Allahabad High Court Basic Teacher Transfer : Anurag Tiwari And 56 Others vs State Of U.P. And 6 Others on 20 April, 2023 : विशेष परिस्थितियों में शिक्षकों का ट्रांसफर किया जा सकेगा
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 36
Case :- WRIT - A No. - 5869 of 2023
Petitioner :- Anurag Tiwari And 56 Others
Respondent :- State Of U.P. And 6 Others
Counsel for Petitioner :- Ishwar Kumar Upadhyay
Counsel for Respondent :- C.S.C.,Archana Singh,Ashok Kumar Singh,Rajesh Khare
Hon'ble Ashutosh Srivastava,J.
1. Heard Shri I.K.Upadhyaya, learned counsel for the petitioners, learned Standing Counsel for the State respondnets, Smt. Archana Singh, learned counsel, who has put in appeearance on behalf of the respondent no. 2, Shri Ashok Kumar Singh, learned counsel, who has put in appearance on behalf of the respondent no. 5.
2. The present writ petition has been filed for issuance of a writ of mandamus directing the respondents to permit Inter District Transfer of the petitioners working in Junior Basic Schools/ Senior Basic Schools established and administered by Board of Education, Prayagraj in eight districts termed to be aspirational districts within a period specified by this Court.
3. It is contended by learned counsel for the petitioners that the all the petitioners were appointed as Assistant Teachers in aspirational Districts Bahraich, Shravasti, Siddhartha Nagar and Chitrkoot between the year 2014 to 2018 and all of them have completed 5 years of their services at their respective places of posting.
4. It is contended that the U.P. Basic Education (Teachers) (Posting) Rules, 2008 have been framed under Section 19 (1) of the U.P. Basic Education Act, 1972. Rule 8 of the 2008 Rules provides for Inter-District Transfer. Rule 21 of the U.P. Basic Education (Teachers) Service Rules, 1981 also relates to transfer of the teachers. The State Government has issued a Government Order dated 02.12.2019 laying down the policy for the year 2019-20 for Inter-District Transfer. Clause 13 of the Government Order dated 02.12.2019 imposes restriction upon the teachers appointed in the aspirational districts like Siddharth Nagar, Shravasti, Bahraich, Sonebhadra, Chandauli, Fatehpur, Chitrakoot and Balrampur. The Clause 13 of the Government Order dated 02.12.2019 is being reproduced here under:-
"13. आकांक्षी (Aspirational) जनपदों यथा-सिद्धार्थनगर, श्रावस्ती, बहराइच, सोनभद्र, चन्दौली, फतेहपुर, चित्रकूट एवं बलरामपुर में से प्रत्येक जनपद से उतने ही अध्यापकों को अन्यत्र जनपदों में स्थानान्तरित किया जायेगा, जितने अध्यापकों द्वारा अन्य जनपदों से सम्बन्धित आकांक्षी जनपद में आने के लिए स्थानान्तरण हेतु अनुरोध किया जायेगा। परन्तु, यह प्रावधान भारतीय सेना/वायु सेना/नौ सेना/अर्ध सैनिक बलों यथा, CRPF/ CISF/ SSB/ASSAM RIFLES/ITBP/NSG/BSF, से सम्बन्धित प्रकरणों पर लागू नही होगा। "
5. The Government Order dated 02.12.2019 came to be challenged in a bunch of writ petitions leading amongst them being Writ (A) No.878 of 2020 (Divya Goswami Vs. State of U.P. and others). The writ petition was finally decided vide order dated 03.11.2020. The Court concluded that the following observations/directions be necessarily kept in mind before finalizing the list of teachers seeking inter-district transfer:-
"(I) No inter district transfer shall be done in the mid of the academic session. (II) Transfer application should be entertained strictly in the light of the provisions as contained in Rule 8(2)(a) (b) and (d) of the Posting Rules, 2008. (III) Once a teacher has successfully exercised the option for inter district transfer, no second opportunity shall be afforded to any teacher of any category except in case of female teacher who has already availed benefit of inter district transfer on the ground of parents dependency, prior to her marriage. However, in case if the marriage has taken place then she will have only one opportunity to exercise option for inter district transfer either on the ground of parents dependency or spouse residence/ in-laws residence. (IV) In case of grave medical emergency for any incurable or serious disease that may as of necessity, require immediate medical help and sustained medical treatment, either personally or for the spouse, a second time opportunity to apply for inter district transfer should be afforded to such a teacher even if he/she had exercised such option for inter district transfer for any other reason in the past. (V) Application of differently abled person should have very sympathetic consideration looking to physical disability but they should also have only one time opportunity to exercise option for inter district transfer. In case of female teachers, such exception would apply, as referable to rule 8(2) (d) of Posting Rules, 2008. (VI) In case of female teacher's right to seek transfer, relaxation given under Rule 8(2)(d) shall be read with rule 8(2) (b) and relaxation shall, therefore, be subject to rule 8(2) (b). (VII) Save as observed and directed herein above (Direction Nos.III, IV and V), no second opportunity to exercise option for inter district transfer be made available to any candidate of any category whatsoever. (VIII) The exercise of inter-district transfer since is exception to the general rule of appointment and posting, every application for transfer has to be addressed to by the competent authority keeping in mind the objectives set forth under the Act, 2009 and Posting Rules, 2008 as amended in the year 2010 and must be acceded to citing a special circumstance specific to the case considered."
6. The order dated 03.11.2020 was modified by the Court vide order dated 03.12.2020 to the extent that and the Direction No.1 in the order dated 03.11.2020 would not be pressed in the cases of medical emergency thus permitting transfers in mid academic session. The medical emergency cases were required to be dealt with by the Government strictly in accordance with its own guidelines and the prescribed procedure to identify such cases which were to be religiously followed.
7. Learned counsel for the petitioners submits that after the decision of this Court in the case of Divya Goswami (supra) the State Government issued Government Order dated 15.12.2020 and circular dated 17.12.2020. Both the Government Order dated 15.12.2020 and the circular did not contain any restriction with regard to aspirational districts. He submits that Clause 13 of the Government Order dated 02.12.2019 provided that from the aspirational districts only such number of teachers would be transferred as the number of requests for transfer from other districts to the said districts are received. The Government Order dated 02.12.2019 having been struck down by this Court and the State Government having issued the Government Order dated 15.12.2020 and circular dated 17.12.2020 which did not provide anything about the aspirational districts, the inter-district transfer request of the petitioner was required to be considered positively and was not liable to be rejected. Reliance is also placed upon a Government Order dated 29.03.2018 which provides in Clause II(vii) that transfers out of aspirational districts could be considered after two years of the posting by accepting options. Reliance is also placed upon information received under the Right to Information Act from Government of India, Niti Ayog, New Delhi obtained on 18.01.2021 to demonstrate that now no restrictions have been imposed by the Central Government as regards Inter District Transfers of Teachers and the same is within the domain of the State Government. It is thus contended that in the absence of any restrictions imposed by subsequent Government Orders regarding Inter-District Transfers the request of transfer of the petitioner is liable to be considered under Rule 8 of the Rules, 2008 and Rule 21 of the 1981 Rules.
8. Per contra, learned counsel for the respondents, has resisted the writ petition by submitting that the entire proceedings of Inter-District Transfer of teachers working in Institutions run by the Basic Education Board is done through a software developed by NIC in accordance with the provisions contained in the Government Order issued by the Basic Education Department. For the Academic Session 2019-20, a transfer policy was framed vide Government Order dated 02.12.2019. Clause 13 of the Government Order imposes restriction upon Inter-District Transfers and provides that from the districts Siddharth Nagar, Shravasti, Bahraich, Sonebhadra, Chandauli, Fatehpur, Chitrakoot and Balrampur only such number of teachers would be transferred as the number of requests for transfer from other districts to the said districts are received. The validity of the said clause has been upheld by a Division Bench of this Court in Writ (A) No.9177 of 2021 (Aradhana and another vs. State of U.P. & 5 others) decided on 05.08.2021. Clause 8 of the Government Order dated 02.12.2019 provides for fixation of preferential points and the transfer requests shall be entertained on the basis of the preferential points obtained by each candidate seeking transfer.
9. It is next contended by learned counsel for the Respondents that the writ petitioners in their online application opted for being transferred to several districts. It is submitted that the claim of transfer from aspirational districts has been laid to rest by a decision this Court dated 13.8.2018 passed in Writ (A) No.14395 of 2018 (Smt. Ruchi vs. State of U.P. and others) and 126 connected writ petitions by holding that the writ petitioners working in aspirational districts have no right for Inter District Transfer. Petitioners does not have any legally protected or judicially enforceable subsisting right to ask for mandamus for transfer from the aspirational district.
10. It is further submitted that the post of Assistant Teacher in Primary School is a district level cadre and Inter-District Transfer is an exceptional measure not to be made routinely except in terms of Rule 21 of the 1981 Rules. It is thus submitted that the writ petition is misconceived and is liable to be dismissed.
11. Learned counsel for the petitioners has refuted the averments made by the learned counsel for the respondents by submitting that the respondents have been adopting pick and choose policy in affecting the inter-district transfers. At one instance the genuine transfer request of the petitioners have been denied on the ground that the transfer is being sought from an aspirational district and on the other hand several transfers have been affected from aspirational districts of Gautam Buddh Nagar, Ghaziabad and Jalaun. It is further contended that the case of the writ petitioners are liable to be considered in the light of the decision of this Court in the case of Divya Goswami (Supra).
12. Having heard the respective learned counsels for the parties and having perused the record, the Court finds that the case of the writ petitioners have not be considered only on the ground that the transfer is being sought from an aspirational district and such transfers from aspirational districts have been not permitted by Clause 13 of the Government Order dated 02.12.2019.
13. The Court further finds that the aspirational districts programme was launched by the Prime Minister in January, 2018 which aimed to quickly and effectively transform 112 most under developed districts across the country. The broad contours of the programme are convergence (of Central, State Schemes) Collaboration (of Central, State Level Nodal Officers & District Collectors) and competition among districts through monthly delta ranking; all driven by a mass movement. This programme focuses on the strength of each district, identifying low handing fruits for immediate improvement and measuring progress by ranking districts on a monthly basis. The ranking is based on the incremental progress made across 49 Key Performance Indicators (KPIs) under 5 Broad Socio-Economic Themes i.e. Health and Nutrition, Education, Agriculture & Water Resources, Financial Inclusion & Skill Development and Infrastructure.
14. The Court further finds that a Coordinate Bench of this Court while dealing with the issues of Inter-District Transfers as also the Government Order dated 02.12.2019 laying down the Transfer Policy for 2019-20 in the case of Divya Goswami (Supra) deliberately did not deal with the Inter-District Transfers from aspirational districts and to the restrictions imposed by Clause 13 of the Government Order dated 02.12.2019 presumably on the ground that the issue of transfer from aspirational districts stood decided by the decisions rendered in Writ (A) No.9177 of 2021 (Aradhana and another Vs. State of U.P. & 5 others) as also Writ (A) No.14395 of 2018 (Smt. Ruchi Vs. State of U.P. & others) and 126 connected writ petitions holding that candidates working in aspirational districts have no right to seek transfer from aspirational districts. However, the Transfer Policy evolved subsequent to the decision of this Court in the case of Divya Goswami (Supra) vide Government Order dated 15.12.2020 and Circular dated 17.12.2020 do not impose any restriction for Inter-District Transfer from aspirational districts. In the opinion of the Court, the request of the petitioners, for transfer from the district of their posting to the aspirational district, are required to be sympathetically considered in the light of the provisions of the U.P. Basic Education Teachers (Posting) Rules 2008, read with Rule 21 of the Basic Education (Teachers) Service Rules, 1981 as also any policy framed by the State Government for Inter-District Transfer. Admittedly, no policy for effecting Inter-District Transfer is in vogue currently.
15. The petitioners were appointed as an Assistant Teacher in the Primary Schools are Members of District Level Cadre, which have been allotted to them after considering the preference of the teachers concerned. Being Members of District Level Cadre, the petitioners are required to remain posted within the cadre and transfer beyond the cadre/outside the district is ordinarily not concerned under the Rules. A transfer outside the district can be considered in normal circumstances only in accordance with the Rules. Rule 8(2)(d) of the Posting Rules, 2008 provides that in normal circumstances the applications for Inter-District Transfer of Female Teachers will not the entertained before 5 years of completing their posting. However, the Rule contemplates that in exceptional or extra-ordinary circumstances an application for transfer can be considered by the Basic Education Board/Director (Basic Education) even before the expiry of such term. The question whether in a given case the exceptional or extra-ordinary circumstances exists or not has to be examined by the Basic Education Board/Director (Basic Education).
16. In such circumstance, the writ petition stands disposed of by permitting the petitioners to represent the matter before the Director, Basic Education, U.P., individually, annexing all the materials in support of their plea that there exists exceptional circumstances justifying their transfer from the districts of their posting to the aspirational districts along with certified copy of the order of this Court within three weeks from today.
17. In the eventuality of such representations being filed within the time allowed, it is expected that the Director, Basic Education, U.P., shall examine as to whether the ground on which the petitioners are seeking their transfer would fall within the exceptional circumstances or not and pass a reasoned and speaking order within further period of four weeks from the date of receipt of the representation of the petitioner along with certified copy of this order.
18. With the aforesaid observations/directions, the writ petition stands disposed of.
Order Date :- 20.4.2023 Deepak/
