News - अमेरिका से चाइल्ड केयर लीव का ई मेल भेजा, ई मेल पर कोई निर्णय नही लेने पर कोर्ट ने इसे चाइल्ड केयर लीव पर विचार करने को कहा, क्योंकि लीव पर कोई निर्णय नही लिया गया था , देखें आदेश -
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 29
Case :- WRIT - A No. - 12762 of 2011
Petitioner :- Dr. Nutan Mishra
Respondent :- Basant College For Women And Others
Petitioner Counsel :- Bhoopendra Nath Singh,Devendra Pratap Singh
Respondent Counsel :- C. S. C.,K.S. Chauhan
Hon'ble Sunil Ambwani,J.
Hon'ble Mrs. Jayashree Tiwari,J.
Learned Standing Counsel appears for respondent no. 2. Shri K.S. Chauhan has accepted notice on behalf of respondent no.2. Issue notice to respondent no. 1. Steps within a week. The respondents are allowed four weeks' time to file counter affidavit. The petitioner will have one week thereafter to file rejoinder affidavit.
List on 19.4.2011.
The petitioner has prayed for directions to quash the letter of the Manager, Vasanta College for Women, Varanasi dated 4.9.2010, by which in response to petitioner's e-mail dated 24.7.2010 sent by her from United States, the College has treated the petitioner to have abandoned the job. She has also prayed for payment of full salary and other service benefits.
It is stated in the writ petition that the petitioner is M.A. in Sociology with first division from Lucknow University and has passed NET. She served as Lecturer in I.T. College, Lucknow; after which she was appointed as Lecturer in Sociology in the respondent no.1, College on 8.2.2006, and was confirmed after one year. In the year 2007 she got married and gave birth to a baby girl on 3.11.2008 in United States, where her husband is working. On return to India she was looking after her baby and also her mother, who was ill at Varanasi.
It is stated that at Varanasi the baby got sick. In the summer vacations in the College in June, 2010,� the petitioner left for United States to get enough time to build the immunes system of the baby, so that the petitioner can work stress free, when she joins back. She requested the College to understand her situation and to grant her leave to take care of her child� by e-mail dated 20.7.2010.
Learned counsel for the petitioner has relied upon the recommendations of the 6th Pay Commission in para 5.12.4 for maternity and paternity leave, which provides for women teachers having minor children to be allowed leave upto two years for taking care of their children. The Commission has also made recommendations as follows:-
"Para 5:12:4: Maternity/Paternity Leave
Maternity leave may now be granted to a female teacher for 180 days present leave days and only twice in one's career. Likewise a paternity leave of 15 day may be granted to a teacher father.
It has also been suggested that women teachers having minor children may be allowed leave up two year for taking care of their children. In yet another suggestion, the women teachers have demanded leave for 2 to 3 years for bringing up children or joining their husbands.
The Committee recommends that child care leave for and maximum period of 2 year (730 days) may be allowed to the women teachers during entire service period in line with central government women employees."
Prima facie we find that the College, instead of considering petitioner's application for leave, has come to an understanding as stated in the impugned letter that she has abandoned her teaching post as she did not return back for duties within the stipulated time.
The petitioner should have given full and complete facts regarding the date of birth of her baby, the period for which she was absent from teaching duties and whether the University has accepted the recommendation of the 6th Pay Commission, and has also not applied for leave in a proper way.
We find that the College has not taken any decision on her request for leave sent by her vide e-mail, which ought to have been treated as child care leave. A letter, by which the Committee of Management has understood that she had abandoned teaching post, does not take into account the request to grant her leave. The abandonement can be inferred where the person is not reporting for work and has not applied for leave. In the present case, since the petitioner had applied for leave, even if it was not a proper way, the Committee should have considered the request.
As an interim measure, we direct that if the petitioner applies for leave within a period of 15 days, the Committee of Management will consider her leave application in the light of the rules for leave, applicable in the College and also the recommendation of 6th Pay Commission, if they have been accepted by the Banaras Hindu University (a Central University). The petitioner will also give an indication as to when she would like to join. She will, however, not be paid salary until the management takes a decision on her leave application.
Order Date :- 3.3.2011 RKP
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News - Childcare leave 730 days, petitioner taken 250 days ccl without specifying reason and further ccl not granted, court says consider absence by ccl from back date and grant ccl further -
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 5
Case :- SERVICE SINGLE No. - 117 of 2014
Petitioner :- Vijay Laxmi Shukla
Respondent :- State Of U.P. Thru Prin.Secy.Baal Vikas Sewa & Pushtahar&Ors
Counsel for Petitioner :- Dhirendra Singh
Counsel for Respondent :- C.S.C.
Hon'ble Ritu Raj Awasthi,J.
Heard learned counsel for the petitioner as well as learned Standing Counsel and perused the records.
With the consent of parties' counsel, the writ petition is being decided finally at the admission stage without calling for the counter affidavit.
The writ petition has been filed challenging the decision to reject the application for grant of Child Care Leave, communicated vide letter dated 13.11.2013.
Learned counsel for petitioner submits that the petitioner is entitled to get Child Care Leave of 730 days during the entire service period. The petitioner has availed 250 days' Child Care Leave till date. In view of the Office Orders dated 8.12.2008 and 11.4.2011 she shall be granted�Child Care Leave, however leave of 230 days has been rejected in a most arbitrary and illegal manner.
The learned Standing Counsel was granted time to seek instructions as to why Child Care Leave cannot be granted to the petitioner.
Learned Standing Counsel on the basis of instructions submits that since the Child Care Leave of 730 days is to be granted during the entire period of service to a female employee and the petitioner has already availed 250 days and she has not disclosed the reason to get the said leave, as such the application of the petitioner has been rejected.
I have considered the submissions made by the parties' counsel.
The Office Order dated 8.12.2008, which has been subsequently modified/clarified vide Office Order dated 11.4.2011 clearly stipulates that a female Government employee is entitled to get 730 days' leave as Child Care Leave during the entire service period, however the said office order indicates that certain conditions are required to be fulfilled to get the said leave, such as, child care leave shall not be granted more than three or four times during� one calender year, it shall not be granted for less than 15 days, the Child Care Leave shall not ordinarily be granted during the probationary period and the Child Care Leave shall be treated equivalent to the earned leave. It also provides that the Child Care Leave can be granted even if an employee has earned leave available to her credit.
The aforesaid office order does not stipulate any such conditions that once an employee has availed certain period of Child Care Leave she is not entitled to get the remaining period of leave in the near future or she has to give reasons to avail the further leave. The said order only stipulates a condition that the child of the employee shall be less than 18 years of age for that purpose.
In this view of the matter, I am of the considered opinion that the opposite parties should not have refused to grant of Child Care Leave to the petitioner.
The writ petition, as such, is disposed of with direction to the opposite party no.3/Chief Development Officer, Raibareli to reconsider the request of the petitioner for grant of�Child Care Leave and pass appropriate order in case the petitioner fulfils the requirement as stipulated in the Office Orders dated 8.12.2008 and 11.4.2011. Necessary order shall be passed within a period of four weeks from the date a certified copy of this order is produced before him. The opposite parties shall also consider the request of the petitioner to regularize her absence by granting Child Care Leave from the back date.
Order Date :- 7.2.2014
Arjun/-
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News -प्राइमरी स्कूल में चाइल्ड केयर लीव की वजह से 29334 जूनियर गणित विज्ञान शिक्षिका में जॉइन न कर पाने पर कोर्ट ने रिप्रेजेंटेशन देने का अवसर दिया
?Court No. - 7
Case :- WRIT - A No. - 43159 of 2016
Petitioner :- Anubha Rani
Respondent :- State Of U.P. And 5 Ors.
Counsel for Petitioner :- Kamal Kishore Sharma
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
Hon'ble Manoj Misra,J.
Heard learned counsel for the petitioner; learned Standing Counsel for the respondent nos.1, 2 and 4; and Sri A.K. Yadav for the respondent nos.3, 5 and 6.
Considering the nature of the order that is being passed this Court does not consider it necessary to invite counter affidavit therefore, with the consent of the learned counsel for the parties, this writ petition is disposed of finally.
The case of the petitioner is that she was appointed as an Assistant Teacher in Primary School, Akbarpur-II, Mant, Mathura in the year 2013. She, however, also applied for appointment as Assistant Teacher (Science/Math) in Senior Basic School and got selected there as well. But while the petitioner was on child care leave, appointment letter dated 21.09.2015, thereby appointing the petitioner as Assistant Teacher (Science/Math) in Senior Basic School, was issued by the Basic Shiksha Adhikari, Mathura which required the appointee to join within a specified period.
The case of the petitioner is that as she was on child care leave at that time, she could not join within the period allowed, and, thereafter, when she approached the sixth respondent (District Basic Shiksha Adhikari, Mathura) to join, she was not permitted to join the said post.
The submission of the learned counsel for the petitioner is that several other persons who have been appointed under appointment letter dated 21.09.2015 have been allowed to join late and in various writ petitions orders have been passed by this Court giving liberty to the petitioners to file an application before the Basic Shiksha Adhikari concerned for joining, upon which, he has been directed to pass appropriate order in accordance with law.
The learned counsel for the respondents submits that the petitioner may move an application before the Basic Shiksha Adhikari, Mathura (sixth respondent) who can consider and pass appropriate order keeping in mind whether any vacancy still exist or not.
In view of the above, this writ petition is disposed of giving liberty to the petitioner to file a comprehensive representation before the sixth respondent (District Basic Shiksha Adhikari, Mathura) in respect of joining pursuant to the appointment order dated 21.09.2015. If any such representation is filed by the petitioner along with certified copy of this order, the sixth respondent (District Basic Shiksha Adhikari, Mathura) shall consider the same and pass appropriate order in accordance with law after ascertaining whether the vacancy still exist or not as also whether the post has been offered to somebody else or not. It is made clear that this Court has not expressed any opinion on the merits of the claim of the petitioner which shall be considered and decided after verifying the facts from the record. It is expected that the aforesaid exercise shall be completed within a period of four weeks from the date of filing of such representation, provided the representation is filed within two weeks from today.
Order Date :- 12.9.2016
AKShukla/-
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News - शिक्षा मित्रों के केस में स्टडी लीव का प्रावधान नहीं, डिस्टेंस एजुकेशन के जरिये हायर एजुकेशन कर सकते हैं , रेगुलर ग्रेजुएशन करने पर शिक्षा मित्र की सर्विस ब्रेक हो गई, और बेचारी ट्रेनिंग पाने से रह गयी -
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No.33
Civil Misc. Writ Petition No. 56637 of 2011
Km. Babita
Vs.
State of U.P. & Ors.
******
Hon. Dilip Gupta, J.
The State Government formulated a Scheme dated 11th July, 2011 for imparting two years teaching programme through Open and Distance Learning Mode to Untrained Graduate Shiksha Mitras. The petitioner, who claims to be an Untrained Graduate Shiksha Mitra, has filed this petition for a direction upon the respondents to send the petitioner for this two years training.
It is stated that the petitioner was engaged as a Shiksha Mitra in the year 2006 and during this engagement the petitioner also pursued her regular B.A. III year course. The reason for not sending the petitioner for such training is that the petitioner was a regular student of B.A. III year when she was engaged as a Shiksha Mitra and was, therefore, not continuously working as a Shiksha Mitra.
Learned counsel for the petitioner has submitted that permission from the Gram Shiksha Samiti was taken by the petitioner for appearing at the examination and, therefore, the respondents are not justified in not sending the petitioner for training.
Learned Standing Counsel appearing for the respondents has submitted that the Government Order dated 11th July, 2011 provides that only such Graduate Untrained Shiksha Mitras shall be sent for training who have been continuously working as Shiksha Mitras and as the petitioner was pursuing her regular B.A. Part III course, it cannot be said that she was continuously working as a Shiksha Mitra. He has also pointed out that the Government Orders dealing with engagement of Shiksha Mitras do not provide for grant of leave for the purposes of higher education and in fact, by the Government Order dated 15th June, 2007, it was specifically provided that Shiksha Mitras, who have passed Intermediate Examination shall not be granted leave for the purposes of obtaining Graduation Degree. This was, however, modified by the subsequent Government Order dated 12th November, 2008 to the extent that such Shiksha Mitras who had passed Intermediate Examination could be permitted to pursue their Graduation through Distance Education Mode only with leave to them for the examination days only and that too without payment of honorarium.
I have considered the submissions advanced by learned counsel for the parties.
It needs to be noticed that the Scheme of engaging Shiksha Mitras for teaching students of Primary Schools run by the U.P. Basic Education Board, was for the first time framed by the State Government by the order dated 26th May, 1999. The Scheme was framed as the State Government found as a fact that there was shortage of teachers eligible for appointment in the Primary Schools as a result of which the teacher taught ratio could not be maintained. The minimum eligibility requirement to be possessed by a candidate was notified as Intermediate or an equivalent examination and such Shiksha Mitras could be engaged on a fixed honorarium. The petitioner had only cleared the Intermediate examination when she was engaged as a Shiksha Mitra.
As noticed hereinabove, the entire Scheme to engage Shiksha Mitras was to fill up the existing shortage of teachers to teach in the Primary Schools run by the Basic Education Board. The petitioner, who was engaged as a Shiksha Mitra, however, during the course of her engagement for a fixed period of eleven months, with a provision for extension, decided to pursue her regular B.A. III year course. There was no provision for granting leave for such engagement as it only for the first time by the Government Order dated 12th November, 2008 that it was provided that leave could be given for the days when the examination was held to such Shiksha Mitras who had passed Intermediate Examination for pursuing higher education by Distance Mode.
The Government Order dated 11th July, 2011 which provides for sending Untrained Graduate Shiksha Mitras for two years training so as to make them eligible for appointment as Assistant Teachers under the relevant service Rules framed by the Board provides that the facility will be given only to those Shiksha Mitras who are continuously teaching in the School after the date of the initial engagement. Thus, Shiksha Mitras who pursued a regular Graduation course cannot be permitted to contend that they were continuously teaching in the Institution.
The issue regarding pursuing higher studies by such Shiksha Mitras who had only cleared the Intermediate Examination was examined by a Division Bench of this Court in Writ Petition No. 2373 of 2009 (Devi Prasad S/O Narsingh (P.I.L) Vs. District Magistrate/Chairman, District Education Level Committee) which was filed as a Public Interest Litigation. This petition was disposed of by the Court by the order dated 23rd February, 2010 with the following observations:-
"This writ petition, in the form of public interest litigation, is preferred by a Member of the Gram Panchayat of a village. The real purpose to be determined by this Court in this public interest litigation is as to whether a Shiksha Mitra can obtain leave for the purpose of higher studies or not. The point was restricted with regard to a particular school in the village in question, but upon considering the pros and cons and government orders, we find that as against the honorarium, some of the candidates are being chosen by the Selection Committee to impart basic education for a period of one year. If within such period leave is granted to any one, the purpose of imparting basic education will be frustrated. As a result thereof, we cannot appreciate any stand for obtaining leave with pay or without pay for higher education by any Shiksha Mitra, who has contractually been appointed for a period of one year as against the honorarium. It is correct to say that if a Shiksha Mitra wants to appear in any examination, he can obtain leave for a limited number of days without pay and thereafter join. The public purpose is to be placed over and above the private purpose and following the said logic, the purpose of imparting basic education cannot be allowed to be frustrated in the manner as proposed, therefore, as soon as one leaves without any intimation or with intimation for higher studies, the concerned authority will immediately deploy a new incumbent by way of fresh selection. However, the contract of the candidate, who obtains leave for higher studies, will, under no circumstance, be allowed to be renewed. We hope and trust that the State will follow the import of this order and issue appropriate government order as early as possible.
The petition is disposed of accordingly, however, without passing any order as to costs."
(emphasis supplied)
It is a consequence of the aforesaid decision of the Court that the Government Order dated 6th July, 2010 was issued which provides that for the purposes of higher education, Shiksha Mitra shall not be given leave but such Shiksha Mitras who desire to obtain higher degree through correspondence course can be granted leave to only appear at the examination without payment of honorarium.
It also needs to be pointed out that the Division Bench in Special Appeal No. 116 of 2010 (Smt. Dipti Singh Vs. State of U.P. & Ors.,) also, in its order dated 9th March, 2010, pointed out that the purpose of the Scheme would be frustrated if Shiksha Mitras were granted leave for higher education. The order is :-
"Apart from this technicality, the fact remains that the appellant very well knew that she was engaged/appointed under a scheme and that she had to follow the terms and conditions laid down for the purpose. The scheme did not provide anywhere for grant of study leave, rather, the entire scheme of Shiksha Mitra has been framed with an object to engage local residents for imparting education at the village level and if these local residents are allowed to go on leave for such a long duration, that too for enhancement of their educational qualification, it would defeat the very purpose of the scheme.
The plea of the appellant that the Village Level Committee or its Secretary has granted the leave and, therefore, also her services could not have been terminated, is of no consequence, reason being that the Village Level Committee itself was not competent, what to say of the Secretary, to grant any such study leave and if the Committee has acted in violation of the scheme or against the interest of the scheme, neither any benefit can be given nor any protection can be extended to the appellant for that reason.
Considering this aspect of the matter, the learned Single Judge has observed that the scheme of Shiksha Mitra is for educating the rural children, who are otherwise incompetent and incapable of going outside the village to get some education and that it is a benevolent scheme where only one teacher is appointed to teach the whole number of students available and, therefore, such a leave for enhancement of career, leaves hundreds of students in jeopardy.
At this juncture, learned counsel for the appellant submitted that in the present case, there were six teachers available.
Be that as it may, this Court would not exercise its discretionary jurisdiction for passing an order which would run contrary to the scheme itself and, therefore, we do not find any ground to interfere with the impugned order."
(emphasis supplied)
It is thus seen that both the aforesaid Division Benches of this Court have emphasized that obtaining leave with pay or without pay for higher education by any Shiksha Mitra, who has been contractually appointed for a period of eleven months against payment of honorarium, cannot be appreciated. It has also been observed that the Scheme which had been framed with the object of engaging local residents for imparting education at the primary level will be defeated if Shiksha Mitras are permitted to go on leave for enhancement of their educational qualification.
It is, therefore, not possible for the Court to accept the contention of learned counsel for the petitioner that she should be sent for training under the Government Order dated 11th July, 2011.
The writ petition is, accordingly, dismissed.
Date: 29.9.2011
NSC
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News - स्टडी लीव मिलने के बाद भी बेसिक शिक्षक ने काम किया, विभाग ने स्टडी लीव के दौरान की सैलरी लौटने को कहा, जिसे कोर्ट ने खारिज कर दिया -
स्टडी लीव दो साल की 21.01.2015 से 21.01.2017 की अवधि की थी,
याची ने 22.01.2015 से 23.03.2015 तक काम किया, और इस अवधि की सैलरी प्राप्त की, जिसे विभाग ने लौटाने को कहा, कोर्ट ने कहा कि कार्य करने की अवधि की सैलरी लौटाई नहीं जा सकती
officer concerned granted the leave on 23.3.2015, however, with effect from 21.1.2015 till 21.1.2017
petitioner worked from 22.1.2015 till 23. 3. 2015 and received salary
petitioner shall not be asked to refund the salary paid to him for the period he worked
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 7
Case :- SERVICE SINGLE No. - 29803 of 2016
Petitioner :- Sadan Ullah Khan
Respondent :- State Of U.P.Thru.Prin.Secy. Deptt. Basic Education. & Ors.
Counsel for Petitioner :- Alok Kr. Misra
Counsel for Respondent :- C.S.C.,Rajiv Singh Chauhan
Hon'ble Rajan Roy,J.
Heard.
The petitioner herein had sought study-leave earlier, which was not granted, therefore, he approached this court by means of writ petition No.236 (SS) of 2015 decided on 25.3.2015 in the following terms:
"In view of the order dated 23.03.2015, passed by the District Basic Education Officer, Unnao, which has been produced by Ms. Jyoti Sikka, learned counsel for the District Basic Education Officer, Unnao (taken on record), the grievance of the petitioner appears to have been redressed. Accordingly nothing needs to be adjudicated in this writ petition, which is disposed of.
However, if the petitioner is still aggrieved, he may make a representation to the authority concerned who shall consider and decide the same in accordance with law."
The officer concerned granted the leave on 23.3.2015, however, with effect from 21.1.2015 till 21.1.2017. Contention of Sri Mishra, learned counsel for the petitioner, is the petitioner worked from 22.1.2015 till 23. 3. 2015 and received salary. Now in view of the sanction of leave with retrospective effect from 21.1.2015 he would be liable to refund the salary received.
The contention appears to be reasonable enough, therefore, it is provided that the leave granted by the Basic Education Officer, Unnao on 23.3.2015 shall be effective from the date of the order and not prior to it and the petitioner shall not be asked to refund the salary paid to him for the period he worked and the said leave shall be treated as effective up to 23.1.2017 i.e. the period upto which the study was undertaken by the petitioner. The impugned order shall be treated as modified accordingly.
The writ petition is disposed of in the above terms.
Order Date :- 19.12.2016
A.Nigam
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News - स्टडी लीव पर से लौटने के बाद बेसिक शिक्षिका की नोकरी लापरवाही से टर्मिनेट कर दी, कोर्ट ने लापरवाह अधिकारियों की सैलरी से समस्त बेनिफिट देने का आदेश दिया -
बी टी सी करने की स्टडी लीव थी, लेकिन याची शिक्षिका ने बी एड कर ली, और इस कारण उसे नोकरी से टर्मिनेट कर दिया गया,
समस्त मुआवजों / नोकरी बेनिफिट के साथ साथ 25 हज़ार रुपये का जुर्माना भी याची को देने का आदेश है
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
AFR
Court No. - 3
Case :- SERVICE BENCH No. - 826 of 2014
Petitioner :- Smt. Rajmati Singh
Respondent :- State of U.P. through its Principal Secretary U.P. Shasan Lucknow and others
Counsel for Petitioner :- R.B. Srivastava
Counsel for Respondent :- C.S.C.,Navendu Srivastava
Hon'ble Sudhir Agarwal,J.
Hon'ble Ravindra Nath Mishra-II,J.
1. Heard Sri R.B. Srivastava, learned counsel for the petitioner and learned Standing Counsel for respondents.
2. Petitioner admittedly was appointed as Assistant Teacher (Untrained) in Block Jagatpur vide order dated 25.01.1971 passed by Adhyaksha, Zila Panchayat, Rai Bareilly. After enactment of U.P. Basic Education Act, 1972 (hereinafter referred to as the "Act, 1972"), the Schools maintained by Zila Panchayats were transferred to Board of Basic Education and thereafter it appears that petitioner was permitted to undergo B.Ed. course in Session 1973-74 by the then District Basic Education Officer, Rai Bareilly (hereinafter referred to as the "DBEO") vide order dated 02.08.1973, which is on record at page 97 of paper book. After completion of aforesaid course petitioner submitted her joining on 03.07.1974 but she was not allowed to join on the ground that she was granted study leave to undergo B.T.C. training and not B.Ed. and her services stand terminated. Petitioner represented against aforesaid termination which was ultimately rejected vide order dated 04.06.2009, whereagainst she filed review and then Claim Petition No. 1072 of 2010 before State Public Service Tribunal (hereinafter referred to as the "Tribunal") which has been decided vide judgment dated 13.12.2013, impugned in this writ petition, whereby Tribunal has partly allowed claim petition and set aside order dated 04.06.2009 declaring that petitioner should be treated to have continued in service but would not be entitled for any salary for the period she has not worked. Tribunal has also held that her representation was wrongly decided since petitioner could not have been terminated orally. At the best, department could have taken action after holding departmental inquiry and, therefore, Tribunal has further directed respondents to pass a fresh order on petitioner's representation.
3. Learned counsel for petitioner submitted that at no point of time petitioner was terminated and since she was actually appointed by a written order, she could not have been terminated orally. Further, non-functioning of petitioner was for the fault of respondents inasmuch as she was allowed to undergo B.Ed. course in 1973-74 but on a totally misconceived and false premise that she was allowed to undergo B.T.C. training, she was not allowed to join after completion of B.Ed. course when she submitted joining in July, 1974 and thereby kept out of employment, patently illegally. Since she was appointed by a written order, which was not terminated by a written order, in law, she continued to work and would be entitled for all consequential benefits.
4. We find from record that admittedly petitioner was granted permission to undergo B.Ed. course in Session 1973-74 vide order dated 02.08.1973 issued by DBEO, which reads as under:
**Jherh jkterh nsoh] lgk;d v/;kfidk] dU;k twfu;j gkbZLdwy] xkSjk] jk;cjsyh ds vkosnu i= fnukad 31-07-1973] tks mifo|ky; fujh{kd dh laLrqfr lfgr bl dk;kZy; dks vxzlkfjr fd;k x;k gS] ds lUnHkZ esa mUgsa j.k/khj j.kUt; egkfo|ky;] vesBh] lqYrkuiqj ds l= 1973&74 esa ch0,M0 ds v/;;u] izf'k{k.k ,oa ijh{kk gsrq ,rn~}kjk vuqefr iznku dh tkrh gSA mDr izf'k{k.kksijkUr Jherh jkterh nsoh] dU;k twfu;j gkbZLdwy] xkSjk] jk;cjsyh esa gh lgk;d v/;kfidk dh gSfl;r ls v/;kiu dk;Z djrh jgsaxhA**
"With regard to the application dated 31.07.1973 of Shrimati Rajmati Devi, Assistant Teacher, Kanya Junior High School, Gaura, Raebareli which has been forwarded to this office with the recommendation of Deputy Inspector of School, she is hereby permitted for study, training and examination of B.Ed. at Randhir Rananjay Mahavidyalaya, Amethi, Sultanpur in session 1973-74. After the said training, Shrimati Rajmati Devi shall continue to work in the capacity of Assistant Teacher at Kanya Junior High School, Gaura, Raebareli itself."
(English translation by the Court)
5. Aforesaid permission granted to petitioner does not amount to termination but in the context of service jurisprudence, it is considered as "study leave", during which period incumbent is entitled for full salary. After completion of B.Ed. course, petitioner submitted joining which was not accepted on a totally false, illegal and non-est premise that she was to undergo B.T.C. training, which she did not.
6. It is also evident from record that in 1971 when petitioner was appointed in erstwhile Junior High School maintained by Zila Panchayat, her appointment was not illegal or contrary to any Rule. Aforesaid institutions were taken over by Board of Basic Education under the provisions of Act, 1972, there is also no provision which contemplates that Teachers already appointed in Schools maintained by local bodies, if do not possess training qualification of B.T.C. or equivalent, their appointment shall stand terminated or would be terminated in case they did not attain qualification of B.T.C. or equivalent thereto. On the contrary, Government orders issued from time to time show that those Teachers who did not possess training qualification of B.T.C. or equivalent, despite opportunity, were given untrained pay scale and those who could gain aforesaid qualification, were given pay scale applicable to trained Teachers. Appointment of petitioner, per se, was never treated to be illegal or contrary to law.
7. The further fact that petitioner's grievance was attended by respondents after more than 30 years, itself shows a complete laxity and dereliction on the part of respondents-authorities who did not care to attend petitioner's grievance despite her representations and also deprived her from serving educational institution for no fault on her part.
8. Tribunal unfortunately has not appreciated this fact that in 1971 when petitioner was appointed, B.T.C. training qualification was not a condition precedent for appointment and appointment was not held illegal after enactment of Act, 1972 whereunder Basic Education Institutions maintained by local bodies were transferred to Board of Basic Education and teaching and non-teaching staff of such institutions were transferred on the same terms and conditions, as applicable on the date of transfer. There was no provision that, a Teacher, if does not possess B.T.C. training qualification, his/her appointment would be illegal and liable to be terminated.
9. Denial to petitioner to join service after she completed B.Ed. course, under permission of DBEO, was patently illegal and arbitrary for which petitioner cannot be made to suffer. It is a case where entire fault lie on the officials of Basic Education Department and in particular, the DBEO, Rai Bareilly, and for their fault petitioner cannot be made to suffer so as to deny salary for the period she was not permitted to work, illegally and in the teeth of law and that too without even terminating her services.
10. The principle of "no work no pay" will not apply to this case. This Court in Brijendra Prakash Kulshrestha Vs. Director of Education & others 2007 (3) ADJ 1 (DB) has considered applicability of "no work no pay" and it has been held that an employer cannot deny salary to an employee, who is always willing and ready to work but was not allowed to do so by an act or omission directly attributable to employer.
11. In Bhanu Pratap Vs. Director, Ayurvedic and Unani Sewae, U.P. Lucknow & Ors., 2011 (11) ADJ 606 this Court said:
"9. This Court is of considered view that dismissal of petitioner from service having been found wholly illegal, and it is also having been seen that he was denied work on the post in question by employer in a wholly illegal manner, petitioner should be given relief of reinstatement with all consequential benefits including arrears of salary. This would be in consonance with the principle that an employee has 'no right to work' but only right to claim salary. In absence of anything to show that employee himself was unwilling to work, principle of "No Work No Pay' ought not to be applied in such a case. Such a principle in a case like this, if applied, would amount to confer a premium upon employer to enjoy benefit of a fault of his own. This would amount to allowing him (employer) to take advantage of his own wrong, which is not permissible in law particularly in a court of equity and justice. It is against all canons of justice."
12. Here is a case which do not justifiably attract principle of "no work no pay" for the reason that petitioner has been made to suffer by a total illegal, arbitrary and unjust action on the part of officials of Basic Education Department.
13. In the result, writ petition is allowed. Impugned judgmengt dated 13.12.2013 is hereby modified to the extent that petitioner is declared to have continued in service and entitled for all consequential benefits including salary. However, we grant liberty to Respondent-1 to make appropriate inquiry so as to find out who was/were the officer(s) in Basic Education Department, responsible for such a situation, and may recover entire amount, which is found ultimately payable to petitioner, from such officer(s).
14. Petitioner is also entitled to costs, which we quantify to Rs. 25,000/-.
Order Date :- 24.1.2017
AK
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बेसिक शिक्षक स्थानांतरण नीति में पिस गए - वास्तविक विशेष परिस्थिती की पात्रता रखने वाले , सामान्य कैंडिडेट्स को ट्रांसफर में पॉइंट आदि के आधार पर विशेष परिस्थिति से ऊपर रख दिया , जबकि जिस ट्रांसफर नीति को कोर्ट में बताया गया , उसमे सामान्य अभ्यर्थियों के मेरिट पॉइंट का कोई पैमाना नहीं
जब विशेष परिस्थिति से कोई मतलब ही नहीं , तो ट्रांसफर नीति सिर्फ यही होती की विवाहित महिलाओं को पति /ससुराल के नजदीक तैनाती के लिए 5 वर्ष सेवा अवधि से छूट दी जाती है |
सामान्य कैंडिडेट्स को ट्रांसफर में पॉइंट आदि के आधार पर विशेष परिस्थिति से ऊपर रख दिया , जबकि जिस ट्रांसफर नीति को कोर्ट में बताया गया , उसमे सामान्य अभ्यर्थियों के मेरिट पॉइंट का कोई पैमाना नहीं दिया |
कुछ केसेस :
1. किसी अभ्यर्थी ने 20 साल सर्विस कर ली और वह किसी जिले में अपने परिवार के साथ रह रहा है , उसने ट्रांसफर का मौका मिलने पर आवेदन कर दिया |
2. एक तरफ ऐसा परिवार है , जिसमे पति किसी और जिले में सरकारी नौकरी कर रहा है , और पत्नी किसी और जिले में , दोनों के बच्चे भी हैं , जिनकी देखभाल भी करनी है |
लेकिन ट्रांसफर मूल्याङ्कन में केस नंबर 1 आगे है , और केस नंबर 2 पीछे |
दूसरी तरफ ये भी बताया गया है की सरकारी सेवा में कार्यरत पति पत्नी को यथा संभव एक ही जगह तैनाती की जाएगी
विशेष परिस्थिति के लिए कोई पैमाना नहीं होने पर वर्किंग कपल जो विशेष परिस्थिति में बिलकुल फिट बैठते हैं , वे ट्रांसफर मूल्याङ्कन में सभी महिला केस के बराबर आ गए , और नार्मल परिस्थिति वाले ट्रांसफर से भी पीछे रह गए |
जबकि केंद्र व राज्य सरकार के नियम सरकारी सेवा में कार्यरत पति पत्नी को एक ही जिले में यथा संभव स्थानांतरण की अनुसंशा करते हैं ,
और कोर्ट भी इस तरह के कई फैसले दे चुका है की पति पत्नी को साथ रखा जाये , बच्चों की समुचित शिक्षा व्यवस्था प्रभावित न हो |
चाइल्ड केयर लीव का नियम है , लेकिन पति पत्नी साथ नहीं रह पाएंगे तो कैसी चाइल्ड केयर होगी |
अगर नियुक्ति कार्य क्षेत्र जिला संवर्ग का है तो फिर अंतर्जनपदीय ट्रांसफर ही क्यों , अगर अंतर्जनपदीय ट्रांसफर हो रहे हैं चाइल्ड केयर , पति पत्नी वर्किंग जैसे
विशेष प्रावधानों को कितना ध्यान में रखा जा रहा है
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News - पति के वर्किंग प्लेस आगरा में ट्रांसफर की शिक्षिका की याचिका पर कोर्ट ने सचिव को निस्तारण करने का दिया आदेश -
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 58
Case :- WRIT - A No. - 10955 of 2018
Petitioner :- Mamta Mishra
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Shashi Ranjan Srivastava
Counsel for Respondent :- C.S.C.,Vikram Bahadur Singh
Hon'ble Ashwani Kumar Mishra,J.
Petitioner appears to have made application for her inter district transfer� from District Etawah to District Agra on the ground that her husband is residing at Agra. The application of the petitioner submitted online� has not been considered so far.� Her application is required to be considered in terms of Rule 8(2)(d) of the Uttar Pradesh Basic Education (Teachers Posting) Rules, 2008. Grievance is that no orders have yet been passed upon the application of the applicant.
It is stated that facts of the present case are similar to one occurred in Writ Petition No.2868 of 2018 (Bibha Singh Kushwaha and Others Vs. State of U.P.), decided on 6.2.2018.
Sri V.B. Singh, learned Standing Counsel submits that the grievance of the petitioners shall be examined by the authority concerned, in accordance with law.
Considering the above, this writ petition stands disposed of, permitting the petitioner to approach respondent no.3 alongwith certified copy of this order within a period of two weeks from today. The authority concerned shall examine the petitioner's grievance and appropriate decision would be taken by the authority concerned, in accordance with law and also keeping in view the observations made in Bibha Singh Kushwaha (supra) as well as Rule 8(2)(d) of the Rules of 2008, within a period of two months thereafter.
Order Date :- 1.5.2018
n.u.
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News - ऑनलाइन आवेदन के बाद भी ट्रांसफर न होने पर, हाई कोर्ट में याचिका के जवाब में कोर्ट ने 2 महीने के अंदर ट्रांसफर पर निर्णय लेने को कहा -
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 58
Case :- WRIT - A No. - 11076 of 2018
Petitioner :- Renu And 2 Others
Respondent :- State Of U P And 3 Others
Counsel for Petitioner :- Ashwani Kumar Yadav
Counsel for Respondent :- C.S.C.,Pranesh Dutt Tripathi
Hon'ble Ashwani Kumar Mishra,J.
It is stated that facts of the present case are similar to one occurred in Writ Petition No.2868 of 2018 (Bibha Singh Kushwaha and Others Vs. State of U.P.), decided on 6.2.2018.
Petitioners are Assistant Teachers working in Senior Basic School and Primary School, who are seeking transfer from one district to another. Reliance is placed upon the provisions of Rule 8(2)(d) of the Uttar Pradesh Basic Education (Teachers Posting) Rules, 2008. It is stated that in terms of the policy, petitioners have already moved online applications, which have not been considered so far.
Considering the above, this writ petition stands disposed of directing the authority concerned to examine the petitioners' grievance, as noticed above, keeping in view the observations made in Bibha Singh Kushwaha (supra) and also Rule 8(2)(d) of the Rules of 2008, within a period of two months from the date of presentation of certified copy of this order before respondent no.3.
Order Date :- 3.5.2018
Anil
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