Tuesday, November 14, 2017

Female Transfer Preference related old order in 2012 -

Female Transfer Preference related old order in 2012 








(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. 


HIGH COURT OF JUDICATURE AT ALLAHABAD 

AFR 
Court No. 30 
Reserved on 22.11.2012 
Delivered on 29.11.2012 

Civil Misc. Writ Petition No. 58880 of 2012 

Uma Pandey and others 
Versus 
The State of U.P. and others 



Civil Misc. Writ Petition No. 60118 of 2012 
Sheerat Naseem Wasti and others 
Versus 
State of U.P. and others 

Hon'ble V.K.Shukla,J 
In both these writ petitions grievance of the petitioners is to the effect that transfer and posting has not at all been carried out in open and transparent manner and the institutions have been allotted arbitrarily and in view of this transfer/posting order dated 06.10.2012 be quashed and respondents-authority be directed to conduct open counselling for posting of petitioners and others in consonance with the provision as contained under U.P. Basic Education (Teachers) (Posting) Rules 2008 and as per amended Rules 2010. 
Brief background of the case as is reflected that petitioners have been performing and discharging their duties as Assistant Teachers/Headmaster in the institutions run and managed by the Basic Education Board U.P. at Allahabad constituted under the provisions of U.P. Basic Education Act, 1972 and have been serving in District other than Allahabad. Service conditions of petitioners are governed by statutory rules known as U.P. Basic Education (Teachers Service) Rules 1981. Therein in the said Rules amendment has been introduced known as U.P. Basic Education (Teachers Service) (13th Amendment) Rules 1981, wherein provision has been incorporated for providing another district transfer i.e from one district to another and as per the same each and every incumbent was obliged to move on line application and thereafter on the basis of application so moved transfer was to be considered strictly as per the parameter of the aforesaid Rules as has been provided for. 
This much is also clear that incumbents who would be transferred would be accorded placement at the bottom of the list of the teachers of corresponding class or category in the aforesaid district. Each one of the petitioner who have been working in their respective district and as they fulfilled parameter as provided for applied for consideration of their transfer under U.P. Basic Education (Teachers Service) (13th Amendment) Rules 1981 and thereafter list of incumbents who have been transferred has been published on 14.08.2012 effectuating transfer by Secretary Basic Shiksha Parishad, U.P. at Allahabad. As far as petitioners are concerned they have requested for being transferred to district Allahabad by giving their option and their option has been accepted and they have been transferred to District Allahabad. 
On being transferred issue has been raised as to in what way and manner placement is to be accorded to the said incumbents qua their respective place of posting i.e. the assignment of respective institution where they are supposed to function and in the said direction as placement and posting is governed by statutory Rules, recourse has been undertaken of the aforesaid Rules known as U.P. Basic Education (Teachers) (Posting) Rules 2008 and said Rules have further been amended in year 2010 Rules 8(3) mentions that teachers transferred from one District to another will be given posting as per the provision of these Rules. After said incumbents have reported for their joining at Allahabad, District Level Posting Committee has been constituted in this regard and same comprised of Vinay Kumar Pandey, Principal District Institute of Education and Training, Allahabad who was the Chairman of the aforesaid Committee, Dinesh Kumar Yadav, District Basic Education Officer, Allahabad as Member Secretary, Shyam Kishor Tiwari, Senior Lecturer, District Institute of Education and Training, Allahabad, and Smt. Sudha Yadav, Principal Government Girls Inter College, Allahabad as Members. Said District Level Posting Committee in question proceeded to ask for option from the aforesaid incumbents in this direction and the incumbents, who have joined upto 03.09.2012 were required to submit their option on 21.09.2012 and incumbents who have joined on 04.09.2012, and uptill 22.09.2012 they were asked to submit their option on 22.09.2012 and in this regard notification has been published in newspaper Dainik Jagran and Amar Ujjala. Apart from this on the basis of information so furnished by respective Block Education Officer vacancies in question have been identified in reference to institution in question which were lying closed known as list "A" and in reference of the institutions where single teacher has been posted known as List "B" and the list of said institution has been finalized in English Alphabetical order by arranging the same in ascending order and thereafter list of vacancies as has been existence in respect of institution lying closed and where single teacher had been functioning had been published and it has also been pasted on the Notice Board and by the prescribed date as was fixed in all 807 incumbents have given their option for being posted as Assistant Teachers of Primary Institutions and 95 incumbents have given their option for being posted as Assistant Teachers at Senior Basic School/ Headmaster of Primary institutions. 
After said option of institutions has been submitted then in consonance with the Rules it is stated the exercise has been undertaken by means of resolution dated 05.10.2012 and keeping in view option so submitted and keeping in view the seniority prepared on the basis of joining and date of birth in district Allahabad same had been arranged and at the first instance female physically handicapped candidates and male physically handicapped category candidates have been considered for posting and thereafter all female candidates have been resolved to be offered posting as per their seniority and in respect of Assistant Teachers of Senior Basic Schools and Headmaster of Primary School resolution has been passed to make placement keeping in view subject as well as seniority on the basis of date of joining and date of birth in district Allahabad. Thereafter meeting had been convened on 06.10.2012 and on the said date resolution has been passed mentioning therein that at the first instance female physically handicapped category candidate have been accommodated on the basis of their choice given by them in the list of institutions mentioned in the list "A" and list "B". In the said direction female physically handicapped candidates, who have opted for, institution of their choice they have been given institution of their choice. Similarly in respect of the physically handicapped male category candidates as per their seniority status from list "A" and "B" they have been accorded institution and posting of their choice. Lastly it has been mentioned that as per option so furnished and as per seniority list so prepared option has been considered and from amongst female category candidates 294 female category got institution chosen by them in their option and in respect of 484 female category candidates as qua the institution in question qua which option has been exercised by them was not available then as per seniority from the list which have been prepared in accordance with ascending order of English Alphabet at the first instance institutions which were lying closed and where only single teacher was available same has been allotted and it has been stated, that rightful exercise has been undertaken accordingly. 
After the said list has been prepared, lot of hue and cry has been made in respect of aforesaid list in question and then it is reflected that some complaints have been made before the District Magistrate therein it has been stated that placement/posting has not been made fairly and correctly and District Magistrate thereafter constituted four member committee comprising of Chief Development Officer, Allahabad as Chairman; Chief Treasury Officer, Allahabad and District Basic Education Officer, Allaha bad and District Social Welfare Officer, Allahabad as Members. Said committee in question submitted its report mentioning therein that posting have been accorded strictly as per the Rules and there are clerical errors and same can be rectified by the District Level Posting Committee and thereafter it is further reflected that District Basic Education Officer Allahabad constituted three members committee comprising Ramesh Chandra Mishra, Block Education Officer, Allahabad, K.D. Yadav, Block Education Officer, Allahabad and Jawahar Lal, Block Shiksha Adhikari Bahriya, Allahabad to submit its report and the said committee in question proceeded to mention that female category candidates have been excluded from roster and posting exercise has been undertaken as per option and in respect of left out teachers posting has been given keeping in view the seniority status and said report is dated 22.11.2012. It appears that petitioners were still not satisfied with the posting process as has been undertaken and they have rushed to this Court. 
This Court on 08.11.2012 has proceeded to pass following order: 
"Put up this case on 21.11.2012. 
By that time, Sri A.K. Yadav, Advocate is directed to obtain necessary instructions qua the provisions of roster which has been made applicable for female teachers. Instructions may also be obtained in reference to paragraph 16 of the writ petition. Coupled with this details be also furnished by way of instructions as to whether strictly on merits and as per choice transfers have been effectuated or not. . 
Thereafter when the matter has been been taken up, Sri A.K.Yadav, Advocate has produced all the relevant record to demonstrate the way and manner in which proceeding for posting has been carried out. 
Parties to the dispute have agreed that present matter be taken up for final hearing and disposal. 
Sri R.K. Ojha, Advocate as well as Sri R.K. Upadhyay, Advocate appearing with Sri S.K.Singh, Advocate submitted that in the present case entire procedure so adopted and adhered to on the face of it is dehors the statutory provision as at the first instance seniority which has been so determined is per se bad and coupled with this, once option has been exercised and institutions so opted mentioned were not at all available even then thereafter as per seniority status, institutions available ought to have been put up for exercising their choice and in view of this procedure which has been so adopted is totally unfair, arbitrary and unreasonable and the posting has not at all been accorded in consonance with the provision as contained under the Rules, as such writ petition in question deserves to be allowed. 
Sri A.K. Yadav, Advocate on the other hand contended that all fairness and transparency has been maintained at the time of finalising of posting lists and same has been prescribed strictly in consonance with the Rules and in view of this this Court should not interfere with the aforesaid posting order as procedure which has been adopted is fair and transparent and even seniority has been properly determined and no one has ever objected to the same. 
In order to appreciate the respective arguments, the pleadings as set out in the writ petitions as well as record which has been produced before this Court alongwith statutory provisions such as Rules which hold the field for selection and appointment and transfer as well as seniority as well as relevant Rules in reference of posting are being looked into. Selection and appointment as Assistant Teacher in Primary Schools as well as Senior Basic School which is inclusive of the post of the Headmaster as already mentioned above is governed by statutory Rules known as U.P. Basic Education (Teachers Services) Rules 1981. Under aforesaid Rules, Rule 19 deals with appointment, Rule 20 deals with appointment to be made by order; Rules 21 deals with procedure for transfer and Rule 22 deals with seniority. Rule 21(unamended) and 22, of the aforesaid Rules being relevant are being extracted below: 
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 to the same district or from local area of one district of that of another district except on the request of or with the consent of the teachers himself and in either case approval of the Board shall be necessary. 
Rule 22 of 1981 Rules:- Seniority- (1) The seniority of a teacher in a cadre shall be determined by the date of his appointment in a substantive capacity: 
Provided that, if two or more persons are appointed on the same date their seniority shall be determined in which their names appear in the list referred to in Rule 17 or 17-A or 18, as the case may be. 
Note- A candidate selected by direct recruitment may lose his seniority, if he fails to join without valid reasons when a vacancy is offered to him whether the reasons in any particular case are valid or not shall be decided by the appointing Authority. 
(2) The seniority of a teacher who has been transferred from one local area to another in accordance with the provisions of Rule 21 shall be placed at the bottom of the list of teachers of the corresponding class or category pertaining to the local area to which he has been transferred as on the date of orders for transfer are passed, such a persons shall not be entitled to any compensation. 
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 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 31.12.2001 the date prescribed for submission of application/option by the teacher for inter-district transfer. It shall be the last opportunity for the teachers to submit their application/options for inter-district transfer. The teachers who have not submitted their option till the stipulated date, the right to give option thereof shall stand expired. 
(vii) In accordance with the above procedure, the teachers by whom the option for their transfer have been submitted, this rule shall stand infructuous for them after the execution of their transfer on the aforesaid basis. 
(viii) The facility of this rule shall not be admissible to the teachers appointed after dated 31.10.2011." 
In the present case each one of the petitioners who have been performing and discharging duties either in the capacity of Assistant Teacher in Primary School or Headmaster of Primary School or the Assistant Teacher in Senior Basic School applied for inter district transfer by exercising their option on the premises that they fulfil the term and condition for being transferred. Claim of the petitioners have been considered at the level of Secretary U.P. Basic Education Prishad at Allahabad and thereafter transfer list has been finalized on 14.08.2012 accepting the transfer of the petitioners at district Allahabad. After the aforesaid list in question has been finalized, it appears that petitioners have been relieved from their respective district and have reported on different dates at the office of District Basic Education Officer. After they had reported in the office of District Basic Education Officer, the District Basic Education Officer, has proceeded to make publication in daily news paper Dainik Jagran and Amar Ujjala mentioning therein that the candidates who have joined at the office District Basic Education Officer they should submit their option and it was also precisely mentioned therein that all those incumbents who have joined on 03.09.2012, they should submit their option on 21.09.2012 and those candidates who have joined on 04.09.2012 and upto 20.09.2012 they should submit their option on 22.09.2012 at the office of Principal, District Education and Training Institute. 
This Court at this juncture proceeds to take note of the provision as contained under U.P. Basic Education (Teachers) (Posting) (First Amendment) Rules 2010. 
2. Amendment of Rule 5- In the U.P. Basic Education (Teachers) (Posting) Rules 2008 hereinafter referred to as the said rules, for Rule 5 the following rules shall be substituted namely; 
"5 for the purpose of posting, the list of teachers selected in accordance with the provision of the U.P. Basic Education (Teacher) Service Rules 1981 shall be prepared in the manner mentioned hereinunder- 
(f) Handicapped candidates 
(g) General candidates 
(h) Candidates belonging to Other Backward Classes 
(i) Candidates belonging to Scheduled Castes 
(j) Candidates belonging to Scheduled Tribes." 
3. Amendment of Rule 6- In the said rules for Rule 6 the following rule shall be substituted, namely:- 
"6. The list of schools shall be prepared in the following manner- 
(d) The blocks of the district mentioned in Appendix A shall be identified as general and backward blocks as per Rule 4 and separate lists of teachersless schools will be prepared for these blocks in accordance with the order of English Alphabet. The name of the block will also be mentioned in the bracket with school's name. 
(e) The blocks of the district mentioned in the Appendix A shall be identified as general and backward blocks as per Rule 4 and separate lists of single teacher schools will be prepared for these blocks in accordance with the order of English Alphabet. The name of the block would also be mentioned in the bracket with school's name. 
(f) The lists of schools other than the schools described in clause (a) and (b) shall be prepared separately for general and backward blocks in the ascending order of Pupil Teacher Ratio." 
4. Amendment of Rule 8:- In the said rule for Rule 8 set out in Column I below the rule as set out in Column II shall be substituted, namely- 
"8(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 virtual of posting of newly appointed or promoted teachers the primary and upper primary schools of backward blocks get saturated i.e. no post of teachers 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) Matual transfers of male/female teachers from one backward blocks to another can be considered. 
(3) Teachers transferred from one district to another will be given posting as per the provisions of these rules." 
Bare perusal of the U.P. Basic Education (Teachers) (Posting) (First Amendment) Rules 2010 would go to show that at the first instance list of institutions is to be got prepared wherein institutions are lying closed. The said list in question is to be prepared in ascending order of English Alphabet alongwith the name of respective blocks and the institution. Second list of institutions to be prepared is wherein single teachers are functioning in schools in accordance with ascending order of English Alphabet alongwith the name of the block in the bracket with school's name. As per amended Rule 8(1) (a) from the handicapped candidates three options for the schools where they intend to join is to be asked. It has also been provided that after receiving such options the handicapped candidates would be posted on the basis of options given by them and the vacancies. Rules 8 (1) (b) mentions that based on the order of their merit, female teachers would be required to submit their option of three schools each from the general and backward block and accordingly, posting would be given in one of these schools. It has also been mentioned therein under Rule 8(1) (c) that male teachers shall be accorded placement in accordance with the order of candidates in the roster prepared under Rule 7. 
Bare perusal of the aforesaid Rules would go to show that in the matter of posting in reference of physically handicapped candidates and in respect of female candidates special provision has been made so that said incumbents can get their posting with element of their choice being there. 
In the present case factual situation which is emerging and which has been highlighted before this Court that seniority has been determined on the basis of their respective date of joining and date of birth and on the basis of aforesaid seniority list so prepared posting has been sought to be accorded in respect of institutions and accordingly posting made is per se bad. 
First issue, which this Court takes note of, is as to whether incumbents who have been transferred their seniority status has been determined strictly as per the Rules or not in the facts of present case. 
Rule 22 has already been quoted above, which clearly proceeds to mention that the seniority of a teacher in a cadre shall be determined by the date of his appointment in a substantive capacity. It has also been provided that if two or more persons are appointed on the same date their seniority shall be determined in which their names appear in the list referred to in Rule 17 or 17-A or 18, as the case may be. It has also been noted in the aforesaid Rules that a candidate selected by direct recruitment may lose his seniority, if he fails to join without valid reasons when a vacancy is offered to him whether the reasons in any particular case are valid or not shall be decided by the appointing Authority. Sub-Rule (2) of Rule 22 provides that the seniority of a teacher who has been transferred from one local area to another in accordance with the provisions of Rule 21 shall be placed at the bottom of the list of teachers of the corresponding class or category pertaining to the local area to which he has been transferred as on the date of orders for transfer are passed. This much has also been stated before this Court that on transfer being effectuated, the incumbent would loose his seniority of the earlier District. 
Inter-district transfer has been provided for by means of substituted Rule 21 of U.P. Basic Education (Teachers Services) Rules 1981, known as U.P. Basic Education Teachers Service (13th Amendment) Rules, 1981 and as per the aforesaid Rules an incumbent has to apply for inter-district transfer and on inter-district transfer being accepted it has been accepted by parties that an incumbent will have to loose his/her seniority in the district wherein he/she has been transferred and he/she shall be placed at the bottom of the list of teachers of the corresponding class or category pertaining to the said District to which he has been transferred. Sri A.K. Yadav submits that each and every candidate who had applied for transfer has agreed to such a term and condition and have been well aware of the said consequences. Thus, Scheme of things clearly provide that there would be loss of seniority and they would be accorded placement at the bottom of the list of teachers of corresponding class or category of the aforesaid district in the present case District Allahabad. Under the scheme of things provided for no where it has been mentioned that date of joining and date of birth would be relevant criteria for determining the seniority whereas contrarily Rule 22 recognizes the date of substantive appointment to be the relevant factor for determining seniority. Once incumbent who has been transferred from one district to another then certainly he/she would loose his/her seniority at the earlier district and are bound to be placed at the bottom of teachers of the corresponding class or category of the District wherein they have been transferred. 
Question is that all those teachers who have been transferred from different districts to one particular district i.e. at District Allahabad then in what way and manner their inter se seniority is to be determined. Can it be on the basis of date of joining and age or their seniority should be determined keeping in view their date of substantive appointment as well as age. 
Transferred teachers of each and every category who have been transferred to Allahabad District constitute one class and in case seniority is to be determined category wise then the date of substantive appointment should be the relevant criteria and on the date of substantive appointment being one and same then age should be relevant factor for determination of seniority but certainly date of joining cannot be made basis for effectuating and determining seniority. Rule 22 recognizes, substantive appointment as the relevant criteria for determination of seniority and one may loose his/her seniority, if within time frame provided for, one has not joined but under the scheme of things provided for date of joining cannot be the relevant criteria for determining seniority. This Court does not approve of the way and manner in which seniority of transferred teachers has been determined by giving preference to the date of joining whereas under the relevant Rules determination of seniority is based on substantive appointment. In view this, matter requires reconsideration on this score and on this aspect of the matter. 
This Court has proceeded to pursue to record in question and record in question reflects that application has been invited for filing option forms and based on the date of joining, those incumbents who have reported upto 03.09.2012 they were asked to submit their option till 21.09.2012 and those incumbents who have joined in between 04.09.2012 to 20.09.2012 they were asked to submit their option till 22.09.2012. This much is also clearly reflected that in all 807 Assistant Teachers of Primary institution and 95 Assistant Teachers of Senior Basic School/headmaster gave their option and based on their option list has been prepared and the institution has been allotted to them as per their choice exercised in the option forms and from the institution mentioned in list 'A' and list 'B'. Female handicapped candidates, 9 in number have been allotted institution as per their choice and similarly 27 male physically handicapped incumbents have been allotted institution as per their choice and in respect of female category candidates 294 female category candidate have got institutions as per their choice and in respect of 484 female teachers exercise for giving choice has not at all been undertaken and the incumbent who has been accorded placement at the bottom of the seniority list has been given posting at the first institution shown as lying closed. 
Under the U.P. Basic Education (Teachers) (Posting) (First Amendment) Rules 2010 female teachers ought to have been accorded posting as per option given by them as language of the Rules, is clear and specific, that options shall be asked for, and posting would be given in one of those schools opted for. Admittedly female teachers have failed to get posting in school opted for by them, as it stood occupied by other teachers. Issue is that once option which has been given by female teachers in reference to the institutions of their choice same stood exhausted can even then the incumbents whose option could not be acted upon can still opt for institution remaining unfilled and what is the requisite exercise required to be undertaken. 
In the present case factual situation which is clearly reflected that after 9 physically handicapped female teachers have been absorbed/ adjusted as per their option and 27 male physically handicapped teachers have been absorbed/adjusted as per their option and 294 female teachers have been absorbed/ adjusted as per their option then thereafter option/choice in question has not at all been asked for any further qua the left out institutions of list "A" and list "B" and to the contrary procedure which has been uniformally adopted for posting of such female teachers by the District Level Posting Committee constituted in this regard is that they have started filling up the vacancy as it existed in institution shown in List "A" first and then from List "B" institution by starting placement of junior most incumbents first and then proceeding in descending order from the seniority list so prepared and according placement to female teachers in institution of List "A" and "B" in ascending order. For example in the list of teachers prepared of primary institution, last incumbent in the seniority list is one Ranjana Singh her name finds place at serial no. 814 and said Ranjana Singh has been accorded placement at Block Phoolpur Primary Institution Ahirana and the said name of the institution finds place at serial no. 1 in list "A". Similarly name of Ruma Singh finds place at serial no. 813 and she has been accorded placement at Block Meja, Primary institution Ahirana ka pura. Seniority list has been taken in descending order. List of institution mentioned in List "A" and List B has been utilized in ascending order and following such way and manner institution has been allotted to female teachers. Qua the said matter query has been made as to why the said procedure has been adhered to, wherein there is no element of choice of female teacher involved, then before this Court justification has been sought to be given that as list "A" pertains to institution wherein no teachers are there and therein senior teachers would not like to prefer to go, in view of this procedure has been adhered by according placement to junior most incumbent first in the closed institution and adopting the same way and manner starting from bottom of seniority posting has been made from the list "A" of institutions mentioned as closed institution and thereafter from the List B in reference to single teacher institution, and same has accordingly been filled up. 
This particular formula adopted by the authorities, in the opinion of the Court, is erroneous and mechanical and without their being any application of mind at the point of time when institution has been allotted whereas under the relevant Rules, female teachers have been given a right to exercise their choice/option in the matter of posting as the language used is that posting would be given in one of these schools. The Rules in question have further proceeded to mention, in Rule 8(1) (c) that if by virtue of posting of newly appointed or promoted teachers the primary and upper primary schools of backward class gets saturated i.e no post of teacher is vacant in those schools, then handicapped and female teachers on their choice can be adjusted against the vacant post of general blocks from these saturated class. Said provisions, supports the plea of exercise/choice even where no post of teacher is available. At the stage, when option already exercised could not be given effect to on account of said institutions already opted by others, then fairness and transparency demanded to give such female teachers, as per their seniority, choice to be posted in remaining institutions of List A and List B as per their seniority status. 
Fact of the matter is that seniority from bottom has been taken into consideration while according placement in stead of proceeding to adopt procedure wherein posting ought to have been accorded on the basis of seniority and as per choice expressed by them qua the left out institution. Procedure adopted is mechanical with no element of application of mind on choice front. Entire list prepared after options have exhausted, are an outcome of formula devised i.e taking name of incumbents starting from the juniormost female in descending order of the seniority list prepared and matching the same with the list of institution prepared as. List A and List B in ascending order. Choice has been given a complete good bye in the facts of the present case, qua left out female teachers. 
In view of this, opinion of the Court is that much more transparent procedure ought to have been adopted and some real exercise ought to have been undertaken specially when there is provision of option and in respect of female teachers they have to be accorded placement as per their choice in stead of proceeding to act on formula. In such a situation as it has been contended that in district Varanasi , Azamgarh and Jaunpur where choicest institutions were not available, procedure of counselling has been adopted, on the directives of State Government, as such, such procedure ought to have been adopted in the present case also, and accordingly it is hereby directed that District Level Posting Committee shall once again re-visit the entire exercise preferably within two months from the date of presentation of certified copy the order passed by this Court. 
In the meantime teachers, who have been accorded placement which has been so accorded to them should join at the transferred place and it is clarified that their joining and posting shall abide by fresh decision which would be taken by the authority concerned as already mentioned above. This order has been passed keeping in view the larger interest i.e the interest of institution and the students at large. 
For the reasons stated hereinabove both the writ petitions are allowed to the said extent and the impugned list dated 06.10.2012 shall abide by fresh decision to be taken by the District Level Posting Committee. 
No orders as to cost. 
Dated 29.11.2012 
Dhruv 



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Tuesday, November 7, 2017

Transfer News - बिभा सिंह की तर्ज पर ट्रांसफर पाने वालीं की झड़ी लगी, सचिव को निर्णय लेने के निर्देश - Husband Wife Posting Same Place

Transfer  News - बिभा सिंह की तर्ज पर ट्रांसफर पाने वालीं की झड़ी लगी, सचिव को निर्णय लेने के निर्देश 
Husband Wife Posting Same Place



HIGH COURT OF JUDICATURE AT ALLAHABAD 

?Court No. - 19 

Case :- WRIT - A No. - 51027 of 2017 

Petitioner :- Smt. Punam Kumari 
Respondent :- State Of U.P. And 2 Others 
Counsel for Petitioner :- Shri Krishna Mishra 
Counsel for Respondent :- C.S.C.,Santosh Kumar 

Hon'ble Suneet Kumar,J. 
Heard the learned counsel for the parties. 
Petitioner is working as Assistant Teacher, whereas, husband of the petitioner is residing in Delhi Cantt. and is working with Indian Armed Force (Civilian). 
Petitioner by the instant writ petition seeks the following relief : 
"i.) issue a writ, order or direction in the nature of mandamus directing the respondent No. 2 to transfer the petitioner from Primary Vidhyalaya Vizidpur Khurd, Block Khatauli, District Muzaffar Nagar to some Primary Vidhyalaya in District Ghaziabad." 
Learned counsel for the petitioner has placed reliance upon decision rendered by this Court in Bibha Singh Kushwaha vs. U.P. Basic Education Board and others (Writ A No. 30808 of 2017) decided on 19 July 2017. 
Learned counsel appearing for the second respondent would submit that the second respondent-Secretary, Basic Education Board, Allahabad, shall pass appropriate order expeditiously. 
In regard thereto, writ petition, on consent, stands disposed of directing the second respondent-Secretary, Basic Education Board, Allahabad, to consider and decide the representation of the petitioner by a reasoned and speaking order in accordance with law, in terms of decision rendered in Bibha Singh (supra) expeditiously, preferably, within eight weeks from the date of filing of certified copy of this order. 
It is made clear that the Court has not considered the claim and contention of the petitioner on merits. 
Order Date :- 2.11.2017 
S.Prakash 



HIGH COURT OF JUDICATURE AT ALLAHABAD 

?Court No. - 19 

Case :- WRIT - A No. - 51536 of 2017 

Petitioner :- Vinita Rai 
Respondent :- U.P. Basic Education Board,Allahabad Thru.Its Secy. & 2 Ors. 
Counsel for Petitioner :- Abhishek Kumar,Anjani Kumar Rai 
Counsel for Respondent :- Ras Bihari Pradhan 

Hon'ble Suneet Kumar,J. 
Heard learned counsel for the parties. 
Petitioner is working as assistant teacher in Junior Basic School, Surwat-I, Block Kasimabad, District Ghazipur, whereas, husband of the petitioner is working as assistant teacher in Junior Basic School, Delhupur, Block Lalganj, District Pratapgarh. 
By means of the instant writ petition, petitioner seeks the following relief: 
"I. To issue writ, order or direction in the nature of mandamus commanding the respondents to transfer the husband of petitioner, posted as Assistant teacher in the Junior Basic School run by U.P. Board of Basic Education at District Pratapgarh to District Ghazipur or transfer the petitioner posted as Assistant Teacher in Junior Basic School run by U.P. Board of Basic Education at District Ghazipur to District Pratapgarh." 
Learned counsel for the petitioner has placed reliance upon decision rendered by this Court in Bibha Singh Kushwaha Versus U.P. Basic Education Board and others (Writ-A No. 30808 of 2017) decided on 19 July 2017. 
Learned counsel appearing for the first respondent would submit that the first respondent, U.P. Basic Education Board, Allahabad through its Secretary, shall pass appropriate order expeditiously. 
In regard thereto, writ petition, on consent, stands disposed of directing the first respondent, U.P. Basic Education Board, Allahabad through its Secretary, to consider and decide the representation of the petitioner by a reasoned and speaking order in accordance with law, in terms of decision rendered in Bibha Singh (supra) expeditiously, preferably, within eight weeks from the date of receipt of certified copy of this order. 
It is made clear that the Court has not considered the claim and contention of the petitioner on merits. 
Order Date :- 3.11.2017 
K.K. Maurya 


HIGH COURT OF JUDICATURE AT ALLAHABAD 

?Court No. - 19 
Case :- WRIT - A No. - 51525 of 2017 
Petitioner :- Smt. Talat Parveen 
Respondent :- State Of U.P. And 3 Others 
Counsel for Petitioner :- Dhirendra Kumar Srivastav,Rajiv Sisodia 
Counsel for Respondent :- C.S.C.,Daya Ram,Shivam Yadav 

Hon'ble Suneet Kumar,J. 
Heard learned counsel for the parties. 
Petitioner is working as Headmaster in Primary School Hadipur Kalan, Block and District Amroha, whereas, husband of the petitioner is working as assistant teacher in Primary School, Jaroda, District Meerut. 
By means of the instant writ petition, petitioner seeks the following relief: 
"(i) Issue a writ, order or direction in the nature of mandamus directing the respondent no. 2 to decide the representation of the petitioner dated 05.10.2017 as per provision of the Rule 8(d) of the Uttar Pradesh Basic Education (Teachers) (Posting) Rules, 2008;" 
Learned counsel for the petitioner has placed reliance upon decision rendered by this Court in Bibha Singh Kushwaha Versus U.P. Basic Education Board and others (Writ-A No. 30808 of 2017) decided on 19 July 2017. 
Learned counsel appearing for the second respondent would submit that the second respondent, shall pass appropriate order expeditiously. 
In regard thereto, writ petition, on consent, stands disposed of directing the second respondent, Board of Basic Education, Allahabad through Secretary, to consider and decide the representation of the petitioner by a reasoned and speaking order in accordance with law, in terms of decision rendered in Bibha Singh (supra) expeditiously, preferably, within eight weeks from the date of receipt of certified copy of this order. 
It is made clear that the Court has not considered the claim and contention of the petitioner on merits. 
Order Date :- 3.11.2017 

K.K. Maurya 


HIGH COURT OF JUDICATURE AT ALLAHABAD 

?Court No. - 19 

Case :- WRIT - A No. - 51543 of 2017 

Petitioner :- Smt. Heena 
Respondent :- State Of U.P. And 3 Others 
Counsel for Petitioner :- Manisha Chaturvedi 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav,Ram Prakash Shukla 

Hon'ble Suneet Kumar,J. 
Heard learned counsel for the parties. 
Petitioner is working as assistant teacher at Primary School, Bairi Inarapar, Block Deegh, District Sant Ravidas Nagar (Bhadohi), whereas, husband of the petitioner is working as Lecturer, Biology in Mustafa Rasheed Sherwani Inter College, Salahpur, Allahabad. 
By means of the instant writ petition, petitioner seeks the following relief: 
"i) Issue a writ, order or direction in the nature of mandamus commanding/directing the respondents (especially, the respondent no. 2) to transfer petitioner as Assistant Teacher of Parishadiya Primary School from her present place of posting i.e., Primary School, Bairi Inarapar, Block Deegh, District Sant Ravidas Nagar (Bhadohi) to District Allahabad in view of the provisions contained under Rule 8(2)(d) of the U.P. Basic (Teachers)(Posting) Rules, 2008 (as amended in the year 2010)." 
Learned counsel for the petitioner has placed reliance upon decision rendered by this Court in Bibha Singh Kushwaha Versus U.P. Basic Education Board and others (Writ-A No. 30808 of 2017) decided on 19 July 2017. 
Learned counsel appearing for the first respondent would submit that the third respondent, District Basic Education Officer, Sant Ravidas Nagar (Bhadohi), shall pass appropriate order expeditiously. 
In regard thereto, writ petition, on consent, stands disposed of directing the third respondent, District Basic Education Officer, Sant Ravidas Nagar (Bhadohi), to consider and decide the representation of the petitioner by a reasoned and speaking order in accordance with law, in terms of decision rendered in Bibha Singh (supra) expeditiously, preferably, within eight weeks from the date of receipt of certified copy of this order. 
It is made clear that the Court has not considered the claim and contention of the petitioner on merits. 
Order Date :- 3.11.2017 

K.K. Maurya 





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Saturday, November 4, 2017

पति पत्नी आधार पर ट्रांसफर की ढेरों याचिकाएं दाखिल, बिभा सिंह कुशवाह की तर्ज पर सभी आदेशों में सचिव को निर्देश दिया कि याची के ट्रांसफर रिप्रेजेंटेशन आधार पर विचार करे, क्लियर ऑर्डर किसी मे भी नही , देखें केस - -

पति पत्नी आधार पर ट्रांसफर की ढेरों याचिकाएं दाखिल, बिभा सिंह कुशवाह की तर्ज पर सभी आदेशों में सचिव को निर्देश दिया कि याची के ट्रांसफर रिप्रेजेंटेशन आधार पर विचार करे, क्लियर ऑर्डर किसी मे भी नही , देखें केस - 


********
वकील साहब भी अपनी पत्नी का ट्रांसफर क्लियर ऑर्डर के तहत नही ले पाए, डायरेक्शन का ऑर्डर बिभा की तर्ज पर ले लिया है, बिभा का केस एक नजीर बन गया सैकड़ों ट्रांसफर की याचिकाओं के लिए:-
HIGH COURT OF JUDICATURE AT ALLAHABAD 

?Court No. - 19 

Case :- WRIT - A No. - 51221 of 2017 

Petitioner :- Bimla Joshi 
Respondent :- State Of U.P. And 3 Others 
Counsel for Petitioner :- Yash Tandon 
Counsel for Respondent :- C.S.C.,Jai Krishna Tiwari 

Hon'ble Suneet Kumar,J. 
Heard learned counsel for the parties. 
Petitioner is working as assistant teacher at Primary School Pipra Nandi Par, Block Nakha, Lakhimpur Khiri, whereas, husband of the petitioner who is a lawyer resides in Ghaziabad and being a lawyer he always goes to out of station. Petitioner's mother-in-law is aged about 73 years and very week lady, no one is to lookafter her. 
By means of the instant writ petition, petitioner seeks the following relief: 
"(i) to issue a writ, order or direction in the nature of mandamus directing the respondent no. 4 to decide the transfer application of the petitioner, dated 8.1.2017 and the subsequent reminders within a specific time as stipulated by this Hon'ble Court. 
(ii) to issue a writ, order or direction in the nature of mandamus directing the respondent no. 2 to transfer the petitioner from the institution to a Junior Basic School in district Ghaziabad (district of her husband and in laws)." 
Learned counsel for the petitioner has placed reliance upon decision rendered by this Court in Bibha Singh Kushwaha Versus U.P. Basic Education Board and others (Writ-A No. 30808 of 2017) decided on 19 July 2017. 
Learned counsel appearing for the fourth respondent would submit that the fourth respondent, Secretary, Basic Shiksha Parishad, Allahabad, shall pass appropriate order expeditiously. 
In regard thereto, writ petition, on consent, stands disposed of directing the fourth respondent, Secretary, Basic Shiksha Parishad, Allahabad, to consider and decide the representation of the petitioner by a reasoned and speaking order in accordance with law, in terms of decision rendered in Bibha Singh (supra) expeditiously, preferably, within six weeks from the date of receipt of certified copy of this order. 
It is made clear that the Court has not considered the claim and contention of the petitioner on merits. 
Order Date :- 2.11.2017 
K.K. Maurya 

**********
HIGH COURT OF JUDICATURE AT ALLAHABAD 

?Court No. - 19 

Case :- WRIT - A No. - 50964 of 2017 

Petitioner :- Surbhi Bansal 
Respondent :- State Of U.P. And 3 Others 
Counsel for Petitioner :- Babboo Ram 
Counsel for Respondent :- C.S.C. 

Hon'ble Suneet Kumar,J. 
Heard learned counsel for the parties. 
Petitioner is working as assistant teacher at Prathmik Vidyalaya Harshapur, Block Belasar, District Gonda, whereas, husband of the petitioner is working as assistant teacher District Hapur. 
By means of the instant writ petition, petitioner seeks the following relief: 
"i) To issue a writ, order or direction in the nature of mandamus commanding the respondents to consider and decide the representation of the petitioner dated 08.10.2017 (Annexure No. 4 to the writ petition) with regard to the transfer of the petitioner from Prathmik Vidyalaya Harshapur, Block Belsar District Gonda to any Basic School in District Hapur or any adjacent District without giving effect to the Government Order dated 13th June, 2017 issued by respondent no. 1." 
Learned counsel for the petitioner has placed reliance upon decision rendered by this Court in Bibha Singh Kushwaha Versus U.P. Basic Education Board and others (Writ-A No. 30808 of 2017) decided on 19 July 2017. 
Learned counsel appearing for the third respondent would submit that the third respondent, U.P. Basic Education Board, Allahabad through its Secretary, shall pass appropriate order expeditiously. 
In regard thereto, writ petition, on consent, stands disposed of directing the third respondent, U.P. Basic Education Board, Allahabad through its Secretary, to consider and decide the representation of the petitioner by a reasoned and speaking order in accordance with law, in terms of decision rendered in Bibha Singh (supra) expeditiously, preferably, within eight weeks from the date of receipt of certified copy of this order. 
It is made clear that the Court has not considered the claim and contention of the petitioner on merits. 
Order Date :- 2.11.2017 
K.K. Maurya 
*************
HIGH COURT OF JUDICATURE AT ALLAHABAD 

?Court No. - 19 
Case :- WRIT - A No. - 50903 of 2017 
Petitioner :- Roshni Singh 
Respondent :- U.P.Basic Education,Board,Allahabad And 3 Others 
Counsel for Petitioner :- Indra Raj Singh,Adarsh Singh 
Counsel for Respondent :- C.S.C.,Deo Dayal,Mrigraj Singh 

Hon'ble Suneet Kumar,J. 
Heard learned counsel for the parties. 
Petitioner is working as assistant teacher at Junior Basic School, Alampur, Sakaldiha, District Chandauli, whereas, husband of the petitioner is working as assistant teacher at Sarvoday Vidyapeeth Inter College, Mirganj, District Jaunpur. 
By means of the instant writ petition, petitioner seeks the following relief: 
"I. Issue a writ, order or direction in the nature of mandamus commanding the respondent no. 1 U.P. Basic Education, Board, Allahabad through its Secretary to consider the transfer of the petitioner from District Chandauli to District Jaunpur on the post of assistant teacher in any Junior Basic School of the District Jaunpur managed by U.P. Basic Education Board, within stipulated time as may be fixed by this Hon'ble court." 
Learned counsel for the petitioner has placed reliance upon decision rendered by this Court in Bibha Singh Kushwaha Versus U.P. Basic Education Board and others (Writ-A No. 30808 of 2017) decided on 19 July 2017. 
Learned counsel appearing for the first respondent would submit that the first respondent, U.P. Basic Education Board, Allahabad through its Secretary, shall pass appropriate order expeditiously. 
In regard thereto, writ petition, on consent, stands disposed of directing the first respondent, U.P. Basic Education Board, Allahabad through its Secretary, to consider and decide the representation of the petitioner by a reasoned and speaking order in accordance with law, in terms of decision rendered in Bibha Singh (supra) expeditiously, preferably, within eight weeks from the date of receipt of certified copy of this order. 
It is made clear that the Court has not considered the claim and contention of the petitioner on merits. 
Order Date :- 1.11.2017 

K.K. Maurya 
*********
HIGH COURT OF JUDICATURE AT ALLAHABAD 

?Court No. - 19 

Case :- WRIT - A No. - 49762 of 2017 

Petitioner :- Smt. Neelam Devi 
Respondent :- State Of U.P. And 3 Others 
Counsel for Petitioner :- Deepak Kumar Pal 
Counsel for Respondent :- C.S.C.,Jay Ram Pandey,Pranesh Dutt Tripathi 

Hon'ble Suneet Kumar,J. 
Heard the learned counsel for the parties. 
Petitioner is working as Assistant Teacher in Prathamik Vidhalaya Kothara Kantit Vikas Khand Chhianbey, District Mirzapur, whereas, husband of the petitioner is Assistant Clerk at U.P. Police Head Quarter, Allahabad. By the instant writ petition, petitioner seeks the following relief: 
Issue a writ order or direction in the nature of mandamus commanding the respondent no. 2 U.P. Basic Education Board, Allahabad, through its Secretary to consider transfer of the petitioner from District Mirzapur to District Kaushambi for posting on the post of Assistant Teacher in any Junior Basic Schools within stipulated time as may be fixed by this Hon'ble Court. 
Learned counsel for the petitioner has placed reliance upon a decision rendered in Bibha Singh Kushwaha vs. U.P. Basic Education Board and others (Writ - A No. 30808 of 2017) decided on 19 July 2017. 
Learned counsel appearing for the second and fourth respondent would submit that the second respondent-U.P. Basic Education Board, Allahabad, shall pass appropriate order expeditiously. 
In regard thereto, writ petition, on consent, stands disposed of directing the U.P. Basic Education Board, Allahabad, to consider and decide the claim/represention of the petitioner by a reasoned and speaking order in accordance with law, in terms of Bibha Singh (supra) case, expeditiously, preferably within a period of two months from the date of filing of certified copy of this order. 
It is made clear that the Court has not considered the claim and contention of the petitioner on merits. 
Order Date :- 27.10.2017 

Mukesh Kr. 
************
Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD 

?Court No. - 19 

Case :- WRIT - A No. - 50047 of 2017 

Petitioner :- Smt. Meena Chandra 
Respondent :- Secy. Basic Shiksha Parishad U.P. 
Counsel for Petitioner :- Ranjit Saxena 
Counsel for Respondent :- C.S.C.,Vikram Bahadur Singh 

Hon'ble Suneet Kumar,J. 
Heard the learned counsel for the parties. 
Petitioner is working as Assistant Teacher posted at Principal District Education and Training Institute Etawah, whereas, husband of the petitioner is Office Assistant Grade-2, Chief Engineer Cadre, and is residing in Harduaganj Power Station at Aligarh. By the instant writ petition, petitioner seeks the following relief: 
issue a writ, order or direction in the nature of mandamus directing the respondents to transfer the petitioner from Prathmic Vidyalaya, Dayalpura, Jaswant Nagar, Etawah to any of the School (1) Harduaganj Power Station Prathmic Vidyalaya (2) Prathmic Vidyalaya Chhota Jawan (3) Prathmic Vidyalaya Bada Jawan, (4) Prathmic Vidyalaya Khushalgarhi (5) Prathmic Vidyalaya Nagola as Assistant Teacher following the policy of husband and wife to be posted in one district as per the U.P. Govt. Policy dated 13.06.2017 No.1078/79-5-2016-15(149)/2010. 
Learned counsel for the petitioner has placed reliance upon a decision rendered in Bibha Singh Kushwaha vs. U.P. Basic Education Board and others (Writ - A No. 30808 of 2017) decided on 19 July 2017. 
Learned counsel appearing for the one and fourth respondent would submit that the first respondent-Secretary, Basic Shiksha Parishad, U.P., Govt. Allahabad, shall pass appropriate order expeditiously. 
In regard thereto, writ petition, on consent, stands disposed of directing the first respondent-Secretary, Basic Shiksha Parishad, U.P., Govt. Allahabad, to consider and decide the claim/representation of the petitioner by a reasoned and speaking order in accordance with law, in terms of Bibha Singh (supra) case, expeditiously, preferably within a period of two months from the date of filing of certified copy of this order. 
It is made clear that the Court has not considered the claim and contention of the petitioner on merits. 
Order Date :- 30.10.2017 
Mukesh Kr. 


 *********
HIGH COURT OF JUDICATURE AT ALLAHABAD 

?Court No. - 19 
Case :- WRIT - A No. - 49266 of 2017 
Petitioner :- Sangeeta Rathore 
Respondent :- State Of U.P. And 2 Others 
Counsel for Petitioner :- Neeraj Pandey 
Counsel for Respondent :- C.S.C.,Ashok Kumar 

Hon'ble Suneet Kumar,J. 
Heard the learned counsel for the parties. 
Petitioner is working as Assistant Teacher, whereas, husband of the petitioner is residing in Lalitpur and is working as D.L.R.C. in the Collector Office. 
Petitioner by the instant writ petition seeks the following relief: 
"a.) issue a writ, order or direction of a suitable nature commanding the respondent no. 2 to consider and decide the representation dated 20.7.2017 of the petitioner (Annexure No. 5 to the writ petition) with regard to the transfer of the petitioner from Prathmik Vidyalaya, Khamhaura-1, Block Mahua, District Banda to any Basic School in District Lalitpur on the grounds mentioned in the aforesaid representation without giving effect to the Government Order No. 1078/79-5-2016-15(149)/2017 Lucknow dated 13 June 2017 issued by Respondent no. 1 (Annexure No. 6 to the writ petition) within a stipulated time." 
Learned counsel for the petitioner has placed reliance upon a decision rendered in Bibha Singh Kushwaha vs. U.P. Basic Education Board and others (Writ A No. 30808 of 2017) decided on 19 July 2017. 
Learned counsel appearing for the second respondent would submit that the second respondent-Secretary, Basic Education Board, Allahabad, shall pass appropriate order expeditiously. 
In regard thereto, writ petition, on consent, stands disposed of directing the second respondent-Secretary, Basic Education Board, Allahabad, to consider and decide the representation of the petitioner by a reasoned and speaking order, in accordance with law, in terms of Bibha Singh (supra) expeditiously, preferably, within eight weeks from the date of filing of certified copy of this order. 
It is made clear that the Court has not considered the claim and contention of the petitioner on merits. 
Order Date :- 25.10.2017 

S.Prakash 





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Thursday, November 2, 2017

पति पत्नी को एक स्थान पर पोस्टिंग देने का इलाहबाद हाई कोर्ट का स्पष्ट आदेश देखें , पति पत्नी बैंक एम्प्लॉई हैं पति ने प्रमोशन छोड़ कर पत्नी की पोस्टिंग के स्थान पर ट्रांसफर लिया , Husband Wife Transfer at One Place in case of Bank Employees too, Husband declined promotion and taken posting at Wife's place of Posting

पति पत्नी को एक स्थान पर पोस्टिंग देने का इलाहबाद हाई कोर्ट का स्पष्ट आदेश देखें , पति पत्नी बैंक एम्प्लॉई हैं पति ने प्रमोशन छोड़ कर पत्नी की पोस्टिंग के स्थान पर ट्रांसफर लिया ,
Husband Wife Transfer at One Place in case of Bank Employees too,

Husband declined promotion and taken posting at Wife's place of Posting


HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH 

?Court No. - 3 

Case :- SERVICE BENCH No. - 1209 of 2015 

Petitioner :- Gyan Prakash Bajpai 
Respondent :- State Bank Of India Throu Its General Manager Lko.& Ors. 
Counsel for Petitioner :- Sharad Pathak 
Counsel for Respondent :- Sudeep Seth 

Hon'ble Shri Narayan Shukla,J. 
Hon'ble Akhtar Husain Khan,J. 
Heard Sri Sharad Pathak, learned counsel for the petitioner and Sri Sudeep Seth, learned counsel for the respondent Bank. 
By means of this petition, the petitioner has assailed the order dated 05.07.2015 passed by opposite party no.4-Branch Manager, Kanpur whereby he has been posted at Varanasi as also the order dated 15.07.2015 passed by opposite party no.3-Assistant General Manager, Lucknow whereby his representation to retain his posting at Kanpur has been rejected. 
The respondent-Bank has rejected the petitioner's representation on the ground that the petitioner has been allotted the place of posting at Varanasi on his promotion and in terms of the guidelines that on promotion, he has to leave out of Kanpur. 
Learned counsel for the petitioner has submitted that the petitioner is working in the State Bank of India at Kanpur and his� wife is also posted in the Bank of Baroda at Kanpur. The Government of India as well as the Bank concerned has framed the policy to post the spouse at the same station or to the nearest station. 
In view of the policy framed by the Bank, learned counsel for the petitioner has contended that the petitioner has a right of posting at Kanpur itself since his wife is posted at Kanpur. In support of his submission, he has also cited a decision of a Co-ordinate Bench of this Court rendered in Smt. Deepa Vashishtha Vs. State of U.P. and others; 1996 (73) FLR946 (Alld) in which this Court held that the administration is bound to follow the guidelines which has to be adhered in its terms. In this case, the identical issues was dealt with and the Court opined that the husband and wife be transferred to different places only in exceptional circumstances. It is imperative for the authority concerned to allow the posting of husband and wife at one place, though the posting of spouse at different places has not been declined but it has been held that the spouse posting at different place may create a difficulty in their family. 
In view of the aforesaid submissions, learned counsel for the petitioner has submitted that his request for allowing him to continue at Kanpur on the post of promotion be considered. 
In reply, Mr. Sudeep Seth has submitted that the order dated 05.07.2015, whereby, the petitioner has been allotted the place of posting at Varanasi, had been subject matter of the Writ Petition No.666 (M/B) of 2015, wherein, this Court dealt with the matter and held that "these are not matters involving any statutory violation. The transfer is an exigency of service and hence we see no reason to entertain the petition. The case of the petitioner is that his spouse is working and is presently posted at Kanpur. Such issue or individual hardships are for the competent authority to decide in accordance with the prevalent norms". This Court left it open to the petitioner to submit representation in this regard and further observed that in case the petitioner submits representation before the competent authority that may be looked into expeditiously and an appropriate orders, in accordance with law, may be passed. 
The order dated 15.07.2015 is a result of the petitioner's representation though learned counsel for the petitioner has submitted that it is absolutely non-speaking order, yet when we examined the order, we found that the authority concerned has observed that the petitioner was well aware with the fact that on promotion he would be allotted to other administrative office as per the Bank's Guidelines. 
Therefore, we do not appreciate the petitioner's contention to invoke the jurisdiction under Article 226 of the Constitution of India against the order impugned. 
In the result, the writ petition stands dismissed. 
Order Date :- 13.8.2015 
akverma������������������������������������������������������������������������������������������������ 
After dictation of the aforesaid order but before signing it, the petitioner moved a supplementary affidavit, whereby, he has shown his readiness to forego his promotion in view of great family problems and illness of his wife, who is suffering from liver abscess. The supplementary affidavit is taken on record. 
Since, the petitioner has been posted at Varanasi on promotion and now he foregoes his promotion, we, hereby, direct the concerned authority of the Bank to reconsider his posting at Kanpur on his original post. On his posting at Kanpur at the original post, the petitioner's promotion to the post of Junior Management Grade Scale-I shall stand cancelled. 
Order Date :- 13.8.2015 
akverma 
(Akhtar Husain Khan,J)��������� (Shri Narayan Shukla,J) 



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पति पत्नी को एक स्थान पर पोस्टिंग देने का इलाहबाद हाई कोर्ट का स्पष्ट आदेश देखें , अगर कोई प्रशासनिक अड़चन , नियम क़ानूनी अड़चन न हो तो ट्रांसफर देने में कोई समस्या नहीं, Husband Wife Posting at Same Place, Good Order

पति पत्नी को एक स्थान पर पोस्टिंग देने का इलाहबाद हाई कोर्ट का स्पष्ट आदेश देखें , अगर कोई प्रशासनिक अड़चन , नियम क़ानूनी अड़चन न हो तो 
ट्रांसफर देने में कोई समस्या नहीं,
Husband Wife Posting at Same Place, Good Order 



DEEPA VASHISHTHA V. STATE OF U.P. AND ORS.


CASE NO.
Civil Misc. W. P. No. 31810 of 1995
JUDGES
Mr. Justice B.M. Lal
Mr. Justice R.K. Mahajan

ADVOCATES
R.G.Padia
Prakash Padia

ACTS
article 226 of the constitution of india,

22 NOV 1995  |   ALLAHABAD HIGH COURT

B. M. Lal, J.-

By this petition under article 226 of the constitution of india, petitioner-Salt. Deepa Vashistha challenges an order dated 26-9-1995, passed by the Director, Higher Education, U.P., Allahabad (respondent No. 2) contained in Annexure 28 to this petition.

2. By the order impugned, while rejecting petitioner's representations dated 6-8-1995, 25-8-1995 and 28-8-1995, she is directed to join at Ranikhet, district Almora where she has been transferred vide order dated 4-6-1994 (Annexure 2).

3. For brevity of the case, few facts which are necessary to be stated for the purpose of this case, are thus :

4. Petitioner Smt. Deepa Vashistha, is a Lecturer (Vocal Music) pre­sently posted at Government Post Graduate Degree College, Rampur,

5. Petitioner's husband-Dr. S. C. Vashistha is also in Government service and presently posted at Project Officer, Non-Formal Education, at Rampur. Thus, husband wife both are at Rampur.

6. The order dated 4-6-1994 transferring the petitioner from Rampur to Ranikhet referred to above, was challenged by the petitioner in Writ Petition No. 674 of 1994 before Lucknow Bench of this Court, and that petition was finally disposed of vide order dated 1-7-1994 (Annexure 5) whereby the respon­dents were directed to decide petitioner's representation and in the meantime not to compel her to join at Ranikhet.

7. Accordingly, the petitioner's representation was disposed of, but the same did not find favour by order dated 22-7-1995 (Annexure 7).

8. Thereafter, successive representations were made, but of no avail.

9. Therefore, the petitioner filed second petition being Writ Petition No. 22620 of 1995 before this Court against the said transfer order dated 4-7-1994 as well as the order dated 22-7-1994 rejecting the representation.

10. This Court presided over by Hon'ble Mr. Justice Paritosh K. Mukherjee and Hon'ble Mr. Justice Shitla Pd. Srivastava vide order dated 21-8-1995 directed the respondents to decide petitioner's representation within two months and further directed that till disposal of the representation the transfer order shall not be given effect to.

11. The order of this Court dated 21-8-1995 is reproduced herein below in verbatim :-

"By means of the instant petition, the petitioner has challenged the order of transfer, dated 22-7-1994, set out at Annexure 7 to the writ petition.

Against the said order, the petitioner has filed two representations dated 30-8-1994 and 10-4-1995 (Annexures 8 and 13 to the writ petition) which are pending before (Higher Education), Directorate of Higher Education, Allahabad respondent No. 2.

Annexure-14 is a communicate dated 17-5-1995 which has been sent to respondent No. 2 by the Chancellor of the Universities i. e, Governor of the State. The relevant portion of the said com­munication is quoted :

"Nirdeshanusar amodh hai ki Kripya Smt. Deepa Vashistha ke sthanantran ko nirast kar ki gayi karwahi se kulpati mahodaya ke suchanarth mujhe avgat karane ka kast Karen. Yadi is sambandh men koi kathinai ho to use avgat karey koanki yeh prakaran kafi samai aapke vibhag me Iambi thai or kai baar patra likhne ke baad bhi koi karwahi nahin ki gayi hai. Yadi aap Lucknow aa rahen hon to kripya vaktigat roop se maha-mahitn se milkar unhen sthit se avgat kara den."
Thus, it will appear from the aforesaid observations of the Chancellor of the Universities that a direction was issued to the respondent to give suitable posting at the same place to both the petitioner and her husband, but he did not comply the said direction.

That being the factual position, we direct that aforesaid representations filed by the petitioner shall be decided by respondent No. 2 within two months from the date of production of a certified copy before him in the light of the directions issued by the Chancellor of the Universities and relevant Government Orders operating in the field.

In the meantime, the impugned order dated 22-7-1994 shall not be given effect to until the representations of the petitioner is dig-posed of by respondent No. 2.

With the aforesaid directions/observation, the writ petition is disposed of."

12. The Director Higher Education (respondent No. 2) in pursuance of the order of this Court dated 21-8-1995, has passed the order dated 26-9-1995, which is under challenge in this petition.

13. It is submitted on behalf of the petitioner that direction issued by this Court on 21-8-1995 referred to above, has not been complied with. The petitioner's representation has been disposed of in a cursory manner and not in consonance with the Court's order dated 21-8-1995.

14. It is further submitted that instant transfer is contrary to various Government Orders/guidelines/instructions issued time to time in this regard which specifically speak that the spouses (husband and wife) may be posted at the same station.

15. In respect of transfer of employees, law is well settled. Time and again the Courts have ruled that transfer of Government employee is a con­comitant of service. Since transfers are made for administrative reasons or in public interest, therefore, no interference with the same is called for in the writ jurisdiction, save in exceptional cases where ex facie it is demonstrated that $he transfer is contrary to any statutory mandatory provisions of law or it is vitiated on the ground of mala fide or it has been made in colourable exercise of power such as frequent transfers within a short span of period resulting into harassment of the employee on the one hand and unnecessary loss to the public exchequer on the other or transfer is made during mid academic session resulting into disturbance and discontinuation of studies of the children of transferee.

16. But, if transfer is made against any guidelines or instructions having no statutory force of law, that cannot attract right of the employee to chal­lenge the same in the writ jurisdiction. At the most what the employee could do in this regard is that he may represent the matter to the higher depart­mental authority apprising him of his problems and difficulties, and it is for the authority to consider the1 plight of the transferee. See AIR 1991 SC 532 -Mrs. Shilpi Rose v. State of Bihar, JT 1993 (3) SC 678-Union of India v. S. L. Abbas and 1994 (2) Supp SCC 666-Director of School Education, Madras v. O. Katuppa Thevan.

17. However, in a recent pronouncement of the Apex Court rendered in Home Secretary, U. T. Chandigarh v. Darshjit Singh Grewal, JT 1993 (4) SC 387, Their Lordships have ruled that policy guidelines are relatable to the executive power of the administration, and having enunciated a policy of general application and having communicated it to all concerned, the Adminis­tration is bound by it. It can, no doubt, change the policy but until that is done, it is bound to adhere to it.
18. Now, coming to the case in hand, the Government Orders/guide­lines/policy said to have not been adhered to, are contained in Annexures 16, 17 and 18 to this petition and they lay down thus :

(1) If the couple is in education department, they both should be kept at one station at the time of appointment and transfer.

(2) If one of the husband and wife, belongs to education department and another to different department, even then efforts should be made to transfer one of them to that place where the other is posted.

(3) Husband and wife posted at the same station should not be transferred.

(4) On account of their postings to different places, husband and wife suffer difficulties, therefore, as far as possible they should be kept at one place.

19. Thus, the guidelines in respect of couple in Government service, have taken care of that husband and wife should be placed at one station. Placing the words "as far as possible", it is couched not in negatives form and accordingly the same is interpreted by the Apex Court.

20. Taking into account the human considerations and social needs, the aforesaid guidelines have been framed and the basic idea behind it is that whole set up of the family may not be disturbed notwithstanding the fact that said guidelines are not in imperative form. Thus, it needs consideration with positive approach till the policy is not changed or amended in view of the decision in Home Secretary, V. T. Chandigarh's case (supra), and if it is not possible to keep husband and wife at one place, cogent reasons in such cases are excepted to be assigned so that transferee husband or wife, as the case may be, able to know the reasons. If any policy has been framed and still opera­tive, the executive actions are excepted to be in conformity with the same and not to negate it.

21. In other words, in the garb of public interest or administrative exigencies, it is not at the whims of the authority to disturb the family by transferring one of the husband and wife to a different place since the guidelines are not in imperative form or they have no force of law. If the administrative exigencies or public interest so requires, certainly husband and wife may be transferred to different places but only in exceptional cases i, e. rarest of rare cases, for which no illustration can be given.

22. But, now a days it is invariably seen that for the reasons best known to the department, this kind of transfers are being made disturbing the couple. In the opinion of this Court, such practice needs to be deprecated.

23. What kind of perplexities and difficulties, a spouse could confront with in the event of another being posted at a different place, can easily be imagined by anyone by putting himself/herself in that situation and then it would be realised that now torturous and painful it really is, to leave husband and children at one place and to lead a solitary life at the transfer place. Therefore, to avoid such disturbance and mental agony, the aforesaid guide­lines are framed.

24. Thus, from the discussion aforesaid, the order impugned dated 26-9-1995 (Annexure 28) being not in consonance with the earlier order passed by this Court on 21-8-1995, therefore, we direct the authority concerned to reconsider the order impugned in the light of what we have said above and decide the petitioner's representation afresh expeditiously, to say, within a period of 15 days from the date of presentation of a certified copy of this order.

25. With the above direction, this petition is finally disposed of.

Petition disposed of.




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