Allahabad High Court
Dharmendra Singh Rajput vs State Of U.P. And 4 Others on 23 July, 2021
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 33
Case :- WRIT - A No. - 8043 of 2021
Petitioner :- Dharmendra Singh Rajput
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Navin Kumar Sharma
Counsel for Respondent :- C.S.C.,Arun Kumar
Hon'ble Ashwani Kumar Mishra,J.
Petitioner is an Assistant Teacher and his online application for transfer from Prayagraj to Firozabad has been rejected vide order impugned contained in Annexure-31 to the writ petition. It appears that petitioner has sought transfer on the ground that his wife is also an Assistant Teacher and is posted at Firozabad. Request for transfer apparently has not been entertained on the ground that petitioner has not completed five year term as Assistant Teacher.
Order impugned is assailed on the ground that this Court in Writ Petition No.4950 of 2018 has already examined the issue and it has been held that transfer even before five years would be permissible in extraordinary circumstances.
The question as to whether such extraordinary circumstances exist or not, however, would be a question to be determined by the Parishad. Observations contained in paragraph nos.17 to 20 of the judgment in Writ Petition No.4950 of 2018 reads as under:-
"17. It would be appropriate to observe that the Assistant Teacher appointed in the basic institution is a member of District Level Cadre, which is allotted to him/her, after considering the preference of teacher concerned. Being a member of District Level Cadre, an Assistant Teacher is required to remain posted within the cadre and transfer beyond the cadre (outside the district) is ordinarily not conceived under the rules. Such transfer can be considered in normal circumstances only in accordance with the rules. Rule 8(2)(d) read with Clause 3 of the transfer policy clearly provides that such a request for transfer would ordinarily not be entertained at the instance of a male teacher before completing 05 years service.
18. The question as to whether there exists exceptional circumstances in a specific case, which may justify transfer of a teacher from one district to another, even before the five year posting has to be examined by the Basic Shiksha Parishad, at the first instance.
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."
Learned counsel for the petitioner further places reliance upon an order passed in Writ Petition No.2868 of 2018 to submit that posting of husband and wife at one station would also be an exceptional circumstance.
From perusal of the order impugned it does not appear that there is a conscious determination by the Parishad on the application filed by petitioner for inter-district transfer. The application apparently has not been entertained only on the ground that a period of five year has not lapsed.
Since this Court in Writ Petition No.4950 of 2018 has already held that transfer in exceptional circumstances would be permissible, it would be appropriate to permit the petitioner to represent his grievance before respondent no.2, alongwith copy of this order, within four weeks from today. Such claim of petitioner shall be dealt with in accordance with law within a further period of four months, thereafter. The impugned rejection of online application would not stand in the way of such consideration of petitioner's claim.
Writ petition stands disposed of.
Order Date :- 23.7.2021
Ashok Kr.
