Disposed

Smt. Mani Gupta v. State of U.P. and 3 Others

Allahabad HC6 Dec 2018WRIA/25760/2018

Case brief

AI extract

What is this about?

The High Court disposed of a writ petition filed by a female teacher seeking transfer on personal/sympathy grounds. Relying on the hierarchy of laws and specific rules for female teachers, the court directed the authority to consider her representation despite any contrary government orders.

What did the court decide?

Petitioner's representation to be considered on personal grounds within six weeks, ignoring contrary Government Order provisions.

Smt. Mani Gupta Vs State of U.P. and 3… — Pension and Retirement Benefits | Allahabad HC (2018)

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Court No. - 4

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Case :- WRIT - A No. - 25760 of 2018

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Petitioner :- Smt. Mani Gupta Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Naveen Kumar Tripathi Counsel for Respondent :- C.S.C.

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Hon'ble Ajit Kumar,J.

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Heard learned counsel for the parties.

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The petitioner contends that she has submitted online application in the year 2013 for transfer on personal ground. She states she has already given a birth to baby and baby mother and baby required utmost care are in-laws in Ghaziabad, whereas she is alone in Pilibhit and her husband is also having a private job in District Ghaziabad and therefore this application may be considered on the sympathy ground and personal problem in the light of the judgment of this Court in Writ A No.30808 of 2017 (Bibha Singh Kushwaha Versus U.P. Basic Education Board and others) passed by this Court vide order dated 19.7.2017 has observed thus :

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“8. The Uttar Pradesh Basic Education (Teachers) (Posting) Rules, 2008 have been framed under Section 19(1) of the U.P. Basic Education Act, 1972. The Rule 8(d) provides as under:

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"(d) In normal circumstances the applications for interdistrict 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."

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9. From a reading of the aforesaid Rule it is evident that under the special circumstances an application of a female teacher can be entertained for her transfer at the place of residence of her husband or in-law's district. In such cases the requirement of five years of posting has been relaxed.

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10. It is a well settled law that the Government Order cannot supplant the law, it can only supplement it. Indisputably, an executive order cannot override the Rules which have been framed by the rule making authority in exercise of powers conferred upon it

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by the Act. In case of any inconsistency with the delegated legislation, executive instructions or the Government Order, the Rule cannot be ignored. The same issue fell for consideration before a Division Bench of this Court in R.B. Dixit (supra) in the following terms:

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"6. We have held in Smart Chip v. State of U.P., 2002 (49) ALR 419, that in every legal system there is a hierarchy of norms as noted by the eminent jurist Kelson in his Pure Theory of Law. In the Indian Legal System this hierarchy is as follows:

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1. The Constitution.

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2. Statutory law, which may either be made by the Parliament or by the State legislature.

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3. Delegated legislation, which may be either in the form of Rules, Regulations or Statutes made under the Act.

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4. Executive instructions or Government Orders.

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In the above hierarchy if there is conflict between a higher law and a lower law then the higher law will prevail. The executive instructions are part of the fourth layer in the hierarchy, which is at the lowest level, whereas an Act is part of the second layer and the Statutes made under the Act are delegated legislation and hence part of the third layer. The letters dated 31.8.1998 and 30.3.1999 are only executive instructions and hence they belong to the fourth layer. Hence they are neither Act nor Statutes. Hence in our opinion the age of retirement of an employee of the Indian Institute of technology is 60 years and not 62 years vide Section 13(2). We, therefore, respectfully disagree with the decision in Raja Ram Verma's case."

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11. This issue has been considered by this Court in the case of Sarita Gupta v. State of U.P. & Others, Writ-A No. 7096 of 2010 , decided on 30.7.2010. The Court had occasion to deal with the similar arguments and at that time a Government order was issued imposing certain restrictions on transfer. The Court has expressed its view in the following terms:

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"The ban is general in nature. However, the provision of transfer for the purposes of placing husband and wife in the same district is a special provision which will normally prevail upon general temporary restriction on transfer.

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Accordingly, writ petition is allowed. Impugned order is set aside. Secretary, U.P. Basic Shiksha Parishad, Allahabad is

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directed to decide the matter ignoring the ban order dated 6.6.2009. The decision shall be taken positively within three weeks from today."

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12. It is trite that in most of the services of the Central Government and the State Governments, there is provision in their transfer policy that an endeavour should be made that husband and wife may be posted at the same place. In view of the said principle, under the Rules 2008 the provision of the couple posting has been incorporated.

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13. The intention of rule making authority is very clear and it needs no elaboration. Relevant it would be to mention that in transfer policy of State Government for Government employees there is provision only for husband and wife but in Rule 8(d) of the Rules, 2008 the in-laws of the female teachers have also been included. Hence, in my view, in spite of the Government Order dated 3.5.2017 a female teacher's application for her transfer on the ground of couple posting or in-laws can be entertained notwithstanding some of the contrary provisions of the said Government order.

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14. For the above-mentioned reasons, there is no legal bar in considering the representation of the petitioner in terms of Rule 8(d) of the Rules, 2008.

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15. Accordingly, a direction is issued upon the first respondent to consider the representation of the petitioner in the light of the observations made herein-above and pass appropriate order expeditiously, preferably within six weeks from the date of communication of this order.

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16. The writ petition is, accordingly, disposed of.

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17. No order as to costs."

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In view of the above writ petition is disposed of with a direction to the competent authority namely second respondent to consider the claim of the petitioner in the light of the personal difficulties as she is a lady teacher and pass the appropriate order within a period of sis weeks' from the production of certified copy of this order, keeping in mind the observations made in the judgment of Bibha Singh Kushawaha (Supra) .

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Order Date :- 6.12.2018 Md Faisal

Smt. Mani Gupta v. State of U.P. and 3 Others

Case brief

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Smt. Mani Gupta v. State of U.P. and 3 Others

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