Sony Arya vs State Of U.P. Thru. Prin. Secy. ...
2021 Latest Caselaw 6012 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 27
 

 
Case :- SERVICE SINGLE No. - 10905 of 2021
 

 
Petitioner :- Sony Arya
 
Respondent :- State Of U.P. Thru. Prin. Secy. Basic Edu. Lko & Others
 
Counsel for Petitioner :- Sanjai Kumar Singh
 
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manish Mishra,Ran Vijay Singh
 

 
Hon'ble Vivek Chaudhary,J.

The case is taken up through Video Conferencing.

Heard learned counsel for the petitioner, Sri Manish Mishra, learned counsel for respondent No.4, Zila Basic Shiksha Adhikari, Lucknow, Sri Ajay Kumar, learned counsel for respondent No.5, Zila Basic Shiksha Adhikari, Shajahanpur and learned Standing Counsel for State-respondents.

The petitioner has filed the present writ petition for the following reliefs:

"(a) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 12.05.2021 passed by the opposite party no.4 & the point no.4 of the Government order dated 07.04.2021 issued by the opposite party no.1 & the point no.4 of the order dated 08.04.2021 passed by opposite party no.3 up to extent related to the petitioner, the copies of the same are contained as Annexure No.1,2 &3 to this writ petition.

(b) issue a writ, order or direction in the nature of mandamus commanding the opposite parties to allow to the petitioner to work in the district Lucknow on the post of assistant teacher basic education in the rural school and to provide the salary from the month of February, 2021 upto date with 18% interest on the arrears of the salary and not to force to the petitioner to join on the post from where she was transferred."

Learned counsel for petitioner submits that the same controversy is decided by judgment and order dated 25.05.2021 passed in Writ Petition No.11039 (S/S) of 2021 which is reproduced as under:

"1. Heard Shri Seemant Singh, learned counsel for the petitioner, Shri Pankaj Srivastava, learned Additional Chief Standing Counsel appearing for opposite party Nos. 1 and 4, Shri Ran Vijay Singh, learned counsel for opposite party No. 2 and Shri Manish Shukla, learned counsel for opposite party No. 3 through video conferencing.

2. With the consent of the counsels for all the parties this petition is being finally disposed of.

3. The petitioner has filed this petition for the following reliefs:

"(a) Issue a writ, order or direction in the nature of Certiorari calling for the records of the case and quashing the impugned relieving order dated 12.05.2021 passed by the District Basic Education Officer, Lucknow whereby the petitioner has been relieved with immediate effect for sending her back to the district Ballia where she was working as an Assistant Teacher in Primary School.

(b) Issue a writ, order or direction in the nature of Mandamus directing the respondents to appoint the petitioner as an Assistant Teacher in his respective Primary School allowing her to give her options for allotment of a Primary School.

(c) Issue a writ order or direction in the nature of Mandamus directing the District Basis Education Officer, Lucknow to make the payment of salary regularly as and when it falls due to the petitioner along with the arrears of salary from the month of February, 2021 onwards within stipulated period of time as fixed by this Hon'ble Court.

(d) Issue any other suitable writ, order or direction, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

(e) Award the cost of the writ petition to the writ Petitioner."

4. The petitioner was appointed on the post of Assistant Teacher in the year 2013 and was posted in Primary School Diulee No. 1, Block Dubhar, District Ballia. The State Government, vide Government Order dated 02.12.2019, formulated inter district transfer policy, in respect of the teachers working in basic schools, run and managed by the U.P. Basic Education Board, for the session 2019-20. The petitioner applied for her transfer and submitted an online application which was duly approved by the District Basic Education Officer, Ballia. The petitioner was transferred from District Ballia to Lucknow by the order dated 01.02.2021, and in pursuance thereof the petitioner joined in the office of District Basic Education Officer, Lucknow on 04.02.2021.

5. Later on the District Basic Education Officer, Lucknow passed the relieving order dated 12.05.2021, Annexure-13 to the writ petition, whereby relieving the petitioner from District Lucknow and sending her back to District Ballia. Feeling aggrieved from this order the petitioner has filed the present writ petition.

6. Learned counsel for the petitioner submits that as per the relieving order, the petitioner was being relieved in view of the Government Order No. 510/68-5-2021 -/5(149)/2010, dated 07.04.2021 and a clarification letter of the Secretary, Board of Basic Education and the circular dated 26.04.2021. Learned counsel for the petitioner submits that the reason assigned in the impugned order is that the petitioner in her online application for transfer, incorrectly mentioned the type of area as, 'urban' instead of 'rural', which was her place of posting in District Ballia.

7. Learned counsel for the petitioner submits that the petitioner in her online application filled type of area at Serial No. 8 thereof, as 'urban' bonafidely in view of the fact that the petitioner was being granted the house rent allowance of Rs. 2,020/- of urban area. Her application was approved by the District Basic Education Officer, Ballia.

8. Learned counsel for the petitioner further submits that the Government Order dated 07.04.2021 does not apply to the petitioner's case, in as much as the said Government Order applied to an applicant seeking transfer who has obtained weightage marks by making erroneous entry/ concealment of fact. The petitioner was not granted any weightage marks on the count of filling 'urban' area, and as such the Government Order dated 07.04. 2021 is not applicable. Consequently, the order of relieving cannot be sustained.

9. Learned counsel for the petitioner further submits that in order to resolve certain anomalies and irregularities committed in respect of inter district transfer, the State Government had issued Government Order dated 11.02.2021; and as per point No. 2 thereof, it was provided that in certain cases the applicant filled 'urban area' instead of 'rural area' and the application for transfer was also approved by the District Basic Education Officer of the concerned District; and therefore, the District Basic Education Officer, from where the applicant was transferred, was directed to submit explanation, as also a certificate certifying as to whether such applicant/ Assistant Teacher was originally placed in rural area or in urban area, within a period of two days. The Government Order dated 11.02.2021 also mentioned that the teachers who were originally posted in the rural area shall be posted in the rural area of the transferred district and the teachers posted in the urban area shall be posted in the urban area of the transferred district. He further submits that the Secretary of the U.P. Board of Basic Education, Prayagraj, also issued a letter dated 11.02.2021 to all the District Basic Education Officers of the State in terms of the Government order and to submit requisite information in the prescribed proforma and in pursuance thereof the District Basic Education Officer, Ballia must have submitted the certificate/ verification report to the Secretary of U.P. Basic Education Board, but no decision has been taken with respect to the transfer order of the petitioner or the petitioner's posting.

10. Based on the Government Order dated 11.02.2021, the submission of the learned counsel for the petitioner is that after verification and such certification from the District Basic Education Officer, Ballia the petitioner can be posted in the rural area or in the urban area as the case may be, but on that count the petitioner could not be relieved by the order under challenge by the District Basic Education Officer, Lucknow.

11. Further submission of the learned counsel for the petitioner is that the order of transfer, transferring the petitioner from District Ballia to Lucknow, in pursuance of which the petitioner had joined at Lucknow, is still intact and the same has neither been cancelled nor withdrawn by the competent authority, which is the Secretary of the U.P. Board of Basic Education, Prayagraj and in view thereof, the District Basic Education Officer, Lucknow had no authority to pass the relieving order.

12. Shri Ran Vijay Singh, learned counsel for the Secretary, U.P. Board of Basic Education, Prayagraj submits that the petitioner in her online application form gave wrong information about the nature of area as urban instead of rural; and consequently, the petitioner was transferred to District Lucknow. If the petitioner had filled the correct area as rural the petitioner might not have been transferred or might have been transferred to some other district. He further submits that the Government Order dated 07.04.2021 is fully applicable to the petitioner's case, in as much as the discrepancy mentioned under paragraph 2(4) also provides that if the applicant furnishes wrong information or conceals fact then the order of transfer may be cancelled and the applicant be held liable for necessary action. He further submits that in the application form, at the top, the applicant mentioned that in case the information furnished is found to be incorrect, the transfer order shall be liable to be cancelled. His submission is that submitting incorrect information as urban instead of rural is covered by the Government Order dated 07.04.2021, and consequently, the order of relieving passed by the District Basic Education Officer is perfectly justified.

13. Shri Ran Vijay Singh further submits that the Secretary of the U.P. Basic Education Board, Prayagraj is the competent authority for transfer of the Assistant Teachers as also to take decision with respect to its cancellation or withdrawal.

14. Shri Manish Mishra, has supported the order under challenge and has adopted the submissions as advanced by Shri Ran Vijay Singh.

15. Learned counsels for the opposite party Nos. 2 and 3, however, do not dispute that the petitioner's order of transfer has not been cancelled or withdrawn by the Competent Authority. They further submit that pursuant to the Government Order dated 11.02.2021 and letter of the Secretary, Board of Basic Education, the District Basic Education Officers of some districts have submitted requisite certificate/ information and some have not.

16. Learned counsels for the opposite party Nos. 2 and 3 submit that the petitioner may raise her grievance before the Secretary, Basic Education Board by making representation, at the first instance.

17. Be that as it may, in view of the aforesaid, it is considered appropriate that the Secretary, U.P. Board of Basic Education, Prayagraj, may first take a decision, on consideration of the Government Orders dated 11.02.2021 and 07.04.2021, as to whether the order of transfer of the petitioner deserves to be cancelled or withdrawn, for furnishing nature of area as 'urban instead of 'rural' in their online application form, or the order of transfer deserves to be maintained and only the petitioner deserves to be posted in the 'rural area' of the transferred district, in the present case, District Lucknow, in view of the Government Order dated 11.02.2021.

18. The petitioner may raise her grievance by filing a representation within a period of 15 days, upon which the Secretary, U.P. Board of Basic Education, Prayagraj, shall pass a reasoned and speaking order, within a further period of three weeks, considering all the aspects of the matter and shall take a decision on the points, inter alia, as mentioned above.

19. If the requisite certificate/ information from the concerned District Basic Education Officer has not been submitted, the Secretary of the Board may call for the same from the concerned Basic Education Officer.

20. Till such time the decision is taken by the Secretary of the U.P. Board of Basic Education, the operation of the order of relieving under challenge shall remain stayed with respect to the petitioner only.

21. In the representation the petitioner may also raise her grievance with respect to non payment of salary, upon which also decision will be taken by the Secretary of the U.P. Board of Basic Education within the same period.

22. It is clarified that this Court has not observed on the merits of the claims of any of the parties.

23. With the aforesaid observations and directions, this writ petition stands disposed of finally. "

The present writ petition is also decided in terms of the aforesaid.

Be that as it may, in view of the aforesaid, it is considered appropriate that the Secretary Board of Basic Education Secretary, U.P. Board of Basic Education, Prayagraj, may first take a decision, on consideration of the Government Orders dated 11.02.2021 and 07.04.2021, as to whether the order of transfer of the petitioner deserves to be cancelled or withdrawn, for furnishing nature of area as 'urban instead of 'rural' in their online application form, or the order of transfer deserves to be maintained and only the petitioner deserves to be posted in the 'rural area' of the transferred district, in the present case, District Lucknow, in view of the Government Order dated 11.02.2021.

The petitioner may raise her grievance by filing a representation within a period of 15 days, upon which the Secretary, U.P. Board of Basic Education, Prayagraj, shall pass a reasoned and speaking order, within a further period of three weeks, considering all the aspects of the matter and shall take a decision on the points, inter alia, as mentioned above.

If the requisite certificate/ information from the concerned District Basic Education Officer has not been submitted, the Secretary of the Board may call for the same from the concerned Basic Education Officer.

Till such time the decision is taken by the Secretary of the U.P. Board of Basic Education, the operation of the order of relieving under challenge shall remain stayed with respect to the petitioner only.

In the representation the petitioner may also raise her grievance with respect to non payment of salary, upon which also decision will be taken by the Secretary of the U.P. Board of Basic Education within the same period.

It is clarified that this Court has not observed on the merits of the claims of any of the parties.

With the aforesaid observations and directions, this writ petition stands disposed of finally.

Order Date :- 4.6.2021

Shubhankar