Garima Tiwari vs State Of U.P And Others
2021 Latest Caselaw 8590 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 36
 

 
Case :- WRIT - A No. - 7540 of 2021
 

 
Petitioner :- Garima Tiwari
 
Respondent :- State Of U.P And Others
 
Counsel for Petitioner :- Ruby Choudhary
 
Counsel for Respondent :- Sanjay Kumar Singh
 

 
Hon'ble Mahesh Chandra Tripathi,J.

Heard learned counsel for the petitioner and Sri Sanjay Kumar Singh, learned Additional Chief Standing Counsel for the respondent.

Petitioner is before this Court assailing the order impugned dated 10.2.2021 by means of which the respondent no. 4 is not letting the petitioner to join the transferred place. Further request is made to issue a mandamus commanding the respondent no. 4 to allow the petitioner to join the transferred place in the light of the Government Order dated 11.2.2021 and pay the entire salary of the petitioner for the month of February, March and April.

Identical issues have been raised in bunch of the matters leading Writ-A No. - 6556 of 2021 (Rina Upadhyay And 13 Others Vs. State Of U.P. And 3 Others), wherein, this Court vide order dated 5.7.2021 has dismissed all the writ petitions by a detailed judgment to the following effect.

"Petitioners are Assistant Teacher working in Primary Institutions established by the Basic Shiksha Department of the State of Uttar Pradesh. They were transferred on their request on the basis of disclosure made in the online application form regarding their cadre. It later transpired that such disclosure was incorrect and therefore, the transfer previously made on their request has been set aside. Aggrieved by such action and the consequential relieving and direction to join their earlier place of posting the petitioners are before this Court.

These petitions since involve similar questions of law and fact as such have been heard together and are being dispose of by this common judgment. Writ Petition of Rina Upadhyay and 13 others being Writ Petition No.6136 of 2021 shall be treated as the leading case since affidavits have been exchanged between the parties.

At the outset it would be relevant to refer to the provisions contained in the U.P. Basic Education (Teachers) Service Rules, 1981 (hereinafter referred to as the Rules of 1981) which governs the service conditions of the writ petitioners. Rule 2(k) and 2(r) defines 'Rural Local Area' and 'Urban Local Area'. Rule 4(1) of the Rules of 1981 specifies that there shall be separate cadre of services under the Rules of 1981 for each local area. It is, therefore, apparent that teachers governed by the Rules of 1981 consists of two separate cadres namely rural local area cadre and urban local area cadre. Rule 21 of the Rules of 1981 provides for transfer and is reproduced hereinafter:-

"21. Procedure for transfer - There shall be no transfer of any teacher from the rural local area to an urban local area or vice versa or from one urban local area to another of the same district or from local area of one district to that of another district except on the request of or with the consent of the teacher himself and in either case approval of the Board shall be necessary.''

A scheme came to be framed by the State Government vide Government Order dated 02.12.2019 for transferring the teachers governed by the Rules of 1981. Online applications for inter-district transfer of teachers in the primary institutions run by Basic Shiksha Parishad were invited. The applicants were required to specifically disclose their cadre i.e. rural local area cadre or urban local area cadre. This Government Order is contained in Annexure No.5 to the leading writ petition. The transfer itself was to be made on the basis of criteria laid down in the Government Order. Marks were to be awarded to all applicants under different heads and the transfer was to be made on the basis of respective merit of the applicant. Clause 2(11) states that inter-district transfer will not be claimed as a matter of right.

Sri Seemant Singh, learned counsel for the petitioners has placed reliance upon Clause 2(24) of the Government Order, which states that inter-district transfer from rural local area to urban local area and vise-versa would commence in second phase after conclusion of transfer in the first stage. Learned counsel with reference to the above clause submits that transfer from one cadre to another was clearly permissible, and as they have already been transferred on their request it was not open for the authorities to relieve them for joining at their original place of posting. It is also urged by Sri Neeraj Shukla, Advocate that no advantage has been secured by the petitioners on account of error in describing their cadre, inasmuch as no points were to be awarded for cadre and their respective merit for transfer remained unaltered and, therefore, the cancellation of transfer is bad in law.

Learned Standing Counsel and Ms. Archana Singh, appearing for the Basic Shiksha Parishad along with learned counsels representing the District Basic Education Officers have opposed the petition relying upon the statutory rule and the Government Order to submit that transfers since were made on the basis of false disclosures made by the petitioners, therefore, cancellation of transfer and repatriation to their original place of posting suffers from no error.

It is admitted that all the petitioners belong to rural local area cadre and have been transferred to a different cadre i.e. urban local area cadre. This change of cadre by way of transfer was impermissible by virtue of Rule 21 of the Rules of 1981. The scheme for transfer contemplated transfer in two phases. In the first phase transfer was permissible within the cadre from one district to another. Petitioners also applied for transfer in the first phase. Petitioners transfer to different cadre was thus contrary to the scheme. The transfer otherwise was obtained on the basis of a false disclosure about the correct cadre held by the petitioners. The transfer from one cadre to another was permissible in the second phase by virtue of Clause 2(24) which is yet to commence.

The appointment letters issued to the petitioners are on record. It is admitted that all the petitioners have been appointed in the rural local area cadre. The argument that petitioners disclosed their cadre as urban local area cadre since they were receiving house rent allowance of urban area is wholly misconceived. Residence of a teacher or payment of house rent allowance for urban area has no relevance for determining the cadre of a teacher. It is otherwise possible for a teacher of rural local area cadre to be residing in urban area or a teacher in urban local area cadre to be residing in rural area or receiving house rent allowance of the place where he lives. These are wholly irrelevant consideration for determining the cadre of a teacher. Similarly, the cadre of a teacher would not be altered if the area wherein the institution situates is later declared to be urban area in place of rural area.

Cadre of a teacher carries significant importance in service jurisprudence inasmuch as seniority and other conditions of service are determined on its basis. It is by a conscious decision of the competent authority in accordance with the relevant service rules that the cadre of an employee/ teacher can be changed and not otherwise.

It appears that transfers in large numbers were allowed without verifying the correct cadre of the teacher concerned and the anomaly was ascertained much later. A Government Order consequently came to be issued on 11.02.2021 proposing to rectify the anomalies caused in the matter of transfer. Clause 2 of this Government Order deals with the exigency arising in the present bunch of petitions. It is clearly provided that the District Basic Education Officer shall certify the cadre of the teachers concerned and on the basis of such verification transfers would be allowed within the cadre from one district to another. It is in accordance with this Government Order that respective cadre of teachers was certified by the District Basic Education Officer concerned and those teachers whose transfer was allowed contrary to Rule 21 of the Rules of 1981 and the Government Order dated 02.12.2019 have been relieved from their transferred place for joining at their original place of posting.

It is apparent that petitioners have been transferred from one district to another treating their transfer to be within the cadre although their transfer was made from one cadre to another. This was since in teeth of the rules and the applicable policy therefore, no exception can be taken if petitioners have been sent back to their place of original posting in their cadre. The petitioners are themselves to blame for it inasmuch as they were clearly aware of their cadre but they falsely projected a different cadre for seeking inter-district transfer. Cancellation of transfers, secured on the basis of incorrect disclosures made in the application forms would, therefore, require no interference in exercise of writ jurisdiction. Challenge laid to the impugned action in the present bunch of petitions fail and the writ petitions are dismissed.

Dismissal of these petitions, however, will not preclude the authorities from considering petitioners' claim for transfer as and when the second phase of transfer policy commences as per Rule 21 of the Rules of 1981 read with Government Order and petitioners' application for transfer will not be ignored only because they made incorrect disclosures earlier. Petitioners' claim for transfer within the cadre would also be examined as per their merits and in accordance with law. The applicable Government Order in that regard shall be adhered to.

There shall however be no order as to costs. "

In view of the above, following the same set of reasoning, the present writ petition also stands dismissed in terms of Rina Upadhyay (supra). However, dismissal of the writ petition will not preclude the authorities from considering petitioner's claim for transfer as and when the second phase of transfer policy commences as per Rule 21 of the Rules of 1981 read with Government Order and petitioner's application for transfer will not be ignored only because she made incorrect disclosures earlier. Petitioner's claim for transfer within the cadre would also be examined as per her merits and in accordance with law. The applicable Government Order in that regard shall be adhered to.

Order Date :- 26.7.2021

A.K.Srivastava