Kamakshi Srivastav vs State Of U.P.Thru.Addl.Chief ...
2021 Latest Caselaw 6364 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 19
 
Case :- SERVICE SINGLE No. - 6788 of 2021
 
Petitioner :- Kamakshi Srivastav
 
Respondent :- State Of U.P.Thru.Addl.Chief Secy. Basic Education & Ors.
 
Counsel for Petitioner :- Girijesh Kumar Dwivedi,Hemendra Pratap
 
Counsel for Respondent :- C.S.C.,Jaibind Singh Rathour,Ran Vijay Singh
 

 
Hon'ble Manish Mathur,J.

Heard learned counsel for petitioner, learned State Counsel appearing on behalf of opposite parties no.1,2 and 3, Mr. Ran Vijay Singh, learned counsel appearing for opposite party no.4 and Mr. Jaibind Singh Rathour, learned counsel appearing for opposite party no.5.

The writ petition is being disposed of with the consent of learned counsel for parties at the admission stage itself.

Petition has been filed seeking following relief:

"(a) Issue a writ order or direction in the nature of certiorari thereby quashing the impugned Clause 15 of Government order dated 02.12.2019 contained as Annexure No.1 to the writ petition and the same may be declared null and void in the interest of justice.

(b) Issue a writ, order or direction in the nature of certiorari thereby quashing the impugned order dated 31.12.2019 contained as Annexure No.2 to the writ petition.

(c) Issue a writ order or direction in the nature of Mandamus Commanding the opposite parties to transfer the petitioner from District Sultanpur to District Lucknow as per Rule 8(2)(d) of U.P. Basic Education (Teacher) (Posting) Rules, 2008 in the interest of justice. .............."

At the very outset, learned counsel for petitioner submits that he is not pressing the prayer no.1 and is pressing only prayer no.2 and 3 although the date of impugned order is 31.12.2020 instead of 31.12.2019 as has been indicated in the prayer clause of the petition. As such, the date of impugned order shall be read as 31.12.2020.

Learned counsel for petitioner submits that the petitioner is working as Assistant Teacher in the Primary School, Dadupur, Vikas Khand- Dubeypur, District Sultanpur. Her husband is working in the Irrigation Department on the post of Senior Assistant at Lucknow. It is submitted that the petitioner gave a representation in terms of Rule-8(2)(d) of U.P. Basic Education (Teacher) (Posting) Rules, 2008 as well as the Government Order dated 02.12.2019 seeking inter district transfer in order to be at the same place of posting as her husband. The said application has been rejected by means of the impugned order merely recording that the petitioner's case is not covered under point no.15 in the Government Order dated 02.12.2019 as well as the fact that vacancy was not available for giving choices/ outgoing limit of your current posting district.

Learned counsel for petitioner submits that the petitioner's application has been rejected in a completely cursory manner without application of mind which would be apparent from the fact that even otherwise point no.15 of the Government Order dated 02.12.2019 is inapplicable in the case of the petitioner as had already been indicated in the application form seeking inter district transfer. It has further been submitted that the impugned order does not indicate sanctioned posts and the vacancy. He has drawn attention to the list of vacancy available on the website of the Basic Education Department which indicates that at the relevant time, 423 posts were vacant in Lucknow with 377 posts being vacant on the post of Assistant Teacher, Primary School. He has also placed reliance upon the judgment of this Court passed in Writ-A No.460 of 2021 (Syeda Rukhsar Mariyam Rizvi).

Learned State counsel appearing on behalf of opposite parties upon instruction submits that the impugned order clearly indicates the reasons for rejection of petitioner's application particularly the fact that vacancy is unavailable in the district where petitioner is seeking transfer. It has been submitted that even otherwise the petitioner's case is not covered under point no.15 of the Government Order dated 02.12.2019.

Considering the material available on record and submissions advanced by learned counsel for parties and the judgment in the case of Syeda Rukhsar Mariyam Rizvi (supra) it is evident that inter district transfer of primary school Assistant Teacher is covered by the aforesaid Rules 2008 clause 8(2)(d) of the Rule which has been considered in said judgment and is as follows:

"Learned counsel for the petitioner submits that the service condition of petitioner are governed by the U.P. Basic Education (Teachers) (Posting Rule-2008). Clause 8(2)(d) of the Rule is relied upon which reads as under:-

"(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."

It is stated that the object and the provision clearly intends to protect the interest of a lady so that she is allowed be posted at a place where her husband is working. In the Rule, there is no provision which restricts such transfer in case the petitioner has availed of the transfer prior in point of time. The condition contained in the Government Order that such transfer would be considered only if it has not been availed in the past would ordinarily be followed but once the very object contained in the rule is shown to be frustrated, the Government Order would have to bend so as to secure the objective contained in the Rule itself. The decision of the respondents, therefore, not to consider petitioner's application for transfer cannot be sustained for the reasons recorded therein.

Rejection of petitioner's application therefore is set aside.

A direction is issued to the respondent No.2 to consider the petitioner's claim for transfer in terms of Rule-8(2)(d) of the Rules.

Such consideration shall be made by the authority concerned within a period of two months from the date of presentation of certified copy of this order."

The matter was further clarified by the State Government vide order dated 02.12.2019. The provisions of the Rules as well as the Government order indicate that the State Government is required to make available the details of vacancy in each district for the purposes of inter district transfer which are covered therein. List of vacancy annexed as Annexure No.9 pertaining to Assistant Teacher in Primary School indicates that 377 vacancies in the District Lucknow for the Academic Sessions 2019-2020. The impugned order makes no mention whatsoever with regard to the number of sanctioned posts or the vacancies in terms of which it has been blandly stated that the vacancies in the district are unavailable.

The second ground for rejection that point no.15 of the Government Order dated 02.12.2000 is inapplicable upon the petitioner is self-evident from a reading of the Government Order. The petitioner in her application form also has indicated that the aforesaid point is inapplicable upon her since it pertains to spouse of person employed in CRPF, CISF, SSB, Assam Rifle, ITBP, NSG, BSF. In such circumstances, it is incomprehensible how petitioner's application has been rejected on the said ground particularly when there is clear provision for inter district transfer even otherwise as per the Rules. Even in the judgment render in Syeda Rukhsar Mariyam Rizvi (supra), this Court has held that the rejection of transfer application cannot be non-speaking and has to be consistent with the requirements of the Government Order dated 02.12.2019 and the law laid down in Kumkum vs. State of U.P. & 3 others (Writ-A No.8075 of 2018).

In view of aforesaid, it is apparent that the order impugned is not only non-speaking in nature but is also against the provision of Rules of 2008 and the Government Order dated 02.12.2019.

Consequently, a writ in the nature of Certiorari is issue quashing the impugned order dated 31.12.2020 and writ in the nature of Mandamus is issue directing the opposite party no.4 i.e. Secretary, Basic Siksha Parishad, U.P. Allahabad to revisit the transfer application of petitioner and pass reasoned order with regard to same strictly in accordance with law and with the conditions indicated in Rule 8(2)(d) of the Rules of 2008 read with Government Order dated 02.12.2019.

The aforesaid consideration and consequent order shall be passed within a period of six weeks from the date a copy of this order is served upon the said opposite party.

With the aforesaid observation, the writ petition stands allowed.

Order Date :- 17.6.2021

Subodh/-