Kripa Shankar Pandey And 6 Others vs State Of U.P. And 2 Others
2021 Latest Caselaw 1176 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 40
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 45 of 2021
 

 
Appellant :- Kripa Shankar Pandey And 6 Others
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Appellant :- Agnihotri Kumar Tripathi
 
Counsel for Respondent :- Jai Krishna Tiwari,Navin Kumar Sharma
 

 
Hon'ble Munishwar Nath Bhandari,J.

Hon'ble Rohit Ranjan Agarwal,J.

Order on Civil Misc. Exemption Application No.2 of 2021

The application seeking exemption from filing certified copy of the order of the High Court is allowed.

Order on Civil Misc. Leave Application No.1 of 2021

By this appeal, a challenge is made to the judgment dated 03.11.2020 whereby the writ petition preferred by the petitioner-non appellant was decided with certain directions.

Since appellants were not made party to the writ petition thus, leave to maintain appeal has been sought. It is mainly for the reason that directions contained in the impugned judgment affects right of the appellants to seek transfer pursuant to the Government Order dated 02.12.2019 framing guidelines for transfer.

In view of the prayer made in the application seeking leave to appeal and for the reasons stated above, we allow the application.

Order on Civil Misc. Delay Condonation Application

As per office report dated 13.01.2021, there is no delay in filing appeal thus application for condonation of delay is not required.

The defect stands cured.

Order on Memo of Appeal

Learned counsel for the appellants submits that a batch of writ petitions was filed to challenge Clause-16 of Transfer Policy dated 02.12.2019 as well as Clause-14 of the guidelines regarding inter-district transfer. None has challenged any other clause of Transfer Policy dated 02.12.2019 or the guidelines regarding inter-district transfer yet learned Single Judge issued directions to nullify Government Order dated 02.12.2019 in regard to the clauses, which were not even challenged.

Narrating the facts of this case, it is stated that appellants were appointed at different places after their selection on the post of Assistant Teacher. After their posting and on completion of a period of three years, they made applications to seek transfer pursuant to Government Order dated 02.12.2019 and guidelines for inter-district transfer. It was admittedly without completion of period of five years as otherwise required under Rule 8 (2) (d) of U.P. Basic Education (Teachers) (Posting) Rules, 2008 (in short "Posting Rules, 2008"). The Government Order dated 02.12.2019 permitted an application for transfer even if one has completed three years at one place after posting. The appellants submitted applications but it has not been considered because of the impugned judgment nullifying the clause permitting an application for transfer on completion of three years after new posting. Learned Single Judge, thus, exceeded its jurisdiction rather enlarged the scope of writ petition by issuing direction in reference to other clauses to the Government Order dated 02.12.2019 and therefore, the impugned judgment be set aside.

Government Order dated 02.12.2019 allowed an application for transfer on completion of three years of service at new place of posting. The appellants made applications for their transfer. It would not be accepted in view of impugned judgment. The prayer is accordingly to set aside the judgment of learned Single Judge. It is more so when pursuant to the judgment under challenge, the Government has issued another order dated 15.12.2020 to supersede order dated 02.12.2019 whereby, clause in the earlier Government Order dated 02.12.2019 permitting an application for transfer on completion of three years has been done away. The Government Order dated 15.12.2020 has not been challenged because it has been passed in compliance of the judgment impugned herein. Thus, unless the judgment goes, the effect of the order now passed on 15.12.2020 cannot be nullified. The prayer is accordingly not only to set aside the judgment but to direct the respondents-State to consider applications of the appellants for their transfer from one place to another.

We have considered the submissions made by the counsel for the appellants and perused the record.

The main attack on the impugned judgment is in reference to the prayer of the writ petition. Thus, for ready reference, prayer of one of the writ petitions is reproduced hereunder:-

"(i) issue a writ, order or direction in the nature of mandamus directing the respondents to remove the condition reflecting at Clause-16 of Transfer Policy dated 02.12.2019 as well as Clause-14 of Guideline regarding inter-district transfer and also extend the benefit of 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 to the petitioner.

(ii) issue a writ, order or direction in the nature of mandamus directing the respondents to consider the online application for inter-district transfer of the petitioner from District Ayodhya to District Ghaziabad or District Gautam Budh Nagar, the place of her In-laws and the nearest place of her husband's working place.

(iii) issue a suitable writ, order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case.

(iv) To award the costs of the petition to the petitioner."

A statement has been made that in the batch of writ petition, challenge was only to Clause 16 of the Transfer Policy dated 02.12.2019 and Clause-14 of guidelines for inter-district transfer. Thus, learned Single Judge should not have given direction in regard to other clauses going contrary to the relief prayed by the petitioner.

The sole argument taken by the appellants shows concentration only in regard to the prayer in reference to Clause-16 of Transfer Policy dated 02.12.2019 and Clause 14 of the guidelines for inter-district transfer, ignoring that further prayer was to extend benefit of Rule 8(2)(d) of the Posting Rules, 2008. What is Rule 8(2)(d) of the Posing Rules, 2008 is produced in the impugned judgment and for ready reference it is reproduced herein also:

"8(2)(d). In normal circumstances the applications for inter-district transfers in respect of male and female teachers will not be entertained within five years of their posting. But under special circumstances, applications for inter-district transfers in respect of female teachers would be entertained to the place of residence of their husband or in law's district."

A perusal of the Rule 8(2)(d) shows that under normal circumstances one cannot seek transfer before expiry of period of five years of the posting. It is settled law that if there exist conflict between administrative order and the statutory provision, the statutory provision would prevail. Since enforcement of Rule 8(2)(d) of Posting Rules, 2008 was sought by the petitioner, learned Single Judge has passed appropriate order for its implementation. The obvious consequence was on the Government Order dated 08.02.2019 and guidelines regarding inter-district transfer, permitting an application for transfer without completion of the period of five years.

It is otherwise shocking to notice that officers of the Government has issued guidelines for transfer going contrary to the statutory provisions. The action of the Government Officer shows noting but utter disregard of the statutory provision resulting in litigation. While issuing administrative orders, the Government Officers are required to act within the parameter of statute. The way the transfer policy dated 02.12.2019 and even guidelines regarding inter-district transfer has been issued speaks volumes about ignorance of the officers about statutory provisions governing posting of the teachers. Once it comes to the notice of the Court that an administrative order, may be policy or guidelines, has been issued in violation of the statutory provision, it cannot shut its eyes rather to make things logical and as per the statute, necessary order should be passed. It is moreso when prayer no. (iii) of the writ petition seeks an appropriate direction which is deemed fit by the Court in the facts and circumstances of the case.

If we allow the prayer made by the appellant now, the result would to allow the transfer policy dated 02.12.2019 to prevail on the statute. The Court cannot ignore the statutory provisions to give room to the administrative order passed in conflict.

Taking aforesaid into consideration and the fact that subsequently the Government itself has superseded its order dated 02.12.2019 by issuing order on 15.12.2020 making its policy in consonance to the provisions contained under Posting Rules, 2008, nothing survives. It may be true that the subsequent policy dated 15.12.2020 was issued in compliance of the judgment under challenge and thus appellants have preferred the present appeal firstly to challenge the judgment and for that reason we have even granted leave but finding no merit in the appeal and as the statutory provision to prevail, we do not find any reason to cause interference in the order passed by learned Single Judge.

The appeal accordingly fails and is dismissed.

Order Date :- 20.1.2021

KA