Paramjeet Singh vs State Of U.P. And 3 Others
2023 Latest Caselaw 10209 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 36
 
Case :- WRIT - A No. - 13548 of 2022
 
Petitioner :- Paramjeet Singh
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Navin Kumar Sharma
 
Counsel for Respondent :- C.S.C.,Archana Singh,Santosh Kumar
 

 
Hon'ble Ashutosh Srivastava,J.

1. Heard Shri Navin Kumar Sharma, learned counsel for the petitioner, Smt. Archana Singh, learned counsel appearing for the respondents No. 2 as also learned Standing Counsel appearing for the State-respondents.

2. By means of the writ petition, petitioner has prayed for issuance of a writ of mandamus commanding the respondents to exempt the petitioner from the experience clause of five years on the ground of spouse posting regarding inter district transfer.

3. Learned counsel for the petitioner submits that petitioner is working on his post in the school allotted to him. Learned counsel for the petitioner submits that the petitioner is seeking inter-district transfer to the place where his wife is working on the post of Assistant Teacher in basic school and his other family members are living. Learned counsel for the petitioner submits that petitioner is having small children who are living with his wife and the petitioner is having aged parents who require constant caring.

4. Learned counsel for the petitioner submits that petitioner has moved online application before respondent No.3-Director Basic Education, U.P., Lucknow, but nothing has been done in the matter.

5. It is further contended by learned counsel for the petitioner that the inter district transfer is governed by Rule 8 of the U.P. Basic Education (Teachers) (Posting) Rules, 2008 framed under Section 19 (1) of the U.P. Basic Education Act, 1972. The respondents for the academic Sessions 2019-20 evolved a Transfer Policy for inter district transfers by issuing Government Order dated 2.12.2019. The said Government Order dated 2.12.2019 came to be challenged in a bunch of writ petitions leading amongst them being Writ Petition No.878 of 2020 (Divya Goswami and others Vs. State of U.P. & others) decided on 03.11.2020 wherein clauses 2(2)(A), (B) of the Government Order was held to be contrary and in conflict with the statutory rules contained under the posting Rules, 2008 and Clause 16 to be contradictory to the Clause 15 of the Government Order and also defeating the very objective sought to be achieved under the posting Rules, 2008 in the light of the objective set forth under the Right to Free Education for all Act, 2009 and Clause 15 of the Government Order was observed to be read down for female candidates as they may be specially circumstanced. The writ petition was disposed of with certain directions to be kept in mind before finalizing the list of teachers seeking inter district transfer. The directions were:-

"(I) No inter district transfer shall be done in the mid of the academic session.

(II) Transfer application should be entertained strictly in the light of the provisions as contained in Rule 8(2)(a) (b) and (d) of the Posting Rules, 2008.

(III) Once a teacher has successfully exercised the option for inter district transfer, no second opportunity shall be afforded to any teacher of any category except in case of female teacher who has already availed benefit of inter district transfer on the ground of parents dependency, prior to her marriage. However, in case if the marriage has taken place then she will have only one opportunity to exercise option for inter district transfer either on the ground of parents dependency or spouse residence/ in-laws residence.

(IV) In case of grave medical emergency for any incurable or serious disease that may as of necessity, require immediate medical help and sustained medical treatment, either personally or for the spouse, a second time opportunity to apply for inter district transfer should be afforded to such a teacher even if he/she had exercised such option for inter district transfer for any other reason in the past.

(V) Application of differently abled person should have very sympathetic consideration looking to physical disability but they should also have only one time opportunity to exercise option for inter district transfer. In case of female teachers, such exception would apply, as referable to rule 8(2) (d) of Posting Rules, 2008.

(VI) In case of female teacher's right to seek transfer, relaxation given under Rule 8(2)(d) shall be read with rule 8(2) (b) and relaxation shall, therefore, be subject to rule 8(2) (b).

(VII) Save as observed and directed herein above (Direction Nos.III, IV and V), no second opportunity to exercise option for inter district transfer be made available to any candidate of any category whatsoever.

(VIII) The exercise of inter-district transfer since is exception to the general rule of appointment and posting, every application for transfer has to be addressed to by the competent authority keeping in mind the objectives set forth under the Act, 2009 and Posting Rules, 2008 as amended in the year 2010 and must be acceded to citing a special circumstance specific to the case considered."

6. The pending applications for inter district transfer before the State Government pursuant to the Government Order date 02.12.2019 were directed to abide by the directions/observations made in the judgment. The decision dated 03.11.2020 rendered in the case of Divya Goswami (Supra) was modified vide order dated 03.12.2020 and the direction No.1 in the judgment dated 03.11.2020 was directed not to be pressed into the service in cases of medical emergency.

7. It is next contended that the question whether a male Assistant Teacher appointed in a Primary School run by Basic Shiksha Parishad could be transferred from one district to another even before completing five years term is no longer res-integra and stands decided by a decision dated 30.05.2018 of a Coordinate Bench rendered in Writ (A) No.4950 of 2018 (AnuraddhaKumar Tripathi Vs. State of U.P. & 5 others) wherein the Court 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 five years 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 extra ordinary 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 extra ordinary circumstances exist or not has to be examined by the Basic Shiksha Parishad.

8. Learned counsels for the respondents submit that no policy has been framed by the Government as yet in this regard. He further submits that the respondent No. No.3-Director Basic Education, U.P., Lucknow, is the transferring authority, because it is an Inter-District Transfer.

9. I have heard learned counsels for the parties and perused the record.

10. This Court finds that it is no longer res-integra that a male Assistant Teacher appointed in a Primary School run by Basic Shiksha Parishad could be transferred from one district to another even before completing five years term and stands concluded by the decision of the Coordinate Bench in Writ (A) No.4950 of 2018 (Anuradha Kumar Tripathi Vs. State of U.P. & 5 others). The said decision has been approved in Special Appeal Defective No.70 of 2019 (Arif Ali Vs. U.P. Basic Education Board & 3 others). In such view of the matter, the claim of the writ petitioner could not have been rejected on the ground that he had not completed five years term. Moreover the Court finds that the petitioner has now completed the five year period as provided under the relevant Rules.

11. In view of the aforesaid, let the respondent No.3-Director Basic Education, U.P., Lucknow, consider the request of the petitioner for transfer as mentioned in Para 8 of the writ petition, within a period of two months from the date of filing of certified copy of this order, keeping in view of the decision rendered in case of Divya Goswami & AnuraddhaKumar Tripathi (Supra) and spouse posting of the petitioner, if any.

12. With the aforesaid observations, the writ petition stand disposed of.

Order Date :- 7.4.2023

Deepak/