कोर्ट ने साफ शब्दों में एस्पिरेशनल डिस्ट्रिक्ट से ट्रांसफर की याचिका डिसमिस कर दी, म्यूचल ट्रांसफर गाइडलाइन में नहीं है तो नहीं होंगे -
नियम - महिलाओं को विशेष परिस्थिति में पति/ससुराल के निवास स्थान पर सब्जेक्ट बोर्ड एप्रूवल ट्रांसफर ही मिल सकता है
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
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.
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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. c s0f'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
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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
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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 interparties 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)
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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:
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(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
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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, interdistrict 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;
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(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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v ad
x& efgyk & 05 v ad
?k& l sok d s i zR; sd i w.k Z o"k Z d s fy, 01 v ad ¼vf/kdre 35 v ad½
mi; q ZDr d s lUnHk Z e s a ;fn fdUgh nk s O;fDr;k s a d s d qy x q.koRrk v ad
leku gk su s ij r Fkk d soy ,d gh O;fDr dk L FkkukUrj.k gk s ldrk g S
rk s , slh fL Fkfr e s a mue s a l s vf/kd vk; q oky s v/;kid dk s ojh;rk nh
26
tk; sxhA
¼9½ vUrZtuinh; LFkkukUrj.k 'kSf{kd o"kZ es a ,d ckj gh fd; s tk,x saA
¼10½ ;fn ifr&iRuh nksuk sa esa ls dksbZ ,d m0iz0 ljdkjh lsok esa gksa rks mUgsa ;Fkk
laHko ,d gh tuin esa rSukrh dk fodYi gk sxkA
5&¼1½ vUrtZuinh; LFkkukUrj.k d s QyLo:i LFkkukUrfjr gk sus okys v/;kidksa dks izR; sd
n'kk esa vkns'k fuxZr gk sus d s 10 fnuksa d s vUnj rSukrh d s 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 d s QyLo:i uohu tuin esa LFkkukUrfjr gk sus oky s
v/;kidksa dh ofj"Brk dk fu/kkZj.k m0iz0 csfld v/;kid lsok fu;ekoyh&1981 d s fu;e
22¼2½ d s vuq:i fd;k tk; sxkA
6& fdlh Hkh fo|ky; es cUn@,dy gksu s 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 gk s tk; sA
7& LFkkukUrj.k g srq vkosnu d soy vkuykbu Lohdkj fd; s tk; sax sA 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
lac af/kr v/;kid dh gk sxhA =qfVi w.kZ@vi w.kZ vkosnu i= ij fopkj ugha fd;k tk; sxkA
vko snu dh vfUre frfFk d s mijkUr dksbZ Hkh la'kks/ku xzkg~; ugh a gksxkA vku&ykbu
vko snuksaijkUr Hkjs gq, vkosnu i= dk fiz aV vkmV lEcfU/kr v/;kid }kjk ftyk csfld
f'k{kk vf/kdkjh dk;kZy; dks nks izfr;ks a 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
v afdr fooj.k@rF;ksa dk dk;kZy;h; vfHkys[kks a ls lR;kiu dh dk;Zokgh lqfuf'pr djsax sA
lEcfU/kr ftyk csfld f'k{kk vf/kdkjh }kjk lR;kfir vko snu i=ksa dh fiz aVsM dkih vko';d
layXudksa@lk{;ksa lfgr vkosnu i= Hkjus dh vfUre frfFk ls ,d lIrkg dh vof/k d s
vUnj lfpo] csfld f'k{kk ifj"kn dk;kZy;] bykgkckn dks vfuok;Z :i ls miyC/k djkuk
gk sxk] lkFk gh mUgs a bl vk'k; dk izek.k&i= Hkh ifj"kn eq[;ky; dks nsuk vfuok;Z gk sxk
fd ^^tuin------------------ esa vUrtZuinh; LFkkukUrj.k gsrq dqy------------------- fiz aVsM vku&ykbu
vko snu&i= izLrqr fd; s x; s] ftles a lR;kfir vkosnu i=ks a 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 vko snu i=ksa d s
lR;kiu es a fujLr fd; s x; s vkosnu i=ksa d s lEcU/k ea s 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; d s lwpuk iV ij Hkh pLik
dh tk; sxhA
10& ftyk csfld f'k{kk vf/kdkjh }kjk lac af/kr v/;kid ls bl vk'k; dk Hkh vUMj
Vsfd ax@'kiFk&i= fy;k tk; sxk fd lac af/kr v/;kid }kjk LFkkukUrfjr tuin es a viuh
T; s"Brk dk nkok izLrqr ugha fd;k tk; sxkA bl gsrq vUMj Vsfd ax@'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 d s v artZuinh; ¼tuin d s ckgj½
LFkkukUrj.k dh leLr dk;Zokgh ikjnf'kZrk d s lkFk fnuk ad 31 vxLr] 2017 rd i w.kZ dj
yh tk; sxhA v/;kid dk LFkkukUrj.k xzkeh.k {ks= ls uxj {ks= ,o a uxj {ks= ls xzkeh.k {k s=
eas ugha fd;k tk; sxkA
12& ftyk csfld f'k{kk vf/kdkjh }kjk LFkkukUrj.k d s QyLo:i tuin esa vk; s gq,
v/;kidksa dh rSukrh 'kklukns'k la[;k&1088@79&5&17&15¼149½10Vh-lh-] fnukad 13-06-
27
2017 d s izLrj&3 esa ftykf/kdkjh dh v/;{krk esa xfBr lfefr d s vuqeksnuk sijkUr dh
tk; sxhA
13& LFkkukUrj.k g srq fu/kkZfjr vfUre frfFk 31 vxLr] 2017 d s i'pkr dksbZ Hkh
vUrtZuinh; LFkkukUrj.k lfpo] csfld f'k{kk ifj"kn] m0iz0 bykgkckn }kjk ugha fd;k
tk; sxkA
vr,o v artZuinh; LFkkukUrj.k dh dk;Zokgh mDr fu/kkZfjr izfdz;kuqlkj
ikjnf'kZrki w.kZ <ax ls lqfuf'pr dh tk; sxhA
Hkonh;
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]
,o a 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 d s v/;kidksa dk o"kZ 2017&18
gsrq vUrtZuinh; LFkkukUrj.k uhfr esa la'kks/kuA
egk sn;]
mi;qZDr fo"k;d lfpo] csfld f'k{kk ifj"kn d s
i=kad&cs0f'k0i0@10755&56@2017&18] fnukad 18-08-2017 d`i;k lUnHkZ xzg.k djsa]
ftld s }kjk m0iz0 csfld f'k{kk ifj"kn }kjk lapkfyr fo|ky;ksa d s v/;kidksa dk 'kSf{kd
l= 2017&18 d s fy, 'kklukns'k la[;k&1078@79&5&2016&15¼149½@2010] fnukad 13-
06-2017 }kjk fuxZr vUrtZuinh; ¼tuin d s ckgj½ LFkkukUrj.k uhfr esa la'kks/ku dk
izLrko miyC/k djk;k x;k gSA
2& bl l ac a/k e s a e q> s ;g dgu s dk fun s'k g qvk g S fd 'kklu Lrj ij
lE;d fopkjk si jkUr i wo Z e a s fux Zr LFkkukUrj.k uhfr fnuk ad 13-06-2017 e s a
fuEuor ~ l a'kk s/ku dh vu qefr i znku dh tkrh g S %&
¼1½ 'kklukn s'k fnuk ad 13-06-2017 e s a mfYyf[kr U; wure l ark s"ktud
l sok dh le; lhek 05 o"k Z fnO;k ax vH;fFk Z;k s a ij ykx w ugh a gk sxhA
fodyk axrk d s l ac a/k e s a e q[; fpfdRlkf/kdkjh dk fpfdRlh; i zek.k&i=
l ayXu djuk vfuok; Z gk sxk] rHkh mldk ykHk mUg s a n s; gk sxkA
¼2½ 'kklukns'k fnukad 13-06-2017 esa d sUnzh; m)Z lSfud cy ¼lh0ih0,e0,Q0½ ;Fkk
ch0,l0,Q0] lh0vkj0ih0,Q0] vkbZ0Vh0ch0ih0] lh0vkbZ0,l0,Q0] ,l0,l0ch0 ,o a
,u0Mh0vkj0,Q0 rFkk Fky] ok;q ,o a ty lsuk d s dkfeZdks a dh vkfJr ifRu;ksa ij U; wure
28
05 o"kZ dh lark s"ktud lsok dh le; lhek ykxw ugha gk sxh] c'krsZ mud s fu; a=d
izkf/kdkjh }kjk ;g izek.k&i= nsuk gk sxk fd og d sUnzh; v)Z lSfud cy@Hkkjrh; lsuk esa
dk;Zjr gSA
mDr nksukas izdj.kk sa es lac af/kr tuin esa fjfDr;ks a dh miyC/krk gksu s ij gh ykHk
vuqeU; gk sxkA
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
egRoi w.kZ@le;c)
la[;k& 130@79&5&2018
izs"kd]
,l0 jktfy axe
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 ,o a vU; rFkk fjV ;kfpdk la0 44442@2017 rFkk ek0
mPp U;k;ky; esa ;ksftr fofHkUu fjV ;kfpdkvk sa rFkk efgyk v/;kfidkvk sa d s
vUrZtuinh; LFkkukUrj.k d s lEcU/k esaA
egk sn;]
mi;qZDr fo"k;d lfpo] csfld f'k{kk ifj"kn d s i= fnukad 23-01-18 dk lanHkZ xzg.k
djsa] tks fd efgyk v/;kfidkvk sa d s vUrZtuinh; LFkkukUrj.k gsrq i woZ 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 d s lac a/k es a m0iz0 csfld f'k{kk ¼v/;kid½ ¼rSukrh½ izFke
la'kk s/ku fu;ekoyh 2010 d s fcUnq la0 8¼2½¼?k½ esa miyC/k izkfo/kku d s vUrZxr fo'ks"k
ifjfLFkfr esa efgyk v/;kfidkvks a d s vUrZtuinh; LFkkukUrj.k esa 05 o"kZ dh le; lhek ls
NwV fn; s tkus d s lac a/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 d s fu;e&8¼2½¼?k½ esa fuEu O;oLFkk fo|eku gS &
lkekU; ifjfLFkfr;k sa esa efgyk vFkok iq:"k v/;kidk sa d s vUrZtuinh; LFkkukUrj.k
d s vkosnu i=ksa ij 5 o"kZ rd fopkj ugha fd;k tk; sxk] ijUrq fo'ks"k ifjfLFkfr es a efgyk
v/;kfidkvksa d s vkosnuka s ij mud s ifr d s fuokl LFkku@llqjky d s tuin esa
29
vUrZtuinh; LFkkukUrj.k gsrq fopkj fd;k tk ld sxkA
3- mDr d s l ac a/k e s a e q> s ;g dgu s dk fun s'k g qvk g S fd mDr
fu;ekoyh d s fu;e 8¼2½¼?k½ e s a fo|eku O;oL Fkk d s vUr Zxr fo'k s"k
ifjfL Fkfr e s a efgyk v/;kfidkvk s a d s vUr Ztuinh; L FkkukUrj.k g sr q vku
ykbu i= dk s Lohdkj fd; s tku s rFkk of.k Zr fo'k s"k ifjfL Fkfr dk ijh {k.k
dj tuin e s a fjfDr dh miyC/krk dh n'kk e s a vko';d dk; Zokgh dju s
dk d"V dj s aA
bl l ac a/k e s a i wo Z fux Zr 'kklukn s'k l a0 1078@79&5&17&15
¼149½@10Vh0lh0 fnuk ad 13-06-17] 'kklukn s'k l a0
1810@79&5&17&15¼149½@10Vh0lh0 fnuk ad 20-09-17] 'kklukn s'k l a0
67@79&5&18 fnu akd 18-01-18 bl lhek rd l a'kk sf/kr fd;k tkrk g SA
'k s"k 'kr s Z ;Fkkor ykx w gk s axhA
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 dkfeZdk sa dh rSukrh laosnu'khy inksa ij dnkfi u dh
tk;A
¼ii½ eafnr cPpksa d s ekrk&firk dh rSukrh] vf/kd`r ljdkjh fpfdRld d s izek.k
i= d s vk/kkj ij] fodYi izkIr djd s ,sl s LFkku ij dh tk;] tgak fpfdRlk dh
leqfpr O;oLFkk miyC/k gk sA
¼iii½ lewg ^d* d s vf/kdkfj;ks a dks mud s x`g e.My es a rSukr ugh a fd;k tk; sxkA
¼iv½ lewg ^[k* d s vf/kdkfj;ksa dks mud s x`g tuin esa rSukr ugha fd;k tk; sxk]
ijUrq izfrc a/k ;g gS fd mDr izkfo/kku d soy tuin Lrjh; foHkkxks a@dk;kZy;ksa esa
ykxw gk saxsA
¼v½ fnO;kax dkfeZdks a vFkok ,sls dkfeZd] ftud s vkfJr ifjokjhtu fnO;kaxrk ls
izHkkfor gks a] dks lkekU; LFkkukUrj.k ls eqDr j[kk tk;A ,sls fnO;kax dkfeZdksa d s
LFkkukUrj.k xEHkhj f'kdk;rks a vFkok vifjgk;Z dkj.kks a ls gh fd; s tk; saA fnO;kax
dkfeZd d s n~okjk vuqjks/k fd; s tkus ij] in dh miyC/krk d s vk/kkj ij ml s mld s
x`g tuin esa rSukr djus ij fopkj fd;k tk ldrk gSA
¼vi½ lewg ^x* d s dkfeZdks a dk izR; sd 03 o"kZ d s mijkUr iVy ifjorZu dj fn;k
tk;A
¼vii½ Hkkjr ljdkj n ~okjk ?kk sf"kr i zn s'k dh egRodk a{kh ftyk
;k stuk ¼Aspirational Districts Scheme½ l s l ac af/kr 08
fty s&fp=d wV ] p ank Syh] lk suHkn z] Qr sgi qj] cyjkei qj] fl)k Fk Z uxj]
JkoLrh o cgjkbp e s a i zR; sd foHkkx n ~okjk i zR; sd n'kk e s a leLr
ink s a ij r Sukrh djd s l ar `Ir dj fn;k tk; sxk ,o a 02 o"k Z ckn ogk a
r Sukr dkfe Zdk s a l s fodYi i zkIr dj mUg s a L FkkukUrfjr fd;k tk;A
30
¼viii½ fu/kkZfjr vof/k d s mijkUr lkekU;r% LFkkukUrj.k d s izLrko izLrqr u fd; s
tk; saA
¼ix½ LFkkukUrj.k fd; s tkus gsrq vof/k d s fu/kkZj.k d s fy, dV&vkQ&MsV 31 ekpZ
dks ekuk tk; sxkA
¼x½ 02 o"kZ esa lsokfuo`Rr gksu s oky s lewg ^x* d s dkfeZdksa dks mud s x`g tuin ,o a
lewg ^d* ,o a ^[k* d s dkfeZdks a dks mud s x`g tuin dks NksM +rs gq,] bfPNr tuin
esa rSukr djus ij ;FkklEHko fopkj fd;k tk;A
¼xi½ lewg ^x* ,o a ^?k* d s LFkkukUrj.k] LFkkukUrj.k uhfr d s izLrj&1 d s izkfo/kkuk sa
ls vkPNkfnr gksus ij] izns'k Lrjh; laoxZ gk sus ij fdlh vU; e.My@tuin es a
rFkk e.My Lrjh; laoxZ gksu s ij e.My d s vUnj fdlh vU; tuin esa fd; s tk; s
(ix) decision/ circular of the Board being No. c s0f'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 d sUnz]
;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 vko snu i=ksa d s lUnHkZ esa
LFkkukUrj.k lwph t sujsV fd; s tkus d s lEcU/k esaA
egk sn;]
d`i;k mi;qZDr fo"k;d lanHkZ ys us dk d"V djsa ftll s lEcfU/kr 'kklu esa ,d
cSBd dy fnukad 09-06-2018 dks vij eq[; lfpo egk sn; dh v/;{krk esa gqbZ FkhA cSBd
esa fy; s x; s fu.kZ;ks a] izkIr funsZ'kk sa rFkk] vki }kjk LFkkukUrj.k lEcU/kh dk;Z gsrq okafNr
vko';d lwpukvks a vkSj bl lanHkZ eas i woZ iszf"kr i=kad cs0f'k0i0@3686&87@2018&19
fnukad 01-06-2018 d s dze esa fuEuor lwP; gS&
1& i woZ esa miyC/k djk; s x; s izkl sl ¶yk s pkVZ d s lanHkZ esa lEizfr d soy ,d jkmUM
dh gh izfdz;k lEikfnr gksxhA
2& tuinokj] inokj fjfDr;ksa ¼xfreku ,o a izLrkfor HkrhZ izfdz;kvks a dks vkWx.ku es a
y srs gq,½ dh lkWQ~VdkWih layXu gSA
3& 'kklukn s'k fnuk ad 13-06-2017 d s vu qlkj& , sl s tuin tgk W
f'k {kdk s a dh fjfDr Lohd `r ink s a sd s lki s{k 15 i zfr'kr l s vf/kd g S] ogk W
l s vUrt Zuinh; LFkkukUrj.k d s ek/;e l s fdlh v/;kid dk LFkkukUrj.k
vU; tuin e s a ugh a fd;k tk; sxk r Fkk Hkkjr ljdkj }kjk fpfg ~ur i zn s'k
d s vkB ,Li sj s'kuy tuink s a& fl)k Fk Zuxj] JkoLrh] cgjkbp] lk suHkn z]
pUnk Syh] Qr sgi qj] fp=d wV ] cyjkei qj l s Hkh fdlh v/;kid dk s vU;
tuin e s a L FkkukUrfjr ugh a fd;k tk; sxk ijUr q bu tuink s a e s a tku s oky s
b PN qd v/;kidk s a dk LFkkukUrj.k fd;k tk; sxkA mDr 15 i zfr'kr dk
vk Wx.ku mi; q ZDr fcUn q&02 e s a v afdr fjfDr;k s a d s lki sf {kd fd;k tkuk
gk sxk rFkk vk Wx.ku e s a n'keyo dh fLFkfr e s a jkmfUM ax vk WQ dj yh
31
tk; sxh vFkk Zr ;fn og n'keyo 05 l s de g S rk s fjfDr dh l a[;k ogh
jg sxh r Fkk ;fn og n'keyo 05 vFkok mll s vf/kd g S rk s og vxyh
l a[;k gk s tk; sxhA 'kklukn s'k fnuk ad 13-06-2017 e s a LFkkukUrj.k g sr q
fu/kk Zfjr fdlh tuin dh fjfDr dk 25 i zfr'kr vf/kdre lhek dk l aKku
vc ugh a fy;k tk; sxk D;k s afd xfreku rFkk vkxkeh Hkfr Z;k s a e s a fdlh
tuin dk s vko afVr ink s a dk s fjfDr;k s a d s vk Wx.ku e s a lfEefyr fd;k tk
p qdk g SA
4& LFkkukUrj.k vkns'k lfpo d s ykWfxu ,o a fMftVy gLrk{kj }kjk lEikfnr dh
tk; sxh rFkk LFkkukUrj.k vkns'k Hkh mUgha d s gLrk{kj ls fuxZr gk sax sA mDr LFkkukUrj.k
vkn s'k QR dksM lfgr gk sxk ftldk izk:i layXu gSA
5& LFkkukUrj.k vkns'k dk voyk sdu vkosnudrkZ v/;kid d s Query }kjk iSu
la[;k rFkk cSad [kkrk la[;k dk iz;ksx djrs gq, Lo; a gh ns[kk tk ld sxk rFkk LFkkukUrfjr
v/;kid }kjk viuk LFkkukUrj.k vkns'k dh izfr Mkmuyk sM dh tk ld sxhA ftu v/;kidksa
dk LFkkukUrj.k ugha gqvk gk sxk mud s }kjk iSu rFkk cSad [kkrk la[;k QhM fd; s tkus ij
^^Transfer could not be done because vacancy is not available** lan s'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 d s lapkyu esa vk jgh rduhdh
dfBukbZ;ks a d s n`f"Vxr mles a cgqr vf/kd le; yxu s dh laHkkouk gS ftlls tufgr
dk ;g LFkkukUrj.k dk;Z foyfEcr gk s jgk gSA vr% bld s 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
32
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
33
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 transfer 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 interdistrict transfer?
17. The arguments of learned counsels for the petitioners on this
question are wholly misconceived inasmuch as Government Order
dated 13.06.2017 as amended by Government Order dated
35
20.09.2017, was further amended by the afore-quoted Government
Order dated 05.02.2018, whereby the position as is existing under Rule
8(2)(d) has been reiterated and the restrictions imposed under the
Government Order dated 13.06.2017, have been withdrawn.
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 interdistrict 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;
------------
-----------
-------------
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.
9. Each one of the petitioners had applied for consideration of their claim
for according inter-district transfer and the said claim in question has been
accepted and at the point of time when the said claim in question has been
considered it was not at all absolute acceptance and to the contrary in
respect of the inter-district transfer Secretary, Basic Shiksha Parishad U.P.
at Allahabad had already circulated a circular clearly mentioning therein at
item no. 6 that all those incumbents, who are seeking transfer in the district
concerned, they would be accorded transfer only in the contingency if their
batch-mates in the concerned district are also working, accordingly. The
final list, which has been so published, did contain the name of petitioners
but at the foot of the same a categorical note had been appended at page
135 of the paper book that each and every District Basic Education Officer
before proceeding to ensure joining of incumbent concerned, should see and
ensure that the batch-mates of the aforementioned incumbents have already
40
been accorded promotion in the district concerned.
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 Statewide 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.”
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 AllIndia 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.
43
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.”
23. Rule 4 of the Rules, 1981 leaves no manner of doubt that the
petitioners’ cadre of service is the local area of the district. 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. Clause (a) of
sub-Rule (2) of Rule 8 of the Rules 2008, specifically provides that the
newly appointed male teachers shall initially be posted compulsorily in
backward areas for the period of at least five years. Clause (b)
provides that newly appointed female teachers shall also be
compulsorily posted in backward areas for a period of at least two
years. Clause (c) permits consideration for mutual transfer within the
district from general block to backward block and vice versa subject to
the condition that the teacher of mutual transfer to a backward block to
serve in that block compulsorily for five years and mutual transfers
would be permitted only in case of those teachers who have more than
remaining five years of service. Clause (d) specifically provides that in
normal circumstances, the applications for inter-district transfer in
respect of male and female teachers will not be entertained within five
years of their posting. A complete prohibition on inter-district transfers
for five years, is not in conflict with the Scheme of the Rules 2008 or
the Scheme of the Rules 1981. However, an exception has been
provided in Clause (d) that under special circumstances, application for
inter-district transfers in respect of female teachers can be entertained
to the place of residence of their husbands or in-laws’ district.
This exception has to be read along with the clause (a), (b), (c) and (d) of
sub-Rule (2) of Rule 8 of the Rules 2008 and Rule 21 of the Rules
1981. Thus, as an exception, the applications for inter-district transfers
in respect of female teachers may be entertained to the place of
residence of their husband or in-laws’ district in special circumstances
subject to approval of the Board.
If the Board has framed certain
guidelines for approving such inter-district transfers of female teachers
then applications for inter-district transfers of female teachers, may be
entertained only if such applications fulfil the guidelines of the Board
otherwise they cannot be even entertained. The petitioners do not fulfil
the guidelines of the Board. Some petitioners in the present batch of
writ petitions are those who want their transfer from an aspirational
district to a non-aspirational district or from a district where the vacancy
is more than 15%, which is not permissible either under the provisions
of the Rules or the guidelines dated 10.06.2018 and the Government
Orders/ instructions earlier issued, therefore, refusal to accord interdistrict transfer to such applicants, is well in accordance with law.
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 interdistrict 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.
Question No.(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?
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.”
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
Complete Order :-
http://elegalix.allahabadhighcourt.in/elegalix/WebDownloadJudgmentDocument.do?judgmentID=6558030
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