBuh;
¼lat; flUgk½
lfpo]
mRrj izns'k csfld f'k{kk ifj"kn
bykgkcknA
i`0la0@cs0f'k0i0@ 2013&14 rn~fnukad
izfrfyfi fuEufyf[kr dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq izsf"kr
1- f'k{kk funs'kd ¼csfld½ m0iz0 y[kum dks lwpukFkZ izsfirA
2- leLr e.Myh; lgk;d f'k{kk funs'kd ¼csfld½ m0iz0A
¼lat; flUgk½
lfpo]
mRrj izns'k csfld f'k{kk ifj"kn
bykgkcknA"
8. Bare perusal of the guidelines would go to show that same is self explanatory covering each and every contingency and clearly specifying that transfer is not a right, as teachers working form part of the cadre which is of district level and further it has been clarified that transfer order would be effected wherein their batch-mates are working on equivalent post and no teacher can claim inter-district transfer as a matter of right.
10. The authority to effectuate the inter-district transfer is there but the said transfer order has to be given effect to after there is due concurrence from the Board. The Board has proceeded to issue a circular dated 27.05.2013 covering the field of inter-district transfer and therein a categorical mention has been made that request of teachers to be transferred in a particular district of his/her choice would be accepted only when in the corresponding district his/her respective batch-mates are working against the same post, as held by the incumbents. Here in the present case, accepted position is that in the district Allahabad promotional exercise has not been undertaken and the batch-mates of petitioners are still working on a lower post and, in view of this, as per condition no. 6 of the circular issued by the Board petitioners cannot be transferred and as per Note Gha appended in the list dated 31st July, 2013 joining of petitioners cannot be ensured. Transfer is an incidence of service, but under U.P. Basic Education Teachers (Service) Rules, 1981, it is a privilege conferred upon a teacher but it is not an absolute privilege rather it is hedged with certain conditions and once it has been made clear that one can be transferred only in the said district where his/her batch-mates are similarly situated, then transfer cannot be claimed as a matter of right. Here in the present case batch-mates of petitioners at Allahabad till date have not been accorded promotion, as such, petitioners cannot claim as a matter of right to be accorded transfer.
Much emphasis has been laid by the petitioners that once the Legislature in its wisdom has deliberately amended the Rule 21 of U.P. Basic Education (Teachers) Service Rules, 1981 and thereafter has restored back Rule 21 in its original form, then such a condition could not have been imposed by means of circular dated 27.05.2013, as deliberately said conditions have been deleted and, in view of this, issuance of circular dated 27.05.2013 is nothing but transgression and oversleeping of jurisdiction.
11. The transfer order in question as per Rule 21 of 1981 Rules has to be made with the concurrence/approval of the Board and the Board has taken a policy decision on 27.05.2013 not to effectuate any transfer to the corresponding district wherein batch-mates of the transferred incumbents have not at all been accorded same status and once the Board, who inheres the authority to accord transfer, has chosen to take a resolve on the said score, then it cannot be said that said circular in any way violate the rules in question. Where a power is conferred or duty is imposed by statute or otherwise, and there is nothing expressly inhibiting the exercise of authority or performance of duty by any limitations or restrictions, such power cannot be arbitrarily or indiscriminately exercised, as power is always coupled with duty. Once authority has been reposed in the Board to effectuate inter-district transfer, and in the said direction, keeping all relevant factors in mind, germane for effectuating inter-district transfer, policy decision has been taken on 27.05.2013 which is inclusive of the policy to save the seniority of their batch-mates in corresponding district, wherein they intend to be transferred, same is not effected, and in such a situation such exercise of transfer cannot be effectuated, wherein their batch-mates are not similarly situated. It is a well intended policy to save the seniority of their batch-mates in the corresponding district, wherein transfer has been intended for. There is no lack of authority in framing such a policy, as an authority who is empowered to do something has absolute authority to exercise incidental and ancillary authority too, so that the intentment of conferring such authority is fulfilled, in free, fair and transparent manner. The Board in transfer, has the authority to frame the guidelines qua the way and manner it has to conduct itself in the matter of effectuating transfer. On account of reintroduction of Rule 21, the authority of the Board to frame guidelines for effectuating inter-district transfer is not at all diluted or restricted, as has been sought to be suggested. Guidelines have been framed to maintain transparency and rule out arbitrariness, so that one knows the contingency when an incumbent can be transferred and the parameters of exercise of authority. One of the function of Board is to control the imparting of basic education, to exercise supervision and control over the basic schools, and to take all such steps necessary for discharge of any power. Once under the rules, authority to accord approval, rests with the Board, then it has all authority to frame guidelines to conduct itself. Guidelines in question, in noway violate the Rules."
(Emphasis supplied by me)
21. In the case of Kailash Chandra Sharma vs. State of Rajsthan and others [(2002) 6 SCC 62 (para-32], Hon'ble Supreme Court while considering the validity of awarding of bonus marks to applicants to the district and the rural areas of the district concerned, also considered the arguments of inter-district transfer and observed as under:
"32. Coming then to the next plea that the residents of towns, if appointed will not be willing to serve the rural areas and they will be more interested in getting themselves transferred to "relatively urban area and forward districts", does not in our view, stand a moment's scrutiny. The apprehension that 'teacher absenteeism' will be rampant if non-rural candidates are appointed, to say the least, is based on irrelevant and unwarranted assumptions. First of all, as rightly pointed out by Dr. A.M. Singhvi, postings and transfers are managerial functions. The concerned authorities in-charge cannot be heard to say that there will be undue pressures from the candidates from extraneous sources and they will have to succumb to such pressures. Secondly, the question of non rural candidates trying to avoid working in villages and seeking transfer to town or urban areas does not arise for the simple reason that the appointees would have no option but to work in villages coming within the jurisdiction of the Panchayat Samiti concerned. The only other possibility is that they may like to have postings in the villages close to the town. If the non-rural candidates would like to have postings at places close to the town, the rural area candidates may equally have the desire to get postings close to their native villages and many of them may even prefer working at places near the town. Thus desire and aspiration in regard to choosing the place of work need not be on a set pattern. Ultimately, it is a matter of regulation of postings of rural as well as non-rural candidates. As regards the candidates coming from other districts, the question of seeking inter-district transfer does not arise, as they are required to work within the particular district in which they are selected and appointed. The factors which may exist in the context of appointments to State-wide cadre does not exist here. The difficulties sought to be projected by the State appear to be more imaginary rather than real. We have, therefore, no hesitation in rejecting this argument."
(Emphasis supplied by me)
22. In the case of Bank of India vs. Jagjit Singh Mehta, [(1992) 1 SCC 306 (para-5], Hon'ble Supreme Court considered the question of transfer and posting of couples at the same Station and held, as under:
"5. There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with the administrative needs. In the case of All-India Services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other's posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an All-India Service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, they cannot as of right claim to be relieved of the ordinary incidents of All-India Service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places. In addition, in the present case, the respondent voluntarily gave an undertaking that he was prepared to be posted at any place in India and on that basis got promotion from the clerical cadre to the officers' grade and thereafter he seeks to be relieved of that necessary incident of All-India Service on the ground that his wife has to remain at Chandigarh. No doubt the guidelines require the two spouses to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees."
(Emphasis supplied by me)
24. The applications of the remaining petitioners were entertained but they could not be transferred to another district either on the ground that there remained no vacancy due to fill up of posts by ongoing recruitments or they were lower in merit list prepared for transfer by award of marks which were awarded adopting a uniform policy. Thus, the refusal of inter-district transfer to the petitioners, does not suffer from any error of law.
25. The Board in transfer matters, has the authority to frame the guidelines qua the way and manner it has to conduct itself in the matter of effectuating transfer. On account of reintroduction of Rule 21 of the Rules 1981 or insertion of Rule 8(2)(d) in the Rules 2008, the authority of the Board to frame guidelines for effectuating inter-district transfer is not at all diluted or restricted. Guidelines have been framed to maintain transparency and rule out arbitrariness, so that one knows the contingency when an incumbent can be transferred and the parameters of exercise of authority. One of the function of Board is to control the imparting of basic education, to exercise supervision and control over the basic schools, and to take all such steps necessary for discharge of any power. Once under the rules, authority to accord approval, rests with the Board, then it has all authority to frame guidelines to conduct itself. Guidelines in question, in noway violate the Rules. The aforesaid is also the ratio of decision in the case of Reena Singh (supra)
26. When Rules 2008 was originally enacted, Rule 8 thereof merely provided for posting. By the First Amendment Rules, 2010, the Rules 2008 were amended by inserting sub-Rule (2) and Clauses (a) to (f). Rule 21 of the Rules 1981 was existing in its original form. It was amended by the 13th Amendment Rules, 2011 providing for consideration to inter-district transfer in order of preference (quoted in para-5 of the judgment in Reena Singh's case). By 15th Amendment Rules, 2012, the Rule 21 as inserted by 13th Amendment Rules, 2011, was repealed and Rule 21 as it existed in its original form, was again introduced. Thus, the main provision dealing with the transfer is Rule 21 of the Rules, 1981 which forms part of service conditions. Since Clause (d) of sub-Rule (2) of the Rule 8 of the Rules, 2008 still exists, therefore, it has to be harmoniously read with Rule 21 of the Rules, 1981. A conjoint reading of Rule 21 of the Rules 1981 as interpreted by this Court in the case of Reena Singh (supra) and Rule 8(2)(d) of Rules 2008, would reveal that no teacher has any right of Inter-district Transfer. Rule 21 of the Rules, 1981 and Rule 8(2)(d) of the Rules, 2008 providing for Inter-district transfer is an enabling provision only to entertain inter-district transfer applications of only female teachers to the place of residence of their husbands or in-laws' district on request or with the consent of the teacher herself subject to the approval of the Board. In Reena Singh's case (supra), it has been authoritatively pronounced that the Board has the authority to frame the guidelines qua the way and manner it has to conduct in the matter of effectuating transfer. Guidelines have been framed by the Board to maintain transparency and rule out pick and choose by authorities and also that one may know the contingency when application for inter-district transfer of an incumbent can be entertained and she can be transferred. Under the Rules, authority to accord approval, rests with the Board. Therefore, it has all authority to frame guidelines to conduct itself.
27. The word "entertain" has not been defined either in the Act 1972 or in the Rules, 1981 or the Rules, 2008. In the case of M/s Lakshmi Ratan Engineering Works Ltd. vs. Assistant Commissioner (Judicial) 1st Sales Tax Kanpur Range, Kanpur and another [AIR 1968 SC 488 (paras 7 to 10)], Hon'ble Supreme Court interpreted the word "entertain" used in the proviso to Section 9 of the U.P. Sales Tax Act, 1948 and held that the word "entertain" means "admit to consideration" and when the proviso speaks of the entertainment of the appeal, it means that the appeal such as was filed, will not be admitted to consideration unless there is satisfactory proof available of the making of the deposit of admitted tax. The judgment in the case of M/s Lakshmi Ratan Engineering Works Ltd. (supra) has been consistently followed by Hon'ble Supreme Court including in Hindustan Commercial Bank Ltd. vs. Kunnu Sahu (dead) through legal representatives [(1971) 3 SCC 124 (Para-4)] and State of Haryana vs. Maruti Suzuki Ltd. and others [(2000) 7 SCC 348 (para-8)]. Similar view has also been taken by this Court in Awan Lal vs. Kunj Bihari Lal, 1962 All. 42; Dhoom Chand Jain vs. Chaman Lal Gupta, AIR 1962 All. 543; Kundan Lal vs. Jagannath, AIR 1962 All. 547; Haji Rahim Bux vs. Shami Ullah and sons, AIR 1963 All. 320; Smt. Jagdeep vs. Ram Awtar, AIR 1965 All. LJ 1135; Nazira Begum vs. Syed Ali, AIR 1974 All. 104; Sita Ram Jwala Prasad vs. Commissioner of Sales Tax, 1980 (45) STC 410 at 413 and R.R. Engineering Company vs. Commissioner of Sales Tax, 1983 (52) STC 174 at 176. The law laid down in the afore-noted binding judgments of Hon'ble Supreme Court and of this Court interpreting the meaning of the word "entertained", when applied to understand the meaning of the word "entertained" used in Rule 8(2)(d) of the Rules, 2008, leads to an irresistible conclusion that the applications for inter-district transfer of teachers can be entertained subject to guidelines/ policy decision of the Board. If applications of teachers for inter-district transfer is outside the contingency for inter-district transfer provided in the guidelines/ decision of the Board, then such applications need not to be even admitted for consideration.
28. In view of the above discussion, the question No.(b) is answered as under:
Petitioners do not have any right for transfer or a right for consideration of their application for transfer. Applications for inter-district transfer may be entertained by the competent authority only if such applications for inter-district transfer are within the four corners of the provisions of the Rule 21 of the Rules, 1981 read with Rule 8(2)(d) of the Rules, 2008 and the guidelines framed by the Board for transfer.
29. Keeping in view the crucial role of universal elementary education for strengthening the social fabric of democracy through provision of equal opportunities to all, an obligation was imposed upon the State Government in the directive principles of State policy under Article 41 read with Article 45 of the Constitution of India so as to secure the right of education which led Hon'ble Supreme Court to pronounce a historical decision in the case of Unni Krishanan J.P. vs. State of Andhra Pradesh [(1993) 1 SCC 645] which stretched the limits of Article 45 by reading right to free education as a fundamental right of children upto the age of 14 years so as to enable them to receive education as a matter of right which were also supported by the recommendations of the Law Commission of India being Report No.165. In these circumstances, the Parliament enacted The Constitution (Eighty Sixth Amendment) Act 2002, by inserting a new fundamental right being Article 21A, as under:
"Article 21-A. Right to education. - The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine. "
30. Having regard to the aforesaid constitutional provisions and the ground reality that number of children, particularly children from disadvantaged groups and weaker sections remain very large who dropped out of schools before completing elementary education, therefore, the Parliament enacted The Right of Children to Free and Compulsory Education Act, 2009.
31. In the case of Bhartiya Seva Samaj Trust vs. Yogeshbhai Ambalal Patel and another [(2012) 9 SCC 310 (para-24)], Hon'ble Supreme Court referred to its earlier judgment in Ashok Kumar Thakur vs. Union of India [(2008) 6 SCC 1] and held, as under:-
"24. Right to education flows directly from Article 21 and is one of the most important fundamental rights. In Ashoka Kumar Thakur v. Union of India (2008) 6 SCC 1, while deciding the issue of reservation, this Court made a reference to the provisions of Articles 15(3) and 21-A of the Constitution, observing that without Article 21-A the other fundamental rights are rendered meaningless. Therefore, there has to be a need to earnestly on implement Article 21-A. Without education a citizen may never come to know of his other rights. Since there is no corresponding constitutional right to higher education - the fundamental stress has to be on primary and elementary education, so that a proper foundation for higher education can be effectively laid. Hence, we see that education is an issue, which has been treated at length in our Constitution. It is a well accepted fact that democracy cannot be flawless; but, we can strive to minimize these flaws with proper education. Democracy depends for its very life on a high standard of general, vocational and professional education. Dissemination of learning with search for new knowledge with discipline all round must be maintained at all costs."
(Emphasis supplied by me)
32. The right of children under Article 21A of the Constitution of India, cannot be restricted only to free and compulsory education and should also be extended to have quality education without any discrimination on economic, social and cultural grounds.
33. To achieve the object of the Act, 2009 and its expressed provisions so as to ensure implementation effectively the provisions of the Act for education for free and compulsory education to children in disadvantaged areas, the Central Government identified 115 highly backward districts/ areas in the country out of which eight districts namely Siddharth Nagar, Shrawasti, Behraich, Sonbhadra, Chandauli, Fetehpur, Chitrakoot and Balrampur, are in Uttar Pradesh. Through the Niti Ayog, the Central Government has framed policy for development in these districts including the elementary education to children. The programme 'Transformation of Aspirational Districts' has been launched by Hon'ble Prime Minister. Policy decision or direction may be issued by the Central Government in exercise of powers conferred under Section 35 of the Act, 2009. Emphasis with regard to no transfer of employees from Aspirational districts finds mention in the general transfer policy of the State Government dated 29.03.2018, which has been quoted above.
34. No transfer of teachers from districts where the vacancy of teachers is more than 15% is reflected from the Government Orders dated 13.06.2017 as amended from time to time. The petitioners could not point out any unconstitutionality in this policy decision.
35. The U.P. Basic Education Board has issued guidelines dated 10.06.2018 for inter-district transfer of teachers in which it has been provided that no transfer shall be made from districts where the vacancy of teachers is more than 15% and also from districts which have been identified by the Government of India as Aspirational districts namely, Siddharth Nagar, Shrawasti, Behraich, Sonbhadra, Chandauli, Fetehpur, Chitrakoot and Balrampur. Thus, this guideline cannot be said to be violative of either the provisions of the Act 2009, the Act 1972, the Rules 1981 or the Rules 2008 or the Government Orders and the policy decision of the Government of India.
36. The Board in transfer, has the authority to frame the guidelines qua the way and manner it has to conduct itself in the matter of effectuating transfer. On account of reintroduction of Rule 21, the authority of the Board to frame guidelines for effectuating inter-district transfer is not at all diluted or restricted. Guidelines have been framed to maintain transparency and rule out arbitrariness, so that one knows the contingency when an incumbent can be transferred and the parameters of exercise of authority. One of the function of Board is to control the imparting of basic education, to exercise supervision and control over the basic schools, and to take all such steps necessary for discharge of any power. Once under the rules, authority to accord approval, rests with the Board, then it has all authority to frame guidelines to conduct itself. Guidelines in question, in noway violate the Rules.
37. The decision not to transfer any teacher from Aspirational districts is a uniform decision which has been taken by the Board in furtherance of the very object of the Act 2009 and policy decision of the Government so as to ensure free and compulsory education to most disadvantaged districts identified as Aspirational districts. While answering the Question No.(b) above, I have held that transfer applications for inter-district transfer may be entertained subject to approval or guidelines of the Board. Once the Board has taken a decision not to transfer any Assistant Teacher from Aspirational districts, the decision cannot be interfered with, particularly when it seeks to achieve object of the Act, 2009 and the petitioners have no right of inter-district transfer.
38. In view of the aforesaid, the Question No.(c) is answered as under:-
The petitioners working as Assistant Teachers in Aspirational districts have no right for inter-districts transfer. Petitioners do not have any legally protected or judicially enforceable subsisting right to ask for mandamus for transfer from the aspirational districts. Therefore, their applications for inter-district transfer have been lawfully rejected in view of the decision of the Board.
39. So far as the writ petition of the petitioners for transfer to District Ballia is concerned, I find that transfer could not be made as there was no vacancy. Since the petitioners - Assistant Teachers have no right of transfer under the Rules, therefore, the writ petitions have no merit.
40. In view of the above discussion, all the writ petitions fail and are hereby dismissed.
Order Date :- 13.08.2018
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AFR
(Judgment reserved on 03.08.2018)
(Judgment delivered on 13.08.2018)
Court No. - 7
1. Case :- WRIT - A No. - 14395 of 2018
Petitioner :- Smt. Ruchi
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Mahima Maurya Kushwaha,Mukesh Kumar Kushwaha
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
WITH
Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri R.K. Ojha, learned senior advocate, Sri Shailendra, Sri Indra Raj Singh, Sri Alok Kumar Yadav and other learned counsels for the petitioners, and, Sri Ajit Kumar Singh, learned Additional Advocate General assisted by Sri Mohanji Srivastava, learned counsel for the State-respondents and S/Sri A.K.Yadav, Suresh Kumar, B.P. Singh, Sanjay Kumar, Pravesh Dutt Tripathi, Virendra Chaubey, Sanjay Chaturvedi, Ashok Kr. Singh, Pankaj Kr. Tyagi, Vikram Bahadur Singh, R.P. Shukla, Satish Chandra Yadav, Akhilesh Chandra Srivastava, Manu Sharma, Amit Shukla, learned counsels representing the concerned Basic Education Officers and the U.P. Basic Education Board, Allahabad.
FACTS OF THE CASE:-
2. Briefly stated facts of the cases are that the petitioners in this batch of writ petitions, are mainly female Assistant Teachers. Pursuant to the Provisions of Rule 21 of The Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 (hereinafter referred to as ''the Rules 1981'), Rule 8(2)(d) of The Uttar Pradesh Basic Education (Teachers) (Posting) Rules, 2008 (hereinafter referred to as ''the Rules 2008'), the State Government issued Government Order No.1078/79-5-2016-15 (149)/2010 dated 13.06.2017, Government Order No.1810/79-5-2017-15 (149)/2010 dated 20.09.2017, Government Order No.130/79-5-2018 dated 05.02.2018, declaring the Transfer Policy for inter-district Transfer of Assistant Teachers of Basic Schools run by the U.P. Basic Education Board (hereinafter referred to as ''the Board') which was followed by decision/ circular of the Board being No. cs0f'k0i0 /4252-54/2018-19, dated 10.06.2018 in terms of the Rules 21 of the Rules 1981, were issued. An uniform policy was adopted that no teachers shall be transferred from those districts where the vacancy of teachers is more than 15% and no teacher shall be transferred from eight aspirational districts identified by the Niti Ayog on the basis of backwardness of these districts in the areas of education, health, nutrition, agriculture etc. and the programme 'Transformation of Aspirational Districts' was launched by the Hon'ble Prime Minister. Out of 115 such extremely backward districts in the country, 08 Aspirational Districts, namely Siddharth Nagar, Shrawasti, Behraich, Sonbhadra, Chandauli, Fetehpur, Chitrakoot and Balrampur; were identified in the State of Uttar Pradesh.
3. For the purposes of inter-district Transfer of Assistant Teachers, a software based process has been adopted which does not involve human intervention. The applications for transfer were invited online. Merit list for transfer was prepared awarding marks to applicants, as under:
Particulars
Marks
(a)
Differently Abled before joining service or while in service
05
(b)
Serious Illness (self/ spouse/ children)
05
(c)
Female
05
(d)
For every completed year of service
05
(upto 35 marks Maximum)
4. In the present batch of writ petitions, large number of petitioners are those Assistant Teachers of Basic Schools of the Board situate in Aspirational Districts, who were not transferred in terms of the decision of the Board. The other petitioners are those who are Assistant Teachers in Basic Schools situate in districts other than Aspirational Districts but were not transferred. Therefore, they filed remaining writ petitions of the present batch of writ petitions.
SUBMISSIONS ON BEHALF OF PETITIONERS:
5. Sri Indra Raj Singh in Writ - A No.14105 of 2018 and Writ - A No.14099 of 2018, submits as under:
(i) The cadre of the Assistant Teachers in Basic Schools being run by the Board is a District level cadre.
Therefore, their transfer was earlier governed by the provisions of Rule 21 of the Uttar Pradesh Basic Education (Teachers) Service Rules 1981. Subsequently, the Uttar Pradesh Basic Education (Teachers) (Posting) Rules 2008 was enacted. Rule 8(2)(d) of the Rules 2008 provides for inter-districts transfer. Petitioners are working as Assistant Teachers in District - Kushinagar. They want their transfer to District Ballia, where there are 973 vacant posts but they have not been transferred despite inter-parties order passed by this Court, dated 19.7.2017 in Writ - A No.30805 of 2017 (Bibha Singh Kushwaha Vs. U.P. Basic Education Board Allahabad and three others) and the judgment dated 6.2.2018 in Writ - A No.2868 of 2018 (Bibha Singh Kushwaha and 21 others Vs. State of U.P.) which have become final.
(ii) The impugned order dated 13.6.2018, 12/14.6.2018 and 15.6.2018 (Annexures 8, 9 and 11) in Writ - A No.14128 of 2018 providing for no transfer from 8 aspirational districts and no transfer from Districts where the number of vacancies is more than 15% of the sanctioned post, is wholly arbitrary and illegal and also violative of the Government Order dated 29.3.2018, and the judgments of this Court particularly the judgment in the case of Bibha Singh (supra).
(iii) In district Ballia, 973 vacant posts were notified but the petitioner Vibha Singh was deliberately not transferred.
(iv) The rider on transfer placed by the Government Order No.3/18/1/3/96- dk0 -4-2018 dated 29.03.2018 is violative of Rule 8(2)(d) of the Rules, 2008, therefore, the said G.O. and the circular of the Board dated 10.06.2018, both cannot be enforced.
6. Sri Shailendra, learned counsel for the petitioners in WRIT - A No. - 14128 of 2018, submits as under:
(i) The impugned press note dated 13.6.2018, does not disclose who issued it and under what authority it has been issued. Therefore, this press note can not be given effect.
(ii) The benefit available to the petitioners under Rule 8(2)(d) can not be denied under the garb of the impugned press note dated 13.6.2018 which even does not have backing of any statutory provisions or the Government Order.
(iii) Petitioners have a right for inter-district Transfer under Rule 8(2)(d) of the Rules, 2008 which cannot be denied.
(iv) The bar of five years service as a condition for transfer mentioned in Rule 8(2)(d) of the Rules, 2008, has been relaxed by the G.O. dated 05.02.2018, therefore, it cannot be violated by a press note.
(v) A policy decision of the Central Government with respect to Aspirational districts in the year 2018, cannot be applied to inter-district transfers of the petitioners for the Session 2017-2018 (July to June).
7. Sri R.K. Ojha, learned Senior Advocate has argued in WRIT - A No. - 14102 of 2018 which has been filed challenging the aforesaid press note dated 12/6.6.2018, submits as under:
(i) Clause 6 of the Transfer Policy/Government Order dated 13.6.2017 (Annexure 1) provides that the districts where vacancy against sanctioned post is more than 15%, no inter-districts transfer of Assistant Teacher shall be done. By letter of the Secretary, U.P. Basic Education Board, dated 6.2.2018, (Annexure 3) a list of vacancies of Assistant Teachers in different districts have been notified being 40766 Assistant Teachers in Primary Schools and 6719 Headmasters of primary school/Assistant Teachers of Higher Basic School. In terms of Clause 3 of the Transfer policy/Government order dated 13.6.2017, inter-districts transfer is to be made to the extent of 25% of the available vacancies. Therefore, out of the aforesaid vacancies available, the transfers to the extent of 25% were to be made which has not been done. Under the circumstances, the action of the respondents in not transferring the petitioners from the districts of their place of posting to the desired Districts, is wholly arbitrary and illegal.
(ii) The policy of the "Niti Aayog" as relied in the press note dated 12/13.6.2018, came into affect from 5.6.2018. Therefore, the said policy decision shall not effect the statutory rights of the petitioners for transfer which they accrued prior to 5.6.2018.
(iii) The petitioners are lady Assistant Teachers. Their rights for transfer is a statutory right under Rule 8(2)(d) of the Rules 2008. Their right for transfer is also protected by Article 15 of the Constitution of India, which provides that the State may make special provisions for women. Therefore, the action of the respondents in not transferring the petitioners, is also violative of Article 15 of the Constitution of India.
(iv) There is no order or direction of the State Government or the Central Government for not transferring Assistant Teachers (Females) from Aspirational Districts.
(v) The petitioners have a right of inter-district transfer under Rule 21 of the Rules, 1981 and Rule 8(2)(d) of the Rules, 2008, therefore, the restrictions mentioned on inter-district transfers in the G.O. dated 13.06.2017 being contrary to the Rule, cannot be enforced.
(vi) Petitioners were considered for inter-district transfer but transfer has been denied to them on the ground that they are posted in Aspirational Districts whereas there is no such prohibition against the transfer in the Rules or the G.O. dated 13.06.2017. Therefore, the denial to transfer the petitioners from Aspirational Districts is wholly illegal.
(vii) The inter-district transfer shall not materially affect pupils and teachers ratio under Section 25 of The Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as ''the Act, 2009').
8. Sri Alok Kumar Yadav, learned counsel for the petitioner in Writ-A No. 49636 of 2018 submits as under:
(i) Rule 8(2)(d) of the Rules, 2008 gives teachers a right to be considered for inter-district transfer, therefore, the consideration has to be non-discriminatory. Therefore, the denial of transfer by clause (3) of the G.O. dated 13.06.2017, is illegal.
(ii) The transfer of the petitioners of Writ-A No.49636 of 2018, has been denied on the ground that she has earlier taken benefit of transfer. Such denial is illegal inasmuch as there is no such restriction in Rule 8(2)(d) of the Rules.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS:
9. Sri Ajit Kumar Singh, learned Additional Advocate General, submits, as under:
(i) Placing the instructions of the State Government dated 6.7.2018, which reiterates the Government Transfer Policy/Government Order dated 13.6.2017, and the policy decision of the Niti Aayog so as to deny uniformly transfer of Assistant teachers from 8 aspirational districts and such districts where the number of vacancies as against the sanctioned post is more than 15%. The eight aspirational districts are Siddharth Nagar, Shravasti, Bahraich, Sonbhadra, Chandauli, Fatehpur, Chitrakoot and Balrampur which have been earmarked as most backward districts. There are five districts, namely, Bhadohi, Pratapgarh, Kanpur Nagar, Etawah and Sultanpur where vacancies of Assistant Teachers in primary schools is more than 15%. There are 20 districts where vacancies of Assistant Teachers in Senior Basic School, namely, Districts - Chandauli, Muzaffarnagar, Sambhal, Raebareli ,Maharajganj, Siddharth Nagar, Auraiya, Sitapur, Pilibhit, Hardoi, Kushinagar, Budaun, Shravasti, Kasganj, Gonda, Bahraich, Balrampur, Sonbhadra, Shahjahanpur and Lakhimpur - Kheri, where the vacancies against the sanctioned posts are more than 15%. Therefore, as a uniform policy transfer of Assistant Teachers from aspirational districts and the districts where the number of vacancies as against the sanctioned post are more than 15%, have not been done in terms of the transfer policy dated 13.6.2017 and the policy of the Niti Aayog.
(ii) The Rules 1981 and the Rules 2008, both have been framed by the State Government in exercise of powers conferred under Section 19 of the U.P. Basic Education Act, 1972 (hereinafter referred to as ''the Act 1972'). The provisions of the Rules, 2008 mainly deal with posting while Rule 21 of the Rules, 1981 specifically deals with transfer, therefore, both the Rules need to be read together.
(iii) Transfer List has already been finalized and the teachers have been posted accordingly. The new Academic Session has commenced. Therefore, any interference at this juncture, would ultimately affect the interest of students who have a fundamental right of education under Article 21A of the Constitution of India.
(iv) Placing reliance on averments made in various paragraphs of the Personal Affidavit of the Additional Chief Secretary dated 17.07.2018, it is submitted that the action of the Board and the authorities are wholly in terms of the relevant Rules, Government Orders and Circulars and figures given in the affidavit regarding vacancies, are correct.
(v) There are total 5462 sanctioned posts in District Ballia, which have been filled up mainly by new appointments, hence there is no vacancy in district Ballia.
DISCUSSIONS AND FINDINGS:
10. I have carefully considered the submissions of learned counsels for the parties.
11. With the consent of the learned counsels for the parties, the following questions were framed on 27.07.2018 for determination in this batch of writ petitions.
Questions for Determination:-
(a) Whether restriction on inter-district transfer has been validly imposed by the Government Order dated 13.06.2017 on teachers who have earlier taken benefit of inter-district transfer?
(b) Whether under Rule 21 of the Rules, 1981 and Rule 8(2)(d) of the Rules, 2008, the assistant teachers have a right for consideration of their transfer application or they have a right of transfer?
(c) Whether in the absence of any stipulation either in Rule 21 of the Rules, 1981 or in Rule 8(2)(d) of the Rules, 2008, inter-district transfer to the petitioners working in aspirational districts, can be denied?
12. Before I proceed to examine the rival submissions made by the learned counsels for the parties so as to determine the questions framed above, it would be appropriate to reproduce relevant provisions of the Act 1972, the Act 2009, the Rule 1981, the Rules 2008, the G.O. dated 13.06.2017, 20.09.2017, 05.02.2018, 29.03.2018 and the circular of the Board dated 10.06.2018, as under:
"(i) The Uttar Pradesh Basic Education Act, 1972
13. Control by the State Government. - (1) The Board shall carry out such directions as may be issued to it from time to time by the State Government for the efficient administration of this Act.
(2) If in, or in connection with, the exercise of any of its powers and discharge of any of the functions by the Board under this Act, any dispute arises between the Board and the State Government, or between the Board and any local body, the decision of the State Government on such dispute shall be final and binding on the Board or the local body, as the case may be.
(3) The Board or any local body shall furnish to the State Government such reports, returns and other information, as the State Government may from time to time require for the purposes of this Act.
19. Power to make Rules. - (1) The State Government may, by notification, make rules for carrying out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely -
(a) the recruitment, and the conditions of service of persons appointed to the posts of officers, teachers and other employees under Section 6;
(b) the tenure of service, remuneration and other terms and conditions of service of officers, teachers and other employees transferred to the Board under Section 9;
(c) the recruitment, and the conditions of service of the persons appointed, to the posts of teachers and other employees of basic schools recognised by the Board;
(d) any other matter for which insufficient provision exists in the Act and provision in the rules is considered by the State Government to be necessary;
(e) any other matter which is to be or may be prescribed.
(ii) The Right of Children to Free and Compulsory Education Act, 2009
25. Pupil-Teacher Ratio.- (1) Within three years from the date of commencement of this Act, the appropriate Government and the local authority shall ensure that Pupil-Teacher Ratio, as specified in the Schedule, is maintained in each school.
(2) For the purpose of maintaining the Pupil-Teacher Ratio under sub-section (1), no teacher posted in a school shall be made to serve in any other school or office or deployed for any non-educational purpose, other than those specified in section 27.
26. Filling up vacancies of teachers.- The appointing authority, in relation to a school established, owned, controlled or substantially financed by funds provided directly or indirectly by the appropriate Government or by a local authority, shall ensure that vacancy of teacher in a school under its control shall not exceed ten per cent/of the total sanctioned strength.
35. Power to issue directions.- (1) The Central Government may issue such guidelines to the appropriate Government or, as the case may be, the local authority, as it deems fit for the purposes of implementation of the provisions of this Act.
(2) The appropriate Government may issue guidelines and give such directions, as it deems fit, to the local authority or the School Management Committee regarding implementation of the provisions of this Act.
(3) The local authority may issue guidelines and give such directions, as it deems fit, to the School Management Committee regarding implementation of the provisions of this Act.
(iii) The Uttar Pradesh Basic Education (Teachers) Service Rules, 1981
4. Strength of the Service. - (1) There shall be separate cadres of service under these rules for each local area.
(2) The strength of the cadre of the teaching staff pertaining to a local area and the number of the posts in the cadre shall be such as may be determined by the Board from time to time with the previous approval of the State Government :
Provided that the appointing authority may leave unfilled or the Board may hold in abeyance any post or class of posts without thereby entitling any person to compensation :
Provided further that the Board may, with the previous approval of the State Government, create from lime to time such number of temporary posts as it may deem fit.
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 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.
(iv) The Uttar Pradesh Basic Education (Teachers) (Posting) Rules, 2008
8. Posting. - (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 virtue of posting of newly appointed or promoted teachers the primary and upper primary schools of backward blocks get saturated i.e., no post of teacher is vacant in these schools, then handicapped and female teachers on their choice can be adjusted against the vacant posts of general blocks from these saturated blocks.
(f) Mutual transfers of male/female teachers from one backward block to another can be considered.
(3) Teachers transferred from one district to another will be given posting as per the provisions of these rules."
(v) Government Order No.1078/79-5-2016-15 (149)/2010, dated 13.06.2017
izs"kd]
jkt izrki flag
vij eq[; lfpo]
m0iz0 'kkluA
lsok esa]
1& v/;{k csfld f'k{kk ifj"kn 2& lfpo] csfld f'k{kk ifj"kn]
,oa f'k{kk funs'kd ¼csfld½] m0iz0] bykgkcknA
m0iz0] y[kuÅA
f'k{kk vuqHkkx&5 y[kuÅ% fnukad% 13 twu] 2017
fo"k;% m0iz0 csfld f'k{kk ifj"kn }kjk lapkfyr fo|ky;ksa ds v/;kidksa dk o"kZ 2017&18 gsrq vUrtZuinh; LFkkukUrj.k uhfrA
egksn;]
mi;qZDr fo"k;d d`i;k vius i=kad&5842@2017&18] fnukad 19&5&2017 dk d`i;k lUnHkZ xzg.k djsa] ftlds }kjk m0iz0 csfld f'k{kk ifj"kn }kjk lapkfyr fo|ky;ksa ds v/;kidksa dk 'kSf{kd l= 2017&18 ds fy, vUrtZuinh; ¼tuin ds ckgj½ LFkkukUrj.k ds laca/k esa izLrko miyC/k djk;k x;k gSA
2& bl laca/k esa eq>s ;g dgus dk funs'k gqvk gS fd m0iz0 csfld f'k{kk ifj"kn }kjk lapkfyr fo|ky;ksa eas dk;Zjr v/;kidksa ds 'kSf{kd l= 2017&18 ds fy, vUrtZuinh; LFkkukUrj.k gsrq fuEuor~ uhfr fu/kkZfjr dh tkrh gS %&
3& ,sls fu;fer f'k{kd tks vius rSukrh@dk;Zjr tuin esa vkosnu ds o"kZ esa 31 ekpZ rd U;wure 5 o"kZ dh larks"ktud lsok iw.kZ dj pqds gks rFkk blls iwoZ muds }kjk vUrtZuinh; LFkkukUrj.k dk ykHk u fy;k x;k gks ,oa muds fo:) iwoZ esa lafLFkr fdlh foHkkxh; dk;Zokgh esa mUgsa nf.Mr u fd;k x;k gksA
4&¼1½&vUrtZuinh; LFkkukUrj.k izfdz;k tuin Lrjh; lek;kstu ,oa vUr% tuinh; ¼intra district transfer½ ds i'pkr izkjEHk dh tk;sxhA vUrtZuinh; LFkkukUrj.k izfdz;k izkjEHk djus gsrq loZizFke izns'k ds lHkh tuinksa ls csfld f'k{kk vf/kdkfj;ksa }kjk fnukad 25&7&2017 rd fjfDr;ksa dk fooj.k ifj"kn eq[;ky; dks miyC/k djk;k tk;sxkA mDr fjfDr;ksa esa rno"kZ ds 31 ekpZ rd ds inksUufr] lsokfuo`fRr] u;s in l`tu vFkok vkdfLed e`R;q@R;kxi= vkfn ds QyLo:i gksus okys fjfDr;ksa dks lfEefyr fd;k tk;sxkA
¼2½ tuin dh fjfDr;ksa dk fooj.k ml tuin ds ,u0vkbZ0lh0 dh osclkbV rFkk leLr tuinksa ds fjfDr;ksa dk fooj.k ifj"kn dh osclkbV ij fnukad 31 tqykbZ] 2017 rd iznf'kZr fd;k tk;sxkA
¼3½ mijksDr fjfDr;ksa esa ls 25 izfr'kr dh lhek rd gh vUrtZuinh; LFkkukUrj.k dh dk;Zokgh dh tk;sxhA
¼4½ bl gsrq ifj"kn }kjk izns'k ds cgqizlkfjr nks lekpkj i=ksa esa vUrtZuinh; LFkkukUrj.k gsrq foLr`r le; lkfj.kh fu/kkZfjr osclkbV dk mYys[k djrs gq, izdk'ku djk;k tk;sxkA vUrtZuinh; LFkkukUrj.k gsrq leLr vkosnu fnukad 07 vxLr ls 20 vxLr] 2017 ds e/; izkIr fd;s tk;sxsa rFkk izfdz;k fnukad 31 vxLr] 2017 rd iw.kZ dj yh tk;sxhA
¼5½ vUrtZuinh; LFkkukUrj.k gsrq bPNqd ,oa vgZ v/;kidksa }kjk fu/kkZfjr osclkbV ij vkWuykbu vkosnu fd;k tk;sxk] ftlesa v/;kidksa }kjk vf/keku dze esa rhu tuinksa dk fodYi izLrqr djuk gksxkA LFkkukUrj.k pkgus okys efgyk@iq:"k v/;kidksa dk LFkkukUrj.k vkosfnr@fodYi fn;s x;s ftys esa muds vf/keku dze esa izFke fodYi ,oa fjfDr;ksa dh miyC/krk ds vk/kkj ij fd;k tk;sxk] rRi'pkr fjfDr;ksa dh miyC/krk ds vk/kkj ij mudk LFkkukUrj.k muds }kjk fn;s x;s f}rh;@r`rh; fodYi ds vk/kkj ij fd;k tk;sxkA
¼6½ ,sls tuin tgkW f'k{kdksa dh fjfDr Lohd`r inksa ds lkis{k 15 izfr'kr ls vf/kd gS] ogkW ls vUrtZuinh; LFkkukUrj.k ds ek/;e ls fdlh v/;kid dk LFkkukUrj.k vU; tuin esa ugha fd;k tk;sxkA
¼7½ vkWuykbu vkosnu i= esa vafdr fooj.k@rF;ksa ls lacaf/kr izekf.kr vfHkys[k vkosnu i= ds lkFk viyksM fd;s tk;sxsaA mnkgj.k ds fy, fodykaxrk@vlk/; jksx ds vk/kkj ij fd;s x;s vkosnu i= ds lkFk eq[; fpfdRlk vf/kdkjh dk bl vk'k; dk izek.k&i= viyksM fd;k tkuk vko';d gksxkA mRrj izns'k esa vlk/; jksx ds fu%'kqYd mipkj gsrq fu;ekoyh&2013 esa of.kZr vlk/; jksx ;Fkk&dSalj] ân; jksx] yhoj] fdMuh ekus tk;saxsA
¼8½ vUrtZuinh; LFkkukUrj.k gsrq vgZ ik;s x;s vkWuykbu vkosnu i=ksa eas ls ojh;rk ds vk/kkj ij LFkkukUrj.k fd;s tk;saxsA ojh;rk fu/kkZj.k gsrq xq.koRrk vadksa dk fu/kkZj.k fuEuor gksxk&
d& fodykaxrk ¼lsok esa vkus ls iwoZ vFkok i'pkr½ & 05 vad
[k& vlk/;@xEHkhj chekjh ¼ek= Lo;a] ifr@iRuh vFkok cPps ek=½ & 05 vad
x& efgyk & 05 vad
?k& lsok ds izR;sd iw.kZ o"kZ ds fy, 01 vad ¼vf/kdre 35 vad½
mi;qZDr ds lUnHkZ esa ;fn fdUgh nks O;fDr;ksa ds dqy xq.koRrk vad leku gksus ij rFkk dsoy ,d gh O;fDr dk LFkkukUrj.k gks ldrk gS rks ,slh fLFkfr esa muesa ls vf/kd vk;q okys v/;kid dks ojh;rk nh tk;sxhA
¼9½ vUrZtuinh; LFkkukUrj.k 'kSf{kd o"kZ esa ,d ckj gh fd;s tk,xsaA
¼10½ ;fn ifr&iRuh nksuksa esa ls dksbZ ,d m0iz0 ljdkjh lsok esa gksa rks mUgsa ;Fkk laHko ,d gh tuin esa rSukrh dk fodYi gksxkA
5&¼1½ vUrtZuinh; LFkkukUrj.k ds QyLo:i LFkkukUrfjr gksus okys v/;kidksa dks izR;sd n'kk esa vkns'k fuxZr gksus ds 10 fnuksa ds vUnj rSukrh ds tuin ls vns;rk izek.k&i= izkIr dj uohu tuin esa dk;ZHkkj xzg.k djuk vfuok;Z gksxkA vU;Fkk dh n'kk esa mudk LFkkukUrj.k Lo;eso fujLr gks tk;sxkA
¼2½ vUrtZuinh; LFkkukUrj.k ds QyLo:i uohu tuin esa LFkkukUrfjr gksus okys v/;kidksa dh ofj"Brk dk fu/kkZj.k m0iz0 csfld v/;kid lsok fu;ekoyh&1981 ds fu;e 22¼2½ ds vuq:i fd;k tk;sxkA
6& fdlh Hkh fo|ky; es cUn@,dy gksus dh n'kk esa LFkkukUrfjr v/;kid dks rc rd dk;ZeqDr ugha fd;k tk;sxk tc rd ml fo|ky; esa v/;kid dh O;oLFkk u gks tk;sA
7& LFkkukUrj.k gsrq vkosnu dsoy vkuykbu Lohdkj fd;s tk;saxsA eSuqvy ;k vU; fdlh fof/k ¼;Fkk&jftLVMZ] LihMiksLV] dksfj;j] nLrh vkfn½ ls fd;k x;k vkosnu&i= Lohdkj ugha fd;s tk;sxsA vkosnu&i= fu/kkZfjr izfdz;kuqlkj =qfVjfgr Hkjus dh ftEesnkjh lacaf/kr v/;kid dh gksxhA =qfViw.kZ@viw.kZ vkosnu i= ij fopkj ugha fd;k tk;sxkA vkosnu dh vfUre frfFk ds mijkUr dksbZ Hkh la'kks/ku xzkg~; ugha gksxkA vku&ykbu vkosnuksaijkUr Hkjs gq, vkosnu i= dk fizaV vkmV lEcfU/kr v/;kid }kjk ftyk csfld f'k{kk vf/kdkjh dk;kZy; dks nks izfr;ksa esa miyC/k djk;k tk;sxk] ftldh izkfIr jlhn ftyk csfld f'k{kk vf/kdkjh dk;kZy; }kjk v/;kid dks nh tk;sxhA
8& lEcfU/kr ftyk csfld f'k{kk vf/kdkjh bl izdkj izkIr vku&ykbu vkosnu i=ksa esa vafdr fooj.k@rF;ksa dk dk;kZy;h; vfHkys[kksa ls lR;kiu dh dk;Zokgh lqfuf'pr djsaxsA lEcfU/kr ftyk csfld f'k{kk vf/kdkjh }kjk lR;kfir vkosnu i=ksa dh fizaVsM dkih vko';d layXudksa@lk{;ksa lfgr vkosnu i= Hkjus dh vfUre frfFk ls ,d lIrkg dh vof/k ds vUnj lfpo] csfld f'k{kk ifj"kn dk;kZy;] bykgkckn dks vfuok;Z :i ls miyC/k djkuk gksxk] lkFk gh mUgsa bl vk'k; dk izek.k&i= Hkh ifj"kn eq[;ky; dks nsuk vfuok;Z gksxk fd ^^tuin------------------ esa vUrtZuinh; LFkkukUrj.k gsrq dqy------------------- fizaVsM vku&ykbu vkosnu&i= izLrqr fd;s x;s] ftlesa lR;kfir vkosnu i=ksa dh la[;k-------------------- rFkk fujLr vkosnu i=ksa dh la[;k------------------ gSA**
9& lEcfU/kr ftyk csfld f'k{kk vf/kdkjh }kjk vku&ykbu izkIr vkosnu i=ksa ds lR;kiu esa fujLr fd;s x;s vkosnu i=ksa ds lEcU/k eas lqLi"V dkj.k dk mYys[k djrs gq, fujLr fd;s x;s vkosnu i=ksa dh lwph lfpo] csfld f'k{kk ifj"kn] m0iz0 bykgkckn dks miyC/k djk;k tk;sxk rFkk mDr lwph dh ,d izfr dk;kZy; ds lwpuk iV ij Hkh pLik dh tk;sxhA
10& ftyk csfld f'k{kk vf/kdkjh }kjk lacaf/kr v/;kid ls bl vk'k; dk Hkh vUMj Vsfdax@'kiFk&i= fy;k tk;sxk fd lacaf/kr v/;kid }kjk LFkkukUrfjr tuin esa viuh T;s"Brk dk nkok izLrqr ugha fd;k tk;sxkA bl gsrq vUMj Vsfdax@'kiFk&i= dk izk:i lfpo] csfld f'k{kk ifj"kn] bykgkckn }kjk fodflr dj ftyk csfld f'k{kk vf/kdkfj;ksa dks miyC/k djk;k tk;sxkA
11& lfpo] csfld f'k{kk ifj"kn }kjk v/;kidksa ds vartZuinh; ¼tuin ds ckgj½ LFkkukUrj.k dh leLr dk;Zokgh ikjnf'kZrk ds lkFk fnukad 31 vxLr] 2017 rd iw.kZ dj yh tk;sxhA v/;kid dk LFkkukUrj.k xzkeh.k {ks= ls uxj {ks= ,oa uxj {ks= ls xzkeh.k {ks= eas ugha fd;k tk;sxkA
12& ftyk csfld f'k{kk vf/kdkjh }kjk LFkkukUrj.k ds QyLo:i tuin esa vk;s gq, v/;kidksa dh rSukrh 'kklukns'k la[;k&1088@79&5&17&15¼149½10Vh-lh-] fnukad 13-06-2017 ds izLrj&3 esa ftykf/kdkjh dh v/;{krk esa xfBr lfefr ds vuqeksnuksijkUr dh tk;sxhA
13& LFkkukUrj.k gsrq fu/kkZfjr vfUre frfFk 31 vxLr] 2017 ds i'pkr dksbZ Hkh vUrtZuinh; LFkkukUrj.k lfpo] csfld f'k{kk ifj"kn] m0iz0 bykgkckn }kjk ugha fd;k tk;sxkA
vr,o vartZuinh; LFkkukUrj.k dh dk;Zokgh mDr fu/kkZfjr izfdz;kuqlkj ikjnf'kZrkiw.kZ
g0 viBuh;
¼jkt izrki flag½
vij eq[; lfpoA
(vi) Government Order No.1810/79-5-2017-15 (149)/2010 dated 20.09.2017,
izs"kd]
eerk JhokLro
la;qDr lfpo]
m0iz0 'kkluA
lsok esa]
1& v/;{k csfld f'k{kk ifj"kn 2& lfpo] csfld f'k{kk ifj"kn]
,oa f'k{kk funs'kd ¼csfld½] m0iz0] bykgkcknA
m0iz0] y[kuÅA
f'k{kk vuqHkkx&5 y[kuÅ% fnukad 20 flrEcj] 2017
fo"k;% m0iz0 csfld f'k{kk ifj"kn }kjk lapkfyr fo|ky;ksa ds v/;kidksa dk o"kZ 2017&18 gsrq vUrtZuinh; LFkkukUrj.k uhfr esa la'kks/kuA
egksn;]
mi;qZDr fo"k;d lfpo] csfld f'k{kk ifj"kn ds i=kad&cs0f'k0i0@10755&56@2017&18] fnukad 18-08-2017 d`i;k lUnHkZ xzg.k djsa] ftlds }kjk m0iz0 csfld f'k{kk ifj"kn }kjk lapkfyr fo|ky;ksa ds v/;kidksa dk 'kSf{kd l= 2017&18 ds fy, 'kklukns'k la[;k&1078@79&5&2016&15¼149½@2010] fnukad 13-06-2017 }kjk fuxZr vUrtZuinh; ¼tuin ds ckgj½ LFkkukUrj.k uhfr esa la'kks/ku dk izLrko miyC/k djk;k x;k gSA
2& bl laca/k esa eq>s ;g dgus dk funs'k gqvk gS fd 'kklu Lrj ij lE;d fopkjksijkUr iwoZ eas fuxZr LFkkukUrj.k uhfr fnukad 13-06-2017 esa fuEuor~ la'kks/ku dh vuqefr iznku dh tkrh gS %&
¼1½ 'kklukns'k fnukad 13-06-2017 esa mfYyf[kr U;wure larks"ktud lsok dh le; lhek 05 o"kZ fnO;kax vH;fFkZ;ksa ij ykxw ugha gksxhA fodykaxrk ds laca/k esa eq[; fpfdRlkf/kdkjh dk fpfdRlh; izek.k&i= layXu djuk vfuok;Z gksxk] rHkh mldk ykHk mUgsa ns; gksxkA
¼2½ 'kklukns'k fnukad 13-06-2017 esa dsUnzh; m)Z lSfud cy ¼lh0ih0,e0,Q0½ ;Fkk ch0,l0,Q0] lh0vkj0ih0,Q0] vkbZ0Vh0ch0ih0] lh0vkbZ0,l0,Q0] ,l0,l0ch0 ,oa ,u0Mh0vkj0,Q0 rFkk Fky] ok;q ,oa ty lsuk ds dkfeZdksa dh vkfJr ifRu;ksa ij U;wure 05 o"kZ dh larks"ktud lsok dh le; lhek ykxw ugha gksxh] c'krsZ muds fu;a=d izkf/kdkjh }kjk ;g izek.k&i= nsuk gksxk fd og dsUnzh; v)Z lSfud cy@Hkkjrh; lsuk esa dk;Zjr gSA
mDr nksukas izdj.kksa es lacaf/kr tuin esa fjfDr;ksa dh miyC/krk gksus ij gh ykHk vuqeU; gksxkA
3& 'kklukns'k la[;k&1078@79&5&2016&15¼149½@2010] fnukad 13-06-2017 }kjk fuxZr vUrtZuinh; LFkkukUrj.k uhfr 2017&18 dh 'ks"k 'krsZ ;Fkkor~ ykxw jgsxhA
d`i;k rn~uqlkj vko';d dk;Zokgh djus dk d"V djsaA
Hkonh;k]
g0 viBuh;
20-09-17
¼eerk JhokLro½
la;qDr lfpoA
(vii) Government Order No.130/79-5-2018, dated 05.02.2018
egRoiw.kZ@le;c)
la[;k& 130@79&5&2018
izs"kd]
,l0 jktfyaxe
fo'ks"k lfpo
m0iz0 'kkluA
lsok esa]
funs'kd] csfld f'k{kk] lfpo] csfld f'k{kk ifj"kn]
m0iz0 y[kuÅA m0iz0 bykgkcknA
f'k{kk vuqHkkx&5 y[kuÅ% fnukad% 05 Qjojh 2018
fo"k;& ek0 mPp U;k;ky; esa ;ksftr voekuuk ;kfpdk la0 5660@2017 Jherh lk{kh feJk cuke lfpo] csfld f'k{kk ifj"kn ,oa vU; rFkk fjV ;kfpdk la0 44442@2017 rFkk ek0 mPp U;k;ky; esa ;ksftr fofHkUu fjV ;kfpdkvksa rFkk efgyk v/;kfidkvksa ds vUrZtuinh; LFkkukUrj.k ds lEcU/k esaA
egksn;]
mi;qZDr fo"k;d lfpo] csfld f'k{kk ifj"kn ds i= fnukad 23-01-18 dk lanHkZ xzg.k djsa] tks fd efgyk v/;kfidkvksa ds vUrZtuinh; LFkkukUrj.k gsrq iwoZ fuxZr 'kklukns'k la0 1078@79&5&17&15 ¼149½@10 Vh0lh0 fnukad 13-06-17] 20-09-17 rFkk 18-01-18 esa fu/kkZfjr lsok vof/k 05 o"kZ ds laca/k esa m0iz0 csfld f'k{kk ¼v/;kid½ ¼rSukrh½ izFke la'kks/ku fu;ekoyh 2010 ds fcUnq la0 8¼2½¼?k½ esa miyC/k izkfo/kku ds vUrZxr fo'ks"k ifjfLFkfr esa efgyk v/;kfidkvksa ds vUrZtuinh; LFkkukUrj.k esa 05 o"kZ dh le; lhek ls NwV fn;s tkus ds laca/k esa gSA
2- mYys[kuh; gS fd mRrj izns'k csfld f'k{kk ¼v/;kid½¼rSukrh½ fu;ekoyh 2008] v|ru la'kksf/kr 2010 ds fu;e&8¼2½¼?k½ esa fuEu O;oLFkk fo|eku gS &
lkekU; ifjfLFkfr;ksa esa efgyk vFkok iq:"k v/;kidksa ds vUrZtuinh; LFkkukUrj.k ds vkosnu i=ksa ij 5 o"kZ rd fopkj ugha fd;k tk;sxk] ijUrq fo'ks"k ifjfLFkfr esa efgyk v/;kfidkvksa ds vkosnukas ij muds ifr ds fuokl LFkku@llqjky ds tuin esa vUrZtuinh; LFkkukUrj.k gsrq fopkj fd;k tk ldsxkA
3- mDr ds laca/k esa eq>s ;g dgus dk funs'k gqvk gS fd mDr fu;ekoyh ds fu;e 8¼2½¼?k½ esa fo|eku O;oLFkk ds vUrZxr fo'ks"k ifjfLFkfr esa efgyk v/;kfidkvksa ds vUrZtuinh; LFkkukUrj.k gsrq vku ykbu i= dks Lohdkj fd;s tkus rFkk of.kZr fo'ks"k ifjfLFkfr dk ijh{k.k dj tuin esa fjfDr dh miyC/krk dh n'kk esa vko';d dk;Zokgh djus dk d"V djsaA
bl laca/k esa iwoZ fuxZr 'kklukns'k la0 1078@79&5&17&15 ¼149½@10Vh0lh0 fnukad 13-06-17] 'kklukns'k la0 1810@79&5&17&15¼149½@10Vh0lh0 fnukad 20-09-17] 'kklukns'k la0 67@79&5&18 fnuakd 18-01-18 bl lhek rd la'kksf/kr fd;k tkrk gSA 'ks"k 'krsZ ;Fkkor ykxw gksaxhA
Hkonh;
g0 viBuh;
¼,l0 jktfyaxe½
fo'ks"k lfpoA
(viii) Relevant portion of Government Order No.3/18/1/3/96-dk-4-2018, dated 29.03.2018 relating to General Transfer Policy of the State Government for officers and employees:
11- vU; ekxZn'kZd fl)kar%&
¼i½ lafnX/k lR;fu"Bk okys dkfeZdksa dh rSukrh laosnu'khy inksa ij dnkfi u dh tk;A
¼ii½ eafnr cPpksa ds ekrk&firk dh rSukrh] vf/kd`r ljdkjh fpfdRld ds izek.k i= ds vk/kkj ij] fodYi izkIr djds ,sls LFkku ij dh tk;] tgak fpfdRlk dh leqfpr O;oLFkk miyC/k gksA
¼iii½ lewg ^d* ds vf/kdkfj;ksa dks muds x`g e.My esa rSukr ugha fd;k tk;sxkA
¼iv½ lewg ^[k* ds vf/kdkfj;ksa dks muds x`g tuin esa rSukr ugha fd;k tk;sxk] ijUrq izfrca/k ;g gS fd mDr izkfo/kku dsoy tuin Lrjh; foHkkxksa@dk;kZy;ksa esa ykxw gksaxsA
¼v½ fnO;kax dkfeZdksa vFkok ,sls dkfeZd] ftuds vkfJr ifjokjhtu fnO;kaxrk ls izHkkfor gksa] dks lkekU; LFkkukUrj.k ls eqDr j[kk tk;A ,sls fnO;kax dkfeZdksa ds LFkkukUrj.k xEHkhj f'kdk;rksa vFkok vifjgk;Z dkj.kksa ls gh fd;s tk;saaA fnO;kax dkfeZd ds n~okjk vuqjks/k fd;s tkus ij] in dh miyC/krk ds vk/kkj ij mls mlds x`g tuin esa rSukr djus ij fopkj fd;k tk ldrk gSA
¼vi½ lewg ^x* ds dkfeZdksa dk izR;sd 03 o"kZ ds mijkUr iVy ifjorZu dj fn;k tk;A
¼vii½ Hkkjr ljdkj n~okjk ?kksf"kr izns'k dh egRodka{kh ftyk ;kstuk ¼Aspirational Districts Scheme½ ls lacaf/kr 08 ftys&fp=dwV] pankSyh] lksuHknz] Qrsgiqj] cyjkeiqj] fl)kFkZ uxj] JkoLrh o cgjkbp esa izR;sd foHkkx n~okjk izR;sd n'kk esa leLr inksa ij rSukrh djds lar`Ir dj fn;k tk;sxk ,oa 02 o"kZ ckn ogka rSukr dkfeZdksa ls fodYi izkIr dj mUgsa LFkkukUrfjr fd;k tk;A
¼viii½ fu/kkZfjr vof/k ds mijkUr lkekU;r% LFkkukUrj.k ds izLrko izLrqr u fd;s tk;saA
¼ix½ LFkkukUrj.k fd;s tkus gsrq vof/k ds fu/kkZj.k ds fy, dV&vkQ&MsV 31 ekpZ dks ekuk tk;sxkA
¼x½ 02 o"kZ esa lsokfuo`Rr gksus okys lewg ^x* ds dkfeZdksa dks muds x`g tuin ,oa lewg ^d* ,oa ^[k* ds dkfeZdksa dks muds x`g tuin dks NksM+rs gq,] bfPNr tuin esa rSukr djus ij ;FkklEHko fopkj fd;k tk;A
¼xi½ lewg ^x* ,oa ^?k* ds LFkkukUrj.k] LFkkukUrj.k uhfr ds izLrj&1 ds izkfo/kkuksa ls vkPNkfnr gksus ij] izns'k Lrjh; laoxZ gksus ij fdlh vU; e.My@tuin esa rFkk e.My Lrjh; laoxZ gksus ij e.My ds vUnj fdlh vU; tuin esa fd;s tk;saA
(ix) decision/ circular of the Board being No. cs0f'k0i0 /4252-54/2018-19, dated 10.06.2018 in terms of the Rules 21 of the Rules 1981 the Rules 2008:-
izs"kd]
lfpo]
m0iz0 csfld f'k{kk ifj"kn]
bykgkcknA
lsok esa]
mi egkfuns'kd]
jk"Vªh; lwpuk dsUnz]
;kstuk Hkou] y[kuÅA
i=kad% cs0f'k0i0@4252&54@2018&19 fnukad & 10&6&2018
fo"k;%& vUrtZuinh; LFkkukUrj.k izfdz;k esa izkIr vkWuykbu vkosnu i=ksa ds lUnHkZ esa LFkkukUrj.k lwph tsujsV fd;s tkus ds lEcU/k esaA
egksn;]
d`i;k mi;qZDr fo"k;d lanHkZ yssus dk d"V djsa ftlls lEcfU/kr 'kklu esa ,d cSBd dy fnukad 09-06-2018 dks vij eq[; lfpo egksn; dh v/;{krk esa gqbZ FkhA cSBd esa fy;s x;s fu.kZ;ksa] izkIr funsZ'kksa rFkk] vki }kjk LFkkukUrj.k lEcU/kh dk;Z gsrq okafNr vko';d lwpukvksa vkSj bl lanHkZ eas iwoZ iszf"kr i=kad cs0f'k0i0@3686&87@2018&19 fnukad 01-06-2018 ds dze esa fuEuor lwP; gS&
1& iwoZ esa miyC/k djk;s x;s izklsl ¶yks pkVZ ds lanHkZ esa lEizfr dsoy ,d jkmUM dh gh izfdz;k lEikfnr gksxhA
2& tuinokj] inokj fjfDr;ksa ¼xfreku ,oa izLrkfor HkrhZ izfdz;kvksa dks vkWx.ku esa ysrs gq,½ dh lkWQ~VdkWih layXu gSA
3& 'kklukns'k fnukad 13-06-2017 ds vuqlkj& ,sls tuin tgkW f'k{kdksa dh fjfDr Lohd`r inksa sds lkis{k 15 izfr'kr ls vf/kd gS] ogkW ls vUrtZuinh; LFkkukUrj.k ds ek/;e ls fdlh v/;kid dk LFkkukUrj.k vU; tuin esa ugha fd;k tk;sxk rFkk Hkkjr ljdkj }kjk fpfg~ur izns'k ds vkB ,Lisjs'kuy tuinksa& fl)kFkZuxj] JkoLrh] cgjkbp] lksuHknz] pUnkSyh] Qrsgiqj] fp=dwV] cyjkeiqj ls Hkh fdlh v/;kid dks vU; tuin esa LFkkukUrfjr ugha fd;k tk;sxk ijUrq bu tuinksa esa tkus okys bPNqd v/;kidksa dk LFkkukUrj.k fd;k tk;sxkA mDr 15 izfr'kr dk vkWx.ku mi;qZDr fcUnq&02 esa vafdr fjfDr;ksa ds lkisf{kd fd;k tkuk gksxk rFkk vkWx.ku esa n'keyo dh fLFkfr esa jkmfUMax vkWQ dj yh tk;sxh vFkkZr ;fn og n'keyo 05 ls de gS rks fjfDr dh la[;k ogh jgsxh rFkk ;fn og n'keyo 05 vFkok mlls vf/kd gS rks og vxyh la[;k gks tk;sxhA 'kklukns'k fnukad 13-06-2017 esa LFkkukUrj.k gsrq fu/kkZfjr fdlh tuin dh fjfDr dk 25 izfr'kr vf/kdre lhek dk laKku vc ugha fy;k tk;sxk D;ksafd xfreku rFkk vkxkeh HkfrZ;ksa esa fdlh tuin dks vkoafVr inksa dks fjfDr;ksa ds vkWx.ku esa lfEefyr fd;k tk pqdk gSA
4& LFkkukUrj.k vkns'k lfpo ds ykWfxu ,oa fMftVy gLrk{kj }kjk lEikfnr dh tk;sxh rFkk LFkkukUrj.k vkns'k Hkh mUgha ds gLrk{kj ls fuxZr gksaxsA mDr LFkkukUrj.k vkns'k QR dksM lfgr gksxk ftldk izk:i layXu gSA
5& LFkkukUrj.k vkns'k dk voyksdu vkosnudrkZ v/;kid ds Query }kjk iSu la[;k rFkk cSad [kkrk la[;k dk iz;ksx djrs gq, Lo;a gh ns[kk tk ldsxk rFkk LFkkukUrfjr v/;kid }kjk viuk LFkkukUrj.k vkns'k dh izfr MkmuyksM dh tk ldsxhA ftu v/;kidksa dk LFkkukUrj.k ugha gqvk gksxk muds }kjk iSu rFkk cSad [kkrk la[;k QhM fd;s tkus ij ^^Transfer could not be done because vacancy is not available** lans'k iznf'kZr gksxkA
5& ftyk csfld f'k{kk vf/kdkjh }kjk lR;kfir fd;s gq, MkVk dks fMftVy gLrk{kj ls ykWd djus dh dk;Zokgh xfreku gS ijUrq osclkbV ds lapkyu esa vk jgh rduhdh dfBukbZ;ksa ds n`f"Vxr mlesa cgqr vf/kd le; yxus dh laHkkouk gS ftlls tufgr dk ;g LFkkukUrj.k dk;Z foyfEcr gks jgk gSA vr% blds n`f"Vxr ftyk csfld f'k{kk vf/kdkfj;ksa }kjk miyC/k djk;s x;s lR;kfir MkVk ij gh mDr izkslsflax dh tkuh gksxhA
d`i;k vuqjks/k gS fd mijksDrkuqlkj dk;Zokgh djus dk d"V djsaA
Hkonh;
g0 viBuh;
lfpo]
m0iz0 csfld f'k{kk ifj"kn]
bykgkcknA"
13. Rule 21 of the Rules 1981 when it was originally enacted; stood, as under:-
"There shall be no transfer of any teacher from the rural local area to an urban local area or vice versa or from one urban local area to another of the same district or from local area of one district to that of another district except on the request of or with the consent of the teacher himself and in either case approval of the Board."
15. In the personal affidavit dated 17.07.2018, filed by the Additional Chief Secretary, Basic Education, Government of U.P. Lucknow on behalf of the State Government, it has been stated, as under:
"4. That at the outset it is to be submitted that the process of Inter District Transfers was Software based and did not involve human intervention. The Applications for transfer were invited online. For the sake of transparency the weightage points earned by the applicants and their resultant standing in merit for transfer were put on the website so that any aggrieved applicant may represent his grievance. The Grievances were addressed and disposed of at the District level by a committee of Zonal A D (Basic) and DIET Principal and the required corrections were done by the BSAs. After this the transfer orders were generated by the NIC through the software developed for the purpose.
5. That regarding the submission of Advocate Sri Indra Raj Singh in Writ-A No.14105/2018 and Writ-A No.14099/2018. The deponent submits here under:
A- The transfer could be done only against the existing vacancies in any particular district because the post of a Parishadiya Teacher is of district Cadre. So far as the contention of the petitioner regarding their transfer to district Ballia is concerned, It is no disputed that earlier 973 vacant posts were notified, but having taken into consideration ongoing recruitment of teachers in all the district of U.P., there remained no vacancy in district Ballia for the post of Assistant Teacher primary post.
8. That thus in compliance of the Hon'ble Court's order all married female teachers were extended the benefit of applying for inter district transfer and subsequently the applications were considered and processed impartially as per existing vacancies and merit points.
10. That subsequent thereto communication dated 10.06.2018 was received from the office of the Secretary U.P. Basic Education Board, Allahabad giving reference to the order dated 13.06.2017 to the effect that such districts where the vacancies is more than 15% of the sanctioned posts, from those districts the transfer of any teacher to any other districts would not be done. Further, that from the 8 Aspirational districts of U.P., no teacher would be transferred out of these districts, however any teacher willing go to these 8 Aspirational districts, would be transferred accordingly. A copy of the communication dated 10.06.2018 and Government order dated 13.06.2017 as amended on 20.09.2017 is being enclosed and marked as Annexure No.C.A.-4 to this affidavit.
11. That from the aforesaid details, it is evident that the districts where strength of teacher is already deficient, the quality of education in the schools would be affected. Hence the outward transfer from Aspirational districts was barred. It is also submitted that the decision of not transferring of any teacher from such districts is not on a pick and choose basis but a decision that affects all in these districts. It is further submitted that transfer is not a right of the teacher but has to be done in the light of the vacancies and public interest and providing better eduction in primary schools of the State.
14. That from the aforesaid it is clear that in normal circumstances a teacher ought to have a minimum of 5 years of service to be eligible for Inter District Transfer but in special circumstances applications of female teachers could be considered. The inter district transfer in question has been provided for considering applications of such teachers on basis of weightage marks arrived at not only for them being women but also additional marks for illness of their own or spouse or children and also for being handicapped. Thus the teachers falling in such special circumstances were considered for transfers and the transfers were done where-ever vacancies existed against the sanctioned post. Thus it is further submitted that the contention of the petitioner to the effect that press note has been made a basis of denying the benefit, of Rule 8(2)(d), is misconceived. Merit list was prepared after awarding marks to different categories of teachers as given below:
a. Differently Abled (before joining service or while in service) - 05 marks
b. Serious Illness (self/ spouse/ children) - 05 marks
c. Female - 05 marks
d. Per completed year of service - 01 marks (upto 35 marks Maximum)
15. That with regard to the argument of Senior Adv. Sri R.K. Ojha in writ petition no.14102/2018, it is submitted that the transfer policy of the Basic Teachers is Governed by the 1981 Rules namely "U.P. Basic education (Teachers) Service Rules 1981" subsequently the posting Rule of Basic Teachers were framed in 2008 namely: in furtherance thereto the Government order dated 13.06.2017 was issued whereby inter districts transfer policy for the session 2017-18 in the schools run by U.P. Basic Education Baord, U.P. were framed. However the Government order was also issued on 05.02.2018 under pursuance of the Hon'ble High Court order. The said policy is not under challenge.
18. That the deponent with all respect to the Constitution of India submits that the applications for inter districts trasnfer have to be considered in view of the clause no.8 of the Government order dated 13.06.2017 and therefore the eligibility of the applicants for inter district transfer has to be considered on the basis of the quality points and also on the basis of the preference as mentioned therein. This provision makes it clear that the applicants cannot claim transfer posting at their choice place as a matter of right. The interests of the children studying in Parishadiya Primary Schools in these backward districts identified as aspirational districts were considered foremost while taking the decision."
16. When the Rules 2008 were enacted, no provision for transfer was made in Rule 8 of the Rules. By First Amendment Rules, 2010, the Rules 2008 were amended which is existing today. Subsequent to it, the Rule 21 was amended by 13th Amendment Rules as aforesaid and it was again amended by the 15th Amendment Rules, 2012 whereby Rule 21 was restored in its original form.
Question No.(a):- Whether restriction on inter-district transfer has been validly imposed by the Government Order dated 13.06.2017 on teachers who have earlier taken benefit of inter-district transfer?
18. Since the Government Order itself has been amended by the State Government and applications of all eligible candidates in terms of the Rules have been considered, therefore, this question does not survive.
Question No.(b):- Whether under Rule 21 of the Rules 1981 and Rule 8(2)(d) of the Rules 2008, the assistant teachers have a right for consideration of their transfer application or they have a right of transfer?
19. It is settled law that transfer is not a right. As per Rule 4 of the Rules 1981, the service cadre of the petitioners is the local area of the respective district. Their appointing authority is the concerned District Basic Education Officer. In view of Rule 21 of the Rules 1981, the Assistant Teachers of basic schools run by the Board cannot be transferred from rural local area to an urban local area or vice versa or from one urban local area to another of the same district or from local area of one district to that of another district except on the request of or with the consent of the teacher himself and in either case, approval of the Board shall be necessary. Rule 8(2)(d) of the Rules 2008 also does not confer any right for inter-district transfer. On the contrary it provides that in normal circumstances, the applications of inter-district transfers in respect of male and female teachers will not be entertained within five years of their posting. However, an exception has been provided in respect of female teachers that in special circumstances their applications for inter-district transfer would be entertained to the place of residence of their husband or in-laws' district. Rule 21 read with Rule 8(2)(d) of the Rules 1981 clearly indicates that teachers have no right for inter-district transfer.
20. Similar controversy with respect to Rule 21 of the Rules 1981 as amended by 13th and 15th Amendment Rules, was considered by a bench of this Court in the case of Reena Singh and others vs. State of U.P. and others [2013(101) ALR 527] (Paras-5, 6, 7, 8, 10, 11) and it was held as under:-
"5. After respective arguments have been advanced the factual situation as is emerging in the present case is that 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 in magnified form 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 31.12.2011 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."
6. Thereafter, further amendment has been introduced on 31st August, 2012 by means of 15th Amendment and therein once again amendment has been introduced in Rule 21 in following terms;
"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 of the same district or from local area of one district to that of another district except on the request or or with the consent of the teacher himself and in either case approval of the Board shall be necessary."
A bare perusal of the rules quoted above would go to show that there is an authority of transfer conferred in the authorities concerned on the request of teacher concerned or on his/her consent after there is due concurrence taken by the Board. By means of 15th Amendment, so introduced, original rule which was replaced by 13th Amendment has been restored.
7. Thereafter for making inter-district transfer, the Board, proceeded to frame guidelines in its meeting dated 22.04.2013 fixing therein criteria that was to be adhered in the matter of inter-district transfer and Secretary, Basic Shiksha Parishad on 27.05.2013, circulated the same to each and every District Basic Education Officer. Relevant extract of the same is being extracted below;
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i=kad cs0f'k0i0 @ 9825&45 @2013&14 fnukad 27-5-13
fo"k; %& m0iz0 csfld f'k{kk ifj"kn ds v/khu lapkfyr fo|ky;ksa esa dk;Zjr f'k{kdksa ds vUrtZuinh; LFkkukUrj.k ds lEcU/k esaA
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^^fdlh v/;kid dk LFkkukUrj.k xzkeh.k LFkkuh; {ks= ls uxj LFkkuh; {ks= esa ;k blds foijhr ;k fdlh ,d LFkkuh; uxj {ks= ls mlh ftys ds fdlh vU; LFkkuh; {ks= esa ;k ,d ftys ds LFkkuh; {ks= ls fdlh vU; ftys ds LFkuh; {ks= dks flok; v/;kid ds vuqjks/k ij ;k mldh Lo;a dh lgefr ds ugh gksxk] vkSj fdlh Hkh ekeys esa ifj"kn dk vuqeksnu vko';d gksxkA^^
mDr ds dze esa 'kSf{kd l= 2013&14 esa m0iz0 csfld f'k{k ifj"kn }kjk bPNqd vgZ v/;kidksa dk vUrtZuinh; LFkkukUrj.k djus dk fu.kZ; fy;k x;k gSA ifj"knh; v/;kidksa ds vUrtZuinh; LFkkukUrj.k dks ikjn'khZ ,oa 'kqfprkiw.kZ cukus gsrq vkuykbu vkosnu dh O;oLFkk dh xbZ gSA mRrj izns'k csfld f'k{kk ifj"kn dh fnukad 22 vizSy 2013 dh cSBd esa ifj"knh; fo|ky;ksa esa dk;Zjr v/;kidksa dk vUrtZuinh; LFkkukUrj.k fuEufyf[kr izkfo/kkuksa ds vuq:i fd;s tkus dk fu.kZ; fy;k x;k gS&
1& vUrtZuinh; LFkkukUrj.k gsrq dsoy ogh v/;kid vgZ gksxs ftUgksus dk;Zjr tuin esa izFke fu;qfDr frfFk ls foKfIr izdk'ku dh frfFk rd U;wure 03 o"kZ ¼efgyk@fodykax v/;kidksa gsrq U;wure 01 o"kZ½ dh lsok iw.kZ dj yh gksA
2& ;fn fdlh v/;kid@v/;kfidk }kjk foxr 05 o"kZ esa vUrtZuinh; LFkkukUrj.k fy;k x;k gS rks og l= 2013&14 esa vUrtZuinh; LFkkukUrj.k gsrq vgZ ugh gksxkA LFkkkukUrfjr tuin esa dk;Zjr vof/k dk vkdyu tuin esa dk;ZHkkj xzg.k djus dh frfFk ls foKfIr izdk'ku dh frfFk rd fd;k tk;sxkA
3& vUrtZuinh; LFkkukUrj.k gsrq bPNqd lHkh efgyk@iq:"k v/;kidksa dks fu/kkZfjr izk:i ij vkuykbu vkosnu djuk gksxk] ftlesa v/;kidksa }kjk vf/keku dze esa rhu tuinksa dk fodYi izLrqr djuk gksxkA LFkkukUrj.k pkgus okys efgyk@iq:"k v/;kidksa dk LFkkukUrj.k vkosfnr@fodYi fn;s x;s ftys esa muds vf/keku dze esa izFke fodYi ds vk/kkj ij fd;k tk;sxk] rRi'pkr mudk LFkkukUrj.k muds f}rh; fodYi ,oa ckdh cps v/;kidksa dk muds r`rh; fodYi ds vk/kkj ij fd;k tk;sxkA
4& m0iz0 csfld f'k{kk v/;kid lsok fu;ekoyh ds vuqlkj ifj"knh; v/;kidksa dk in ftyk laoxZ dk gksrk gSA ,slh fLFkfr esa vUrtZuinh; LFkkukUrj.k vf/kdkj ugh gSA v/;kidksa dk vUrtZuinh; LFkkukUrj.k mudks lqfo/kk iznku djus gsrq f'k{kd@f'kf{kdk dh vko';drk@ifjfLFkfr dks n`f"Vxr j[krs gq, ,oa okafNr tuinksa esa miyC/k fjfDr;ksa ds vk/kkj ij fd;s tkus dh O;oLFkk gSA vr ,o fdlh Hkh v/;kid }kjk vUtZuinh; LFkkukUrj.k ikus dk nkok vf/kdkj Lo:i ugh fd;k tk ldrk gSA
6& vUrtZuinh; LFkkukUrj.k esa ,sls tuin tgkW ls vkosnu pkgk x;k gS rFkk mu tuinksa esa tgkW ds fy, vkosnu fd;k x;k gS] dh fjfDr;ksa dks /;ku esa j[krs gq, vfUre fu.kZ; m0iz0 csfld f'k{kk ifj"kn }kjk fuEufyf[kr fcUnqvksa ds vkyksd esa fd;k tk;sxk&
d& ,sls fodykax v/;kid ftudh fodykaxrk U;wure 40 izfr'kr gksA
[k& xEHkhj jksx ls ihfM+r v/;kidA
x& l'kL= lSU; cy esa dk;Zjr lSfudksa dh ifRu;ksa dk okafNr tuin esa ojh;rkuqlkj LFkkukUrj.k lEcU/kh vuqjks/kA
?k& efgyk v/;kidksa ds lEcU/k esa x`g tuin@ifr ds dk;Zjr tuin gsrq vkosnuA
M-& iq:"k v/;kidksa }kjk x`g tuin gsrq vkosnuA
6& LFkkukUrj.k pkgus okys v/;kidksa dk muds }kjk okafNr tuin esa dsoy mlh fLFkfr esa LFkkukUrj.k fd;k tk;sxk tcfd ml tuin esa lEcfU/kr v/;kid ds cSp ds v/;kid Hkh leku in ij dk;Zjr gksA
7& vUrtZuinh; LFkkukUrj.k gsrq dsoy vkuykbu vkosnu Lohdkj fd;s tk,xs] ,oa LFkkukUrj.k ij dsoy mlh n'kk esa fopkj fd;k tkuk lEHko gksxkA tcfd lEcfU/kr v/;kid }kjk fu/kkZfjr izfdz;kuqlkj lgh
8& vUrtZuinh; LFkkukUrj.k esa bl ckr dk Hkh /;ku j[kk tk;sxk fd nwjLFk @fiNM+s tuinksa ls flQZ mrus gh LFkkukUrj.k fd;s tk, ftlls fd lkekU; f'k{kk O;oLFkk esa dksbZ dfBukbZ mRiUu u gksA
9& lHkh LFkkukUrj.k pkgus okys vH;fFk;ksa }kjk foKfIr esa mfYyf[kr izfdz;kuqlkj vkuykbu vkosnu fd;k tk;sxkA vkosnuksijkUr Hkjs gq, vkosnu i= dk fizUV vkmV nks izfr;ksa esa ftyk csfld f'k{kk vf/kdkjh dk;Zy; dks miyC/k djkuk vfuok;Z gksxkA
10& lHkh ftyk csfld f'k{kk vf/kdkjh bl izdkj izkIr vkuykbu vkosnu i=ks dk vkuykbu vkosnu esa vafdr fooj.k@rF;ksa ls dkmfUlfyax esa v/;kid }kjk miyC/k djk;s x;s lk{;ksa ,oa dk;kZy;h vfHkys[kksa ls lR;kiu dh dk;Zokgh lqfuf'pr djsxsA
11& vUrtZuinh; LFkkukUrj.k gsrq vkosnu djus okys v/;kidks dks fnukad 18-06-2013 dks bl gsrq vk;ksftr dkmfUlfyax esa izR;sd n'kk esa iSu dkMZ@osru vkgj.k cSad iklcqd@fu;qfDr ,oa inksUufr vkns'k@vU; lk{;ksa lfgr mifLFkr gksuk gksxkA ;fn mDr frfFk dks dksbZ v/;kid mifLFkr ugh gksrk gS rks mlds LFkkukUrj.k ij fopkj fd;k tkuk lEHko ugh gksxkA
12& lHkh ftyk csfld f'k{kk vf/kdkjh vkuykbu lR;kiu esa fujLr fd;s x;s vkosnu i=ksa ds lEcU/k esa lqLi"V dkj.k dk mYys[k djsxsA lkFk gh fujLr fd;s x;s vkosnu i=ksa dks lwph lfgr i`Fkd ls miyC/k djk;sxsA
13& leLr ftyk csfld vf/kdkfj;ksa dks lR;kfir vkosnu i=ksa dh gkMZdkih vko';d layXudksa@lk{;ksa lfgr ifj"kn dk;kZy; dks vkosnu lekIr gksus dh frfFk ls ,d lIrkg ds Hkhrj vfuok;Z :i ls miyC/k djkuk gksxk] lkFk gh mUgs bl vk'k; dk ,d izek.k i= Hkh ifj"kn eq[;ky; dk nsuk vfuok;Z gksxk fd ^^tuin ------------------------ esa vUrtZuinh; la[;k ------------------------ rFkk vlR;kfir vkosnu i=ksa dh la[;k ----------------------- gSA^^
14& vkuykbu vkosnu ds QyLo:i LFkkukUrfjr v/;kidksa dks vius uohu rSukrh tuin esa fu/kkZfjr frfFk rd mifLFkr gksuk gksxk] vU;Fkk dh n'kk esa l= 2013&14 esa mlds vUrtZuinh; LFkkukUrj.k ij fopkj ugh fd;k tk;sxkA
15& lHkh tuinksa ds ftyk csfld f'k{kk vf/kdkjh LFkkukUrfjr v/;kidksa dks dk;ZeqDr djus ds iwoZ mlds fo|ky; esa v/;kidksa dh O;oLFkk dj ys ftlls cPpksa ds f'k{k.k dk;Z esa dksbZ ck/kk mRiUu u gksA fdUrq ;g dk;Z fu/kkZfjr frfFk ds Hkhrj gh dj fy;k tk, ftlls lEcfU/kr v/;kid vius uohu rSukrh tuin esa lle; mifLFkr gks ldsaA
16& vUrtZuinh; LFkkukUrj.k gsrq izLrkfor dk;Zdze@le;lkfj.kh
vUrtZuinh; LFkkukUrj.k gsrq foKfIr dk izdk'k
25-05-2013
vUrtZuinh; LFkkukUrj.k gsrq vkuykbu vkosnu izkjEHk gksus dh frfFk
28-05-2013
vUrtZuinh; LFkkukUrj.k gsrq vkuykbu vkosnu dh vfUre frfFk
09-06-2013
vUrtZuinh; LFkkukUrj.k gsrq dkmfUlfyax dk vk;kstu
18-06-2013
ftyk csfld f'k{kk vf/kdkjh }kjk vkosnu dks lR;kfir djus dh vfUre frfFk
20-06-2013
ftyk csfld f'k{kk vf/kdkjh vkosnu i= dh gkMZ dkih layXudksa lfgr miyC/k djkus dh vfUre frfFk
25-06-2013
vUrtZuinh; LFkkukUrj.k lwph dk izdk'ku
tqykbZ ds izFke lIrkg esa
Hkonh;
g0 viBuh;
¼lat; flUgk½
lfpo]
mRrj izns'k csfld f'k{kk ifj"kn
bykgkcknA
i`0la0@cs0f'k0i0@ 2013&14 rn~fnukad
izfrfyfi fuEufyf[kr dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq izsf"kr
1- f'k{kk funs'kd ¼csfld½ m0iz0 y[kum dks lwpukFkZ izsfirA
2- leLr e.Myh; lgk;d f'k{kk funs'kd ¼csfld½ m0iz0A
¼lat; flUgk½
lfpo]
mRrj izns'k csfld f'k{kk ifj"kn
bykgkcknA"
8. Bare perusal of the guidelines would go to show that same is self explanatory covering each and every contingency and clearly specifying that transfer is not a right, as teachers working form part of the cadre which is of district level and further it has been clarified that transfer order would be effected wherein their batch-mates are working on equivalent post and no teacher can claim inter-district transfer as a matter of right.
10. The authority to effectuate the inter-district transfer is there but the said transfer order has to be given effect to after there is due concurrence from the Board. The Board has proceeded to issue a circular dated 27.05.2013 covering the field of inter-district transfer and therein a categorical mention has been made that request of teachers to be transferred in a particular district of his/her choice would be accepted only when in the corresponding district his/her respective batch-mates are working against the same post, as held by the incumbents. Here in the present case, accepted position is that in the district Allahabad promotional exercise has not been undertaken and the batch-mates of petitioners are still working on a lower post and, in view of this, as per condition no. 6 of the circular issued by the Board petitioners cannot be transferred and as per Note Gha appended in the list dated 31st July, 2013 joining of petitioners cannot be ensured. Transfer is an incidence of service, but under U.P. Basic Education Teachers (Service) Rules, 1981, it is a privilege conferred upon a teacher but it is not an absolute privilege rather it is hedged with certain conditions and once it has been made clear that one can be transferred only in the said district where his/her batch-mates are similarly situated, then transfer cannot be claimed as a matter of right. Here in the present case batch-mates of petitioners at Allahabad till date have not been accorded promotion, as such, petitioners cannot claim as a matter of right to be accorded transfer.
Much emphasis has been laid by the petitioners that once the Legislature in its wisdom has deliberately amended the Rule 21 of U.P. Basic Education (Teachers) Service Rules, 1981 and thereafter has restored back Rule 21 in its original form, then such a condition could not have been imposed by means of circular dated 27.05.2013, as deliberately said conditions have been deleted and, in view of this, issuance of circular dated 27.05.2013 is nothing but transgression and oversleeping of jurisdiction.
11. The transfer order in question as per Rule 21 of 1981 Rules has to be made with the concurrence/approval of the Board and the Board has taken a policy decision on 27.05.2013 not to effectuate any transfer to the corresponding district wherein batch-mates of the transferred incumbents have not at all been accorded same status and once the Board, who inheres the authority to accord transfer, has chosen to take a resolve on the said score, then it cannot be said that said circular in any way violate the rules in question. Where a power is conferred or duty is imposed by statute or otherwise, and there is nothing expressly inhibiting the exercise of authority or performance of duty by any limitations or restrictions, such power cannot be arbitrarily or indiscriminately exercised, as power is always coupled with duty. Once authority has been reposed in the Board to effectuate inter-district transfer, and in the said direction, keeping all relevant factors in mind, germane for effectuating inter-district transfer, policy decision has been taken on 27.05.2013 which is inclusive of the policy to save the seniority of their batch-mates in corresponding district, wherein they intend to be transferred, same is not effected, and in such a situation such exercise of transfer cannot be effectuated, wherein their batch-mates are not similarly situated. It is a well intended policy to save the seniority of their batch-mates in the corresponding district, wherein transfer has been intended for. There is no lack of authority in framing such a policy, as an authority who is empowered to do something has absolute authority to exercise incidental and ancillary authority too, so that the intentment of conferring such authority is fulfilled, in free, fair and transparent manner. The Board in transfer, has the authority to frame the guidelines qua the way and manner it has to conduct itself in the matter of effectuating transfer. On account of reintroduction of Rule 21, the authority of the Board to frame guidelines for effectuating inter-district transfer is not at all diluted or restricted, as has been sought to be suggested. Guidelines have been framed to maintain transparency and rule out arbitrariness, so that one knows the contingency when an incumbent can be transferred and the parameters of exercise of authority. One of the function of Board is to control the imparting of basic education, to exercise supervision and control over the basic schools, and to take all such steps necessary for discharge of any power. Once under the rules, authority to accord approval, rests with the Board, then it has all authority to frame guidelines to conduct itself. Guidelines in question, in noway violate the Rules."
(Emphasis supplied by me)
21. In the case of Kailash Chandra Sharma vs. State of Rajsthan and others [(2002) 6 SCC 62 (para-32], Hon'ble Supreme Court while considering the validity of awarding of bonus marks to applicants to the district and the rural areas of the district concerned, also considered the arguments of inter-district transfer and observed as under:
"32. Coming then to the next plea that the residents of towns, if appointed will not be willing to serve the rural areas and they will be more interested in getting themselves transferred to "relatively urban area and forward districts", does not in our view, stand a moment's scrutiny. The apprehension that 'teacher absenteeism' will be rampant if non-rural candidates are appointed, to say the least, is based on irrelevant and unwarranted assumptions. First of all, as rightly pointed out by Dr. A.M. Singhvi, postings and transfers are managerial functions. The concerned authorities in-charge cannot be heard to say that there will be undue pressures from the candidates from extraneous sources and they will have to succumb to such pressures. Secondly, the question of non rural candidates trying to avoid working in villages and seeking transfer to town or urban areas does not arise for the simple reason that the appointees would have no option but to work in villages coming within the jurisdiction of the Panchayat Samiti concerned. The only other possibility is that they may like to have postings in the villages close to the town. If the non-rural candidates would like to have postings at places close to the town, the rural area candidates may equally have the desire to get postings close to their native villages and many of them may even prefer working at places near the town. Thus desire and aspiration in regard to choosing the place of work need not be on a set pattern. Ultimately, it is a matter of regulation of postings of rural as well as non-rural candidates. As regards the candidates coming from other districts, the question of seeking inter-district transfer does not arise, as they are required to work within the particular district in which they are selected and appointed. The factors which may exist in the context of appointments to State-wide cadre does not exist here. The difficulties sought to be projected by the State appear to be more imaginary rather than real. We have, therefore, no hesitation in rejecting this argument."
(Emphasis supplied by me)
22. In the case of Bank of India vs. Jagjit Singh Mehta, [(1992) 1 SCC 306 (para-5], Hon'ble Supreme Court considered the question of transfer and posting of couples at the same Station and held, as under:
"5. There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with the administrative needs. In the case of All-India Services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other's posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an All-India Service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, they cannot as of right claim to be relieved of the ordinary incidents of All-India Service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places. In addition, in the present case, the respondent voluntarily gave an undertaking that he was prepared to be posted at any place in India and on that basis got promotion from the clerical cadre to the officers' grade and thereafter he seeks to be relieved of that necessary incident of All-India Service on the ground that his wife has to remain at Chandigarh. No doubt the guidelines require the two spouses to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees."
(Emphasis supplied by me)
24. The applications of the remaining petitioners were entertained but they could not be transferred to another district either on the ground that there remained no vacancy due to fill up of posts by ongoing recruitments or they were lower in merit list prepared for transfer by award of marks which were awarded adopting a uniform policy. Thus, the refusal of inter-district transfer to the petitioners, does not suffer from any error of law.
25. The Board in transfer matters, has the authority to frame the guidelines qua the way and manner it has to conduct itself in the matter of effectuating transfer. On account of reintroduction of Rule 21 of the Rules 1981 or insertion of Rule 8(2)(d) in the Rules 2008, the authority of the Board to frame guidelines for effectuating inter-district transfer is not at all diluted or restricted. Guidelines have been framed to maintain transparency and rule out arbitrariness, so that one knows the contingency when an incumbent can be transferred and the parameters of exercise of authority. One of the function of Board is to control the imparting of basic education, to exercise supervision and control over the basic schools, and to take all such steps necessary for discharge of any power. Once under the rules, authority to accord approval, rests with the Board, then it has all authority to frame guidelines to conduct itself. Guidelines in question, in noway violate the Rules. The aforesaid is also the ratio of decision in the case of Reena Singh (supra)
26. When Rules 2008 was originally enacted, Rule 8 thereof merely provided for posting. By the First Amendment Rules, 2010, the Rules 2008 were amended by inserting sub-Rule (2) and Clauses (a) to (f). Rule 21 of the Rules 1981 was existing in its original form. It was amended by the 13th Amendment Rules, 2011 providing for consideration to inter-district transfer in order of preference (quoted in para-5 of the judgment in Reena Singh's case). By 15th Amendment Rules, 2012, the Rule 21 as inserted by 13th Amendment Rules, 2011, was repealed and Rule 21 as it existed in its original form, was again introduced. Thus, the main provision dealing with the transfer is Rule 21 of the Rules, 1981 which forms part of service conditions. Since Clause (d) of sub-Rule (2) of the Rule 8 of the Rules, 2008 still exists, therefore, it has to be harmoniously read with Rule 21 of the Rules, 1981. A conjoint reading of Rule 21 of the Rules 1981 as interpreted by this Court in the case of Reena Singh (supra) and Rule 8(2)(d) of Rules 2008, would reveal that no teacher has any right of Inter-district Transfer. Rule 21 of the Rules, 1981 and Rule 8(2)(d) of the Rules, 2008 providing for Inter-district transfer is an enabling provision only to entertain inter-district transfer applications of only female teachers to the place of residence of their husbands or in-laws' district on request or with the consent of the teacher herself subject to the approval of the Board. In Reena Singh's case (supra), it has been authoritatively pronounced that the Board has the authority to frame the guidelines qua the way and manner it has to conduct in the matter of effectuating transfer. Guidelines have been framed by the Board to maintain transparency and rule out pick and choose by authorities and also that one may know the contingency when application for inter-district transfer of an incumbent can be entertained and she can be transferred. Under the Rules, authority to accord approval, rests with the Board. Therefore, it has all authority to frame guidelines to conduct itself.
27. The word "entertain" has not been defined either in the Act 1972 or in the Rules, 1981 or the Rules, 2008. In the case of M/s Lakshmi Ratan Engineering Works Ltd. vs. Assistant Commissioner (Judicial) 1st Sales Tax Kanpur Range, Kanpur and another [AIR 1968 SC 488 (paras 7 to 10)], Hon'ble Supreme Court interpreted the word "entertain" used in the proviso to Section 9 of the U.P. Sales Tax Act, 1948 and held that the word "entertain" means "admit to consideration" and when the proviso speaks of the entertainment of the appeal, it means that the appeal such as was filed, will not be admitted to consideration unless there is satisfactory proof available of the making of the deposit of admitted tax. The judgment in the case of M/s Lakshmi Ratan Engineering Works Ltd. (supra) has been consistently followed by Hon'ble Supreme Court including in Hindustan Commercial Bank Ltd. vs. Kunnu Sahu (dead) through legal representatives [(1971) 3 SCC 124 (Para-4)] and State of Haryana vs. Maruti Suzuki Ltd. and others [(2000) 7 SCC 348 (para-8)]. Similar view has also been taken by this Court in Awan Lal vs. Kunj Bihari Lal, 1962 All. 42; Dhoom Chand Jain vs. Chaman Lal Gupta, AIR 1962 All. 543; Kundan Lal vs. Jagannath, AIR 1962 All. 547; Haji Rahim Bux vs. Shami Ullah and sons, AIR 1963 All. 320; Smt. Jagdeep vs. Ram Awtar, AIR 1965 All. LJ 1135; Nazira Begum vs. Syed Ali, AIR 1974 All. 104; Sita Ram Jwala Prasad vs. Commissioner of Sales Tax, 1980 (45) STC 410 at 413 and R.R. Engineering Company vs. Commissioner of Sales Tax, 1983 (52) STC 174 at 176. The law laid down in the afore-noted binding judgments of Hon'ble Supreme Court and of this Court interpreting the meaning of the word "entertained", when applied to understand the meaning of the word "entertained" used in Rule 8(2)(d) of the Rules, 2008, leads to an irresistible conclusion that the applications for inter-district transfer of teachers can be entertained subject to guidelines/ policy decision of the Board. If applications of teachers for inter-district transfer is outside the contingency for inter-district transfer provided in the guidelines/ decision of the Board, then such applications need not to be even admitted for consideration.
28. In view of the above discussion, the question No.(b) is answered as under:
Petitioners do not have any right for transfer or a right for consideration of their application for transfer. Applications for inter-district transfer may be entertained by the competent authority only if such applications for inter-district transfer are within the four corners of the provisions of the Rule 21 of the Rules, 1981 read with Rule 8(2)(d) of the Rules, 2008 and the guidelines framed by the Board for transfer.
29. Keeping in view the crucial role of universal elementary education for strengthening the social fabric of democracy through provision of equal opportunities to all, an obligation was imposed upon the State Government in the directive principles of State policy under Article 41 read with Article 45 of the Constitution of India so as to secure the right of education which led Hon'ble Supreme Court to pronounce a historical decision in the case of Unni Krishanan J.P. vs. State of Andhra Pradesh [(1993) 1 SCC 645] which stretched the limits of Article 45 by reading right to free education as a fundamental right of children upto the age of 14 years so as to enable them to receive education as a matter of right which were also supported by the recommendations of the Law Commission of India being Report No.165. In these circumstances, the Parliament enacted The Constitution (Eighty Sixth Amendment) Act 2002, by inserting a new fundamental right being Article 21A, as under:
"Article 21-A. Right to education. - The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine. "
30. Having regard to the aforesaid constitutional provisions and the ground reality that number of children, particularly children from disadvantaged groups and weaker sections remain very large who dropped out of schools before completing elementary education, therefore, the Parliament enacted The Right of Children to Free and Compulsory Education Act, 2009.
31. In the case of Bhartiya Seva Samaj Trust vs. Yogeshbhai Ambalal Patel and another [(2012) 9 SCC 310 (para-24)], Hon'ble Supreme Court referred to its earlier judgment in Ashok Kumar Thakur vs. Union of India [(2008) 6 SCC 1] and held, as under:-
"24. Right to education flows directly from Article 21 and is one of the most important fundamental rights. In Ashoka Kumar Thakur v. Union of India (2008) 6 SCC 1, while deciding the issue of reservation, this Court made a reference to the provisions of Articles 15(3) and 21-A of the Constitution, observing that without Article 21-A the other fundamental rights are rendered meaningless. Therefore, there has to be a need to earnestly on implement Article 21-A. Without education a citizen may never come to know of his other rights. Since there is no corresponding constitutional right to higher education - the fundamental stress has to be on primary and elementary education, so that a proper foundation for higher education can be effectively laid. Hence, we see that education is an issue, which has been treated at length in our Constitution. It is a well accepted fact that democracy cannot be flawless; but, we can strive to minimize these flaws with proper education. Democracy depends for its very life on a high standard of general, vocational and professional education. Dissemination of learning with search for new knowledge with discipline all round must be maintained at all costs."
(Emphasis supplied by me)
32. The right of children under Article 21A of the Constitution of India, cannot be restricted only to free and compulsory education and should also be extended to have quality education without any discrimination on economic, social and cultural grounds.
33. To achieve the object of the Act, 2009 and its expressed provisions so as to ensure implementation effectively the provisions of the Act for education for free and compulsory education to children in disadvantaged areas, the Central Government identified 115 highly backward districts/ areas in the country out of which eight districts namely Siddharth Nagar, Shrawasti, Behraich, Sonbhadra, Chandauli, Fetehpur, Chitrakoot and Balrampur, are in Uttar Pradesh. Through the Niti Ayog, the Central Government has framed policy for development in these districts including the elementary education to children. The programme 'Transformation of Aspirational Districts' has been launched by Hon'ble Prime Minister. Policy decision or direction may be issued by the Central Government in exercise of powers conferred under Section 35 of the Act, 2009. Emphasis with regard to no transfer of employees from Aspirational districts finds mention in the general transfer policy of the State Government dated 29.03.2018, which has been quoted above.
34. No transfer of teachers from districts where the vacancy of teachers is more than 15% is reflected from the Government Orders dated 13.06.2017 as amended from time to time. The petitioners could not point out any unconstitutionality in this policy decision.
35. The U.P. Basic Education Board has issued guidelines dated 10.06.2018 for inter-district transfer of teachers in which it has been provided that no transfer shall be made from districts where the vacancy of teachers is more than 15% and also from districts which have been identified by the Government of India as Aspirational districts namely, Siddharth Nagar, Shrawasti, Behraich, Sonbhadra, Chandauli, Fetehpur, Chitrakoot and Balrampur. Thus, this guideline cannot be said to be violative of either the provisions of the Act 2009, the Act 1972, the Rules 1981 or the Rules 2008 or the Government Orders and the policy decision of the Government of India.
36. The Board in transfer, has the authority to frame the guidelines qua the way and manner it has to conduct itself in the matter of effectuating transfer. On account of reintroduction of Rule 21, the authority of the Board to frame guidelines for effectuating inter-district transfer is not at all diluted or restricted. Guidelines have been framed to maintain transparency and rule out arbitrariness, so that one knows the contingency when an incumbent can be transferred and the parameters of exercise of authority. One of the function of Board is to control the imparting of basic education, to exercise supervision and control over the basic schools, and to take all such steps necessary for discharge of any power. Once under the rules, authority to accord approval, rests with the Board, then it has all authority to frame guidelines to conduct itself. Guidelines in question, in noway violate the Rules.
37. The decision not to transfer any teacher from Aspirational districts is a uniform decision which has been taken by the Board in furtherance of the very object of the Act 2009 and policy decision of the Government so as to ensure free and compulsory education to most disadvantaged districts identified as Aspirational districts. While answering the Question No.(b) above, I have held that transfer applications for inter-district transfer may be entertained subject to approval or guidelines of the Board. Once the Board has taken a decision not to transfer any Assistant Teacher from Aspirational districts, the decision cannot be interfered with, particularly when it seeks to achieve object of the Act, 2009 and the petitioners have no right of inter-district transfer.
The petitioners working as Assistant Teachers in Aspirational districts have no right for inter-districts transfer. Petitioners do not have any legally protected or judicially enforceable subsisting right to ask for mandamus for transfer from the aspirational districts. Therefore, their applications for inter-district transfer have been lawfully rejected in view of the decision of the Board.
39. So far as the writ petition of the petitioners for transfer to District Ballia is concerned, I find that transfer could not be made as there was no vacancy. Since the petitioners - Assistant Teachers have no right of transfer under the Rules, therefore, the writ petitions have no merit.
40. In view of the above discussion, all the writ petitions fail and are hereby dismissed.
Order Date :- 13.08.2018
NLY
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