Allahabad High Court
Anjali Tomar vs State Of U P And 3 Others on 4 August, 2021
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 36
Case :- WRIT - A No. - 1265 of 2021
Petitioner :- Anjali Tomar
Respondent :- State Of U P And 3 Others
Counsel for Petitioner :- Navin Kumar Sharma
Counsel for Respondent :- C.S.C.,Santosh Kumar
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Navin Kumar Sharma, learned counsel for the petitioner; Shri Sanjay Kumar Singh, learned Additional Chief Standing Counsel for the State respondent nos.1 and 3 and Sri Santosh Kumar, learned counsel for the respondent nos.2 and 4.
Present writ petition is preferred seeking following reliefs:-
"(i) issue a writ, order or direction in the nature of certiorari quashing the status/rejection order of online application (Registration No.22051272) of the petitioner regarding inter-district transfer (Annexure-13 to the writ petition).
(ii) issue a writ, order or direction in the nature of mandamus directing the respondents to approve the online application dated 02.01.2020 of the petitioner bearing Registration No.22051272 regarding inter-district transfer as per Rule-8 (2) (d) of U.P. Basic Education (Teachers) (Posting) Rules, 2008 as well as Rule 21 of U.P. Basic Education (Teachers) Service Rules, 1981 and as per judgement dated 03.11.2020 and 03.12.2020 passed in Divya Goswami;'s case.
(iii) issue a writ, order or direction in the nature of mandamus directing the respondents to transfer the petitioner from Shahjahanpur to either of the districts Meerut, Saharanpur, Muzaffarnagar, Ghaziabad and Hapur as per her quality points being a single parent."
In support of his submission, learned counsel for the petitioner has invited attention of the Court to a Division Bench Judgment dated 05.7.2021 passed in Special Appeal Defective No.419 of 2021 (Ajay Kumar vs. State of UP and 6 others) wherein the Division Bench has observed that in the absence of stipulation in the rule the authorities cannot restrict the transfer only on one application for inter-district. Operative portion of the Division Bench judgment reads as under:-
"In view of the above, we find that the Government Order, imposing bar on second application for inter-district transfer, is not in consonance with the Rules; rather, de hors the statutory Rules. To that extent, we are entertaining this appeal and causing interference in the directions issued by the learned Single Judge prohibiting second application for inter-district transfer. It is, however, with the clarity that mere making of application would not mean a right to get transferred; rather, it would remain at the discretion of the State Government. It is furthermore that if the Government permits inter-district transfer, the employee would be placed at the bottom of the seniority in the district where he/she is transferred.
With the aforesaid, we cause interference in the order of the Government as well as the judgement of the learned Single Judge to clarify that as per Rule 21 of the Rules of 1981 so as Rule 8(2)(d) of the Rules of 2008, an employee would be at liberty to make application for inter-district transfer and it would not be restricted to only one application in his service tenure. It is again with the clarification that mere making of an application would not create a right to get transferred; rather, it would remain at the discretion of the Government.
If any employee has been affected by the outcome of the judgement in question, he would be at liberty to take the remedy individually challenging the order of transfer.
The appeal is allowed with the aforesaid."
In view of the clear enunciation of law by the Division Bench of this Court on the subject it would not be open for the authorities to reject petitioner's application only on the ground that this application is the second application for transfer.
The Writ petition, accordingly, succeeds and is allowed and the impugned rejection order is quashed. The Secretary, U.P. Basic Education Board, Prayagraj shall revisit the matter in light of the above observation of the Division Bench and the application will not be rejected only on the ground that the application is second application for transfer. Requisite decision would be taken within a period of six weeks from the date of presentation of a copy of this order.
Order Date :- 4.8.2021
RKP
