Dhsarmendra Singh vs State Of U.P. And 3 Others
2022 Latest Caselaw 22680 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment Reserved on : 22.08.2022
 
Judgment delivered on : 23.12.2022
 
Court No. -  33
 
Case :- WRIT - A No. - 4234 of 2022
 
Petitioner :- Dhsarmendra Singh
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Neeraj Shukla
 
Counsel for Respondent :- C.S.C.,Bhupendra Kumar Yadav
 
Hon'ble Ashutosh Srivastava,J.

1. Heard Shri Neeraj Shukla, learned counsel for the petitioner, learned Standing Counsel for respondent no. 1 and Sri Bhupendra Kumar Yadav, learned counsel for the respondent nos. 2, 3 and 4.

2. By means of this writ petition, petitioner has prayed to issue a writ of mandamus commanding the respondents to pay the salary to the petitioner as per his last pay certificate as he was getting before his transfer to District Firozabad in pursuance of letter/circular dated 6.5.2021 issued by the Secretary, Basic Education Board, Prayagraj.

3. Learned counsel for the petitioner submits that petitioner was initially appointed as Assistant Teacher in Primary School, Samha, Block Bharthana, District Etawah on 3.8.2010. Thereafter he was promoted as Headmaster, Primary School, Samha, Block Bharthana, District Etawah on 26.5.2015 in the pay grade of Rs.4600/-. Learned counsel for the petitioner submits that in pursuance of transfer policy, issued by the Government the petitioner applied for his transfer and was transferred as Headmaster in Primary School, District Firozabad vide order dated 31.12.2020. Thereafter, petitioner was informed by District Basic Education Officer, Etawah that the batch of the petitioners'/teacher was not promoted in District Firozabad at that time, therefore, the petitioner would have to given an affidavit for his demotion as Assistant Teacher, then he would be relieved for district Firozabad. Learned counsel for the petitioner submits that petitioner left with no other option, under compulsion and undue pressure submitted an affidavit for demoting himself as Assistant Teacher in Primary School and consequence thereto, the petitioner was demoted as Assistant Teacher vide order dated 5.2.2021. Thereafter, the petitioner was relieved as Assistant Teacher in Primary School from district Etawah and joined his duties on 15.2.2021 at Primary School Pranpura, Block Jasrana, District Firozabad. Learned counsel for the petitioner submits that undertaking/affidavit does not apply against the statutory provision because in several judgments the Hon'ble Supreme Court has held that the estoppel does not apply against the statute.

4. Learned counsel for the petitioner submits that petitioner was being paid grade pay of Rs.4600/- at the time of his transfer as is evident from Last Pay Certificate of the month of June, 2021 and after transfer, he is now being paid grade pay of Rs.4200/- as is evident from Salary Slip for the month of February, 2022.

5. Learned counsel for the petitioners has drawn the attention of the Court to a letter-cum-order of the Secretary, U.P. Basic Education Board, Allahabad dated 6.5.2021, wherein the following directions have been issued in respect of pay protection of such teachers:-

".............. mDr ds ifjizs{; esa vkidks iqu% funsZf'kr fd;k tkrk gS fd vUrZtuinh; LfkkukUrj.k ,oa ikjLifjd vUrZtuinh; izfd;k esa LFkkukUrfjr v?;kidksa ds vafre osru izek.k i= (LPC) o lsokiqfLRdk LFkkukUrfjr tuin dks rRdky miyC/k djkrs gq, muds vfUre osru izek.k i= (LPC) o lsokiqfLrdk ds vk/kkj ij fu;ekuqlkj osru fuxZr djkuk lqfuf'pr djsaA"

6. Learned counsel for the petitioner contends that though he has moved representation dated 10.2.2022 before the District Basic Education Officer, Firozabad requesting for grant of pay protection, but no action has been taken. Reliance has also been place upon certain orders of co-ordinate Benches filed as Annexure-12 & 16 to the writ petition wherein directions have been issued to the District Basic Education Officer of the concerned districts to consider and decide the claim in accordance with law by a reasoned and speaking order.

7. Per contra, learned counsel for the respondents submits that petitioner himself furnished an undertaking for his demotion on the post of Assistant Teacher while getting transfer from Etawah to Firozabad and consequent to furnishing undertaking, on 5.2.2021 petitioner was reverted back to the post of Assistant Teacher from Headmaster. The petitioner was relieved and joined at Firozabad. Learned counsel for the respondents submit that petitioner was transferred from Etawah to Firozabad on his own request and on the basis of undertaking given for his transfer, he cannot claim any discrimination and he is being paid salary on the basis of his Last Pay Certificate.

8. I have heard learned counsel for the parties and perused the record.

9. The records reveal that the petitioner had sought his transfer from district Etawah to District Firozabad on his own asking and executed an affidavit that he is willing to be demoted and shall also accept the pay scale payable before his promotion and shall not raise any claim in that regard. The petitioner has also undertaken to be reverted to the post of Assistant Teacher and be placed at the bottom of the seniority list of Assistant Teachers in the transferred district. The Court further finds that the issue involved in the present writ petition was also raised in Writ Petition No. 22896 of 2018 (Vipin Kumar and 11 others versus State of U.P. and others) which writ petition was decided by order dated 31.10.2018 whereby the writ petition was dismissed. However, it was clarified that in terms of the transfer policy, the petitioners would be placed at the bottom of the cadre of Assistant Teachers in Primary Institutions. Their claims for further promotion would, however, be examined considering their placement in the seniority list consequent upon their transfer and if entitled would be promoted. The order of the learned Single Judge dated 31.10.2018 was carried in Special Appeal being Special Appeal No. 296 of 2019 (Vipin Kumar versus State of U.P. and others) along with others connected appeals. The appeals were dismissed by observing as under:-

"9. The Government Order dated 23.06.2016, under which the appellants in all the appeals applied for transfer, was in the nature of a concession, to enable the teachers to go to a local area or district of their choice in accordance with Rule 21 of the Rules of 1981. Apparently, since the facility was extended to all desirous teachers, the concern of the Government and the Board was that the existing positions of seniority and prospects of promotion in a local area may not be disturbed to the prejudice of any serving teacher there, governed by the Rules of 1981. At the same time, in order to effectuate the purpose of the policy, that enabled a teacher to go to the district of his choice, the rights of teacher being given the facility and the teacher in the local area cadre, to which he was being transferred, were finely balanced by providing that in the transferred local area, the teacher transferred would be placed at the bottom of the seniority list of teachers in the cadre in which he was transferred.

10. There was another condition in the transfer policy carried in the Government Order dated 23.06.2016, which does not require much analysis about the reason for its existence. The said term in the policy provides that in the case of an inter-district transfer of teachers, which is not a matter of right under Rule 21 of the Rules 1981, made on the request of a teacher, the transfer would be allowed, depending on the availability of vacancies in the district of choice. Now, the availability of vacancy in the district of choice would mean the availability of vacancy of a post in the grade to which the teacher seeking transfer belongs. Apparently, if a teacher who had been promoted to the post of a Headmaster of a Primary Pathshala or Assistant Teacher, Senior Basic School, sought transfer to another district, banking on the transfer policy, the transfer could only be allowed if a post of that grade is available in the district of choice. If no post of that grade was available, the transfer could not be permitted.

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12. 12. It appears that after transfer, they were not only demoted, but also placed at the bottom of the seniority list of Assistant Teacher, Primary Pathshala. Once firmly placed in the district of their choice, the appellants in the various appeals have thought of regaining lost ground. There was a prayer on behalf of the appellants in the leading appeal through representations to the Authorities that their pay may be restored to the level that they were drawing before their elective transfers, invoking the principles of pay protection. It was also urged that the appellants be placed at the bottom of the cadre of Headmaster of Primary Pathshalas/Assistant Teacher, Senior Basic Schools, instead of placing them at the bottom of the seniority of Assistant Teachers, Primary Pathshala. This prayer was declined and that is what has made the appellants in the leading appeal to approach this Court, asking for a restoration of their status in the higher cadre and also payment of salary along with arrears for the higher post that they had forsaken. This is the common origin of all the appeals and the cause of action involved.

13. ............

14. ...........

16. In the circumstances, once the appellants want to retain the benefit of transfer that they have secured in terms of the Government Order dated 23.06.2016 to the districts of their choice, they cannot be permitted to take the benefit and rid themselves of the disadvantage that is coupled with it. The appellants cannot have the cake and eat it too. As the rights of the appellants stand, since they want to continue in the district of their choice after securing a transfer under the transfer policy carried in the Government Order dated 23.06.2016, to which they are otherwise not entitled as of right, they cannot claim restoration of their status or pay in the cadre to which they originally belonged. To permit the appellants to do so, would verily violate the firmly established principle that a party cannot be permitted to approbate and reprobate. This principle has been applied by the learned Single Judge in the judgment impugned in the leading appeal, particularly, relying on the decision of the Supreme Court in State of Punjab and others vs. Dhanjit Singh Sandhu, (2014) 15 SCC 144; and in our opinion, rightly so.

17. In the result, these appeals fail and are dismissed.

18. There shall be no order as to costs. "

10. In view of the above, there is no merit in this writ petition. It is, accordingly, dismissed. No order as to costs.

Order Date :- 23.12.2022

Ravi Prakash