Transfer Order - High court : - In this order Court found frequent transfer and arbitrary, Aur authority ko kaha ki transfer ko aage se sahi tarh se kiya jaye

Transfer Order - High court : - In this order Court found frequent transfer and arbitrary, Aur authority ko kaha ki transfer ko aage se sahi tarh se kiya jaye, 

court ke purview me nahin hai transfer matter par seedhe dakahl dene ka, lekin guideline ke virudd, malafide/durbhavna se, akaran va bager prshashnik karno ke hone vale transfer me court dakhal de sakta hai

good

Karnataka High Court

Sri Somanna vs The Commissioner, Bbmp on 1 April, 2014

Author: A.N.Venugopala Gowda

                               1




     IN THE HIGH COURT OF KARNATAKA AT BANGALORE
                                                  ®
          DATED THIS THE 1ST DAY OF APRIL, 2014

                           BEFORE

     THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA

            WRIT PETITION NO.6577/2014 (S-TR)

BETWEEN:

Sri Somanna,
S/o. B. Channaiah,
Aged 57 years,
R/at No.681, 10th Main Road,
3rd Block, Rajajinagar,
Bangalore.
                                           ...PETITIONER
(By Sri S.N. Bhat, Adv.)

AND:

1.      The Commissioner,
        B.B.M.P.,
        Bangalore - 560 002.

2.      The Deputy Commissioner
        (Administration),
        B.B.M.P.,
        Bangalore - 560 002.

3.      Megaraj,
        Aged 56 years,
        Working as Work Inspector in the
                               2




      Office of the Superintending Engineer,
      B.B.M.P.,
      Ward No.121, Magadi Road,
      Bangalore - 560 076.
                                          ...RESPONDENTS

(By Sri M.R. Shailendra, Adv. for R1 & R2;
    Sri B.K. Sampath Kumar, Adv. for R3)

     This petition is filed under Articles 226 and 227 of
the Constitution of India, praying to quash the order
passed by the 2nd respondent dated 03.02.2014 vide
Annexure-D.

     This petition coming on for preliminary hearing in 'B'
group this day, the Court made the following:

                           ORDER

The petitioner and the respondent No.3 are working as Work Inspectors in Cotton Pet Sub-Division of Bruhat Bangalore Mahanagara Palike. By an Office Order dated 03.02.2014 vide Annexure-D, the petitioner having been posted to Ward No.121 and the respondent No.3, who was working in Ward No.121, having been posted to Ward No.109, this writ petition was filed assailing the order as at Annexure-D.

2. Sri S.N. Bhat, learned advocate, contended that the impugned order of transfer is arbitrary, since, there is frequent shifting of the petitioner from one Ward to another, on account of interference of politicians and at the behest of the respondent No.3 and hence, interference is called for.

3. Sri M.R. Shailendra, learned advocate, for respondents 1 and 2, on the other hand, contended that the impugned order was issued in exigencies of the service and being an administrative decision and also that the offices of Ward Nos.109 and 121 being in one and the same building, cannot be construed as transfer and cannot be permitted to be assailed in the writ jurisdiction under Article 226 of the Constitution of India.

4. Sri B.K. Sampath Kumar, learned advocate, for respondent No.3, submitted that there being no rules framed by the BBMP in respect of transfers and that the transfers being effected on the basis of Councilors' working relationship with the Work Inspectors and the petitioner having wielded political influence and got his transfers effected earlier, cannot assail the order as at Annexure-D.

5. While hearing the case, after noticing from the record that the petitioner and the respondent No.3 had been posted as against each other's post frequently and since, both the petitioner and the respondent No.3 had secured recommendations from the Corporators, MLAs and also Ministers, for their retention and postings, the Commissioner of BBMP was directed to appear before the Court. Sri Lakshmi Narayana, Commissioner, BBMP, appeared on 10.03.2014. In view of the displeasure expressed on the frequent transfers and postings effected, though within the same zone, but on the basis of the recommendation letters issued by the politicians, which is not in administrative exigencies, the Commissioner was directed to come up with a proposal to avoid the frequent transfers and to prevent the political interference. The Commissioner submitted that a resolution dated 30.08.2012 was adopted by the BBMP with regard to the minimum tenure of Group 'A' and 'B' Officers, as two years and in respect of Group 'C' and 'D' Cadres, as three years, in a place. The Commissioner submitted that, within the zone, the power to transfer has been delegated to the Joint Commissioners and in view of the developments noticed in this case, he assured that a Circular would be immediately issued, restricting the transfer and posting of Group 'C' and 'D' employees, within a zone, for a period of three years.

6. Sri M.R. Shailendra, filed a Memo and produced a Circular bearing No.B12(6A)/PR/363/2013-14, dated 20.03.2014, issued by the Commissioner, BBMP and submitted that, henceforth, the transfers/postings of Group 'C' and 'D' employees would be regulated in terms of the said Circular.

7. In SARVESH KUMAR AWASTHI Vs. U.P. JAL NIGAM, (2003) 11 SCC 740, Apex Court having noticed that transfers had been effected on the recommendations, either of Ministers or MLAs/MPs/MLCs, has held as follows:-

"In our view, transfer of officers is required to be effected on the basis of set norms or guidelines. The power of transferring an officer cannot be wielded arbitrarily, mala fide or an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned. For better administration the officers concerned must have freedom from fear of being harassed by repeated transfers or transfers ordered at the instance of someone who has nothing to do with the business of administration."

8. In MOHD. MASOOD AHMAD Vs. STATE OF U.P, (2007) 8 SCC 150, considering a contention that the impugned transfer order of the appellant was made at the instance of an MLA and that the counter affidavit filed by the respondents stated that the appellant was transferred due to the complaints against him, Apex Court has held as follows :-

"............in our opinion, even if the allegation of the appellant is correct that he was transferred on the recommendation of an MLA, that by itself would not vitiate the transfer order. After all, it is the duty of the representatives of the people in the legislature to express the grievances of the people and if there is any complaint against an official the State Government is certainly within its jurisdiction to transfer such an employee. There can be no hard- and-fast rule that every transfer at the instance of an MP or MLA would be vitiated. It all depends on the facts and circumstances of an individual case."

9. In the case of SRI MRUTHYANJAYA N.V., Vs. STATE OF KARNATAKA AND OTHERS, W.P.No.56276/2013 decided on 12.12.2013, a transfer effected from the Panchayat Raj Engineering Division, Bangalore Rural, to the office of the Executive Engineer, Hebbal Division, BBMP, Bangalore, having been assailed and upheld by the Karnataka Administrative Tribunal, when challenged in a writ petition, a Division Bench of this Court, by taking note of the definition of 'transfer' under Rule 8(49) of the Karnataka Civil Services Rules, has held that the transfer from one office to another office within the same headquarters cannot be treated as transfer and none can make a grievance against such an order of transfer from one office to another office on the ground that it is premature or arbitrary.

10. Petitioner and the respondent No.3 are holding transferable posts. Hence, the Commissioner or Delegated Authority, can effect the transfer/posting in exigencies of service and in the administrative interest and interference by the Courts, with the administrative decisions/ transfer orders, should only be in rare cases, as has been held by the Apex Court in catena of decisions, (see B. Varadha Rao Vs. State of Karnataka and others, AIR 1986 SC 1955,Mrs.Shilpi Bose vs. State of Bihar, AIR 1991 SC 532, Union of India vs. N.P. Thomas, AIR 1993 SC 1605 and Union of India vs. S.L. Abbas, (1993) 4 SCC 357), since, transfer is an incident of service and is made in administrative interest. However, if there is 'malice' based on firm foundation of facts pleaded and established and not merely on insinuations and vague allegations, there can be interference.

11. In RAJENDRA SINGH Vs. STATE OF U.P., (2009) 15 SCC 178, Apex Court has held that the Courts are always reluctant to interfere with transfer of employees unless such transfer is vitiated by violation of some statutory provision or suffers from mala fides.

12. In the instant case, it is to be observed that the challenge to the impugned order of transfer is not based on the violation of any statutory provision regulating service conditions of the employee or by an Authority not competent to do so. The case of the petitioner is that there is frequent transfer and the same is arbitrary. The record of the case shows that both the petitioner and the respondent No.3 have produced the minutes/notes of Ministers, MLAs and the BBMP Councilors, in the matter of their posting, to a particular Ward. Undisputedly, the offices of both the Wards, wherein, the petitioner and the respondent No.3 are working are situated in one and the same building. Thus, there can be no hardship of whatsoever nature either to the petitioner or to the respondent No.3 on account of the transfer, though more than once in an year i.e., from the one Ward to another Ward in the same Sub-Division of BBMP.

13. S.69 of the Karnataka Municipal Corporations Act, 1976 (for short 'the Act'), reads thus:

"69. Control over Corporation Establishment.- Subject to the provisions of this Act, rules and regulations, the Commissioner shall specify the duties of persons borne on the Corporation establishment and exercise powers of supervision and control over them and decide all questions relating to their conditions of service."

The Commissioner, BBMP, has issued the Circular bearing No.B12(6A)/PR/363/2013-14, dated 20.03.2014, in exercise of the power vested in him under the above provision. The material portion of the Circular reads as follows:

"C¢üPÁj/£ËPÀgÀgÀÄUÀ¼ÀÄ ¤µÉ× ªÀÄvÀÄÛ ²¹Û¤AzÀ PÁAiÀÄð¤ªÀð»¸À®Ä ¸ÁzsÀåªÁUÀĪÀAvÉ ¥Àæw ªÀµÀð ¸ÀPÁðgÀzÀ ªÀUÁðªÀuÉ ªÀiÁUÀð¸ÀÆaUÀ¼ÀAvÉ ªÉÄÃ/dÆ£ï wAUÀ¼ÀÄUÀ¼À°è ªÀiÁvÀæ ¸ÁªÀiÁ£Àå ªÀUÁðªÀuÉ ªÀiÁqÀ¯ÁUÀĪÀÅzÀÄ. E£ÀÄß ªÀÄÄAzÀÉ UÀÆæ¥ï '¹' ªÀÄvÀÄÛ 'r' £ËPÀgÀgÀ£ÀÄß ªÀÄÆgÀÄ ªÀµÀðUÀ¼ÀÄ ºÁUÀÆ ªÉÄîÝeÉð C¢üPÁjUÀ¼À£ÀÄß PÀ¤µÀ× JgÀqÀÄ ªÀµÀðUÀ¼À CªÀ¢üAiÉÆ ¼ÀUÉ ªÀUÁðªÀuÉAiÀÄ£ÀÄß ªÀiÁqÀĪÀAw®è. ¸ÁªÀiÁ£Àå ªÀUÁðªÀuÉ CªÀ¢ü ªÀÄÄVzÀ £ÀAvÀgÀ F PɼÀPÀ AqÀ ¸ÀAzÀ¨sÀðUÀ¼À£ÀÄß ºÉÆgÀvÀÄ¥Àr¹ E£ÁåªÀÅzÉà ¸ÀAzÀ¨sÀðUÀ¼À°è ªÀUÁðªÀuÉ ªÀiÁqÀĪÀAw®è.

1. C¢üPÁj/£ËPÀgÀgÀÄUÀ¼À «gÀÄzÀÞ zÀÆgÀÄUÀ¼ÀÄ zÁR¯ÁV, zÀÆj£À°è ªÉÄïÉÆ ßlPÉÌ ¸ÀvÁåA±ÀªÉAzÀÄ PÀAqÀħAzÀ ¸ÀAzÀ¨sÀðzÀ°è

2. C¢üPÁj/£ËPÀgÀgÀÄUÀ¼À ¤ªÀÈwÛ ºÁUÀÆ ¤zsÀ£À¢AzÀ GAmÁUÀĪÀ SÁ° ºÀizÉÝUÀ ¼À£ÀÄß ¨sÀwð ªÀiÁqÀĪÀ ¸ÀAzÀ¨sÀðzÀ°è

3. C¢üPÁj/£ËPÀgÀgÀÄUÀ¼À ªÀÄÄA§rÛ¬ÄAzÀ SÁ°AiÀiÁUÀĪÀ ºÀÄzÉÝUÀ ¼À£ÀÄß vÀÄA§ÄªÀ ¸ÀAzÀ¨sÀðzÀ°è

4. C¢üPÁj £ËPÀgÀgÀ°è CzÀPÀëvÉ, C²¸ÀÄÛ ºÁUÀÆ PÀvÀðªÀå ¤ªÀðºÀuÉAiÀÄ°è C¸ÀªÀÄxÀðvÉ JAzÀÄ ¸ÀPÀëªÀÄ ¥Áæ¢üPÁgÀPÉÌ PÀAqÀħAzÀ ¸ÀAzÀ¨sÀðzÀ°è E£ÀÄß ªÀÄÄAzÉ ¸ÁªÀiÁ£Àå ªÀUÁðªÀuÉ CªÀ¢üAiÀÄ°è ¥ÀæwAiÉÆ AzÀÄ ±Éæà tÂAiÀÄ ¹§âA¢ ªÀUÀðzÀªÀgÀ£ÀÄß ªÉÄÃ/ dÆ£ï wAUÀ¼ÀÄUÀ¼À°è ¸ÁªÀðd¤PÀ »vÁ¸ÀQÛ¬ÄAzÀ ªÀiÁvÀæ ªÀUÁðªÀuÉ ªÀiÁqÀ®Ä ¸ÀÆa¹zÉ. ¸ÁªÀiÁ£Àå ªÀUÁðªÀuÉ CªÀ¢ü ªÀÄÄVzÀ £ÀAvÀgÀ AiÀiÁªÀÅzÉà PÁgÀtUÀ½AzÀ («±ÉõÀ ¥ÀæPÀgÀtUÀ¼À£ÀÄß ºÉÆgÀvÀÄ¥Àr¹) ªÀUÁðªÀuÉ ¥Àæ¸ÁÛªÀ£ÉAiÀÄ£ÀÄß ªÀÄAr¸À¨ÁgÀzÉAzÀÄ PÀlÄÖ¤mÁÖV ¤zÉÃð²¸À¯ÁVzÉ.

² ¥üÁgÀ¸ÀÄì DzsÁgÀzÀ ªÉÄÃ¯É ªÀUÁðªÀuÉ PÉÆ ÃgÀĪÀ £ËPÀgÀgÀÄUÀ¼À «gÀÄzÀÞ ¹.¹.J. £ÀqÀvÉ ¤AiÀĪÀÄUÀ¼À C£ÀĸÁgÀ ²¸ÀÄÛ PÀæªÀÄ dgÀÄV¸À¯ÁUÀĪÀÅzÀÄ.

ªÉÄîÌAqÀ ¸ÀÆZÀ£ÉUÀ¼À £ÀÄß PÀlÄÖ¤mÁÖV ¥Á°¸À®Ä ¸ÀÆa¸À¯ÁVzÉ."

14. In view of the above and the undertaking given by the Commissioner of BBMP by way of affidavit filed in this case, that the transfers and postings of the employees in Group 'C' and 'D' Cadres, henceforth, would be regulated in terms of the said Circular, I find no justification to interfere with the impugned order of transfer.

Consequently, the challenge to the impugned order fails. However, the Commissioner/Delegated Authority, BBMP, henceforth, shall effect the transfers and postings, in terms of the Circular, extracted supra.

Writ petition is disposed of accordingly. No costs.

Sd/-

JUDGE sac*

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Good Transfer order - Isme Court ne Transfer Me Legal Malice Paya aur Yachi ko Rahat Dee -

Good Transfer order - Isme Court ne Transfer Me Legal Malice Paya aur Yachi ko Rahat Dee - 



Yeh Order bhee ek Najeer bane Supeme Court ke Transfer Order ke aadhaar par nirneet hua hai:
In Sarvesh Kumar Awasthi vs. U.P.Jal Nigam and others, (2003) 11 SCC 740, the Supreme Court held:- 
"In our view, transfer of officers is required to be effected on the basis of set norms or guidelines. The power of transferring an officer cannot be wielded arbitrarily, mala fide on an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned. For better administration the officers concerned must have freedom from fear of being harassed by repeated transfers or transfers ordered at the instance of someone who has nothing to do with the business of administration."
-------------
However, it is definitely within the competence of the Tribunals/Courts to go into the transfer order where the transfer on administrative grounds is not justified of the scales that have been enumerated earlier. In Sarvesh Kumar Awasthi versus U.P. Jal Nigam and Others [2003(11)SCC 740] wherein the Honble Supreme Court has held as under:-

Central Administrative Tribunal - Delhi
Kapil Mohan Sharma vs State Of Nct Of Delhi on 21 October, 2013
      

  

  

 Central Administrative Tribunal
Principal Bench

OA No.1459/2013
Reserved on:31.07.2013
Pronounced on: 21.10.2013

Honble Dr.Birendra Kumar Sinha, Member (A)

Kapil Mohan Sharma,
S/o Shri Chander Bhanu Sharma,
R/o B-732, MIG Flats, East of Loni Road,
Shahdra, Delhi  93. Applicant

(By Advocate: Shri R.K.Sehrawat)

Versus

1. State of NCT of Delhi,
Through its Chief Secretary,
Secretariat, Players Building,
Indraprastha Estate, New Delhi.

2. Directorate of Education,
Through it Director,
Old Secretariat,
Delhi.      Respondents

(By Advocate: Shri Vijaya Pandita)


ORDER 
The instant OA filed under Section 19 of the Administrative Tribunals Act, 1985 is directed against the order of the Respondent No.l dated 25.04.2013 transferring the applicant from Gokhle Marg-SBV (North) to Dhakka  GBSSS (North West A).

2. The case of the applicant is that he was admittedly working as TGT (Natural Science) in Sarvodaya Bal Vidyalaya (SBV) No.1, Mori Gate, Delhi-110 006. It is the case of the applicant that there was one teacher namely Neeta Bahl, Lecturer (Physics), wanted that boy namely Pankaj, who had been found indulging in gross indiscipline to the extent of when having a can of beer in his hand on a particular occasion. One Braham Prakash, father of Pankaj, applied and was granted Transfer Certificate (TC) at his own volition. Now, he wanted re-admission of his ward in the same school. His case was espoused by Neeta Behl, who misbehaved with the applicant in presence of the Head of the School. The applicant further complained that earlier also he had filed complaints against said Neeta Behl, who exceeded her jurisdiction and insulted him on many occasions. The case of the applicant was supported by the Head of the Institution. The complaint of the applicant was twice enquired into, the first time by one Dr. Neeraj, Principal, Shaheed Amir Chand Govt. Sarvodaya Vidyalaya, Sham Nath Marg, Delhi and the secondly by two lady Principals/HOS who, after following the due procedures under the rule of natural justice, supported the version of the applicant.

3. In the meanwhile, the applicant was promoted to the post of Lecturer (Political Science) vide order dated 26.09.2012 and was transferred to Govt. Boys Senior Secondary School, ID No.1309009, Dhaka. However, the applicant was transferred from GBSS, Dhaka to SBV Gokhle Marg, New Delhi in partial modification of the office order dated 26.09.2012 by issuing a corrigendum dated 12.10.2012. On 18.10.2012, the applicant was relieved from Mori Gate No.1 SBV to take up his assignment at Gokhle Marg SBV. On 23.04.2013, said Neeta Bahl was also transferred on the administrative grounds from SBV No.1, Mori Gate to Roop Nagar, No.1-GGSSS (North). On 25.04.2013, the applicant was again transferred by the impugned order from SBV, Gokhle Marg North to Dhakka-GBSSS North-West-A.

4. The applicant has taken the plea that he was the injury party as said Neeta Bahl misbehaved with him on more than one occasion. His stand has been totally supported by the report of the Head of the School and also by the two Inquiry Reports, as mentioned earlier. However, instead of taking action against the said Neeta Bahl, who had used political influence, the Director of Education had to transfer the applicant on the basis of the report of the enquiry officer, who conducted the inquiry at the back of the applicant and without even having associated the applicant or the school teachers. It is the further case of the applicant that he was not furnished the report of the inquiry officer and was transferred out. In the second place, he also questioned the administrative propriety of the action. He had already been transferred out on the place of conflict that being SBV No.1, Mori Gate. Hence, there was no administrative purpose involved in transferring him out from his subsequent assignment at SBV (ID No.1207014-North). In the third place, the said Neeta Bahl had been working in the SBV No.1, Mori Gate for last 18 years and her transfer was fully justified on account of the complaints against her as established in the different inquiry report and also the report of the HOS. The applicant has, therefore, sought the following reliefs:-

(a) Quash/set aside the transfer order No.DE.2(8)(189)/E-2/2008/6108-12 dated 25.04.2013 passed by the Directorate of Education whereby the applicant is transferred from SBV, Ghokhle Marg (1207014) North to Dhakka-GBSSS (1309009) North-West-A;

allow the cost of litigation;

Pass any order or further order which this Honble Court may deem fit and proper in the facts and circumstances of this case.

5. The respondents have filed their counter affidavit wherein they have taken up the stand that who should be posted where is the prerogative of the employer and, in view of catena of judgments of Honble Supreme Court, the Tribunals/Courts should not normally interfere in such process. The submission of the respondents is that the transfer has been indicated on the basis of the inquiry report conducted by one Suman Kataria, Dy. Director of Education (West), who submitted her report on 14.12.2012 recommending that both the teachers be transferred. The instant Transfer has, therefore, been taken on administrative grounds in response thereof. In support of this, the respondents have relied upon the earlier cases of State of M.P. Vs. Sh. S.S.Kourav & Ors [1995 (3) SCC 270], S.C.Saxena Vs. Union of India [(2006) 9 SCC 583], Shilpi Bose (Mrs.) vs. State of Bihar, [1991 Supp (2) SCC 659], Union of India Vs. S.L.Abbas [1993, Vol.3, SCC 357], National Hydroelectric Power Corpn. Ltd. Vs. Shri Bhagwan, [2001 Vol. 8 SCC page 574], Union of India Vs. H.N.Kirtania [(1989) 3 SCC 445] and State of UP Vs. Goverdhan Lal [(2004 11 SCC 402)].

6. The sole issue in the instant case to be decided is that whether this transfer is justified on administrative grounds or is marred by procedural malice? It is well admitted that the applicant had served as TGT (Natural Science) SBV No.1, Mori Gate, Delhi  110 006 where he had strong differences with one Neeta Bahl. It further appears that the grievance is related to encroachment of the applicants rights by said Neeta Bahl in the form of encircling his attendance sheets. The issue appears to have risen over the matter of admission of one Pankaj, who had earlier taken TC following series of complaints against him. It is further admitted that the Head of the School appears to have supported the version of the applicant as would be apparent from his report to the TGT, North Lucknow Road, Delhi  6. He holds that the complaint of the said Neeta Bahl using unparliamentary language was not substantiated. To the contrary, the complaint of behaviour of Neeta Bahl against the applicant was unacceptable, which reads as under:-

4. Same day or the day after that Mr. Brahm Prakashs complaint come in light. Mr. Braham Prakashs ward Pankaj was a student of this school from 6th class and asked for SLC last year. Undersigned got so many complaints regarding bad behavior of Pankaj from his class colleagues and other students that he has been snatching money from other students, beating them and even on one occasion our school peon Mr. Surender saw him having a can of beer in his hand. Mr. Surender tried to capture him but he escaped from school premises by jumping over school boundary wall. Mr. Braham Prakash who was a PTA official too himself was worried of his ward activities and thus thought of shifting his ward to any of his relative and thus applied for SLC of his ward.

Till the time Mr. Braham Prakash applied for SLC of his ward he never complained of using any case based words or any type of bad behavior by any of my staff member neither in PTA meetings nor in personal to me. In the application for SLC in the column of reason he did not mentioned bad behavior of any of may teacher due to which he was forced to leave the school.

7. I took the suggestion from Kapil Mohan Sharma and Mr. Promod Kumar Sharma (Admission incharge) in this respect who after confirmation suggested me to request Mr. Braham Prakash and his sister to take approval of Honourable Director of Education as none up to the level of D.D.E. or R.D.have the power to make admission in the month of December.

I communicated the same to Mr. Braham Prakash and his sister and they further went to Mrs. Neeta Bahl for help. Mrs. Neeta Bahl promised me that she shall help Mr. Braham Prakash for seeking the permission from Director of Education using her political links and till then she requested to allow Pankaj to sit in the class and give him provisional admission.

8. Mrs. Neeta Bahl could not bring the permission from Director of Education and gave a letter from Honorable HRD minister Sh. Kapil Sibbal at the end of February. She threatened me that on behalf of that letter I have to allow Pankaj to sit in examination or me has to face the charge of spoiling career of a scheduled caste student.

9. A lawyer placed a RTI application in the end of March, 2012 asking questions regarding this admission as a result of which Mrs. Neeta Bahl and Mr. Braham Prakash made these complaints against Mr. Kapil Mohan Sharma, Mr. R.T.Sharma and Mr. Pramod Kumar Sharma (Admission In charge).

7. The Principal has given statement to the single effect to the S.H.O. Kashmiri Gate, Police Station. The applicant in his rejoinder has submitted the copy of the Inquiry Report by the Committee comprising of two lady Principals. The relevant para of the report is self-contained, which reads as under:-

In this connection, it is pertinent to mention that earlier a complaint was received from Shri Kapil Mohan Sharma also against Mrs. Neeta Bahl, PGT (Physics) with the following allegations:-

1. That Mrs, Neeta Bahl, PGT (Physics) herself and with the help of some parents have been making forged complaint in police against him and other staff members.

2. That Mrs. Neeta Bahl, PGT (Physics) made charge against him of using un parliamentary language in the presence of Principal and other staff members. Principal and staff members denied her allegations stating this allegation baseless and same report was send to the Police officials. Now she instigated Mr. Braham Prakash father of a student for making allegation against him and other staff members under SC/ST (Prevention of Atrocities) Act.

In the inquiry report, it has been concluded that :-

The Committee is of the firm opinion that the complaint of Shri Kapil Mohan Sharma is very genuine. Evidences clearly indicate that Mrs. Neeta Bahl misused her gender and misbehaved with Shir Kapil Mohan Sharma and manipulated and lodge the complaints in the police station contrary to general belief of harassed person being harassed. Not only that Mrs. Neeta Bahl is misguiding and instigating the students and parents to get cheap popularity. Here are much evidences to establish that Mrs. Neeta Bahl may go to any extent to maintain her supremacy and to pressurize the male staff members and principal of the school. She mingle with them and went to their colony as is evident from her threat as stated by Vice Chairman of PTA and supported by General Secretary of PTA who happens to be a female too.

From the above, it appears that there is some conflict going on between these two officials and due to personal feud they are making allegations and counter allegations against each other. In view of above, it may be in the fitness of the things that both the officials should be transferred from the School. Further, it is learnt from the bio-data of the official that Shri Kapil Mohan Sharma has already been transferred to SBV, Gokhle Marg, Delhi on promotion as PGT.

8. It is very true that in the matters of transfer, the Courts/Tribunals are not required to intervene. In normal circumstances, intervention of the court would be only confined to such cases where either malafide is alleged and proved or there is a violation of some statute or where the laws of natural justice have not been respected. It is fully considered that the courts are not to go into the issue like justification of the administrative orders. However, it is definitely within the competence of the Tribunals/Courts to go into the transfer order where the transfer on administrative grounds is not justified of the scales that have been enumerated earlier. In Sarvesh Kumar Awasthi versus U.P. Jal Nigam and Others [2003(11)SCC 740] wherein the Honble Supreme Court has held as under:-

3. In our view, transfer of officers is required to be effected on the basis of set norms or guidelines. The power of transferring an officer cannot be wielded arbitrarily, mala fide or an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned. For better administration the officers concerned must have freedom from fear of being harassed by repeated transfers or transfers ordered at the instance of someone who has nothing to do with the business of administration. In Somesh Tiwari Vs. Union of India & Others [AIR 2009 SC 1399], the Honble Supreme Court has held as under :-

19. Indsiputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds- one malice in fact and the second malice in law.

20.. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal.

9. It is for the Tribunal to ensure that the administrative authorities do not run contrary to the instructions and settle their scores with the employee by transferring them without any justification. It is also to be remembered that frequent transfers can also break the morals of an employee that is the reason norms of transfer have been set in two organizations. These norms are normally to be respected as such.

10. The facts narrated above clearly reveal that there were strong differences between the applicant and the said Neeta Bahl over the number of issues including the issue of admission of one Pankaj. The report of the Principal clearly initiated that the said Neeta Bahl pressurized the School Authority to admit Pankaj. Ultimately, the stand of the applicant and the school authority prevailed in as much as Pankaj could not procure admission after the stand of the applicant having been by the two successive Committees yet another Committee was set up. I am left wondering that even when the reports of the earlier two Committees were on record then where was the necessity to set up the third Committee. I also find that learned counsel for the respondents has nowhere in the counter affidavit covered the allegations of the applicant pertaining to violation of principles of natural justice and not involving him in the inquiry by Suman Kataria Committee.

11. I further take note of the fact that the applicant had already stood transferred out of the place of conflict on 18.10.2012 and not later on account of their promotion as soon as one of the conflicting parties was removed from the scene. The code of Administrative action was over. The administration has rightly transferred said Neeta Bahl from the school of Mori Gate as she has been serving there for 18 years.

11. It is admitted fact that the applicant has been transferred from present post SBV North to Dhakka-GBSSS prior to completion of ten years. It only indicates that somehow the authority was determined to find some kind of equity to conflicting party being the applicant and said Neeta Bahl. There cannot be an equity between the wrongdoer and his victim. Any system that is not able to differentiate between the two is basically unjust. Admittedly report submitted by the two lady Principals copy of which has been submitted by the respondents has followed the processes prescribed for inquiry. To the contrary the Suman Kataria Committee has not involved the applicant or the school authorities equating the injured with the wrongdoer. Therefore, to disregard this report and to rely upon the report of the said Suman Kataria is tantamount to the injury whatever conflict that might have existed stood resolved with the transfer of the applicant on promotion to Government Boys School, Dhakka on 26.09.2012. There is no administrative ground served by transferring the applicant from the SBV, Mori Gate.

12. In totality of facts and circumstances of the case, I am of the considered view that the impugned order is hit by legal malice and is not sustainable being bad in law. Therefore, the impugned transfer order dated 25.04.2013 is quashed and set aside. Resultantly, the instant OA stands allowed with no order as to costs.

( Dr. Birendra Kumar Sinha ) Member (A) uma



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Good Transfer Order - - नजीर ट्रांसफर ऑर्डर, कोर्ट सामान्यत ट्रांसफर में दखल नहीं देती लेकिन जब दुर्भावना , गाइड लाइन के विपरीत , या प्रशासनिक या पब्लिक आवश्यकताओं को देखे बगैर ट्रांसफर में अड़चन आती है तो फिर कोर्ट दखल दे सकती है , उसे श्रेणी में ट्रांसफर का यह आर्डर भी बना है एक नजीर

Good Transfer Order - - 
नजीर ट्रांसफर ऑर्डर, कोर्ट सामान्यत ट्रांसफर में दखल नहीं देती  लेकिन जब दुर्भावना , गाइड लाइन के विपरीत , या प्रशासनिक या पब्लिक आवश्यकताओं को देखे बगैर ट्रांसफर में अड़चन आती है तो फिर कोर्ट दखल दे सकती है , उसे श्रेणी में ट्रांसफर का यह आर्डर भी बना है एक नजीर 




In Sarvesh Kumar Awasthi vs. U.P.Jal Nigam and others, (2003) 11 SCC 740, the Supreme Court held:- 
"In our view, transfer of officers is required to be effected on the basis of set norms or guidelines. The power of transferring an officer cannot be wielded arbitrarily, mala fide on an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned. For better administration the officers concerned must have freedom from fear of being harassed by repeated transfers or transfers ordered at the instance of someone who has nothing to do with the business of administration." 
***********
and the writ petitions are allowed. In the circumstances of the case, there shall be no order as to cost
************




HIGH COURT OF JUDICATURE AT ALLAHABAD 

RESERVED 

Civil Misc. Writ Petition No. 35092 of 2005 
Sarvendra Singh......................................................Petitioner 
Versus 
State of U.P. and others........................................Respondents. 

Connected with 

1. Civil Misc. Writ Petition No. 35082 of 2005 
Raj Kumar Singh Rathore..........................................Petitioner 
Versus 
State of U.P. and others........................................Respondents. 

And 
2. Civil Misc. Writ Petition No. 35089 of 2005 
Chheda Lal Sharma..................................................Petitioner 
Versus 
State of U.P. and others........................................Respondents. 

******** 

Hon.Tarun Agarwala,J. 

Three Sub Inspectors posted in district Badaun have been transferred to various places by separate orders. They have filed separate writ petitions challenging the transfer order on identical grounds. Consequently, all the three writ petitions are being decided together. For facility, the writ petition of Sarvendra Singh is being taken as the leading case and the affidavits in this petition is being referred to in the judgement. 
The petitioner, Sarvendra Singh, was working as a Sub Inspector in District Badaun and has been transferred by an order dated 11.4.2005 issued by the Inspector General of Police(Establishment), U.P., Lucknow to A.S.I.O. Rihand in district Sonebhadra. By another order of the same date, the petitioner was relieved. The petitioner, Raj Kumar Singh Rathore, was working as a Sub Inspector and has been transferred by an order dated 12.4.2005 issued by the Inspector General of Police (Establishment), U.P. from Police Station Wazirgarh, district Badaun to Inter State Border Force. By another order of the same date, the petitioner was relieved by the Senior Superintendent of Police Badaun. The petitioner Cheda Lal Sharma was working as a Sub Inspector and was transferred from Kotwali Ujhani to Economic Crime Branch, Lucknow by an order dated 12.4.2005 issued by the Inspector General of Police, U.P., and by another order of the same date, he has been relieved by the Senior Superintendent of Police. 
All the three petitioners contend that they had recently been posted in 2004 and, that within a year, they have again been transferred at the behest of a Minister and an M.L.A. of the ruling party and, therefore, the transfer order which had been passed on political pressure, was purely malafide and liable to be quashed. The petitioner's further contended that the transfer order was also in violation of the transfer policy. The petitioner's were entitled to remain in a particular district for a period of five years, whereas, the petitioner's were being transferred within a year. The petitioner's further alleged that the transfer was neither in public interest nor was issued on administrative grounds and, was issued on the political grounds. 
The petitioner's alleged that one Sri Banwari Singh Yadav, State Minister for Protocol Civil Aviation and State Property and Sri Onkar Singh Yadav, M.L.A., Samajwadi Party had written a letter dated 4.4.2005 to the Chief Minister, stating therein, that the petitioner Sarvendra Singh is a Khattri by caste and was not looking after the interest of the workers of the Samajwadi Party and that the interest of the Samajwadi Party was at stake and, therefore, he should be transferred to some other place so that the interest of the Samajwadi Party was not disturbed. Similar letters were written by the Minister and the M.L.A. complaining about the other two petitioners. The petitioner's submitted that based on these letters, the Inspector General of Police, Lucknow had issued the transfer orders which was sent to the Senior Superintendent of Police by Fax and the petitioners were relieved on the same date by the Senior Superintendent of Police, Badaun. 
A counter affidavit has been filed on behalf of respondent nos.1 to 5 denying the allegations made in the writ petition. In paragraph 5 of the counter affidavit, the respondents have contended that the Government is functioning in a computer age and that once the order of transfer was passed, the same was sent through Fax and, therefore, there was nothing wrong in relieving the petitioners on the same date by the Senior Superintendent of Police. The transfer order has been passed as per "the command" issued by the Inspector General of U.P., Lucknow and the same has been carried out by the Senior Superintendent of Police. The respondents further alleged that the order of transfer was passed in the exigency of the administration of the service and that no reasons were required to be given in the order of transfer. The respondents further submitted that no political pressure was mounted in transferring the petitioners and that the Sub Inspector of Police was not such a big authority for whose transfer a political pressure was required to be mounted. The transfer of any particular employee was the prerogative of an officer who had power to transfer him. In paragraph 8 of the counter affidavit the respondents have stated that the transfer order of the petitioner was made in a routine manner because the petitioner Sarvendra Singh was a competent and efficient officer and was required to be posted at Sonebhadra. In paragraph 9, the respondent admits that Badaun was a V.V.I.P. place because the Chief Minister, had once represented the Sambhal Parliamentary constituency and now his cousin was representing this constituency. In paragraph 10 the respondents alleged that the guidelines has no statutory force and that the transfer had been made in public interest. 
For facility, certain portions of some of the paragraphs of the counter affidavit are quoted herein:- 
"That the contents of paragraphs 5, 6 and 7 of the writ petition are not admitted in the manner as are stated hence denied. In reply thereto it is submitted that the petitioner is surprising just for nothing because now a days the Government is functioning in computer age. Once the order of transfer is passed, the same are sent through fax and because the order of transfer dated 12.04.2005 was containing that the petitioner shall be relieved forthwith. The petitioner was relieved on 12.04.2005 by the Senior Superintendent of Police in compliance to the order of transfer dated 12.4.2005 issued by the Inspector General of Police (Establishment) U.P. at Lucknow. Compliance of the order issued by the Higher Authorities does not come within the purview of any kind of adverse because once the order of transfer has been passed as per command issued by the Inspector General (Establishment) U.P. At Lucknow, the Senior Superintendent of Police has rightly relieved the petitioner forthwith after receiving the order of transfer dated 12.04.2005. As such the contrary averments made by the petitioner in paragraphs under reply are totally misconceived hence denied. The order of transfer is passed in exigencies of administration of service. No reasons are required to be assigned in the order of transfer. It is further relevant to make a mention here that no political pressure has been mounted in transferring the petitioner. Sub-Inspector of Police is not such a big authority for whose transfer political pressure has been mounted in transferring the petitioner. Sub-Inspector of Police is not such a big authority for whose transfer political pressures are mounted. The transfer of any particular government servant is the prerogative of the Officer who has been empowered to transfer him. However, the contrary averments made by the petitioner in paragraphs under reply are totally misconceived hence denied. 

In routine manner the petitioner has been transferred from Badaun to Local Intelligence Unit, Rihand Bandh, Sonbhadra. It is further relevant to mention here that Local Intelligence Unit, Rihand Bandh, Sonbhadra is very important branch of Civil Police, where the competent and efficient officers are required to be posted. The petitioner has been awarded and has been brought in the category of most efficient Police Officer, and therefore, he has been selected for posting in Local Intelligence Unit, Rihand Bandh, Sonbhadra. 

That in reply to the contents of paragraph 10 of the writ petition it is submitted that no doubt earlier the Chief Minister has represented the Sambhal Parliamentary Constituency and now his cousin is representing and no doubt the district Badaun is said to be V.V.I.P. place , but that is no basis for drawing any inference as referred by the petitioner, that the petitioner transfer has been made on account of any political pressure. If the Chief Minister is cause of transfer, then he is the Chief of the State dignitary and nothing is personal. The Chief Minister has got very vital issue to be considered and it is very surprising that a Sub-Inspector is making such allegations by taking name of Chief Minister, and Members of his family only in order to obtain interim order in his favour from Court of Law." 
A supplementary counter affidavit dated 22.5.2005 sworn by Sri Kiran Pal Singh, Deputy Superintendent of Police, was filed. In paragraph 4 of the affidavit, it was alleged that the transfer had been issued at the behest of the Principal Secretary, Home, Government of U.P. on the basis of the need and the exigency of the service. Another supplementary counter affidavit by respondent no.3 dated 16.5.2005 sworn by Shiv Shanker Singh, Superintendent of Police, Allahabad was filed, stating therein, that the transfer of the petitioner was made in pursuance of the transfer policy and that the petitioner, Sarvendra Singh, was posted in Badaun from 10.10.1985 to 23.8.1991 and thereafter again from 12.6.2004 to 12.4.2005 and, therefore, was posted in Badaun for a total number of 6 years, 8 months 12 days and, therefore, was liable to be transferred to another place. 
Another supplementary counter affidavit dated 23.5.2005, sworn by Sri Shrikant Singh, Additional Superintendent of Police, was filed, in which two letters dated 16.5.2005 written by Sri B.S.Yadav, State Minister and Sri Onkar Singh Yadav, M.L.A. were written to the Government Advocate, High Court, Allahabad stating therein that they had never issued the letters to the Chief Minister and that it transpires that a computer generated signature had been manufactured on their letter pad. 
Initially, when the writ petition was entertained, notices to the Minister and M.L.A. was not issued but, subsequently after the aforesaid letters had been filed through respondent Nos.1 to 5, this Court issued notices to the Minister as well as to the M.L.A. who appeared and filed a common counter affidavit. In their counter affidavit, the Minister and the M.L.A. have reiterated that they had never written the letter and that the said letter was a forged document on account of the fact that the said letter does not contain any despatch number or reference number. The counter affidavit further stated that they are close relatives and that they interact with each other and, therefore, the question of writing two separate letters does not arise. 
Heard Sri P.N.Saxena, the learned Senior Advocate assisted by Sri S.C.Dwivedi, the learned counsel for the petitioner and Sri Adesh Agarwal, the learned Additional Advocate General assisted by Sri V.K.Rai, Standing Counsel for respondent nos.1 to 5 and Sri Vijendra Singh, the learned counsel appearing for the Minister and the M.L.A. 
An allegation of political pressure has been levelled by the petitioners. The petitioners categorically stated that the Minister and the M.L.A. had written letters to the Chief Minister alleging that the petitioners were not looking after the interest of the Samajwadi Party workers as they belonged to a different caste and, therefore, they should be transferred to another place. Respondent nos.1 to 5 have denied this fact and submitted that the petitioner's had been transferred in public interest as well as on administrative grounds, on account of the exigency of service, as they were required elsewhere because they were good police officers. Strangely, respondent nos.1 to 5, annexed letters dated 16.5.2005 written by the Minister and M.L.A. even when this Court did not issue any notice to the Minister or the M.L.A. Annexing the letters of the Minister and the M.L.A. signifies that the police authorities had either approached the Minister and the M.L.A. or the Minister and the M.L.A. had approached the police authorities. One thing is clear, that the Minister and the M.L.A. were working in tandem with the police authorities. There was a link between them. This creates a suspicion with regard to their modus operandi and the functioning of the Ministers and the M.L.As. with the other authorities. 
The Minister and the M.L.A. filed their counter affidavit denying the issuance of the letters annexed in the writ petition and contended that those letters are forged and that a computer generated signature had been obtained on their letter pads. The Minister and the M.L.A. categorically stated that the letters are forged as it does not contain any dispatch number or reference number, whereas, all theirs letters contains a dispatch and reference number. 
Ministers and M.L.A. are elected by the people. When a Minister or an M.L.A. comes forward and makes a statement on an affidavit, there is no reason for the Court to doubt the veracity of their statements. But, on a closer scrutiny, this Court finds that the reasons given by them that their letters are forged documents is not entirely correct for the simple reason, that if all their letters contains a dispatch number or a reference number, in that situation, the letters written by them dated 16.5.2005 addressed to the Government Advocate High Court, Allahabad should also have contained the dispatch number and/or the reference number. Those letters do not contain any dispatch number or reference number. Those letters have been annexed by the respondents in their counter affidavit. Consequently, I am unable to agree with the statement made by the Minister and the M.L.A. that the letters annexed to the writ petition are forged. In my opinion, the stand taken by the Minister and the M.L.A. are contradictory. The affidavit filed by them are not reliable. Ministers and M.L.A. are elected by the public. The public reposes confidence in them. They have an onerous task upon them in fulfilling the desires and wishes of the people. To the public at large, the Ministers and the M.L.A. are called "honourable men". But are these "honourable men" acting fairly? Are they coming forward with clean hands ? Marc Anthony in Shakespeare's "Julius Caesar" sarcastically referred to shrewd and corrupt politicians and custodians of public office as "honourable men". The same situation exists in modern day times. 
It should not be lost sight of the fact that the sitting Member of the Parliament of Sambhal Parliamentary constituency is the brother of the present Chief Minister. This constituency comes in district Badaun. The M.L.A. has been elected from the Gunnaur Vidhan Sabha which comes under the Sambhal constituency. The State Minister is also from this area. This district Badaun is, therefore, a V.V.I.P. area, as admitted by the respondents themselves. Therefore, from a perusal of the record and from the affidavits filed, it is a clear case, where the transfer order has been issued at the behest of the political leaders. 
There is another aspect. The language and the tone of the contents of the counter affidavit indicate the mindset and the attitude of the respondents. The usage of the words, "nowadays the Government is working in computer age", "order of transfer sent through fax", "transfer as per the command issued by the Inspector General", " Sub Inspector of Police is not such a big authority" and "if the Chief Minister is the cause of transfer, then he is the Chief of the State dignitary and nothing is personal", speaks volumes of the attitude and high handedness of the authorities in tackling this matter. The tenor of the language in the counter affidavit is indicative of the brazen attitude adopted by the respondents in the handling of the situation in the present writ petition. The tone and the tenor in counter affidavit has, to a large extent, helped the cause of the petitioners. The petitioners has, therefore, been successful in proving the malafides. 
The respondents have stated that the petitioners were transferred on the exigency of service and at the behest of the Principal Secretary, Home. The record has been produced by the Additional Advocate General who invited the attention of the Court to a letter dated 6.4.2005, written by the Principal Secretary to the Inspector General U.P., Lucknow, which indicated that a request had been made to fill up the vacant posts. This letter does not indicate anything with regard to the transfer of the petitioner's on account of the need and exigency of service. The record does not indicate that the transfer of the petitioners was made on the basis of the letter of the Principal Secretary, Home. Consequently, the submission of the respondents that the petitioners were transferred at the behest of the Principal Secretary is patently erroneous. 
The respondents have justified their stand stating that the transfer of the petitioners was in accordance with the guidelines dated 16.11.2004 and 2.12.2004. According to the respondents, the petitioner, Sarvendra Singh, was posted in Badaun for a total period of 6 years, 8 months and 12 days and, therefore, in view of the transfer policy, the petitioner having worked for more than 6 years, was liable to be transferred. Paragraph 2 of the policy dated 16.11.2004, indicates that a Police Officer can serve in one district for a maximum period of 10 years. Therefore, according to the respondents, the petitioner Sarvendra Singh remained in Badaun for a total length of 6 years, 8 months and 12 days and had not completed 10 years of posting in that district. Therefore, the respondents were not justified in stating that the transfer of the petitioner was in accordance with the transfer policy. 
The respondents have also made an attempt to state that the transfer policy had no statutory force and, therefore, no reliance can be taken on this policy by the petitioner. In my view, the submission raised by the respondents is totally erroneous. Even though the transfer policy has no statutory force, nonetheless, it is binding upon the authorities. In Virender S. Hooda and others vs. State of Haryana and others, JT 1999(5)SC 621, the Supreme Court held:- 

"The view taken by the High Court that the administrative instructions cannot be enforced by the appellant and that vacancies became available after the initiation of the process of recruitment would be looking at the matter from a narrow and wrong angle. When a policy has been declared by the State as to the manner of filling up the post and that policy is declared in terms of rules and instructions issued to the Public Service Commission from time to time and so long as these instruction are not contrary to the rules, the respondents ought to follow the same." 

In Home Secretary,U.T. Of Chandigarh and another vs. Darshjit Singh Grewal and others (1993)4 SCC 25, the Supreme Court held that the policy guidelines are relatable to the executive powers of the administration and having enunciated a policy of general application and having communicated to all concerned, the administration was bound by it till such time as the policy was changed. 
In Smt. Deepa Vashishtha vs. State of Uttar Pradesh and another, (1996)1 UPLBEC 54, a Division Bench of this Court held that the department is bound by its transfer policy till such time as the guidelines are changed. 
In Phoola Devi vs. State of U.P. And others, 1999(1) AWC 179, this Hon'ble Court held:- 

"In my opinion, if politicians keep ordering transfers and postings the result will be the total collapse of administration and opening of the floodgates for corruption and crime. The time has come when this practice of politicians ordering transfer and postings must be stopped and we must follow the British system where the bureaucracy is really independent and non-political and can function without political interference." 

In Lokesh Kumar vs. State of U.P. And others, 1998(1)A.W.C. 27(L.B.), this Hon'ble Court held:- 

"Public interest is not abstract to be found in the Dictionaries but must be obvious and visible. Politicising services would be unproductive and detrimental against the interest of the country." 


In Pradeep Kumar Agarwal vs. Director, Local Bodies, U.P. IV, Lucknow and others,(1994)1UPLBEC 189, a Division Bench of this Court held- 
"It would be appropriate to observe here that in a democratic set up like ours, bureaucrats are expected to act and discharge their executive functions impartially and strictly in accordance with the Rules and Regulations. No doubt, as of right no Government servant can claim to be posted either on a particular station or post, therefore, the transfers are to be done only in administrative exigencies and in public interest, but in the instant case the letter written by the aforesaid M.P. addressed to Minister for Urban Development bearing endorsement of the officers of the State Government, indicates that instant transfer has neither been made in administrative exigency nor in public interest. It is not only a matter of surprise but highly objectionable that bureaucrats are dancing at the tunes of such letters ignoring the well settled norms meant for transfer." 

In Dr. Bal Krishna Bansal vs. State of U.P. and others, 1996(Suppl.)A.W.C.441, State of U.P. And others, a Division Bench of this Court held that the transfer order passed at the behest of the local M.L.A. is not a transfer order in public interest but is an order in personal interest. 
In my view, the aforesaid principles propounded squarely applies to the present facts and circumstances of the case. 

In Sarvesh Kumar Awasthi vs. U.P.Jal Nigam and others, (2003) 11 SCC 740, the Supreme Court held:- 
"In our view, transfer of officers is required to be effected on the basis of set norms or guidelines. The power of transferring an officer cannot be wielded arbitrarily, mala fide on an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned. For better administration the officers concerned must have freedom from fear of being harassed by repeated transfers or transfers ordered at the instance of someone who has nothing to do with the business of administration." 

In view of the aforesaid, the transfer order is malafide and has been issued at the instance of the politicians against efficient officers who were not toeing the line of the political bosses. In my opinion, the transfer order has been issued in a brazen manner unabashedly at the instance of a Minister and a M.L.A. Although the Courts are reluctant to interfere in the transfer orders, yet in view of the fact, that the transfer order has been issued malafidely at the behest of the Minister and the M.L.A., this Court has no option but to interfere with the transfer order, coupled with the fact that the transfer order was also against the guidelines framed by the department itself. 
In view of the aforesaid, the impugned transfer orders are quashed and the writ petitions are allowed. In the circumstances of the case, there shall be no order as to cost. 

Dated: 25.8.2005 
AKJ. 





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LT GRADE - कोर्ट का आदेश देखें , जिस विषय की वेकेंसी निकली उसी विषय में पोस्ट ग्रेजुएशन के क्वालिटी पॉइंट्स के अंक मेरिट में जुड़ेंगे और चयन में काउंट होंगे म 2012 -13 के दरम्यान कोर्ट ने विवादस्पद PG quality points से नियुक्ति पाने वालों पर रोक लगा रखी थे , रविंद्र बाबू की वर्ष 2013 की याचिका पर आया फैसला ,

LT GRADE  - कोर्ट का आदेश  देखें , जिस विषय  की वेकेंसी निकली उसी विषय में पोस्ट ग्रेजुएशन के क्वालिटी पॉइंट्स के अंक मेरिट में जुड़ेंगे और चयन में काउंट होंगे ,
2012 -13 के दरम्यान कोर्ट ने विवादस्पद PG quality points से नियुक्ति पाने वालों पर रोक लगा रखी थे , रविंद्र बाबू की वर्ष 2013 की याचिका पर आया फैसला ,


हमारा ब्लॉग शुरू से इस न्याय के पक्ष में रहा था , और कई बार इस विषय में लिखा था , अब इन्साफ हुआ ,

हालाँकि 2010 -11 में हुई एल टी ग्रेड महिला भर्ती वालों को इन्साफ इस याचिका के फैसले से राहत नहीं मिलती दिख रही 


Important Order part:-
Therefore, it would be just, reasonable and consistent with the Scheme of the Rules to interpret Rule 15(2) of the Rules read with Appendix-'D' that to award quality point marks for Post Graduation, the Post Graduation Degree should be in a subject specified in the minimum academic qualification under Rule 8 for that post of Assistant Master/Assistant Mistress for which the vacancy has been created and advertised and for which candidates have applied on the basis of their possessing the minimum academic qualification i.e. the graduation degree. For example, for the post of assistant teacher (History, Geography and Economics), a candidate should possess the minimum academic qualification being graduation degree in the subject. Quality point marks for Post Graduation Degree, may be awarded to him only if he possesses the Post Graduation degree in a subject appearing in his graduation degree. Thus, quality point marks for the post graduation degree may be awarded to a candidate for a higher qualification or excellence in the subject relatable to the subject of graduation degree on the basis of which he has applied on the ground that he possesses the minimum basic educational qualification for the post. The private respondents having applied for the respective posts on the basis of having the graduation degree in the subject vacancy, cannot be placed on a higher/better footing for having post graduate degree in an entirely different subject. To do so would mean to place such a candidate higher in merit without having better knowledge or merit or excellence in the subject for which vacancy has been advertised and he has applied for recruitment. 

32- In view of the above discussions, all the writ petitions are allowed. All the concerned Joint Director of Education/competent authorities are directed to award quality point marks for post graduation degree in the light of the law clarified above and to finalise the selection accordingly, expeditiously, preferably within three months from today. 

********************************

See complete order below :-



HIGH COURT OF JUDICATURE AT ALLAHABAD 

AFR 
Court No. - 7 

1-Case :- WRIT - A No. - 6333 of 2013 

Petitioner :- Ravindra Babu Shriwas And Ors. 
Respondent :- State Of U.P. Thru Secy & Ors. 
Counsel for Petitioner :- Radha Kant Ojha,Sunil Kumar Singh,Vibhu Rai 
Counsel for Respondent :- C.S.C.,J.H. Khan,Vashisth Tiwari 
Connected With 

2- Case :- WRIT - A No. - 6835 of 2013 

Petitioner :- Gaurav Tiwari And Ors. 
Respondent :- State Of U.P.Thru Secy & Ors. 
Counsel for Petitioner :- Siddharth Khare,Ashok Khare,Sunil Kumar Singh 
Counsel for Respondent :- C.S.C. 


3- Case :- WRIT - A No. - 8847 of 2013 

Petitioner :- Ashutosh Sharma 
Respondent :- State Of U.P.Thru Secy & Anr. 
Counsel for Petitioner :- Akhilesh Kumar Singh 
Counsel for Respondent :- C.S.C. 


4- Case :- WRIT - A No. - 13246 of 2013 

Petitioner :- Harpal Singh 
Respondent :- State Of U.P.Thru Secy & Ors. 
Counsel for Petitioner :- Siddharth Khare,Ashok Khare,Sunil Kumar Singh 
Counsel for Respondent :- C.S.C. 


5- Case :- WRIT - A No. - 46003 of 2013 

Petitioner :- Kulveer Singh & 9 Ors. 
Respondent :- State Of U.P.& 8 Ors. 
Counsel for Petitioner :- Radha Kant Ojha,Ratnakar Upadhyay 
Counsel for Respondent :- C.S.C. 

6- Case :- WRIT - A No. - 71082 of 2013 

Petitioner :- Ravindra Anand 
Respondent :- State Of U.P. Thru Secy. And 9 Others 
Counsel for Petitioner :- Navin Kumar Sharma,Neeraj Tiwari 
Counsel for Respondent :- C.S.C. 

7- Case :- WRIT - A No. - 20294 of 2014 

Petitioner :- Upendra Kumar Verma And 2 Others 
Respondent :- State Of U.P. And 5 Others 
Counsel for Petitioner :- M.C. Chaturvedi,Rateesh Singh 
Counsel for Respondent :- C.S.C. 

Hon'ble Surya Prakash Kesarwani,J. 
1- Heard Sri Radha Kant Ojha, learned Senior Advocate for the petitioners and Sri Akhilesh Kumar Singh, Sri Subhash Singh Yadav, Sri Navin Kumar Sharma, Sri Vibhu Rai and Sri Siddharth Khare, learned counsel for the petitioners in the connected writ petitions, Shri Mohan Ji Srivastava, learned standing counsel for the State-respondents, Sri A.K. Yadav, learned counsel for U.P. Secondary Education Service Selection Board, Allahabad, respondent no.3, and Sri Gulrej Khan holding brief of Sri J.H. Khan, learned counsel for the selected candidate-respondent no.3. No one appears on behalf of respondent Nos. 4,5,6, and 7 even in the revised call. 

2- Counter Affidavit on behalf of respondent no.3 in the leading writ petition has been filed by the selected candidates. The State has also filed counter affidavit. 

3- Civil Misc. Impleadment Application No.113669 of 2013 has been filed by the applicant, who is a selected candidate and is permitted to be impleaded as respondent no.3 in  representative capacity and for the same reason another Impleadment Application No.191239 of 2013 filed by the selected candidates/applicants for being impleaded as respondents in the writ petition, is also allowed. The applicants are directed to be impleaded as respondent Nos. 4,5,6 and 7 in the array of parties. 
Necessary corrections be incorporated during the course of the day. 
4- With the consent of the learned counsel for the parties, these writ petitions are being finally heard.  
Facts 

5- Briefly stated the facts of the present case, are that pursuant to the advertisement issued by the respective Divisional Joint Directors of Education in the year 2012, inviting applications for appointment of assistant teachers (L.T.Grade) in different subjects, number of persons including the petitioners and respondent Nos. 3 to 7 in the leading writ petition, have applied. 

6- Before the appointments could be made, the petitioners have filed these writ petitions questioning the award of quality point marks for Post Graduation Degree to such candidates, who possessed Post Graduation degree in a subject different from the subject of Graduation Degree. Degree in Graduation subject-wise have been prescribed by Uttar Pradesh, Subordinate Educational (Trained Graduates Grade) Service Rules, 1983 (hereinafter referred to as the 'Rules') to be the essential academic qualification for appointment of assistant teachers for respective subjects. 

7- On 5.3.2013, an interim order in the leading writ petition directing the respondents not proceed to issue with any letter of appointment to a candidate who has been extended the benefit of quality point marks on the basis of a post graduate degree other than the subjects at the graduate level until further orders of the Court. 

8- On account of the aforesaid interim order, the authorities have not issued appointment letters to the selected candidates except the few candidates to whom appointment letters were issued prior to the grant of interim order. 

9- It is stated by Sri Gulrej Khan that even such candidates to whom the appointment letters were issued, they were not permitted to join on account of the aforesaid interim order. 

10- In paragraph-5 of the affidavit of compliance dated 19.3.2013 filed by the State-respondents, it has been indicated that few candidates have joined the post of assistant teacher prior to the date of the interim order. 

Submissions 

11- Learned counsels for the petitioners submit that quality point marks for "post graduate degree" may be awarded only for the post graduate degree in the subject for which the selection is being made and not in any other subject. They further submit that they are not challenging the vires of Rule 15(2) read with Appendix-'D' of the Rules and instead they are confining their submissions only to the interpretation of the provisions. Rule 15(2) read with Appendix-'D' of the Rules provides that a candidate has to be awarded quality point marks in accordance with the calculation given in the said appendix and if a candidate possesses a Post Graduation Degree for appointment on a post then for first division marks 15 quality point marks will be awarded, for second division, 10 quality point marks will be awarded and for third Division, 5 quality point marks will be awarded. 

12- It is, thus, submitted that the quality point marks for Post Graduation Degree cannot be awarded under Rule 15(2) read with Appendix-'D' of the Rules to such candidates who possessed Post Graduation Degree in a subject other than the subject in the Graduation Degree on the basis of which they applied for the post of Assistant Teacher (L.T.Grade) for a particular subject. 

13- Learned Standing Counsel for the State-respondents refers and adopts to the submissions of the Additional Advocate General, as recorded in the order dated 5.3.2013, that the Court can proceed to co-relate to the possession of the Post Graduation Degree to the subject post mentioned in the application based on the graduation level degree possessed by the candidates. 

14- Shri Gulrej Khan, learned counsel for the private respondents/selected candidates submits that Rules do not provide for quality point marks for Post Graduation Degree in a particular subject. Therefore, providing otherwise would lead to do violence with the statutory provisions. 

15- The interpretation being given by the petitioners would mean to provide such thing which has not been provided in the Rules. The essential qualification given in Rule 8 and preferential qualification in Rule 9 of the Rules do not provide for quality point marks for Post Graduation Degree in the subject in which a candidate possesses the Graduation Degree rather the quality point marks has to be awarded to all those candidates, who possesses Post Graduation degree whether in the subjects of graduation or in any other subject. 

Discussion and Findings 

16- I have carefully considered the submissions of learned counsel for the parties and perused the record. 

17- Before I proceed to examine the rival submissions of the learned counsels for the parties, it would be appropriate to notice the relevant provisions of the Rules as under: 

"U.P. Subordinate Education (Trained Graduates Grade) Service Rules 1983- 

Rule-8, Academic Qualification- 

A candidate for direct recruitment to the various posts in the service must possess the following qualifications or as specified by the Government from time to time: 
Sl.No. 
Post 
Qualification 
Preferenctial Qualification 
1 
2 
3 
4 
1......... 



2. 
(a) Assistant Master/ 
Assistant Mistress. Science (Mathematics/Science 
(i) Bachelor's degree in 
Science with Mathematics, Physics and Chemistry as subjects from a University established by law in India or a degree recognised by the Government as equivalent thereto 


(b) Assistant Master/ 
Assistant Mistress. 
Science (Biology) 
(i) Bachelor's degree in 
Science with Zoology and Botany as subjects from a University established by law in India or a degree recognised by the Government as equivalent thereto . 



(ii) L.T. Diploma of a Training College of Degree of Diploma in Education from a University established by law in India. 

3. 
Assistant Master/ 
Assistant Mistress. 
(Language) (a) Hindi 
(1) Bachelor's Degree with Hindi (main subject ) and Intermediate with Sanskrit from the Madhyamik Shiksha Parishad, U.P. of an equivalent examintion with Sanskrit 



(2) Diploma in L.T. or B.T. or B.Ed. 



Preference 



(3) Sahityaratna (2 years' course) from the Hindi Sahitya Sammelan, Prayag 





1. 
(a) Assistant Master/ 
Assistant Mistress. 
(General) and 
Chief Instructor in Education Expansion Office 
(i) Bachelor's degree in 
respective subject from a University established by law in India or a degree recognised by the Government as equivalent thereto . 



(ii) L.T. Diploma of a Training College of Degree or Diploma in Education from a University established by law in India. 


(b) Assistant Master/ 
Assistant Mistress. 
General (History Geography, Civics, Economics) 
(i) Bachelor's degree with at least any two of the subjects out of History, Geography, Political Science and Economics 
from a University established by law in India. 



(ii) L.T. Diploma of a Training College or a Degree or Diploma in Education from a University established by law in India. 


(c) Assistant Master/ 
Assistant Mistress. 
(General English) 
(i) Bachelor's degree with English as one of the subject from a University established by law in India or a degree recognised by the Government as equivalent thereto. 



(ii) L.T. Diploma of a Training College or a Degree or Diploma in Education from a University established by law in India. 






(b) Sanskrit 
Bachelor's Degree with Sanskrit and L.T. Diploma of a Training College or Degree or Diploma in Education from a recognised University. 



Or 



Acharya or Shastri Degree from Government Sanskrit College, Varanasi and L.T. B.T. Or B.Ed. 



Or 



Shastri Degree (with English) from Government Sanskrit College, Varanasi and Refresher Course Training 


(c) Urdu 
Bachelor's Degree from a recognised University by the Government as equivalent thereto with Urdu and L.T. Diploma of a Training College or Degree or Diploma in Education from a recognised University 


(d) Persian 
Bachelor's Degree with Persian and L.T. Diploma of a Training College or Degree or Diploma in Education from a recognised University 



Or 



Kamil (from Allahabad or Lucknow ) and Refresher Course Training. 


(e) Arabic 
Bachelor's Degree with Arabic as a subject and L.T. Diploma of a Training College or Degree or Diploma in Education from a recognised University. 



Or 



Fazil (Allahabad or Lucknow and Refresher Course Training 

4. 
Career Master 
1. Bachelor's Degree with 50 percent marks and B.T. or B.Ed. or L.T. from a recognied University. 
1. Graduates in Agriculture to be given preference 


2. Three years teaching experience or Diploma in guidance with not less than one year's teaching experience. 
2. Career master's Training or enough rural background so as to understand the problems of rural children and occupational and industries in rural areas. 
5. 
Assistant 
Master/Assistant 
Mistress (Arts.) 
1. Intermediate examination of the Board of High School and Intermediate Education Uttar Pradesh any equivalent examination with Art. Masters Training Certificate (formerly known as Drawing teacher certificate) of Government School of Arts and Crafts. Lucknow or a certificate recognised as equivalent thereto. 



2. Bachelor of Arts Degree from a recognised University or a degree recognised as equivalent thereto with a certificate awarded by the Government Drawing and Handicrafts Centre. Allahabad (since abolished) or a certificate recognised as equivalent thereto. 



Or 



3. Intermediate Examination with Technical Drawing with one of the following examination-- 



(a) Fine Arts Diploma of the Government School of Arts and Crafts, Lucknow. 



Or 



(b) Bachelor's degree in Arts with Drawing and Painting from a recognised from a recognised University or a degree recognised by the Government as equivalent thereto. 



(c) Fine Art Diploma of Kala Bhawan, Shantiniketan. 



Or 



(d) Final Drawing Teachership Examination Calcutta 



Or 



(e) Teacher Senior Certificate Examination School of Arts, Lahore. 

6. 
Assistant Master/ 
Assistant Mistress 
Bachelor's degree from a recognised University or a degree recognised by the Government as equivalent 





Physical Education 
Degree recognised by the Government as equivalent thereto and Diploma in Physical Education. 

7. 
Assistant Master/ 
Assistant Mistress (Music ) 
1. Bachelor's Degree from a recognised University or a degree by the Government as equivalent thereto. 
2. Knowledge of vocal and instrumental Music and Senior Diploma in Music from Allahabad University or Sangeet Visharad from Bhatkhande Sangeet Mahavidyalaya or Sangeet Prabhakar Samiti, Allahabad. 

8. 
Assistant Master/ 
Assistant Mistress (Spinning and Weaving) 
Constructive or Basic L.T. With specialization in Spinning and Weaving or Intermediate with 3 years training in Textile Institute, Kanpur.] 

9. 
Assistant Master/ 
Assistant Mistress (Ceramics) 
Post- Graduate Degree in Ceramics from recognised University or a degree recognised by the Government as equivalent thereto and L.T. Diploma of a Training College or B.T. B.Ed. From a recognised University. 



Or 



Post- graduate and Bachelor's Degree with Ceramics from a recognised University or a Degree recognised by the Government as equivalent thereto. Also specialization in Ceramics in L.T. (Constructive) Training. Candidates having teaching experience in Training College/Intermediate College/Normal Schools are to be given preference). 

10. 
Assistant Master/ 
Assistant Mistress (Plastic Craft) 
Post- graduate Degree from a recognised University or a Degree recognised by the Government as equivalent thereto with Diploma in L.T. (Constructive) Specialization in Plastic Craft. 



(Candidatures having teaching experience in Training College/Intermediate College/Normal Schools are to be given preference). 

11. 
Assistant Master/ 
Assistant Mistress (Mental Craft) 
Post- graduate Degree or a Degree recognised by the Government as equivalent thereto with Diploma in L.T. (Constructive) Specialization in Mental Craft. 

12. 
Assistant Master/ 
Assistant Mistress (Wood Craft) 
Post- graduate Degree from a recognised University or a Degree recognised by the Government as equivalent thereto. Diploma in L.T. (Constructive) and Specialization in Wood Craft or L.T./B.T., B.Ed. And Diploma holder from Government Wood Working Institute, Allahabad/Bareilly. (Candidates having teaching experience in Training College/Intermediate College/Normal Schools are to be given preference). 

13. 
Lecturer (Craft ) 
Post- graduate Degree from a recognised University or a Degree recognised by the Government as equivalent thereto with Diploma in L.T. or B.T./ B.Ed. 



(Candidates having teaching experience in Training College/Intermediate College/Normal Schools are to be given preference). 

14. 
Assistant Master 
(Agriculture/Horti-cultured) 
Bachelor's Degree in Agriculture/Horticulture from a recognised University or a Degree recognised by the Government as an equivalent thereto and L.T. Diploma of a Training College or a degree or Diploma in Education from a recognised university. 

15. 
Assistant Mistress (Home Science) 
1. A Degree of a university in Home Art o Home Science or Euthenics. 



2. Diploma in L.T. Or B.T. Or Bed. 



Or 



3. Years Diploma Course of the Lady Ervin College, New Delhi with Intermediate Examination or Senior Cambridge Examination. 



4. Working Knowledge in Hindi). 

16. 
Craft Teacher/Mistress 
(Work experience) 
L.T. (Basic) or L.T. (Constructive) with specialization in allied craft. 

17. 
Assistant Agriculture Teacher 
B.Sc. (Ag.). 

18. 
Craft teacher/Mistress (Re-orientation) 
L.T. (Basic) or L.T. (Constructive) with specialization in allied craft. 

19. 
Extension teacher 
B.Sc.(Ag.) 

20. 
Craft Technician 
B.A., L.T. (Constructive with Specialization in craft 
Additional qualification in craft 

Rule-9- Preferential qualification- A candidate who has- 

(i) Served in the Territorial Army for a minimum period of two years, or 
(ii) Obtained a 'B' certificate of National Cadet Corps shall, other things being equal, be given preference in the matter of direct recruitment. 

Rule-15. Procedure for Direct Recruitment -(1)(a) 
The Regional Deputy Director of Education concerned shall in respect of the vacancies of both branches ( Men's and Women's Branch) to be filled by direct recruitment, advertise the vacancies subject-wise along with the number of vacancies to be reserved for the candidates belong with to the Schedule Castes, Scheduled Tribes and other categories of persons in at least two leading newspapers one having wide circulation in the region and the other in the State, and invite applications for direct recruitment in the proforma given in Appendix-'C'. Such advertisement shall, inter-alia, mentioned the pay and allowances relating to the posts, minimum academic qualifications for appointment thereto and such other information as may be considered necessary. 

(b) The application referred to in clause (a) shall be sent, by registered post, to the Regional Deputy Director of Education within three weeks from the date of Publication of advertisement in the newspaper, so as to reach the office of the Regional Deputy Director of Education on or before the last date of receipt of application mentioned in the advertisement. 

(c) The application referred to in clause (a) shall be accompanied by-- 
(i) A fee of fifteen rupees in the form of Crossed Postal Order payable to the concerned Regional Deputy Director of Education ; 
Provided that such fee shall in the case of candidates belonging to the Scheduled Castes and Scheduled Tribes be five rupees; 

(ii) A self addressed envelope; and 
(iii) Other documents as may be required. 

(d) No application not sent in accordance with clause (b) or (c) shall be taken into consideration. 

(2) The Regional Deputy Director of Education shall scrutinize the applications and shall cause the lists of candidate to be prepared on the basis of quality points specified in Appendix-'D'. The Regional Deputy Director of Education shall place the lists along with the applications before the Selection Committee. 

(3) There shall be a Selection Committee for selection of candidates for appointment by direct recruitment comprising : 
(i) Appointing Authority; 
(ii) The Regional Deputy Director of Education or the Regional Inspectors of Girls Schools who is not appointing authority. 
(iii) Regional Assistant Director of Education (Basic). 

The appointing authority shall be the Chairman. 

(4) The Selection Committee shall, after considering the cases of candidates on the basis of lists referred to in sub-rule (2), prepare subject wise lists of selected candidates for appointment in L.T. Grade in order of merit as disclosed by the quality points compiled under sub-rule (2). If two or more candidates obtain equal quality points, the name of the candidate who is older in age shall be placed higher in list. The number of names in the list shall be larger (but not larger by more than twenty-five percent) than the number of vacancies advertised under sub-rule(1)". 

PART VI- APPOINTMENT, PROBATION, CONFIRMATION AND SENIORITY 

Rule-18. Appointment-- 

(1) Subject to the provisions of Sub-rule (2) the appointing authority shall make appointment by taking the names of candidates in the order in which they stand in the lists proposed under Rule 15,16 or 17 as the case may be. 

(2) Where, in any year of recruitment, appointments dare to be made both by Rule 17. 
(3) If more than one order of appointment are issued in respect of any one selection direct recruitment and by promotion, regular appointments shall not be made unless selections are made from both the sources and a combined list is prepare in accordance with a combined order shall also be issued, mentioning the names of the persons in order of seniority as determined in the selection or, as the case may be, as it stood in the cadre from which they are promoted. If the appointment are made both by direct recruitment and by promotion, names shall be arranged in accordance with the list prepared under Rule 17. 
(4) The appointing authority may made appointments in temporary or officiating capacity also from the list referred to in sub-rule (I). If no candidate borne on these lists is available, he may make appointments in such vacancy from amongst the list of selected candidates for adhoc appointment received from the Director of Education. Uttar Pradesh, Such appointments shall not last for a period exceeding one year or beyond the next selection under these rules whichever be earlier, and where the post is within the purview of the Commission, the provisions of Regulation 5(a) of the U.P. Public Service Commission (Limitation of Function) Regulations, 1954 shall apply". 

Appendix-'D' 
Quality points for Selection by direct recruitment 

Name of Examination Quality Points 

1. High School The percentage of marks 
-10 
2. Intermediate The percentage of marks x 2 
-10 
3. Graduate Degree The percentage of marks x 4 
-10 
B. Others 

4. Training Ist Division II Division III Division 
(a) Theory 12 6 3 
(b) Practical 12 6 3 
5. Post-Graduate 15 10 5 
Degree 


18- The Basic question involved in this writ petition relates to interpretation of the provisions of Rule 15(2) read with Appendix-'D' of the Rules with regard to award of quality point marks for a Post Graduation Degree. The golden rule of construction of a Statute is that when the words are plain and unambiguous effect must be given to it. Effort should be made to give effect to each and every word used by the legislature. It is triet that in interpreting a statute the Court must, if words are clear, plain, unambiguous and reasonably susceptible to only one meaning, give to the words that meaning, irrespective of the consequences. Those words must be expounded in their natural and ordinary sense. When the language is plain and unambiguous and admits of only one meaning, no question of construction of statute arises for the Act speaks for itself. In case of ambiguity the interpretative function of the Court comes into play to discover the true legislative intent. In considering whether there is ambiguity, the Court must look at the statute as a whole and consider the appropriateness of the meaning in a particular context avoiding absurdity and inconsistencies or unreasonableness. 

19- In a given case, the Court can iron out the fabric but it cannot change the texture of the fabric. The real intention of the legislation must be gathered from the language used and from the Scheme of the Statute. If there exists some ambiguity in the language or the Statute or the same is capable of two interpretations, it is trite that the interpretation which serves the object and purport of the Act, must be given effect to. In such a case the doctrine of purposive construction should be adopted. The Court while, interpreting the provision of a Statute, although, is not entitled to rewrite the Statute itself, is not debarred from 'Ironing out the crease.' 

20- The above mentioned principles of interpretation have been explained by Hon'ble Supreme Court in Nathi Devi v. Radha Devi Gupta (2005) 2 SCC 271 (Para 13 to 18), State of U.P. v. Dr. Vijay Anand Maharaj, AIR 1963 SC 946, Rananjaya Singh v. Baijnath Singh, AIR 1954 SC 749, Kanai Lal Sur v. Paramnidhi Sadhukhan, AIR 1957 SC 907, Nyadar Singh v. Union of India, AIR 1988 SC 1979, J.K. Cotton Spg. and Wvg. Mills Co. Ltd. v. State of U.P., AIR 1961 SC 1170, Ghanshyam Das v. CST, AIR 1964 SC766, Nasiruddin v. Sita Ram Agarwal, (2003)2 SCC 577, Swedish Match AB v. Securities & Exchange Board of India, (2004) 11 SCC 641, High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat, (2003)4 SCC 712, Prakash Kumar @ Prakash Bhutto v. State of Gujarat, (2005)2 SCC 409 (para 30) and Offshore Hoardings Pvt. Ltd. v. Bangalore Development Authority and others, 2011 (3) SCC 139 (para 85). 

21- "Contextual reading" is a well known proposition of interpretation of Statute. The clause of a Statute should be construed with reference to the context vis-a-vis the other provisions so as to make a consistent enactment of the whole statute relating to the subject matter The rule of 'Ex-viscribus-Actus' should be resorted to in a situation of this nature. The Court must ascertain the intention of the legislature by directing its attention not merely to the clause to be construed but to the entire Statute, it must compare the clause with other part of the law, and the setting in which the clause to be interpreted occurs. A statute must be construed as a workable instrument. "Ut-res-magis-valet-quam-pereat" is a well known principle of law and on this principle the provision of a statute must be construed as to make it effective and operative. The Courts will reject that construction which will defeat the plain intention of the legislature even though, there may be some inexactitude in the language used. Reducing the legislation to futility shall be avoided and in a case where the intention of the legislature cannot be given effect to, the Court should accept the bolder construction for the purposes of bringing about an effective result. The general rule of construction which is called Ex-viscribus-Actus' is applicable to all statutes alike and is so firmly established that it is also styled as 'Elementary Rule'. The only recognised exception to this rule is that it cannot be called in aid to alter the meaning of what is itself clear and explicit. 

22-The above noted principles of law find support from the judgment of Hon'ble Supreme Court in Balram Kumawat v. Union of India, (2003)7 SCC 628 (para 20 to 30), State of West Bengal v. Union of India, AIR 1963 SC 1241, R.S. Raghunath v. State of Karnataka, (1992)1 SCC 235, Tinsukia Electric Supply Co. Ltd. v. State of Assam, AIR 1989 (3) SCC 709, Supdt. and Rememberancer of Legal Affairs to Govt. of W.B. Abani Maity, (1979)4 SCC 85, State of Karnataka v. Saveem Kumar Shetty, (2002) 3 SCC 426, Newspaper Ltd. v. State Industrial Tribunal, U.P., AIR 1957 SC 532 and Philips India Ltd. v. Labour Court 1985(3) SCC 103. 

23- In the case of Aphali Pharmaceutical Ltd. v. State of Maharashtra, (1989)4 SCC 378, Hon'ble Supreme Court held that the schedule appended to the Statute is part of the Statute. However, in case of a conflict between the body of the Act and the schedule, the former prevails. In the case of U.P.Bhoodan Yagna Samiti, U.P. v. Brij Kishore and others, (1988 ) 4 SCC 274, the question of interpretation of Section 14 of the U.P. Bhudan Yagna Act came up for consideration before Hon'ble Supreme Court. The question was that when Section 14 uses the words "landless persons", it would mean all persons who have no land or it would mean only the landless farmers (Bhumihin Kisan). Hon'ble Supreme Court considered the object and Scheme of the Act and applying the principle of interpretation enunciated in a Shloka (verse) held that the words "Landless Persons" shall mean 'Bhumihin Kisan'. Consequently it concluded that grant of land to businessmen residing in Kanpur, under Section 14 of the U.P. Bhudan Yagna Act, was rightly quashed by the Additional Collector. While doing so, Hon'ble Supreme Court observed in paragraph 12 to 16 as under : 

"12. In this country we have a heritage of rich literature, it is interesting to note that literature of interpretation also is very well known. The principles of interpretation have been enunciated in various shlokas which have been known for hundreds of years. One such shloka (verse) which describes these principles with great precision is : 

"Upkramop Sanharo Abhyaso Uppurwatta Falam Arthwadoppatti Ch Lingam Tatparya Nirnaye." 



13. This in short means that when you have to draw the conclusion from a writing you have to read it from beginning till end. As without doig it, it is difficult to understand the purpose, if there is any repetition or emphasis its meaning must be understood. If there is any curiosity or a curious problem tackled it should be noticed and the result thereof must be understood. If there is any new innovation (uppurwatt) or something new it should be taken note of. Then one must notice the result of such innovation. Then it is necessary to find what the authority intends to convey and in what context.

14. This principle of interpretation was not enunciated only for interpretation of law but it was enunciated for interpreting any piece of literature and it meant that when you have to give meaning to anything in writing then you must understand the real meaning. You can only understand the real meaning by understanding the reference, context, the circumstances in which it was stated and the problems or the situation which were intended to be met by what was said and it is only when you take into consideration all this background, circumstances and the problems which have to be tackled that you could really understand the real meaning of the words. This exactly is the principle which deserves to be considered. 

15- When we are dealing with the phrase 'landless persons' these words are from English language and therefore I am reminded of what Lord Denning said about it. Lord Denning in 'The Discipline of Law' at page 12 observed as under : 

"Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may raise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticised. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and, blame the draftsmen. He must set to work on the constructive task of finding the intention of Parliament." 

16. And it is clear that when one has to look to the intention of the legislature, one has to look to the circumstances under which the law was enacted. The preamble of the law, the mischief which was intended to be remedied by the enactment of the statute and in this context, Lord Denning, in the same book at page 10, observed as under : 

"At one time the judges used to limit themselves to the bare reading of the statute itself-- to go simply by the words, giving them their grammatical meaning, and that was all. That view was prevalent in the 19th century and still has some supporters today. But it is wrong in principle. The meaning for which we should seek is the meaning of the statute as it appears to those who have to obey it--and to those who have to advise them what to do about it; in short, to lawyers like yourselves. Now the statute does not come to such folk as if they were eccentrics cut off from all that is happening around them. The statute comes to them as men of affairs--who have their own feeling for the meaning of the words and know the reason why the Act was passed--just as if it had been fully set out in a preamble. So it has been held very rightly that you can inquire into the mischief which gave rise to the statute-- to see what was the evil which was sought to remedy". 

It is now well settled that in order to interpret a law one must understand the background and the purpose for which the law was enacted. And in this context as indicated earlier if one has bothered to understand the common phrase used in the Bhoodan Movement as 'Bhoomihin Kissan' which has been translated into English to mean 'landless persons' there would have been no difficulty but apart from it even as contended by learned counsel that it was clearly indicated by Section 15 that the allotment could only be made in accordance with the scheme of Bhoodan Yagna. In order to understand the scheme of Bhoodan and the movement of Shri Vinoba Bhave, it would be worthwhile to quote from 'Vinoba And His Mission' by Suresh Ram printed with an introduction by Shri Jaya Prakash Narain and foreword by Dr. S.Radhakrishnan. In this work, statement of annual Sarvodaya Conference at Sevapuri has been quoted as under : 

"The fundamental principle of the Bhoodan Yagna movement is that all children of the soil have a equal right over the Mother Earth, in the same way as those born of a mother have over her. It is, therefore, essential that the entire land of the country should be equitably redistributed anew, providing roughly at least five acres of dry land or one acre of wet land to every family. The Sarvodaya Samaj, by appearing to the good sense of the people, should prepare their minds for this equitable distribution and acquire within the next two years at least 25 lakhs of acre of land from about five lakhs of our villages on the rough basis of five acres per village. This land will be distributed to those landless labourers who are verse in agriculture, want to take to it, and have no other means of subsistence." 

(Emphasis added ) 
This would clearly indicate the purpose of the scheme of Bhoodan Yagna and it is clear that Section 15 provided that all allotments in accordance with Section 14 could only be done under the scheme of the Bhoodan Yagna. 

(Emphasis supplied by me ) 

INTERPRETATION OF RULE 15(2) READ WITH APPENDIX- 'D' 
OF THE RULES 




24- Keeping in mind the above noted principles of interpretation, I proceed to examine clause (5) of Appendix-'D' of The Uttar Pradesh Subordinate Education (Trained Graduates Grade) Service Rules 1983. Rules 1983 has been enacted to regulate recruitment and conditions of Service of persons appointed to the Uttar Pradesh Subordinate Educational (Trained Graduates Grade) Service. Rule 5 provides for recruitment of various categories of posts in the service to be made two the sources namely, (i) by direct recruitment and (ii) by promotion through selection amongst substantively appointed teachers of the Uttar Pradesh Educational (Trained Under-Graduate) service. The list of posts appended to Rule 5 clearly shows that recruitment shall be made for the Assistant Master/Assistant Mistress for particular subjects. Rule-6 provides that reservation for candidates belonging to Schedule Castes, Scheduled Tribes and other categories shall be in accordance with the orders of the Government in force at the time of the recruitment. Rule-8 deals with academic qualification. It provides that a candidate for direct recruitment to the various posts in the service must possess the qualifications as specified in the table appended to it or as may be specified by the Government from time to time. The table appended to Rule 8 quoted above, shows that the posts of Assistant Master/Assistant Mistress are subject wise. Minimum qualification for each such post subject wise has been provided in the said table. For example as per aforesaid table under Rule-8, for the post of Assistant Master/Assistant Mistress (Mathematics-Science), the minimum academic qualification is the Bachelor's degree in Science with Mathematics, Physics and Chemistry as subjects from a University established by law in India or a degree recognised by the Government as equivalent thereto. Thus, posts of Assistant Master/Assistant Mistress for a subject is directly co-related with the minimum educational qualification of candidates in that subject. 

25- Rule-14 provides for determination of vacancies- by the Regional Deputy Director of Education of the concerned region. 

26- Rule-15 provides for procedure for direct recruitment. Sub-rule (1) specifically provides that the vacancy shall be advertised subject wise and such advertisement shall, inter-alia, mention the pay and allowances relating to the posts, minimum academic qualifications for appointment thereto and such other information as may be considered necessary. Sub-rule (2) provides that the Regional Deputy Director of Eduction shall scrutinize the applications and shall cause the lists of candidate to be prepared on the basis of quality points specified in Appendix-D and shall place the lists along with the applications before the Selection Committee. Sub-rule (4) provides that the Selection Committee shall, after considering the cases of candidates on the basis of lists referred to in sub-rule (2), prepare subject wise lists of selected candidates for appointment in L.T. Grade in order of merit as disclosed by the quality points compiled under sub-rule (2). Appendix-'D' under rule 15(2) of the Rules provides for quality points for selection by direct recruitment. The mechanism of quality point mark has been provided to determine merit of candidates of related subject wise vacancies. 

27- Rule-18 provides that the appointing authority shall make appointment by taking names of candidates in order in which they stand in the list proposed under Rule-15,16 and 17, as the case may be. 

28- A conjoint reading of Rule 5 (source of recruitment), Rule 8 (Academic qualification), Rule 14 (Determination of Vacancies), Rule 15 (Procedure for direct recruitment), Rule 18 (Appointments) and Appendix-'D' under Rule 15(2) leave no manner of doubt that the vacancies for the post of Assistant Master/Assistant Mistress are determined subject wise for the recruitment on subject-wise posts. The minimum qualification under Rule 8 of the Rules, has been provided for different posts of Assistant Master/Assistant Mistress subject-wise. The vacancies of Assistant Master/Assistant Mistress for each subject are determined for recruitment as per Rule 15 subject-wise for which separate minimum academic qualification has been specifically provided in the table under Rule-8. The award of quality point marks as per Appendix-'D' is the mechanism to determine merit of each candidate for each class of Assistant Master/Assistant Mistress subject wise. 

29- The dispute in these writ petitions is only with regard to Clause-5 of Appendix-'D' in so far as it provides for quality point marks for Post Graduate Degree without reference to the subject which leads to ambiguity and needs to be interpreted. This clause cannot be read in isolation. Clause (5) of Appendix-D being part of the Rules has to be read in the context of Rule 5,8 and 15 so as to achieve the very object and purpose of the rules, namely, recruitment of Assistant Master/Assistant Mistress subject wise on merit so as to select best from amongst the available candidates in order of merit against each subject wise vacancies to provide quality education to students. A candidate possessing the minimum academic qualification of graduation in a subject under Rule 8 of the Rules for the subject vacancy and Post Graduate Degree in a subject appearing in his minimum academic qualification shall be more meritorious/better having higher qualification/excellence the subject as compared to a candidate who possesses merely the minimum academic qualification for the subject vacancy. Therefore, the former shall be entitled for quality point marks under Clause-5 of Appendix-'D'. If a candidate possesses Post Graduation Degree in a subject different from the subject vacancy for which he has applied, cannot be awarded quality point marks under Clause-5 of Appendix-'D' merely on account of possessing a Post Graduation Degree, inasmuch as, such a Post-Graduate Degree in a different subject shall not add to his merit/excellence for the subject vacancy. 

30- Thus, there appears to be no substance in the submission of private respondents /selected candidates, inasmuch as if their submissions as noted in para-4 above, is accepted then it would lead an unreasonable result. The result would be that a candidate not having higher qualification or excellence/ merit in the particular subject in respect of which vacancy has been advertised, would get higher quality point marks merely on account of possessing a Post Graduation degree in an entirely different subject having no co-relation to the subject for which he is seeking appointment. Correctness of the aforesaid submission of the private respondents may be tested from another angle. For example, if there are two candidates namely, 'A' and 'B' having minimum academic qualification of graduation degree in Science with Mathematics, Physics and Chemistry, applied for the post of Assistant Master (Science/Mathematics). Candidate-'A' has master degree in second division in "Mathematics". Candidate-'B' has master degree in first division in "Hindi". Therefore, if contention of the private- respondents, is accepted then 'B' shall get 15 quality points for his post graduation degree without having higher knowledge/better quality in Mathematics, while 'A' despite having higher knowledge/ better quality in Mathematics shall get lesser quality points for his post graduation degree in Mathematics. Thus, the interpretation of Clause (5) of Appendix-'D' as advanced by the private respondents shall give absurd result. Hence, this interpretation can not be accepted. 

31- Therefore, it would be just, reasonable and consistent with the Scheme of the Rules to interpret Rule 15(2) of the Rules read with Appendix-'D' that to award quality point marks for Post Graduation, the Post Graduation Degree should be in a subject specified in the minimum academic qualification under Rule 8 for that post of Assistant Master/Assistant Mistress for which the vacancy has been created and advertised and for which candidates have applied on the basis of their possessing the minimum academic qualification i.e. the graduation degree. For example, for the post of assistant teacher (History, Geography and Economics), a candidate should possess the minimum academic qualification being graduation degree in the subject. Quality point marks for Post Graduation Degree, may be awarded to him only if he possesses the Post Graduation degree in a subject appearing in his graduation degree. Thus, quality point marks for the post graduation degree may be awarded to a candidate for a higher qualification or excellence in the subject relatable to the subject of graduation degree on the basis of which he has applied on the ground that he possesses the minimum basic educational qualification for the post. The private respondents having applied for the respective posts on the basis of having the graduation degree in the subject vacancy, cannot be placed on a higher/better footing for having post graduate degree in an entirely different subject. To do so would mean to place such a candidate higher in merit without having better knowledge or merit or excellence in the subject for which vacancy has been advertised and he has applied for recruitment. 

32- In view of the above discussions, all the writ petitions are allowed. All the concerned Joint Director of Education/competent authorities are directed to award quality point marks for post graduation degree in the light of the law clarified above and to finalise the selection accordingly, expeditiously, preferably within three months from today. 

Order Date :- 6.12.2017 
Ak/ 

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