Allahabad High Court
Tej Pratap Singh Yadav vs State Of U.P. And 3 Others on 4 August, 2021
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 33
Case :- WRIT - A No. - 3967 of 2021
Petitioner :- Tej Pratap Singh Yadav
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Shive Datta Yadav
Counsel for Respondent :- C.S.C.,Arun Kumar,Vikram Bahadur Singh
Hon'ble Ashwani Kumar Mishra,J.
(Ref:- Amendment Application No. 2 of 2021)
Amendment Application is allowed.
Let necessary amendment be incorporated during the course of the day.
Petitioner's claim for inter-district transfer was directed to be considered in light of the law laid down by this Court in Writ Petition No. 30808 of 2017 (Bigha Singh Kushwaha Vs. U.P. Basic Education Board and others).
Secretary of the Parishad by the order impugned has rejected such claim on the ground that the petitioner has not completed five years service, which is required before he can apply for transfer. This order is assailed by the petitioner relying upon the judgment of this Court in Writ Petition No. 4950 of 2018 (Anuruddha Kumar Tripathi Vs. State of U.P. and others) in which after considering statutory scheme, the Court has observed that in extra ordinary and exceptional circumstance the limitation of five years can always be waived. Observations contained in para nos. 19 & 20 of the aforesaid judgment is relevant and is extracted hereinafter:-
"19. In light of the aforesaid discussions, it is held that transfer of a male assistant teacher from one district to another, in a basic school, can ordinarily be made only after completion of 05 year initial posting in backward area in accordance with Rule 8(2)(d) of the Rules of 2008 as well as the policy framed for the purpose. However, in extraordinary or exceptional circumstances an application for transfer can be considered by the Basic Shiksha Parishad even before expiry of such term. The question whether in a given case extraordinary circumstances exists or not has to be examined by the Basic Shiksha Parishad.
20. In such circumstances, this writ petition stands disposed of permitting the petitioner to represent in the matter before the Secretary, Basic Shiksha Parishad, U.P. Allahabad, by way of a representation together with certified copy of this order, within two weeks from today. Petitioner shall be at liberty to annex all material in support of his plea that there exists exceptional circumstances justifying his transfer from Lakhimpur Kheri to Banda even before completion of his 05 year term. The Secretary of the Basic Shiksha Parishad, U.P. Allahabad shall examine as to whether the ground on which petitioner is seeking his transfer would fall within the exceptional circumstances or not? A specific order, in that regard, shall be passed within a further period of three months, thereafter. No order as to costs."
This Court in Writ Petition No. 7096 of 2010 (Sarita Gupta Vs. State of U.P. and others) has considered the provisions of Uttar Pradesh Basic Education ( Teachers) (Posting) Rules, 2008 to observe that the provisions of transfer for the purposes of husband and wife in the same district is a special provision which will prevail upon the general restrictions of transfer. Since the petitioner and his wife both are teachers in the educational institution run by the Basic Shiksha Parishad, it would be open for the authority concerned to post both husband and wife at one place.
The fact that the husband and wife are posted at different places would be a relevant circumstance and may require waiver of five year term for seeking transfer.
Petitioner is presently working at Sitapur and is seeking his transfer to Etawah where his wife is working. There is no consideration of petitioner's claim on merits. Even otherwise it is pointed out that the petitioner by now has completed 5 years. In such circumstances, it would be appropriate to direct the Secretary Basic Shiksha Parishad to reconsider petitioner's claim for inter district transfer, keeping in view the aforesaid facts and observations made above, afresh within a period of two months from the date of presentation of copy of this order. The order impugned in the writ petition dated 29.9.2020 shall remain subject to the fresh order to be passed by the Secretary concerned.
Order Date :- 4.8.2021
n.u.
