Dismissed

Mahesh Kumar and 3 Others v. State of U.P. and 3 Others

Allahabad HC9 Jul 2020WRIA/5221/2020

Case brief

AI extract

What is this about?

In a writ petition, the petitioner challenged a transfer and subsequent reduction in grade pay arguing for pay protection. The court held that since the petitioner voluntarily declined promotion to join the district of choice by accepting a demoted post, they are not entitled to pay protection. The petition was dismissed.

What did the court decide?

Petition dismissed; no pay protection granted.

Mahesh Kumar and 3 Others Vs State of U.P… — Pension and Retirement Benefits | Allahabad HC (2020)

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Court No. - 38

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Case :- WRIT - A No. - 5221 of 2020

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Petitioner :- Mahesh Kumar And 3 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Neeraj Shukla Counsel for Respondent :- C.S.C.

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Hon'ble Vivek Agarwal,J.

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Heard Sri Neeraj Shukla, counsel for the petitioners and Sri Arun Kumar, learned counsel for the respondents.

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Petitioners have filed this petition claiming therein that petitioners were earlier working in Junior High School or Head Master in Primary School on different districts run by the Basic Shiksha Parishad. On 23.06.2016, State Government issued a transfer policy for transferring the teachers of the Institutions run by Basic Shiksha Parishad in pursuance of the transfer policy dated 23.06.2016. Petitioner no.1 was transferred from Badaun to Saharanpur. Petitioner no.2 was transferred from Hardoi to Saharanpur. Petitioner no.3 was transferred from Sitapur to Saharanpur and petitioner no.4 was transferred from Sitapur to Saharanpur. It is petitioners’ contention that they were informed by the District Basic Education Officer, Saharanupur that the batchmates of the petitioners functioning in the DistrictSaharanpur at that time were not promoted and, therefore, petitioners have to go to their districts from where they were transferred or they will have to work on a demoted post as an Assistant Teacher available at that time in district-Saharanpur. Petitioners in para-10 of the writ petition has mentioned that they were left with no other option but to approach his district i.e. Saharanpur for the required order as per the direction issued by the District Basic Education Officer, Saharanpur. Petitioners’ contention is that since transfer has been made in terms of the

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policy, therefore his Grade-pay could not have been reduced from Rs.4600 to Rs.4200. Petitioners are entitled to pay protection.

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In support of this contention, petitioners have placed reliance on the order dated 06.12.2018 passed in Writ-A No.25804 of 2018 and order dated 08.08.2019 passed in Writ-A No.14899 of 2019 and has sought a relief that he be paid salary with Grade-pay of Rs.4600 as they were getting before their transfer to District-Saharanpur.

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Sri Arun Kumar, learned counsel appearing for respondent nos.3 and 4 submits that case of the petitioners is different from what has been canvassed by the petitioners and petitioners are not entitled to any relief.

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It is submitted that as per the transfer policy dated 23.06.2016 as contained in Annexure-3, there is a specific provision that persons seeking transfer will be transferred in the desired district only when in the concerned district where a person is seeking transfer, persons of his batch are working on an equal post. It is submitted that admittedly in District- Saharanpur where petitioners sought transfer, their batcmates were not promoted to the Grade-pay of Rs.4600 and petitioners were given an option to either revert back to the district from where, they were transferred i.e. districts-Badaun, Hardoi and Sitapur respectively or in the alternative except the position as were obtaining in relation to his batch-mates.

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At this stage, learned counsel submits that with a view to enjoy his transfer to District-Saharanpur, petitioners had gone back to district-Badaun, Hardoi and Sitapur respectively, got himself reverted in the Grade-pay of Rs.4200 and thereafter joined at District-Saharanpur in the Grade-pay of Rs.4200.

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In view of such facts, now at this distance of time it is not open to the petitioners to claim relief and these facts have not been appreciated or were not brought to the notice of the coordinate bench when orders were passed in Writ-A No.25804 of 2018 and Writ-A No.14899 of 2019.

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At this stage, Sri Shukla submits that under similar facts and circumstances, Secretary, U.P. Basic Education Council, Allahabad has passed orders and has allowed pay protection. He has drawn attention of this court to order no. Basic Shiksha Parishad/5468/2018-19 dated 23.07.2018, relevant portion of the order is reproduced hereinunder:-

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“;kphx.kksa }kjk izLrqr izR;kosnu ,ao vki }kjk izLrqr vk[;k ds voyksduksijkUr ;g rF; izdk’k esa vk;k fd ;kphx.kksa dk vUrtZuinh; LFkkukUrj.k izns’k ds fofHkUu tuinksa ls tuin tkSuiqj ds fy, ifj"kn ds fofHkUu vkns’kksa }kjk fd;k x;kA pwafd ;kphx.kksa dh inksUufr vius dk;Zjr tuin esa gks pqdh Fkh vkSj ml cSp ds fu;qfDr f’k{kdksa dh tuin tkSuiqj esa inksUufr ugha gq;h Fkh] ,slh fLFkfr esa ;kphx.kksa }kjk vius dk;Zjr tuinksa ls viuk inkour ysdj tuin tkSuiqj esa dk;ZHkkj xzg.k fd;kA ;kphx.kksa dk dFku gS fd budk osru ,y0ih0lh0 ds vk/kkj ij u fu/kkfjr djrs gq, inkuour in dk fu/kkZj.k fd;k x;kA tcfd c<+k gqvk osru fdlh Hkh n’kk esa de ugha fd;k tk ldrk gSA

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mDr ds lEcU/k esa lwP; gS fd ;kphx.kksa dks Pay Protection dk ykHk fn;k tkuk pkfg;sA vr% ,y0ih0lh0 (vfUre osru izek.k i=) ds vk/kkj ij u;s tuin esa osru dk vkx.ku dj Pay Protection ds fu;eksa dk ikyu fd;k tkuk pkfg,A

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mDr ds lEcU/k esa vkidks funsZf’kr fd;k tkrk gS fd ;kphx.kksa dks vfUre osru izek.k i= (,y0ih0lh0) ds vk/kkj ij osru vkWx.ku dj Pay Protection ds fu;eksa dk ikyu djrs gq, osru Hkqxrku djus dh dk;Zokgh dj ek0 mPp U;k;ky; ds vkns’k dk vuqikyu lqfuf’pr djsaA"

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Thus, it is evident that petitioner himself had furnished an affidavit before the B.S.A. and vide order dated 22.07.2013, petitioners were demoted and then his pay was fixed in the Grade-pay of Rs.4200. Thus, there is no question of any pay

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protection because once petitioner sought transfer in a district of their own choice and decided to forego their promotion in the district where they were functioning on account of the fact that their batchmates were not promoted in the district of their choice where they sought their transfer, therefore, in terms of the order dated 23.06.2016 Clause-2 which reads as follows:

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“2& mYys[kuh; gS fd m0 iz0 csfld f’k{kk ¼v/;kid½ lsok fu;ekoyh 1981 ¼;Fkk la’kksf/kr½ ds fu;e&4 ds vuqlkj ifj"knh; v/;kidksa dk lsok dk laoxZ LFkkuh; fudk; dk gS izR;sd tuin esa nks LFkkuh; fudk; xzkeh.k ,oa uxj {ks= ifjHkkf"kr gSA fu;ekoyh ds fu;e&21 ds vuqlkj v/;kidksa dk LFkkUkkUrj.k ,d LFkkuh; fudk; ls nwljh LFkkuh; fudk; esa v/;kid ds Lo;a ds vuqjks/k ij fd;s tkus dk izkfo/kku gSA ,slh fLFkfr esa vUrtZuinh; LFkkUkkUrj.k v/;kid dk vf/kdkj ugh gS] fQj Hkh v/;kidksa ds Lo;a ds vuqjks/k ,oa ifjfLFkfrtU; dkj.kksa ds n`f"vxr okafNr tuinksa esa miyC/k fjfDr ds lkis{k LFkkUkkUrj.k ij fd;k tk;sxkA vr% LFkkUkkUrj.k ds i’pkr ,d LFkkuh; ffudk; ls nwljs LFkkuh; fudk; esa LFkkuh; LFkkukUrfjr gksdj tkus ij v/;kid ml LFkkuh; fudk; laoxZ dh T;s"Brk dze esa dfu"Bre ekuk tk;sxkA "

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Clause 3.2 reads as under:-

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3.2 vUrtZuinh; LFkkukUrj.k gsrq bPNqd v/;kid }kjk fu/kkZfjr izk:i ij vkuykbUk vkosnu fd;k tk;sxk ftlesa v/;kid vf/keku dze esa 05 tuinksa dk fodYi izLrqr dj ldrs gSA v/;kidksa dk LFkkukUrj.k muds }kjk vf/keku dze esa fn;s x;s fodYi ds vk/kkj ij okafNr ftysa esa miyC/k fjfDr ds lkis{k gh mudh izkFkfedrk dze rFkk ojh;rk ds n`f"Vxr fd;k tk ldsxkA

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In view of the aforesaid Clauses, it is apparent that firstly, it is not a right vested in a Assistant Teacher/Teacher to seek transfer from one local body to another local body but a facility has been given under the provisions contained in Uttar Pradesh Basic Shiksha (Adhyapak) Seva Niyamawali, 1981 for transfer of teachers from one local area to another local area, if post in the equivalent cadre are vacant. The connotation of equivalent cadre

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means that posts in the same Grade pay is available. Once, petitioners exercise this right and have failed to produce any material to show that post in the Grade-pay of Rs.4600 was vacant and available at the place where petitioners sought transfer i.e. in District-Saharanpur then petitioners are not entitled to pay protection as they had voluntarily foregone the promotion in the Grade-pay of Rs.4600 and opted for demotion in the Grade Pay of Rs.4200 and to suppress this fact petitioners have deliberately not enclosed the copy of Last Pay Certificate (L.P.C.) to substantiate that they were not demoted to be accommodated in a transferred district on lower Grade pay of demoted post.

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Law in regard to protection of pay is well settled as has been laid down in case of Comptroller and Auditor General of India Vs. Farid Sattar as reported in (2000) 4 SCC 13 wherein, it has been held that where a person on his own volition seeks transfer on certain terms and conditions accepted by him and the terms and conditions of unilateral transfer are very clear and there is no ambiguity in it. The terms and conditions provided that the respondent on transfer could be appointed to a post which is lower to the post which he was occupying prior to his transfer in such a situation, the pay of the respondent had to be fixed with reference to the lower pay scale and not with reference to the pay drawn by him in the higher posts. In para-6, it has been specifically mentioned that under the terms and conditions of the transfer the pay which the respondent was drawing on the higher post was not required to be protected when he joined the lower post of accountant.

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The facts of this case decided by Hon’ble Supreme Court are applicable in all force to the facts of the present case and

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once the petitioner himself had foregone promotion in the Gradepay to Rs.4600 and opted for his promotion in the Grade-pay of Rs.4200, he is estopped from claiming dual advantage of transfer to a district of his own choice and drawing of higher Grade-pay from which he was demoted in terms of the policy so to be accommodated in the district of his own choice.

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Thus, the orders on which petitioners have placed reliance are of no relevance for the present and the principles of pay protection will not be applicable in the case of the petitioners because once they were demoted then they were not drawing the salary in the Grade-pay of Rs.4600.

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Accordingly, petitioners have failed to make out a case for pay protection and, therefore, petition fails and is dismissed.

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Order Date :- 9.7.2020 Ashutosh

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Mahesh Kumar and 3 Others v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Mahesh Kumar and 3 Others v. State of U.P. and 3 Others

Case brief

What is this about?

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What the court decided

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